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Bluebook 21st ed.

Victor Alencar Mayer Feitosa Ventura, Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence, 12 BRAZ. J. INT'l L. 50 (2015).

ALWD 7th ed.

Victor Alencar Mayer Feitosa Ventura, Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence, 12 Braz. J. Int'l L. 50 (2015).

APA 7th ed.

Ventura, Victor Alencar Mayer Feitosa. (2015). Tackling illegal, unregulated and
unreported fishing: the itlos advisory opinion on flag state responsibility for iuu
fishing and the principle of due diligence. Brazilian Journal of International Law,
12(1), 50-67.

Chicago 17th ed.

Victor Alencar Mayer Feitosa Ventura, "Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence," Brazilian Journal of International Law 12, no. 1
(2015): 50-67

McGill Guide 9th ed.

Victor Alencar Mayer Feitosa Ventura, "Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence" (2015) 12:1 Braz J Int'l L 50.

AGLC 4th ed.

Victor Alencar Mayer Feitosa Ventura, 'Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence' (2015) 12(1) Brazilian Journal of International Law
50

MLA 9th ed.

Ventura, Victor Alencar Mayer Feitosa. "Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence." Brazilian Journal of International Law, vol. 12, no.
1, 2015, pp. 50-67. HeinOnline.

OSCOLA 4th ed.

Victor Alencar Mayer Feitosa Ventura, 'Tackling Illegal, Unregulated and Unreported
Fishing: The ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and
the Principle of Due Diligence' (2015) 12 Braz J Int'l L 50 Please
note: citations are provided as a general guideline. Users should consult their
preferred citation format's style manual for proper citation formatting.
Tackling illegal, unregulated and unreported
fishing: the ITLOS Advisory Opinion on Flag
State Responsibility for IUU fishing and the
principle of due diligence*

Victor Alencar Mayer Feitosa Ventura-

ABSTRACT

One of the major challenges of the International Law of the Sea (LOS)
is the overexploitation of fisheries worldwide. According to recent data, ap-
proximately 75% of the world's fisheries are either over or fully exploited,
mainly due to illegal, unregulated and unreported (IUU) fishing. In order to
tackle IUU fishing, a wide historical comprehension of the problem is provi-
ded in this paper, together with an investigation on the emergence of a new
and integrated approach to the issue of IUU fishing. For that, the Advisory
Opinion on flag state responsibility rendered by the International Tribunal
for the Law of the Sea (ITLOS) of April 2015 is herein analyzed. Based on
primary international sources, such as the United Nations Convention for
the Law of the Sea (UNCLOS), and on specific case law, this paper aims
at pinpointing the relevant role of the Tribunal in setting higher protective
parameters for fisheries within the LOS. In an effort to overcome traditio-
nal approaches, the Tribunal is encrusting the environmental principle of
"due diligence" in its decisions and, therefore, contributing to a fructiferous
interaction between the LOS and international environmental law. Finally,
the article also notes that the international society still needs to undertake
reform and implementation efforts, if illegal fishing is to be overcome.
Key-words: International Law of the Sea. Illegal fishing. Integrated appro-
ach. ITLOS. Due diligence.

1. INTRODUCTION

In an effort to raise attention towards the need for a renewed approach

to the protection of the seas, Davor Vidas and Peter Schei refer continuou-
sly to the "world ocean", a term that, according to both authors, considers
seas and oceans as forming an integrated unit.' This view is part of a greater
scholarly effort to tackle traditional and isolated approaches within the Law
of the Sea (LOS).
For centuries, states have been stuck to the opposing doctrines of the
freedom of the seas, on the one side, and the sovereignty rights over natural
resources, on the other, in a clash that has produced multiples victims: the
ocean, its fauna and flora, as well as the human population that depend on
the seas to survive. That approach is known as "zonal", as it divides the

1 VIDAS, Davor SCHEI, PeterJohan (Ed.). The world ocean ilng/oba/Zaion: climate change,
sustainable fisheries, biodiversity, shipping regional issues. Leiden: Nijhoff, 2011. p. 2.
 -u
seas into zones that belong either to the coastal state, dispensable source of protein, especially to the world's C

or to no one. A sort of myopic fashion to glance at the poorest countries. According to a detailed report by the
world ocean that often reinforces ancient conceptions FAO, approximately 158 million tons of fish landed in
and impedes a thorough protection of the marine en- ports worldwide in 2012, directly employing millions '2
vironment. of people in fishing operations. 4 Besides, approxima-
The zonal approach does not take into account the tely 90 percent of all fish stocks are captured within
200 miles of shore, the traditional limit of the Exclusive
need for an integrated marine management, based on
Economic Zone (EEZ),5 and therefore under coastal 0
ecosystem considerations, without which the protec- 0
states resources sovereignty.6 The remaining 10 percent
tion of the oceanic environment rests too difficult to C
are considered straddling stocks, or fish stock "which
be achieved. One of the major challenges of the LOS
occurs both within the EEZ and in an area beyond or *~0
and this renewed, integrated approach is the grave is-
adjacent to EEZ", meaning the high seas or a neighbo- C
sue of illegal, unreported and unregulated fishing in
ring economic zone.
the seas. IUU fishing consists of a broad concept that
encompasses numerous wrongful and illicit fishing cap- Nonetheless, global efforts to sustainably manage
ture activities. According to a definition set forward by fisheries, in order to allow for the continued flow of
the International Plan of Action to Prevent, Deter and trade, are undermined by IUU fishing. In extreme circu-
C
Eliminate IUU fishing (IPOA-IUU), of the Food and mstances, illegal fishing can lead to the semi collapse of C
Agriculture Organization of the United Nations (FAO), fish stocks - such as those of the Patagonian toothfish
those three key terms of the concept are designed to en- 0
during the 1990's _' or seriously impair efforts to re-
compass numerous wrongful and illicit fishing capture build depleted stocks, what makes it a grave problem in C

activities. Thus, "illegal" fishing is the one conducted in an ongoing industrial scale. In fact, pirate fishing jeopar- -u
Cr
violation of national laws or international obligations, dizes regular and documented fishing operators, distur- 0
whereas "unreported" fishing refers to activities which bs ecosystems, and affects fish-dependent populations H
"have not been reported, or have been misreported, to throughout the globe.9 '2
the relevant national authority (or to a regional fisheries
management organization), in contravention of natio- 4 According to the 2014 FAO Report, those "landings" consist
nal laws and regulations". Finally, fishing activities are -u
both of captured fish in the seas and fish bred and harvested within
"unregulated" when they occur in areas where no regu- fish "farms", also known as aquaculture. Despite a stable amount of C

latory systems exist, or in a manner that is inconsistent landings per capture (around 90 million tons yearly), global fish pro-
duction has grown steadily due to increased investments in aquacul-
with the conservation and management measures of a ture and in more efficient distribution channels. In 2012, aquaculture
2
coastal state or a regional fisheries organization. alone was responsible for approximately 67 million tons of landings ~ '1-
worldwide, i.e. almost 42% of the world's landings. See: UNITED
The problem is even more serious if one take into NATIONS. The state of the worldfisheries and aquaculture. FAO Fisher-
'-' C
account the fact that fisheries around the world are ies and Aquaculture Department, FAQ, Rome, 2014. p. 4. ~ (N]

5 The EEZ is one of the maritime zones established by the UN-

source not only of health, but also of wealth. 3 They
CLOS (arts. 55 to 75), which stretches up to 200 nautical miles, en- ~ 4
are absolutely relevant to the economy and well- compassing the territorial sea and the contiguous zone of the coast-
-being of coastal communities, providing food se- al state. Bordering the EEZ are the high seas and other adjacent -z
curity, job prospects, income and livelihoods as national economic zones.
6 KRASKA, James. The lost dimension: food security and
well as enabling cultural identity. Besides, fish is an in- the South China Sea disputes. Harvard Law School National Secu-
don Journal, Online article, 2015. Availlable at: <http://harvardnsj.
2 In line with the IPOA definition for IUU fishing, it ought to be org/ 2015 /02/ the-lo st-dimension- food- security- and-the- south-chi-
noted that despite the controversial nature of "unregulated" fish-
ing, the IPOA "is generally concerned with unregulated fishing that
na-sea-disputes/>. Access on: 29 Apr. 2015.
7 The definition of "straddling stock" is provided by the FAO
ii
is likely to frustrate the achievement of sustainable fisheries". See: on-line glossary, and stems from article 63(2) of UNCLOS. Avail-
UNITED NATIONS. InternationalPlan of Action to Prevent, Deter and able at: <http://www.fao.org/faoterm/en/?defaultCollld=21>.
Ebminate IUU Fishing. FAQ, Committee on Fisheries, Rome, 2001. Visited on: 21 May. 2015. o -u
Available at: <http://wwwfao.org/docrep/003/yl 2 2 4e/yl 2 2 4eO0. 8 See: Coalition of Legal Toothfish Operators Inc. Available at: U ~

