Flag State Responsibility Research Articles

Finding connections between the ITLOS Advisory Opinion on Flag State Responsibility for IUU Fishing and the advancement of Ocean Justice

The 2015 Advisory Opinion (AO) of the International Tribunal for the Law of the Sea (ITLOS) on illegal, unreported, and unregulated (IUU) fishing underscored the critical importance of due diligence obligations for flag states and represented a significant step in the upholding of the International Rule of Law and in the struggle towards ocean justice. The AO highlighted that flag states possess a duty to effectively exercise their jurisdiction and control over vessels flying their flag to prevent, deter, and eliminate IUU fishing activities. Furthermore, the AO emphasized the responsibility of flag states to cooperate with other states and international organizations to combat IUU fishing, thus fostering the shift from a historical and sectorial to a modern and integrated approach to fisheries’ management, especially among member states to the UN Convention on the Law of the Sea. In this paper, it is claimed that the AO revealed how valuable the work of international organizations such as the International Tribunal for the Law of the Sea (ITLOS) can be for the interpretation and consolidation of new juridical perspectives on ocean governance and may ultimately contribute to the ideal of blue justice.

SOVEREIGN IMMUNITY OF NON-COMMERCIAL GOVERNMENT VESSELS AND DUE REGARD: CHINA COAST GUARD IN THE NATUNAS

Coastal states possess sovereign rights and jurisdiction within their Exclusive Economic Zone (EEZ), including the exercise of enforcement jurisdiction against foreign vessels conducting violations within the EEZ. However, certain ships are granted sovereign immunity and thus are not subject to coastal state’s jurisdiction. The United Nations Convention on the Law of the Sea (UNCLOS) only stipulated that injuries to the coastal state caused by activities conducted by a sovereign immune vessel will engage that vessel’s flag state responsibility. Indonesia had witnessed numerous violations within its EEZ, especially in waters around Natuna Islands. These violations are conducted by Chinese fishing vessels, which were escorted by China Coast Guard (CCG) vessels. Consequently violations by Chinese vessels would hamper Indonesia’s exercise of enforcement jurisdiction against Chinese fishermen caught committing illegal, unreported and unregulated fishing (IUUF), thus violating Indonesia’s sovereign rights and jurisdiction. This article discusses to what extent sovereign immunity applies to non-commercial government vessels, and whether they can be subjected to coastal state jurisdiction, should they hamper the exercise of coastal state’s enforcement jurisdiction within its EEZ. The article applies normative legal research by utilizing applicable regulations, theories, and existing practices. Sovereign immune vessels are required to pay due regard to other states, including coastal state. Activities constituting ‘abuse of rights’ jeopardizing coastal state’s exercise of enforcement jurisdiction will result in their flag state responsibility being invoked by the coastal state. This article recommends peaceful settlement of dispute through bilateral means, or multilateral means in the spirit of the 2002 Declaration of Conduct by pursuing a regional fisheries agreement.

Experience from ISM Code as Implementation Model for the Maritime Labour Convention, 2006

The International Safety Management Code (ISM Code) and the Maritime Labour Convention (MLC), 2006 are international regulatory instruments to provide standards for the safe management and operation of ships, protection of marine environment, and setting fort minimum working requirements for the welfare and working conditions of seafarers. For the ISM Code, its effective implementation depends mostly on the competence and continued commitment and motivation of individuals at all levels, and the outcome envisages the enhancement of a safety culture throughout the shipping industry. This paper attempts to establish correlations between the ISM Code and the MLC, 2006 in the provisions on objectives, legislative requirements, Flag State responsibilities, Port State responsibilities, health and safety protection, accident prevention and safety management, regular inspections and analysis of non-conformities and qualifications of seafarers. Based on these, a model to enhance the implementation of the MLC, 2006 by the relevant stakeholders in the maritime sector is developed patterned on the multi-stage model of the workings of the ISM Code developed by Trapford (2009). Although not very exhaustive, the literature reviewed on the experience of the ISM Code and the model proposed could reasonably apply for MLC, 2006 as the notions, goals and objectives of the both codes are anchored on the development of a safety culture – one emphasizing safe management culture and the other safe working conditions and welfare of the seafarers.

Experience from ISM Code as Implementation Model for the Maritime Labour Convention, 2006

The International Safety Management Code (ISM Code) and the Maritime Labour Convention (MLC), 2006 are international regulatory instruments to provide standards for the safe management and operation of ships, protection of marine environment, and setting fort minimum working requirements for the welfare and working conditions of seafarers. For the ISM Code, its effective implementation depends mostly on the competence and continued commitment and motivation of individuals at all levels, and the outcome envisages the enhancement of a safety culture throughout the shipping industry. This paper attempts to establish correlations between the ISM Code and the MLC, 2006 in the provisions on objectives, legislative requirements, Flag State responsibilities, Port State responsibilities, health and safety protection, accident prevention and safety management, regular inspections and analysis of non-conformities and qualifications of seafarers. Based on these, a model to enhance the implementation of the MLC, 2006 by the relevant stakeholders in the maritime sector is developed patterned on the multi-stage model of the workings of the ISM Code developed by Trapford (2009). Although not very exhaustive, the literature reviewed on the experience of the ISM Code and the model proposed could reasonably apply for MLC, 2006 as the notions, goals and objectives of the both codes are anchored on the development of a safety culture – one emphasizing safe management culture and the other safe working conditions and welfare of the seafarers.

