Belize City; Tuesday, February 4, 2014—Seventeen member states of the Caribbean Regional Fisheries Mechanism (CRFM) are making their voices heard in a milestone international case on Illegal, Unreported and Unregulated (IUU) fishing—dubbed Case No. 21—which is being reviewed by the International Tribunal on Law of the Sea (ITLOS), based in Hamburg, Germany.
According to the CRFM Executive Director, Milton Haughton, “this is a very important international case which should not only contribute to the development of international and domestic law in an area that is important for effective conservation and management of fisheries, but also clarify the law in respect of the responsibility and liability of States and international organizations for IUU fishing.”
To date, more than 20 countries—Saudi Arabia, Germany, New Zealand, People's Republic of China, Australia, Japan, the UK, Chile, the EU, Sri Lanka and the US—and 8 organizations have submitted written arguments on Case No. 21. Those organizations include the CRFM, the Central American Fisheries and Aquaculture Organization (OSPESCA), the International Union for Conservation of Nature and Natural Resources, and the United Nations.
The latest order from ITLOS sets a deadline of Friday, March 14, 2014, for written submissions to be made in response to these arguments, before a final advisory ruling could be considered.
Case No. 21, lodged last March by the Sub-regional Fisheries Commission (SRFC) (Africa), investigates issues such as the obligations of the flag State in cases where IUU fishing is perpetrated within the Exclusive Economic Zone (EEZ) of third party States, and the extent of the flag State's liability. The SRFC is located in Dakar, Senegal, and comprises seven member states: Cape Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone.
In its written statement submitted last November, the CRFM said: “As a matter of general principle, it is the CRFM's view that there should be no lacunae in the obligations and liability of states for IUU fishing activities conducted by entities within their jurisdiction and control...”
Last October in Guyana, the 4th Special Meeting of the CRFM Ministerial Council, made up of fisheries ministers of participating Caribbean states, discussed the request from ITLOS for the CRFM to submit a statement on Case No. 21. The CRFM Ministerial Council said that this provides the region with an opportunity to influence international jurisprudence on the question of IUU fishing.
The CRFM Secretariat, based in Belize City, had secured the services of Harvard University graduate, Professor Pieter Bekker, chair of International Law, Dundee University, UK; former Professor of law at Georgetown University; former staff lawyer at the International Court of Justice (ICJ); and a partner in the international law firm, Steptoe & Johnson LLP – one of the largest law firms in the USA, to assist with the preparation of the brief on behalf of the CRFM. The CRFM has, furthermore, indicated that it intends to have legal representation to make an oral presentation when oral proceedings are eventually held.
In its comprehensive written submission of 112 pages plus annexes, the CRFM, an inter-governmental body for regional fisheries cooperation, said that the most important rights of the coastal state relates to the right to prevent IUU fishing of its resources, such as the right to legislate and enforce its laws, to ensure sustainable development and management of fish stocks, and to take all necessary steps to prevent, deter, eliminate—and punish—IUU fishing in the coastal state's jurisdiction.
The CRFM's views are in line with its overarching mission to promote sustainable use of living marine and other aquatic resources in the Caribbean, by development, efficient management, and conservation of such resources.
The Caribbean fisheries organization also highlighted the duty of countries to manage shared stocks in the EEZ, which requires cooperation between states whose nationals fish within and without the EEZ. As for the question of liability, the CRFM said that it is primarily a question of domestic law, and it is ultimately one to be decided by domestic courts having competent jurisdiction.
On flag State responsibility, the CRFM says that where the flag State has failed to fulfill its obligations and damage has occurred, the flag State may be liable for the actual amount of the damage, but if no damage has occurred, although the flag State was found in breach, the consequences of the wrongful act are determined under customary international law.
Furthermore, the flag State is bound to make the best possible efforts to ensure compliance by vessels flying their flag, within the context of relevant international rules and standards, and domestic laws and regulations, especially those concerning the protection and preservation of the marine environment.
The UN Food and Agriculture Organization (FAO) notes that, “IUU fishing undermines national and regional efforts to conserve and manage fish stocks and, as a consequence, inhibits progress towards achieving the goals of long-term sustainability and responsibility.”
In July 2010, the CRFM adopted the Castries (St. Lucia) Declaration on Illegal, Unreported and Unregulated Fishing, in which member States renewed their efforts to establish a comprehensive and integrated approach to preventing, deterring and eliminating IUU fishing, by emphasizing the primary responsibility of the flag State in accordance with international law; and they committed to ensuring that nationals do not support or engage in IUU fishing. CRFM member states also undertook to ensure that they exercise full control over fishing vessels flying their flag, in accordance with international law.