htm>. Access on: 23 May 2015. <http://www.colto.org/toothfish/>. Visited on: 22 May. 2015.
3 In his foreword to the 2014 FAO Report on "The state of world 9 On the issue of overfishing in Brazilian waters, as well as on
fisheries and aquaculture", Josd Graziano da Silva highlights the rel- management strategies adopted to tackle this problem, see: BAR-
evance of fisheries to the poorest countries, to which fish is "some- ROS-PLATIAU, Ana Flivia et al. Correndo para o mar no antro-
times woth hAlf of the tnal vAlhe of their traded commodities". poceno: a complexidade da governanca dos oceanos e a estratgia
$1
 -u
According to latest statistics published by FAQ, the issues. To the purpose of this paper, a special empha- C

current global stock status reflects the following picture: sis will be given on the Tribunal's understanding of the
57 percent were estimated to be fully exploited, 30 per- "due diligence" principle and the consequent consoli-
cent were overexploited, and 13 percent non-fully ex- dation of that originally environmental principle as one '2
ploited in 2012. Fisheries are non-fully exploited when pillar of the LOS regime.
the majority of the stocks is "moderately exploited",
In the century when high-tech oceanic development
fully exploited when it is already at or very close to pro-
takes off, some questions remains unanswered: what fu-
ducing their "maximum sustainable yield", and overex- 0
ture is reserved to fisheries? Are there remedies to pre- 0
ploited when it is either depleted or exhausted. 0 One
vent the absolute depletion of fish stocks worldwide? C
could infer that the overexploitation herein depicted is
Those are most serious enquiries that need be answe-
one of the reasons why fish production per capture has *~0
red, and this paper is a drop in the ocean of contribu-
stabilized, instead of sustainably increased. C
tions to analyze and offer possible solutions to the issue
The main international legal documents at hand to of IUU fishing.
attack this problem are the third United Nations Con-
vention on the Law of the Sea (UNCLOS), the 1995
United Nations Fish Stocks Agreement (UNFSA) and
the FAO Code of Conduct for Responsible Fisheries
2. FISHERIES IN THE LOS AND THE CONFLICT C

C
(FAQ, 1995), which will be later analyzed in this article. BETWEEN PRINCIPLES: FREEDOM OF THE SEAS V.
They are all unisonous in requiring the maintenance or SOVEREIGNTY RIGHTS OVER NATURAL RESOURCES 0

restoration of fish stocks at levels that are capable of C

producing their "maximum sustainable yield" (MISY), The Law of the Sea emerges in the context of -u

i.e. the largest amount of fish catches that allows for the growing "functional differentiation" within Internatio- Cr
0
natural reproduction of stocks. nal Law. According to this phenomenon, the emergen- H
ce of new subsystems is imposed by the growing com- '2
Illegally induced overfishing is a problem with a mul-
plexity of contemporary problems, which, on its turn,
tidimensional nature, given economic, social, political,
demands global and sophisticated answers, of highly
technological and legal aspects constantly interacting
scientific and technical standards. " For this reason, the -u
in defining the current status of global fisheries. For
LOS can be considered an international special regime C
the purposes of this paper, exclusively the legal nature
of international law. Historically, it has been the narra-
will be scrutinized, with special regard to the need to
tive of a struggle between conflicting interests: those
implement an integrated approach to the management
of maritime powers, nations with primordial interest in
of global fisheries, based on state of the art literature ~ '1-
shipping and sailing the world's oceans, and those of
on the topic. With this goal, to comprehend the histo-
coastal states interested essentially in the security of re- ;-' C
ric background of the LOS concerning the protection ~ (N]

sources within their adjacent waters. 2 According to that

of living resources is paramount in assessing the most
historical account, it is possible to understand the diffe- ~ 4
effective strategies to tackle IUU fishing.
rence between "maritime" and merely "coastal" states,
Finally, this article aims at analyzing the Advisory a distinction based on the state's ability and conditions -z
Opinion on flag state responsibility for Illegal, Unregu- to sail the seas.
lated and Unreported (IUU) fishing of the International
The history of this specific realm of International
Tribunal for the Law of the Sea JTLOS) and its con-
Law is that of the division of the ocean between sta-
tribution to the implementation of a renewed, ecosys-
tem-oriented approach. Indeed, with that opinion the
tes, division into multiple jurisdictional spaces (amon-
gst which the Exclusive Economic Zones, Continental
ii
Tribunal reaffirmed its relevant role as a judicial body
that fosters progressive interpretations on legal marine 11 TEUBNER, Gunther; FISCHER-LESCANO, Andreas. Re- o -u
gime Collisions: the vain search for legal unity in the fragmentation U ~

brasileira de gestao dos recursos marinhos. In: Varella, Marcelo D. of global law. Michiganjournalof InternationalLaw,v.25, n. 4, 2004.
Rejista de Direito Internacional,vol.12, no.1 (current edition). 12 MCDORMAN, Ted L. The manne en-ironment and the Caracas
10 FOOD AND AGRICULTURE ORGANIZATION OF Convention on the Law of the Sea: a study of the third United Nations
THE UNITED NATIONS. The state of the worldfishenes and aquacul- Conference on the Law of the Sea and other related marine environ-
ture. Rome: FAO, 2012. mental activities. Halifax: Dalhouise University Press, 1981.
$2
 -u
Shelves, and the high seas). Yoshifumi Tanaka names to which "it is lawful for any nation to go to any other C

this division approach "zonal management approach", and to trade with it".1 7 Neither the Portuguese, the Spa-
one deeply rooted in the history of LOS and resulting niards, nor the Dutch owned the oceans, and to defend
from the two antagonistic principles above mentioned: this postulate, Grotius dives into the depths of Roman '2
the principle of sovereignty and the principle of free- legal literature.
dom (of navigation).13 Whilst one embodies the con-
In acclaimed works of Ulpian, the Dutch author
cept of territorial seas, the other gives place to the high
builds his central argument that the seas are by nature
seas and the freedom to navigate. "open to all", and not just to citizens of a single state. 0
0

In other words, the conflicting nature of the LOS For there is an abyssal distinction between conceptions C

could be summed up to the ancient and opposing doc- of the sea as a "common good", as opposed to the seas
*~0
trines of "open seas" (mare iberum) and "closed seas" as "public good". Given that the seas was common
C
(mare clausum). Based on such fundamental opposition, from its first origin, it is obvious that it cannot beco-
the LOS has always been "made, changed, challenged me entirely the property of anyone by nature. There-
and remade."14 Each doctrine gives birth to different fore, says Grotius, "he who prohibits anyone else from
1 8
principles of the law of the sea. On the one hand, the fishing on the sea, whoever he is, commits a wrong.1
mare /iberum thesis in supported by the principle of the
Grotius examines the nature of the ocean and rea- C
freedom of the seas, which had in Hugo Grotius its
ches the conclusion that the oceans, as something that C
main defender. 5 On the other, the mare clausum, defen-
cannot be limited physically, cannot be the property of 0
ded by authors such as William Welwod.
one person, or people. 19 Besides, provided the oceans C
Two of the founding fathers of International Law need no cultivation to bear fruit (fish), than whatever
-u
of the Sea, Hugo Grotius and Emmerich de Vattel, exists inside of it is to be considered common, and any Cr
have pioneered in dedicating reflections to oceanic mat- restrictions to sailing the seas or fishing should entail a 0
H
ters. Grotius laid the basis of the freedom of the seas legal damages action. 0 De Vattel represented likewise
principle, whereas de Vattel presented the modern con- a powerful voice against the ownership of the "open '2

cept of territorial seas, defined as jurisdictional waters, seas". In his words, "no nation has a right to take pos-
which form the territory of a state. 6 Given it is not the session of the open seas or claim the sole use of it, to
-u
purpose of this article to scrutinize the entire history the exclusion of the others". This distinction between C
of the LOS, a few words on the Grotian legal reasoning free, open seas and territorial waters marked the legal
shall suffice to comprehend the ongoing dispute invol- beginning of dualism between two distinct zones of the
ving living resources in the seas. ocean.
~ '1-
In the 17' century, following the Iberian restriction Centuries onwards, maritime powers such as Portu-
on shipping through the world's oceans, Grotius publi- gal, Spain, The Netherlands, France, England, Canada, '-' C
~ (N]

shed his main thesis of the "community of the sea" Russia, the United States, among others, sailed the seas
and the freedom of fishing. Resorting repeatedly to with absolute freedom, trading with peoples from all ~ 4
analogies as well as to natural law, Grotius affirmed the parts of the world. Davor Vidas even relates the ideolo-
basic customary rule of the Law of Nations, according gical foundation of the LOS to the mare /iberum theory, -z
and postulates that the freedom of the seas "facilitated
13 TANAKA, Yoshifumi. A DualApproach to Ocean Governance: the emergence of the forces that led to the Industrial
the cases of zonal and integrated management in International Law
of the Sea. Paris: the Ashgate International Law Series, 2008. p. 2.
14 PIRTLE, Charles E. Military uses of ocean space and the law
of the sea in the new millennium. Ocean Development and International 17 GROTIUS, Hugo. The Free Sea, trans. Indianapolis: Liberty
ii
Law, v. 31, n. 7, p. 11-32, 2000. Fund, 2004. p. 95.
15 GROTIUS, Hugo. The Free Sea, trans. Richard Hakluyt, with 18 GROTIUS, Hugo. The Free Sea, trans. Indianapolis: Liberty
William Welwod's Critique and Grotius's Reply, ed. David Armit- Fund, 2004. p. 95. o -u
age. Indianapolis: Liberty Fund, 2004. p. 95. Available at: <http:// 19 GROTIUS, Hugo. The Free Sea, trans. Indianapolis: Liberty
oll.libertyfund.org/tites/859#Grotius 0450 251>. Access on: 24 Fund, 2004. p. 110.
Mar. 2015. 20 After the publication of his main theses, and the reply to Wel-
16 VATTEL, Emmerich de. The Law of Nadions: or Principles of wod, it could be said that Grotius "won" the debate, because in 1609
the Law of Nature Applied to the Conduct and Affairs of Nations King Phillip III of Spain and Portugal came to a temporary peace
and Sovereigns. Philadelphia: Law Book Sellers, 1863. with the Dutch. The freedom of the seas was formally obtained.
$3
 24 nd
"23
1

Revolution". 1 Indeed, the freedom of the seas is a con- known for its "territorial ambitions"", Argentina14 and
cept with a fascinating evolution, outcome of customa- Chile 5 announced far-reaching declarations and pro-
-u
ry law and milestone for the free flow of commerce and claimed sovereignty over the continental shelf of wha-
communication between nations. tever depth and additionally of a maritime areas exten-
ding 200 nautical miles from the shore.2 6 The unilateral
On the other side of the equation, coastal states that
delimitation of continental shelves by Latin American
for centuries have watched the harvest of their natu-
states became the rule, as Mexico, Nicaragua, Guate-
ral resources by merchant fleets of developed countries
mala, Honduras, El Salvador and Ecuador imitated the
were gradually claiming exclusivity to marine resources 7
offshore. Consequently, after World War I traditional action.2
maritime states witnessed a stark decline in their powers The rapid and unsystematic expansion of jurisdic-
within the international arena. Equally noteworthy was tional waters threatened the principle of the freedom
the increasing jurisdictional claims of developing states of the seas and was, therefore, the raison d'tre of the
to secure ocean resources, mainly fisheries, which res- 1958 Geneva Conference on the Continental Shelf The
s 7C
ponded for a burgeoning part of their economic activi- UN-hosted Conference adopted four conventions,2 in_
ty. In this juncture, the imminence of conflicts led coas- cluding the Convention on the Continental Shelf, and
tal and maritime states to meet in The Hague in 1930 was responsible for bringing about new contributions
with the arduous task to codify the existing customary to the LOS regime, as it fostered a "progressive deve- '2
LOS. The Conference was organized by the League of lopment" of international law. For the first time, the
Nations, but failed to produce a final document, given basic features of the freedom of the seas principle was
the already visible divergences between states. conversed into a treaty, and the so-called "zonal ma-
nagement approach" was finally codified.2 9 However,
A few years later, the continued failure to delimit
the extent of territorial waters and fisheries jurisdiction there was still work to be done, given that the specific
stirred a move by the President of the US, which fur-
ther promoted the division of the oceans. The Truman 0
23 See VARGAS, Jorge A. Latin America and its contributions
Proclamations of 1945, one on fisheries and another to the Law of the Sea. In: LAURSEN, Finn (Ed.). Towards a New
on the continental shelf, secured "property rights" over InternationalManeOrder. Leiden: Nijhoff, 1982. p. 58.
resources on the seabed and water column of the Uni- 24 See Argentinian Declaration of 1946. Available at: <http://
legal.un.org/ilc/documentation/english/ a cn4 30.pdf>. Visited
ted States' continental shelf, and came as a model to be on: 26 Apr. 2015. 0

followed. Back then, several Latin American states took 25 See Chilean Declaration of 1947. Available at: <http://legal. C4

the same course of action and declared jurisdiction over un.org/ilc/documentation/english/ a cn4 30.pdf>. Visited on: 26
Apr. 2015.
their contiguous seas, triggering what McDorman na- 26 KIRCHNER, Andree. The Outer Continental Shelf: back-
mes "the great expansion of coastal state jurisdiction." 2 ground and current developments. In: NDIAYE, Tafsir and
WOLFRUM, Rudiger. Law of the Sea, Environmental Law and Settle-
Coastal states then advanced the national interest ment of Difpute§. Liber Amicorum Judge Thomas A. Mens ah. Leiden:
by controlling ocean resources, mainly fisheries, and Nijhoff, 2007. p. 594.
prompted a series of "enclosures" of the adjacent wa- 27 Detailed information on the content of those unilateral decla-
rations is available at ODA, Shigeru. Fifo years of the Law of the Sea
ters to their coasts. This new phenomenon produced with a special section on the International Court of Justice. The
the unexpected problem of excessive claims by Latin Hague: Kluwer Law International, 2003. p. 19.
American states due to the lack of harmonious interna- 28 The four Conventions adopted were: the Convention on the
Territorial Sea and the Contiguous Zone; the Convention on the
tional practice on this matter. Countries such as Brazil,
High Seas; the Convention on Fishing and Conservation of the Liv-
ing Resources of the High Seas, and the Convention on the Conti-
nental Shelf, all of them having entered into forced between 1962
and 1966. In addition, an Optional Protocol of Signature Concern-
ing the Compulsory Settlement of Disputes was adopted, which
entered into force on 30 September 1962. Available at: <http://
legal.un.org/diplomaticconferences/lawofthesea- 1958/lawofthe-
21 VIDAS, Davor; SCHEI, Peter Johan (Ed.). The world ocean in sea-1958.html>. Visited on: 27 Apr. 2015.
globa#zation: climate change, sustainable fisheries, biodiversity, ship- 29 See TANAKA, Yoshifumi. A Dual Approach to Ocean Govern-
ping regional issues. Leiden: Nijhoff, 2011. p. 6. ance: the cases of zonal and integrated management in International
22 See MCDORIAN, Ted. L. The marine environment [...], 1981, p. Law of the Sea. Paris: The Ashgate International Law Series, 2008.
2. Nao tern na lista de refer&ncias. p. 3.
 -u
Convention on the Continental Shelf failed to specify interest in an extension of seaward limits of the conti- C

the width of that zone,30 as well as the extent of state nental shelf, whereas the majority of naturally unfavored
control over fisheries. states has had an interest in restricting encroachments
on the international area of the deep ocean floor".3 4 In '2
Less than a decade after the diplomatic Conference
this juncture, opposition between principles was stron-
of 1958, disputes regarding sovereignty over natural re-
ger than ever, and inspired the beginning of diplomatic
sources on the offshore of coastal states, as well as on
conversations towards a new binding instrument.
the high seas were still common. At that moment, the
0
US had "landed" on the deepest underwater hole in the The third United National Convention on the Law 0

world, the Challengers Deep, in the Mariana Trench,31 of the Sea was signed in 1982, in Montego Bay (Jamai- C

located on the Pacific Ocean, and started worries about ca), and is the result of more than a decade of arduous
*~0
the possible exploitation of the seabed in ultra deep negotiations, in one of the most impressive exercises
C
waters. As McDorman rightly points out, "the deve- of international negotiation in Public International
lopment of international ocean law owes as much to Law. The cornerstone of UNCLOS III is believed to
technological advancement as to scientific discovery,"" be Arvid Pardo's speech to the United Nations General
and as such, the continental shelf regime itself, for Assembly in 1967, when Malta's ambassador to the UN
instance, would not exist but for the introduction of presented a potent speech urging states to declare the
C
ocean drilling and deep-water technologies. Such rapid seabed beyond national jurisdiction as common herita- C
technological developments inspired the idea of a fresh ge of humankind (CHH).35 In the view of McDorman,
and more ambitious Convention on the Law of the Sea, "Arvid Pardo sought to halt this creeping jurisdictiona- 0

capable of holistically addressing up-to-date issues of lism by claiming that the seabed beyond national juris- C

ocean governance worldwide. diction was the common heritage of mankind, to be -u

36
managed for the benefit of all." Cr
0
At this moment, a new political phenomenon pro-
H
duced further legal consequences on the balancing be- As mentioned earlier, a greater change in the nego-
tween the principle of the freedom of the seas and the tiations were the politically independent African and '2

principle of sovereignty over natural marine resources. Asian states, which held a point of view differing signi-
Indeed, as the decolonization wave shook the world, ficantly from those of their colonial predecessors. It was
-u
developing coastal states expanded their territorial seas clear that the developing countries of the Third World, C
and fisheries zones, therefore tightening legislative con- sympathetic to the political orientation of the so-called
trols over their continental shelves, and consolidating a "Group of 77",3 played an important role in UNCLOS
trend of jurisdictionalism over the oceans.3 Based on III negotiations. In this context, the UNCLOS III can
geographical arguments, Douglas Johnston provides a ~ '1-

reasonable resume of the conflicting interests in the 34 See JOHNSTON, Douglas M. The theotj and historj of ocean
'-' C
international arena. According to the author, "the na- boundatj making. Montreal: McGill-Queens University Press, 1988. ~ (N]

p. 85.
turally favored minority of states has had the strongest
35 Common space areas are regarded as regions owned by no ~ 4
one, though hypothetically managed by everyone. On the gender-
30 In the words of McDorman, "the 1958 Conference did agree related issue, it should be noted that, although some reports prefer
-z
on a definition of the continental shelf, but that definition was for- the gender-neutral equivalent "common heritage of humankind",
mulated in such an elastic manner that it provided no useful way to the expression is widely quoted as "of mankind", and so will it be
determine the outer limit of the shelf". See MCDORMAN, Ted L. used on this dissertation.
The marine environment [...],
1981, p. 3. 36 One of the main purposes of the CHH principle is to pro-
31 In 1960, the Swiss scientist Jacques Piccard designed a sub - tect areas beyond national jurisdiction or, when necessary, to allow
mersible vehicle with financial support of the U.S. Navy, and dove
into the depths of the Challenger Deep, the deepest hole known in
exploitation in a way that enhanced the common benefit of hu-
mankind. For a detailed narrative on this principle, see GALINDO, ii
the world's oceans, in 1960 . In George Rodrigo Bandeira. Quem &Zhumanidadepretende enganar? in-
that occasion, the submersible Ttieste descended 11.000 meters until ternacionalistas os usos da no ao de patrim6nio comum da hu-
the very bottom of the sea. The descent was expected to mark deep manidade aplicada aos fundos marinhos (1967-1994). 2006. PhD o -u
ocean explorations. (Dissertation). Brasilia: University of Brasilia, 2006.
32 See MCDORMAN, Ted L. et al.InternationalOcean Law. materi- 37 The political Group of 77 advocated a more radical form of
als and commentaries. Durham: Carolina Academic Press, 2005. p. CHH principle, based on the ideology underpinning the so-called
378. "New International Economic Order", designed to rebalance eco-
33 See MCDORMAN, Ted L. The maine environment [...], 1981, p. nomic relations between industrialized countries of the North and
4. Nao tem na lista de refer&ncias. poorly developed states of the South.
$5
 -u
be associated to the intriguing phenomenon of the rise vanced many topics that have helped consolidate the C

of coastal states, having simultaneously fulfilled old de- regime of the LOS. That notwithstanding, there is still
mands of sovereignty over marine resources, especially much to be done on implementing these instruments.
fisheries, and restricted disproportional territorial ambi- Challenges ahead of the ocean governance amount to: '2
38
tions towards the seas. marine (oil) pollution, invasive alien species, habitat
Despite challenging and long negotiations, 39 the destruction, and, for the purpose of this contribution,
poorly managed fisheries. Indeed, more than 20 years
UNCLOS III has succeeded in designing a global ar-
after the entry into force of the Convention, coastal 0
chitecture for ocean governance worldwide. It entered 0
into force in 1994, after the sixtieth state had signed states call for new protocols and agreements to address C
unfinished agendas, such the legal framework applica-
it, and has been ratified by 167 states, as to the first
half of 2015. Even more importantly, "most of the sig- ble to the high seas.43 As Vladimir Golitsyn, judge at *~0

the ITLOS, would put it, the international society needs C

nificant concepts of the treaty have been absorbed by
to promote a shift from an approach that emphasizes
states into their national laws and practices over the last "entitlement to", to one that highlights "responsibili-
two decades." 4 In fact, the Convention is often regar-
ty for" the oceans, so as to grant application both in
ded as yielding quasi-universal principles, some of them
areas within and outside national jurisdiction, without
grounded on customary international law of the sea,
disregarding the jurisdictional dimension. 44 In the light C
that is, in centuries of state practice. 41 In 320 articles, C
it managed to cover a broad range of oceanic issues, of this "exploitation-oriented" approach, which is still
perceptible in UNCLOS III, a question that, therefo- 0
clarifying legal concepts (such as those of territorial sea,
re, remains is to whether and how international lawyers
continental shelf, high seas, among others), determining C

and institutions applying the UNCLOS III could tackle

seaward limits, 4 and anticipating future challenges, es- -u
one of the main challenges of current state of affairs in Cr
pecially the ever closer commercial exploitation of ma- 0
ocean law: the practice of IUU fishing.
rine resources lying on the deep seabed. H

The UNCLOS III, alongside other instruments, ad- '2

38 Regarding the tension between the freedom of the seas and 3. IUU FISHING: DEFINITION AND GLOBAL
-u
sovereignty claims of Third World countries towards the ocean, EFFORTS TO FRAME THE PROBLEM
it seem relevant to mention the Freedom of Navigation Program C

(FON) of the U.S. Navy In force since 1979, a few years before the
UNCLOS III was open to signatures, this program has the main goal As pointed out at the introductory part, IUU fishing
of highlighting "navigation provisions of the LOS Convention to consists of a global scale problem that affects not only
further the recognition of the vital national need to protect mari-
time rights throughout the world". Available at: <http: //www state.
the sustainability of fishing stocks, but also the lives ~ '1-

gov/e/oes/ocns/opa/maritimesecurity/>. Visited on: 28 Apr. 2015. of hundreds of millions in fishing communities throu-
'-' C
39 The UNCLOS III is the treaty with the longest negotiation re- ghout the world that have on fishing their main subsis- ~ (N]

cord in the history of the United Nations. See FREESTONE, David.

tence source. 45 When fishing is conducted in violation
Problems of high seas governance. In: VIDAS, Davor; SCHEI, Peter ~ 4
Johan. The world ocean inglobalzation: climate change, sustainable fisher- of internationally agreed regulations and catch quotas,
ies, biodiversity, shipping, regional issues. Leiden: Nijhoff, 2011. p. 100. consequences also reach fishers that abide by the law, -z
40 See MCDORMAN, Ted L. et a. The entry into force of the stimulating, therefore, non-compliance to international
Law of the Sea Convention and South-East Asia: an introductory
comment. In: MATICS, K I.; MCDORMAN, T. (Ed.). Selectedpapers duties, in a destructive downward spiral.
in commemoration of the entg into force of the U.N. Convenion on the Law
of the Sea. Bangkok: SEAPOL, 1995. p. 5.
41 The absence of countries such the United States, Turkey, Ven-
ezuela, Israel, among others, poses a challenge to the international
43 See FREESTONE, David. Problems of high seas governance.
In: VIDAS, Davor; SCHEI, Peter Johan. The world ocean in gobaiza- ii
society, but does not impede the application of the LOS. Indeed, tion: climate change, sustainable fisheries, biodiversity, shipping, re-
despite not signing the treaty, those countries are bound by cus- gional issues. Leiden: Nijhoff, 2011. p. 100.
tomary ocean norms, mainly those concerning rights and duties of 44 See GOLITSYN, Vladimir. Major challenges of globalization o -u
states in maritime zones such as the EEZ, CS and others. Those for seas and oceans: legal aspects. In: VIDAS, Davor; SCHEI, Peter
provisions are thus opposable even against non-states parties to the Johan. The world ocean inglobazaion:climate change, sustainable fisher-
Convention. ies, biodiversity, shipping, regional issues. Leide: Nijhoff, 2011. p. 61.
42 On this topic, see JOHNSTON, Douglas M. The theorj and 45 See CULLIS-SUZUKI, Sarika; DANIEL, Pauly. Failing the
historj of ocean boundarj making. Montreal. McGill-Queens University high seas: a global evaluation of regional fisheries management or-
Press. 1988. ganizations. Marine Pokn.,2010. p. 1.
56
 -u
IUU fishing is not an exclusively legal problem, and gue. 49 On this quest, enforcement of international regu- C

although it is not the aim of this paper to address other lations is to be done exclusively by the flag state of the
roots of that illegal activity, it is relevant to briefly call offending vessel.50
attention to some of the factors that contribute to the '2
In order to match issue of IUU fishing, be it on na-
steadiness of global landings of illegally caught stocks.
tional or international levels, international lawyers and
Rachel Baird identifies the following reasons: "the im-
decision-makers rely on the current legal framework
pact of the industrialization of the fishing industry;
that not only allows for, but also demands states to coo-
increases in both human consumption and the size of 0
perate with each other in facing IUU threat. Besides the 0
the global fishing fleet; the introduction of govern-
UNCLOS III, as a framework convention, states have C
ment subsidies which have contributed to the creation
signed the Straddling Fish Stocks Agreement in New
of an artificial environment of profitability; increased *~0
York, 1995, with the main goal of enhancing the coo-
competition amongst fishers and the entry of large sca- C
perative management of fisheries resources that occur
le commercial fishing entities into the marine fishing
in wide areas. It provides states with solid ground for
industry IUU fishing is also very common, and even
the creation of Regional Fisheries Management Organi-
more difficult to tackle, on the high seas." 46 These as-
zations (RFMO), which are "the only legally mandated
pects evidence the multifaceted nature of overfishing
fisheries management bodies on the high seas". 51 This
problems, which in their turn demand integrated and C
means that domestic commercial fishing fleets are obli- C
holistic responses.
ged to abide those organizations' rules in order to fish
This is not to mention the greater challenge of ta- in those areas. On this particular, it should be added 0

cling IUU fishing on the high seas.4 Marine living that observers are skeptical as to the success of those C

resources beyond national jurisdiction received scant organizations in fulfilling announced goals.52 -u
Cr
attention during the negotiation of the UNCLOS III, 0
for it focused upon the authority of coastal states res- 49 Interesting enough is to note that maritime states with well- H
pecting marine living resources within national zones.48 equipped coastal guards have attempted in the past to act unilaterally '2
On the high seas, states are free to harvest (art. 116 in combating IUU fishing on the high seas. It is the case of the uni-
lateral action of the Canadian Coast Guard, who seized the Spanish
of the Convention), although there are uncertain du- fishing trawler Estai, caught fishing immediately off Canada's EEZ
ties respecting cooperation and marine conservation. -u
200 nm limits. Despite good intentions and alleged ecological neces-
A normative attempt to limit flag states arbitrariness is sity, "neither customary nor conventional law of the sea permits C

one state to forcibly seize the fishing vessel of another state on the
enshrined in art. 117 on UNCLOS III, within section
high seas for engaging in illicit fishing on the high seas, according to
2, devoted to the conservation and management of the McDorman. The episode was known as the "Turbot war", and was
living resources on the high seas. According to article pacifically solved when the European Union and Canada entered ~ '1-

117, states must cooperate with each other in order to into an agreement in April 1995. See MCDORMAN, Ted L. et at
InternationalOcean Law materials and commentaries. Durham: Caro-
adopt measures (with respect to their nationals) for the lina Academic Press, 2005. p. 265. '-'
~
C
(N]

conservation of living resources of the high seas. What 50 Despite the introduction of a global Unique Vessel Identifier
specific measures shall be adopted is, nevertheless, va- (UVI) on fishing vessels, irrespective of the flag of the ship, the re- ~ 4
sponsibility to enforce international obligations lies ultimately with
the flag state. The UVI is a record given to ships that ensure reliable
-z
46 See BAIRD, Rachel J. Aspects of alegal, unreported and unregulated traceability and that marks the vessel for its entire life, regardless of
fishing in the Southern Ocean. Dordrecht: Springer, 2006. p. 8. changes in flag. It is part of a greater international effort to create
47 On the topic of the effectiveness of ocean governance in areas a global record of fishing vessels, an important step in fighting il-
beyond national jurisdiction, David Freestone sees very slow pro- licit activities at the seas. For further information, see: UNITED
gress. For that reason, the author is of the opinion that a new instru- NATIONS. Report of the Expert Consultaion on the Development of a
ment based on agreed modern principles of LOS could be a way to
tackle current problems. Such new instrument would "pull together
Comprehensive Global Record of Fishing Vessels. FAQ, Rome, 2008.
51 FOOD AND AGRICULTURE ORGANIZATION OF ii
all the various themes and sectoral responsibilities discussed above THE UNITED NATIONS. Straddling Fish Stock Agreement. New
and provide some overarching system of governance of the high York: FAO, 1995.
seas". See FREESTONE, David. Problems of high seas govern- 52 Cullis-Suzuki and Pauly draft harsh critiques on the inability of o -u
ance. In: VIDAS, Davor; SCHEI, Peter Johan. The world ocean in RFMOs to achieve their main conservation goals in the high seas,
globazation: climate change, sustainable fisheries, biodiversity, ship- due to individual and organizational problems, to the continued ar-
ping, regional issues. Leiden: Nijhoff, 2011. p. 130. ticulation of the principle of freedom of fishing, as well as to lack
48 See MCDORMAN, Ted L. et al.InternationalOcean Law. materi- of genuine commitment. See: CULLIS-SUZUKI, Sarika; DANIEL,
als and commentaries. Durham: Carolina Academic Press, 2005. p. Pauly. Failing the high seas: a global evaluation of regional fisheries
264-5. management organizations. Marine Pokn., 2010. p. 7.
$7
 Following this borderless effort to combat illicit fishing, Moreover, other key soft law instruments are the
the Organization for Economic Co-operation and Deve- Code of Conduct for Responsible Fisheries (1995)
-u
lopment (OECD) equipped its own fisheries division, res- and the Rome Declaration on Illegal, Unreported and
ponsible for elaborating not only reports on the status of Unregulated Fishing (2005), the latter adopted by the
IUU fishing, but also possible courses of actions for all FAQ Ministerial Meeting on Fisheries. In short, the
actors involved. According to the methodology adopted Code of Conduct has the main goal to provide "prin-
by the reports, each of the terms contained in IUU fishing ciples and standards applicable to the conservation,
is defined as follows:53 "illegal fishing" is that activity "con- management and development of fisheries", covering
ducted by vessels of countries that are parties to a Regional the capture, processing and trade of fish and fishery
Fisheries Management Organization (RFMO) but operate products, and the integration of fisheries into coastal
in violation of its rules, or operate in a country's waters area management, according to article 1.57 The 2005
without permission". "Unreported fishing" refers to that Rome Declaration calls for effective implementation
"catch not reported or misreported to national relevant efforts of already existing rules. Both the Code of
authorities or RFMO". Finally, "unregulated fishing' is Conduct and the Voluntary Guidelines confirm the 7C

considered that "conducted by vessels without nationality leading role of FAO's action plans in tackling IUU
or flying the flag of States not parties of relevant fisheries fishing. Nonetheless, stronger coordination between
organizations and who therefore consider themselves not international organizations (including the Internatio- '2
bound by their rules."54 Needless to highlight that these nal Maritime Organization - IMO) and states, espe-
categories might cumulate in specific cases. cially focused on increasing the accuracy of marine
scientific data on fisheries, could represent a major
Another important actor in the struggle against IUU
step in fighting illegal fishing.
fishing is the FAQ, as already pointed out in the introduc-
tory remarks. The Organization counts on a specific depart- Finally, the UNGA Resolution 61/105, approved in
ment and a Committee on Fisheries (COFI), based on the 2006, calls upon states to take action immediately, in-
premise that a shortage of fishes would negatively affect dividually and through regional fisheries organizations 0
food security in the planet. For that reason, the Commit- and arrangements to manage fish stocks sustainably and
tee has adopted in 2014 the Voluntary Guidelines for Flag protect vulnerable marine ecosystems from destructive
State Performance,55 which establishes criteria to clarify the fishing practices. Indeed, according to paragraph 5, sta-
obligations assumed by states. Noteworthy enough, those tes ought to apply widely "the precautionary approach 0
obligations could be regarded as of "due diligence" towards and an ecosystem approach to the conservation, mana- 8

port-state duties and the registration of vessels. In fact, pa- gement and exploitation of fish stocks." This resolution
ragraph 2 of the Guidelines establish that flag states should: incorporates the need for a closer interplay between
(c) prevent, deter and eliminate IUU fishing or LOS and environmental considerations, especially the
fishing related activities in support of such fishing; integrated approach, if the sustainable exploitation of
(d) effectively exercise its jurisdiction and control fisheries is to succeed. Such interaction is ongoing, es-
over vessels flying its flag (e) take measures to
ensure that persons subject to its jurisdiction, pecially regarding the high seas framework, which ac-
including owners and operators of vessels flying its cording to Freestone, "was transformed by the new
flag, do not support or engage in IUU fishing or concerns for ecosystem maintenance and conservation
fishing related activities in support of such fishing.56
of biological diversity."58
53 The definition of IUU fishing adopted by the OECD resem-
bles the one put forward by the IPOA-IUU adopted by the FAO and
analyzed at the introductory chapter of this paper.
54 See SCHIMDT, Carl-Christian. Addressing Illegal, Unreportedand
Unregulated(IUU)Fishing. International Fisheries Compliance Con- mance. FAQ, Rome: FAQ, 2014. p. 6.
ference, Brussels, 2004. Available at: <http://www.oecd.org/green- 57 FOOD AND AGRICULTURE ORGANIZATION OF
growth/ fisheries/ 34029751.pdf>. Access on: 29 Apr. 2015. THE UNITED NATION. Code of Conduct for Responsible Fishees.
55 FOOD AND AGRICULTURE ORGANIZATION OF Rome, 1995. Available at: <http://wwwfao.org/docrep/005/
THE UNITED NATION. Voluntar Guidelinesfor Flag State Perfor- v9878e/v9878e00.htm>. Visited on: 29 Apr. 2015.
mance, Rome: FAO, 2014. Available at: <http://www.fao.org/fish- 58 See FREESTONE, David. Problems of high seas governance.
ery/topic/16159/en>. Visited on: 29 Apr. 2015. In: VIDAS, Davor; SCHEI, Peter Johan. The world ocean in globaiza-
56 FOOD AND AGRICULTURE ORGANIZATION OF [ion: climate change, sustainable fisheries, biodiversity, shipping, re-
THE UNITED NATION. Voluntary Guidelinev for Flap State Peror- gional issues. Leiden: Nijhoff, 2011. p. 118.
4. FROM THE ZONAL TO A MORE INTEGRATED ten emphasized,61 regardless of how demanding such
a shift might be. Thirdly, the two traditional principles
APPROACH TO THE MANAGEMENT OF FISHERIES -u
of sovereignty over marine resources and freedom to
roam the seas pose challenges to the implementation
Grotius' assumptions underpinning the mare /iberum
of sound sustainable practices in managing fisheries
theory are now fundamentally outdated. Unlike the
and, consequently, need a revision. When it comes to
panorama that the Dutch author had at hand, ocean
resources are currently known to be finite, with over- the protection of marine living resources, the "freedom
of the seas" loses its validity. Instead of the laissez-faire
fishing already threatening entire species; states nowa-
freedom system, states ought to focus on the "duty to
days have all technological means to establish maritime
have due regard to the rights of other States and the
boundaries with amazing precision; and regardless of
need of conservation for the benefit of all." 6 Similarly,
how immense oceans are, maritime conflicts are most
instead of the absolute principle of sovereignty, a legal
likely to arise, due also to an international security agen-
framework capable of resolving problems of marine
da set forward after 9/11 and the "war on terror". Con-
pollution and conservation of living resources within 7C
firming this rationale, Shaw considers that "the predo-
maritime zones of states should be stimulated.
minance of the concept of the freedom of the high
seas has been modified by the realization of resources For those reasons, the quest for a more "integrated
present in the sea and the seabed beyond the territorial management approach" would not only add coherence '2
sea." 59 and completeness to the LOS, but also contribute to ta-
The traditional approach, based on the opposition ckling IUU fishing. Such an approach is already present
in international instruments, for instance, the Agenda 21,
between sovereignty rights and the freedom of the
adopted after the Rio Conference of 1992, and the UN
seas, has proven insufficient to tackle current chal-
General Assembly Resolution 60/30, agreed in 2009.
lenges, mainly those related to the sustainable exploi-
While the former advanced the integrated approach to
tation of the world's fisheries. In line with Yoshifumi
the planning and management of land resources (prin-
Tanaka, three main problems undermine effectiveness 0

in fighting issues such as IUU fishing. Firstly, the se- ciple 10.1),63 the latter included socio-economic aspects
to the reporting and assessment of the status of marine
paration between law and nature, when marine spaces
environments (par. 89), in an attempt to grasp a broader
are divided spatially. If one considers that the distance 64
picture of the ongoing marine conservation efforts.
criterion ignores ecological interactions between marine 0
The problem lies on the fact that those international C1
species and ecological conditions, it becomes clear the
instruments use this approach in a rather loose manner,
need to develop a broader approach to the governance
given the conceptual blurriness of "integrated". There
of large marine ecosystems. In the words of Tanaka,
"as the ocean is a dynamic natural system, it is logical is not a definition, but a purpose, which is to outrea-
ch the traditional approach, and face challenges more
that international law of the sea must take the dynamics 65
effectively, amongst which IUU fishing.
of nature into account", what has not been optimally
happening in the past decades, as will be explained later
60
on. 61 Se TANAKA, Yoshifumi. A DualApproachto Ocean Governance:
the cases of zonal and integrated management in International Law
The second main difficulty refers to the ongoing of the Sea. Paris: The Ashgate International Law Series, 2008. p. 7.
sectorial approach to different fields of LOS, such as 62 ICJ, Fisheries Jurisdiction Case, United Kingdom v.Ireland,
1974.
shipping, fishing and environmental protection, thus
63 FOOD AND AGRICULTURE ORGANIZATION OF
ignoring interrelationships between marine issues. In THE UNITED NATIONS. Agenda 21, World Conference on En-
legal literature, the need to "focus on the interplay be- vironment and Development. Rio de Janeiro, 1992.
tween marine issues from holistic viewpoints" is of- 64 The UN Resolution 60/30 was suggested by the Inter-
governmental Oceanographic Commission of the UNESCO.
Available at: <http://ioc-unesco.org/index.php?option =com
59 See SHAW, Malcolm. Internatona/Law.6. ed. Cambridge: CUP, oe&task=viewDocumentRecord&doc ID=4289>. Visited on: 29
2008. p. 554. Apr. 2015.
60 See TANAKA, Yoshifumi. A DualApproach to Ocean Govern- 65 As for the concept of "international community" and its mul-
ance: the cases of zonal and integrated management in International tifaceted nature, see SIMMA, Bruno; PAULUS, Andreas. The inter-
Law of the Sea. Paris: The Ashgate International Law Series, 2008. national community: facing the challenges of globalization. EJIL, v.
p. 6. 9. n. 2. 1998.
 -u
It is now clear that the challenges to a sustainable ma- rendered an advisory opinion, instead of just a special C

rine governance are manifold and call for an urgent mi- chamber, and in April 2015, the ITLOS published the
gration from sectorial responses to integrated policies,66 definitive Advisory Opinion.69
which would imply some steps to achieve a sound marine '2
The SRFC focused, in four questions, on assessing
environmental status. Policies that take into account the
both the responsibility and liability of flag states upon
multidimensional status of environmental protection and,
IUU fishing activities conducted within the EEZ of
accordingly, consider economic, technological and politi-
third party states.7' The original questions were:
cal factors. As Tanaka rightly puts it, "since conservation 0
1. What are the obligations of the flag State in cases 0
measures inevitably affect national development, there is
where illegal, unreported and unregulated (IUU) C
a need to reconcile these measures with the economic, te- fishing activities are conducted within the Exclusive
chnological and political circumstances of every state."6 Economic Zone of third party States? *~0

On an international judicial level, the advisory opinion on 2. To what extent shall the flag State be held liable C

flag state responsibility for IUU fishing recently rendered for IUU fishing activities conducted by vessels
sailing under its flag?
by the ITLOS might represent a step towards a renewed,
ecosystem-oriented approach to oceanic problems. 3. Where a fishing license is issued to a vessel within
the framework of an international agreement with
the flag State or with an international agency, shall
C
the State or international agency be held liable for
C
the violation of the fisheries legislation of the
5. THE ADVISORY OPINION OF THE ITLOS: coastal State by the vessel in question?
0
AVANT GUARDISME IN THE LAW OF THE SEA 4. What are the rights and obligations of the coastal
C
State in ensuring the sustainable management of
-u
The UNCLOS III is based, regarding fisheries' is- shared stocks and stocks of common interest,
especially the small pelagic species and tuna? Cr
sues, on the principle of exclusive jurisdiction of the 0
The organization responsible for the request to the H
flag state, although the current panorama shows that
the principle alone is inadequate for ensuring complian- ITLOS is an intergovernmental organization created in '2
ce with and enforcement of rules. Bearing these con- 1985 by a Convention that united Cabo Verde, Gambia,
siderations in mind, and looking forward to improved Guinea, Guinea-Bissau, Mauritania, Senegal, and Sier-
-u
manners to hold flag states responsible, the Sub-Regio- ra Leone in the struggle against the depletion of living
C
nal Fisheries Commission (SRFC) submitted a request resources off their coasts. Already on the preamble,
for advisory opinion to the International Tribunal for the Sub-Regional Commission stresses the relevance
the Law of the Sea (ITLOS) in March 2013.68 Interes- of coastal states to cooperate among each other and
ting enough, it was the first time that the full Tribunal harmonize domestic policies on fisheries, so as to rea- ~ '1-

'-' C
69 See ITLOS. Advisory Opinion on the Request submitted to ~ (N]

66 In the case of the European Union, a major step was taken the Tribunal by the Sub-Regional Fisheries Commission. Case 21,
with the adoption of the European Directive on Marine Strategy Hamburg, 2015. For complementary views on the advisory opin- ~ 4
Framework (2008), according to which 11 qualitative descriptors ion, see: OLIVEIRA, Carina Costa de, and MALJEAN-DUBOIS,
outline what the document defines as "good environmental sta- Sandrine. Os limites dos termos bem piblico mundial, patrim6nio
-z
tus". The main and ambitious goal of the Directive is to provide comum da humanidade e bens comuns para delimitar as obriga 6es
diverse and dynamic oceans and seas, which are clean, healthy and de preservacao de recursos marinhos. In: Varella, Marcelo D. Re-
productive (overall aim of promoting sustainable use of the seas vista de Direito Internacional,vol.12, no.1 (current edition). See also:
and conserving marine ecosystems). See CHURCHILL, Robin. The OLIVEIRA, Carina Costa de. Comenirno a Opinio Consultiva 21
European Union and the challenges of marine governance: from do Tribunal Internacional para o Direito do Mar [02/04/2015] In:
sectoral response to integrated policy? In: VIDAS, Davor; SCHEI,
Peter Johan. The world ocean in gobazation: climate change, sustain-
Varella, Marcelo D. Revista de Direito Internaional,vol.12, no.1 (cur-
rent edition).
ii
able fisheries, biodiversity, shipping, regional issues. Leide: Nijhoff, 70 Flag States such as Panama and Togo are often cited as "safe
2011. havens" for irregular vessels that engage in IUU fishing activities.
67 See TANAKA, Yoshifinni. A DualApproach to Ocean Govern- The practice of granting "flags of convenience" to troubled ships o -u
ance: the cases of zonal and integrated management in International is also widespread, despite the detrimental effects they bear to the
Law of the Sea. Paris: the Ashgate International Law Series, 2008. management of fisheries worldwide. The Environmental Justice
p. 241. Foundation provides detailed information on "flags of conveni-
68 Such a procedure is established in article 138 of the Rules of ence" and states engaged in this practice. See ENVIRONMENTAL
the Tribunal, which grants ITLOS jurisdiction over contentious and JUSTICE FOUNDATION. Piratesandprofiteers: how pirate fishing
advisory cases. fleets are robbing people and oceans. London, 2005.
60
 -u
ch a balance between conservation and exploitation of On the preliminary questions, the judges decided C

those resources. As it could not have been different, the unanimously that the Tribunal has conventional ju-
economic and political element of national develop- risdiction to entertain requests for advisory opinions.
ment was present, as well as the care for the nutritional According to the decision, the UNCLOS III does not '2
needs of local populations." encapsulate the contentious function of the Tribunal,
The Sub-Regional Commission illustrates long-ran- whose Statute (Annex VI) allows for it. The ITLOS has
jurisdiction to decide on "all matters", which encom-
ged sight and good intentions in the struggle against
passes more than just disputes. If it were not so, the 0
IUU fishing within maritime zones of its member sta- 0
legal wording should expressly display "disputes". That
tes. Amongst the objectives of the SRFC, emphasis is C
is the result of a combined interpretation of articles 21
added to the coordination of policies in terms of the
and 138 of the Statute of the ITLOS. 76 Besides, the *~0
adoption of international best practices, the develop-
Tribunal considered that the questions asked were le- C
ment of sub-regional cooperation with regard to tra-
gal in nature, for they were made in terms of law and
cing, controls and surveillance, and the improvement
demanded complex juridical interpretation in order to
of members' research capacities in fisheries sciences on
render an opinion. Moreover, consistent with paragraph
the sub-regional level. Besides local efforts to repress
77 of the opinion, "the Tribunal is mindful of the fact
illegal fishing, it should be praised that the Commission,
that by answering the questions it will assist the SRFC C
which is legally entitled to stand before courtrooms, has C
in the performance of its activities and contribute to the
also engaged in juridical battles in order to achieve the
implementation of the Convention." For this reason, 0
main goal of sustainable fishing activities.
amongst others, the ITLOS deemed it appropriate to C
Following the request for the advisory opinion, the render the advisory opinion. -u
Tribunal received two rounds of written statements by Cr
As for the material content of the opinion, in gene- 0
a plethora of international actors, including Member
ral lines, the Tribunal considered that the flag state has a H
States to the UNCLOS III, States Parties to the 1995
duty "to ensure" that vessels flying its flag abide by the '2
Straddling Fish Stocks Agreement,"2 Intergovernmental
law of coastal states where fishing activities are taking
Organizations," as well as Non-Governmental Organi-
place. The "responsibility to ensure" is enshrined in the
zations. 74 At this moment, several states raised prelimi-
provisions of article 58 (3) (rights and duties of other -u
nary questions alleging the lack of jurisdiction of the
C
Tribunal to render advisory opinions. Countries such as states in the EEZ), article 62 (4) (utilization of the living
resources), and article 192 (general obligation to protect
the United States, China, Australia, Spain, the United
and preserve the marine environment) of the UNCLOS
Kingdom, Ireland, among others, have supported this
75 III. The combined interpretation of those instruments
claim. ~ '1-

leads to the conclusion that flag states have to take the

71 In the original document, written in French, contracting necessary measures to ensure that vessels flying its flag '-'
~
C
(N]

states highlight "la ndcessitd, pour les pays riverains, de coopdrer et are not engaged in IUU fishing activities.
d'oeuvrer en vue de l'harmonisation de leurs politiques en matiere ~ 4
de prdservation, de conservation et d'exploitation des ressources ha- The "responsibility to ensure" does not lead, howe-
lieutiques de la sous-rdgion, ainsi que le besoin de coopdrer au ddvel- ver, to automatic liability of flag states for wrongdoing -z
oppement de leurs industries nationales de p&he." See Convention
of ships flying their flags. When tackling this question,
of Sub Regional Fisheries Commission, Praia, Cabo Verde, 1985.
Available at: <http://wwwspcsrp.org/medias/csrp/documents/ the Tribunal explicitly referred to the obligations of
CSRP-1993-ConvPraya.PDF>. Visited on: 25 Apr. 2015. "due diligence" from article 125 to 140, and made a
72 The United States presented a statement as member of this
treaty, given that they have not ratified the UNCLOS III so far.
73 Important intergovernmental organizations to pronounce on globe. See: LARSEN, Christina. Chinav iLlegalfishing expeditions threaten ii
this case were: the Forum Fisheries Agency, the International Union words waters. Bloomberg Business. November 19, 2013. Available
for Conservation of Nature and Natural Resources, the Caribbean at: <http://www.bloomberg.com/bw/articles/2013-11-19/china-
Regional Fisheries Mechanism, the United Nations, the Food and s-illegal-fishing-expeditions-threaten-world-waters>. Access on: 26 o -u
Agriculture Organization of the United Nations, and the Central Apr. 2015. U ~

American Fisheries and Aquaculture Organization. 76 Article 21 of the Statute reads, "The jurisdiction of the Tri-
74 The World Wildlife Fund (WWF) acted as amicus curiae by sub- bunal comprises all disputes and all applications submitted to it in
mitting a brief accordance with this Convention and all matters specifically pro-
75 Noteworthy is the fact that the Republic of China is known vided for in any other agreement, which confers jurisdiction on the
for massively engaging in IUU fishing in several regions of the Tribunal."
61
clear distinction between obligations of "due diligence" although still vague, was scrutinized between paragra-
and obligations of result." A remarkable development phs 110 and 120 of that opinion.
-u
is, however, the reinforcement of the principle of due
In paragraph 110, ITLOS considered that the obli-
diligence and of "obligations of conduct" in the LOS.
gation of due diligence is not an obligation of result,
According to the reasoning of the ITLOS, the obliga-
but an obligation of means. In fact, "[t]he sponsoring
tion of due diligence
State's obligation "to ensure" is not an obligation to
[...] is not an obligation of the flag State to achieve
achieve, in each and every case, the result that the spon-
compliance by fishing vessels flying its flag in each
case with the requirement not to engage in IUU
sored contractor complies with the aforementioned
fishing in the exclusive economic zones of the obligations. Rather, it is an obligation to deploy ade-
SRFC Member States. The flag State is under the quate means, to exercise best possible efforts, to do the
"due diligence obligation" to take all necessary
measures to ensure compliance and to prevent IUU
utmost, to obtain this result. To employ terminology
fishing by fishing vessels flying its flag." dear to international law, this obligation may be cha-
racterized as an obligation "of conduct" and not "of
The opinion based on the obligations of "due dill-
result", as well as an obligation of "due diligence". The
gence" reinforces previous international case law. The
relevance of this previous case law should not be unde-
Pulp Mills on the River Uruguay case, before the Inter-
restimated, given that in the Advisory Opinion on flag
national Court of Justice (ICj), is a case in point. Com-
states responsibility for IUU fishing, the Tribunal refers
prising a dispute between Argentina and Uruguay, the
several times to those two decisions in order to base its
contention related to the construction and operation of
legal reasoning.81
pollutant pulp mills on the banks of the River Uruguay,
i.e. on the borders of both countries. In the best inte- It is likely that the opinion be welcomed with skepti-
rest of this paper, it is notable that the Court outlined, cism, especially by coastal states who awaited more pre-
although superficially, the content of due diligence obli- cise considerations on flag state responsibilities. It mi-
gations. The final ruling considers that such obligations ght also not have been the dream opinion expected by
"entail not only the adoption of appropriate rules and the international legal scholarship, because the ITLOS
measures, but also a certain level of vigilance in their essentially denied to stipulate any concrete "measure"
enforcement and the exercise of administrative control that flag states are obliged to undertake in fulfilling 12
applicable to public and private operators, such as the the "due diligence" principle.82 In fact, if the flag state
monitoring of activities undertaken by such operators,
to safeguard the rights of the other party." " alongside the International Tribunal for the Law of the Sea. For
detailed information on this treaty body, see: CHIRCOP, A. E. Op-
Within the jurisprudence of the ITLOS, efforts to erationalizing Article 82 of the United Nations Convention on the
consolidate the "due diligence" principle began in 2011, Law of the Sea: A New Role for the International Seabed Authority?
Ocean Yearbook, v. 18, 2004. Institutional information on the ISBA.
when the Seabed Disputes Chamber addressed a Re- Available at: <https://www.isa.org.jm/>. Visited on: 28 Apr. 2015.
quest of the International Seabed Authority regarding 81 The resort to analogies and to jurisprudence of the ICJ is
"responsibilities and obligations of states sponsoring harshly criticized by Judge Cot, who considers that this strategy
weakens the Court to the eyes of the international community. His
persons and entities with respect to activities in the separate opinion reads: <<Ma rdserve principale tient au refus, par
Area".80 The content of the "due diligence" obligation, le Tribunal, d'assumer l'exercice de son pouvoir discretionnaire de
rdpondre ou non aux questions qui lui sont posdes dans une proc&
dure contentieuse. Pour justifier ce refus, le Tribunal s'abrite derriere
77 Among the obligations of due diligence established by the la jurisprudence de la Cour internationale de Justice et ddclare qu'il
UNCLOS III and relating to the fighting of IUU fishing, the follow- est bien dtabli qu'une demande d'avis consultatif ne doit pas &re
ing deserve special attention: the obligation to inform, to cooperate rejetde, sauf pour des <<raisons ddcisives >.(Declaration of Judge
(art. 64 (1) UNCLOS III), to ensure the adoption of conservation Cot, par. 5).
and management measures (article 61, UNCLOS III), and to un- 82 On their separate opinions, Judges Wolfrum and Lucky have
dertake mutual consultations (article 300, UNCLOS III) with third highlighted some discontent themselves. On the one hand, Judge
states on whose coast IUU fishing activities are being conducted. Wolfrum considers that the advisory opinion could and should have
78 ITLOS, Advisory Opinion on the Request submitted to the been more detailed on its considerations, besides addressing the is-
Tribunal by the Sub-Regional Fisheries Commission. Case 21, 2015, sue of reparation of damages, as established by the Draft Articles
para. 129. of the ILC on State Responsibility for Wrongful Acts (Declaration
79 See Pulp Mills on the River Uruguay case, (Argentina v. Uru- of Judge Wolfrum, par. 1). On the other hand, Judge Lucky high-
guay),Judgment, ICJ, para. 197. lighted the creative role of international judges in welcoming new
80 The ISBA is an organization created by the UNCLOS III approaches and considering technological advancements (Declara-
 -u
can prove that all necessary measures to prevent IUU fishing vessels. This measure would enable authorities to C

fishing were duly taken, it shall not be held liable for da- fight illegal fishing in a more efficient manner. Besides,
mages produced.83 In this juncture, to prove that admi- those binding standards would support claims of flag
nistrative measures preceded the registration of fishing state responsibility for illegal fishing, what could de-sti- '2
vessel could theoretically shield flag states against com- mulate the emission of those flags of convenience and
pensation claims. Besides such an elusiveness, the ad- consequently represent a blow to IUU activities.
visory opinion was also explicit in confining its effects
Hence, the content and extension of the principle
to the EEZ of the member States to the SRFC, leaving 0
should be systematically outlined, in order to prospec- 0
the responsibilities of flag states for IUU fishing on the
tively delimit the substance of those "obligations of C
high seas for a coming opinion.84
means" that influence the effectiveness of the struggle
*~0
Dissatisfactions aside, the advisory opinion ought to against IUU fishing. It is also possible that the advisory
C
be praised for the positive developments it entails. Firstly, opinion be interpreted in an extensive fashion, so as to
it consists of an international decision situated in an im- comprise maritime zones other than just the EEZ of
portant intersection between fields of international law, member states to the SRFC, therefore, including the
and the permeability between such fields deserves to be much fragile high seas. Overall, the Advisory Opinion
further stimulated. In the opinion, the Tribunal approa- herein analyzed builds on a history of progressive deci-
C
ched the LOS with lenses of two different regimes of sions rendered by the ITLOS that gradually enhance the C
international law: principles of state responsibility and international legal framework relating to responsibility
0
of international environmental law.85 Despite the vague- rules within the law of the sea.
ness of considerations, to invoke the principle of "due C

diligence" in the law of the sea, a principle still in the -u

Cr
making, with strong environmental foundations, is to 0
6. CONCLUDING REMARKS
foster the shift from a purely traditional approach towar- H
ds an integrated approach to the solution of ocean issues. '2
In short, the International Law of the Sea in this
Secondly, although the Tribunal avoided specifically century still faces the dichotomy between freedom of
addressing the environmental facet of "due diligence" navigation and controlled access, which embodies a -u
obligations, it is likely that future proceedings will ground traditional approach to maritime issues. This approach, C
claims on the objective breach of "due diligence" obli- in essence, divides the ocean into several jurisdictional
gations. Intergovernmental organizations dedicated to spaces balancing the principle of sovereignty and the
fisheries governance have from now on a concrete foun- principle of freedom. Nonetheless, international legal
dation to base future claims of compensation for IUU scholarship and institutions have noticed the need for
~ '1-

fishing. The opinion, therefore, fosters states to adopt a more integrated approach, which is inspiring global '-' C
binding requirements, for instance, for the registration of and regional conventions and other soft law documents.
~ (N]

The mare /iberum can no longer exist, for it was for- ~ 4

tion of Judge Lucky, par. 12).
mulated for another era, another historic moment. If
83 Paragraph 146 of the Advisory Opinion reads: "the liability of
-z
the flag State does not arise from a failure of vessels flying its flag to applied vigorously, as the (absolute) freedom of fishing,
comply with the laws and regulations of the SRFC Member States for instance, this principle might limit effective enforce-
concerning IUU fishing activities in their exclusive economic zones,
ment of regulations on problems that deeply affect the
as the violation of such laws and regulations by vessels is not per se
attributable to the flag State." See: Advisory Opinion on the Request ocean, such as IUU fishing. The sovereignty perception
submitted to the Tribunal by the Sub-Regional Fisheries Commis-
sion. ITLOS, Case 21, 2015.
of the oceans' resources cannot represent, on the other
hand, a barrier to the application of an integrated ap-
ii
84 Paragraph 154 reads: "the Tribunal considers that, in light
of its conclusion that its jurisdiction in this case is limited to the proach to the management of fisheries.
exclusive economic zones of the SRFC Member States [...]." See: o -u
The current legal framework regarding IUU fishing
Advisory Opinion on the Request submitted to the Tribunal by the
Sub-Regional Fisheries Commission. ITLOS, Case 21, 2015. provides the foundation for implementing such a re-
85 On the interaction between special regimes of international newed approach. Indeed, not only hard law, as the UN-
law, see VENTURA, Victor Alencar Mayer Feitosa. Eco/ogizaao do
CLOS III and the 1995 Straddling Fish Stocks Agree-
&reito internaional humanaiddo: prote ao ambiental em tempos de
guerra. Joao Pessoa: UFPB, 2014. ment, but also soft law, as the Voluntary Guidelines of
63
 -u

FAO and the UN Resolution 61/105, provide a rela- Internacional,vol.12, no.1 (current edition). C

tively fertile field upon which an integrated approa-

CHIRCOP, A. E. Operationalizing Article 82 of the
ch may be build. However, the work of international
United Nations Convention on the Law of the Sea: a
organizations and the International Tribunal for the '2
New Role for the International Seabed Authority? Ocean
Law of the Sea is indispensable for the interpretation
Yearbook, v. 18, 2004.
and consequent consolidation of new perspectives on
ocean governance schemes. The main goal of current CHURCHILL, Robin. The European Union and the
and future efforts ought to be the limitation of human challenges of marine governance: from sectoral respon- 0
0
impact on ecological systems, while taking into account se to integrated policy? In: VIDAS, Davor; SCHEI, Pe-
C
contemporary demands for national development and ter Johan. The world ocean in globaliZation: climate change,
economic growth. sustainable fisheries, biodiversity, shipping, regional is- *~0

sues. Leide: Nijhoff, 2011. p. 395-436. C

For those reasons, the ITLOS was asked to render an
advisory opinion on the flag state responsibility for IUU CHURCHILL, Robin. Uncertainties in International
fishing activities conducted within the EEZ of third High Seas Fisheries Management. Fisheries Research, v.
states party to the UNCLOS III. At the first moment, 37, 1998.
the Tribunal engaged in a fructiferous line of reasoning, CORTEN, Olivier. Methodo/ogie du droit internationale
C
recognizing the existence of "due diligence" obligations pubic. Bruxelles: Editions de l'Universit6 de Bruxelles, C

falling upon flag states relating to IUU fishing. Shortly 2009.

afterwards, however, it refused to accept the possibility 0
OLIVEIRA, Carina Costa de. Comentirio A Opiniao C
of holding a flag state liable for wrongful acts of vessels
Consultiva 21 do Tribunal Internacional para o Direito -u
flying their flag.
do Mar [02/04/2015] In: Varella, Marcelo D. Revista de Cr
Overall, despite likely skepticism of the legal litera- Direito Internag'onal,vol. 12 , no. 1 (current edition). 0
H
ture towards the advisory opinion, considering the his-
torical supremacy of a sectorial approach to the LOS, OLIVEIRA, Carina Costa de, and MALJEAN-DU- '2
BOIS, Sandrine. Os limites dos termos bem pfiblico
the opinion instigates clearly positive outcomes. Based
mundial, patrim6nio comum da humanidade e bens co-
on the principle of "due diligence", the Tribunal has -u
muns para delimitar as obrigay6es de preservajio de re-
not only reinforced the interaction between the LOS C
cursos marinhos. In: Varella, Marcelo D. Revista de Direito
and other regimes, such as the law of responsibility and
the environmental law, but also nurtured the shift from Internacional,vol.12, no.1 (current edition).
a purely traditional towards an integrated approach to CULLIS-SUZUKI, Sarika; DANIEL, Pauly. Failing the
tackling oceanic issues as grave as the IUU fishing. high seas: a global evaluation of regional fisheries ma- ~ '1-

nagement organizations. Marine Po/iy, 2010.

;-' C
~ (N]

ENVIRONMENTAL JUSTICE FOUNDATION. Pi-

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66
 Reflex6es provenientes do
A dissenso: uma an~lise crftica
a respeito do caso Australia
versus Jap~o perante a Corte
Internacional de Justi~a

Luciana Fernandes Coelho