Flag State Responsibility for the Exercise of Jurisdiction and Control in Administrative Matters Over Vessels: Crimes at Sea and Trafficking of Weapons in Central America to the United States

Flag State countries have been attracting a significant amount of vessels around the world due to their low fees for many decades. The proliferation of such an event has triggered the opportunity to many criminal organizations in establishing and sneaking market routes from this attractive and unlimited amount of vessels. Trafficking of weapons, drugs, and immigrants are some of the activities performed by those organizations. Moreover, the lack of efficient law enforcement from flag states has proliferated the damage to other nations. The issue has attracted the concern of multilateral organizations and the United States to cooperate with those nations in Central America to mitigate the damage. The responsibility for the exercise of jurisdiction and control in administrative matters over vessels is no longer a matter of sovereignty.

The contribution of fisheries access agreements to flag State responsibility

On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered an advisory opinion in which it held that Articles 58(3), 62(4), 94(2), 192 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) laid down a responsibility of flag States for fishing activities undertaken by private actors in the Exclusive Economic Zones (EEZs) of coastal States. In interpreting these provisions of UNCLOS, the ITLOS made reference to specific clauses in fisheries access agreements (FAAs) concluded by coastal States and flag States. This article examines in more detail the contribution of FAAs to the concept of flag State responsibility. It will first offer a brief discussion of the framework for fisheries access under national jurisdiction provided by UNCLOS and will then take a closer look at how certain provisions contained in FAAs have contributed –and could contribute in the future– to the concept of flag State responsibility in international fisheries law. The article concludes that FAAs have contributed significantly to the development of the concept of flag State responsibility for fishing activities in the past and may do so to a more limited extent in the future.

Regulation of Greenhouse Gas Emissions from International Shipping and Jurisdiction of States

The regulation of greenhouse gas emissions from international shipping is becoming a matter of increasing concern. Two issues arise in particular. The first issue concerns the elaboration of rules on this subject. In this regard, Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL), amended in 2011, constitutes a key instrument because it was the first legally binding climate change instrument since the Kyoto Protocol. The second issue relates to effective compliance with relevant rules. While the flag State has the primary responsibility to implement relevant rules concerning the regulation of greenhouse gas emissions from international shipping, the flag State responsibility alone is inadequate to secure effective compliance with relevant rules. Thus, there is a need to examine the question whether and to what extent coastal and port States can regulate greenhouse gas emissions from vessels in international law. This article seeks to address these two issues. The article concludes that while port States can perform a valuable role in effectuating global rules provided in MARPOL Annex VI, port State control encounters several challenges. Thus, securing compliance with relevant rules should be an important issue in the regulation of greenhouse gas emissions from international shipping.

Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ

ABSTRACTOn 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its first full-bench Advisory Opinion. In its reply to the request of the West African Sub-Regional Fisheries Commission the ITLOS found that Arts. 62(4), 58(3), 192 of the United Nations Convention on the Law of the Sea contain obligations for a flag state to ensure that vessels flying its flag do not engage in illegal fishing in the exclusive economic zones of coastal states. The Advisory Opinion has widely been praised for bringing clarity to the inadequate international fisheries law regime. This article undertakes to analyze the ITLOS's interpretive approach, expose interpretive deficiencies, and offer possible explanations for some of the outcomes where the ITLOS itself did not do so.

In the Wake of the Erika: Flag State Responsibility for the International Obligations under the Law of the Sea

In the Wake of the Erika: Flag State Responsibility for the International Obligations under the Law of the Sea

Sustaining marine life beyond boundaries: Options for an implementing agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the Law of the Sea

For nearly a decade, governments have been discussing the need to improve efforts to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction (ABNJ). Support for a new international agreement under the United Nations Convention on the Law of the Sea (UNCLOS) – an Implementing Agreement – on the conservation and sustainable use of marine biodiversity in ABNJ has been growing. In June 2012, at the United Nations Conference on Sustainable Development held in Rio de Janeiro, Brazil, States agreed to take a decision on the development of an international instrument under UNCLOS before the end of the 69th session of the United Nations General Assembly (UNGA), which runs from September 2014 to August 2015. In follow-up to this commitment, it was agreed to consider the “scope, parameters and feasibility” of this instrument. To inform these international discussions, this article highlights some potential options for the content of a new UNCLOS Implementing Agreement. It first reviews the history of UN discussions, and then elaborates on options to address key elements identified as priorities for States in 2011: marine genetic resources, including the sharing of benefits, area-based management tools, including marine protected areas, environmental impact assessments, capacity-building and the transfer of marine technology. It addresses cross-cutting issues such as the governing principles, institutional structure as well as on other critical points such as High Seas fishing and flag State responsibilities. The article concludes with suggestions on possible next steps in order to succeed in the negotiations for an agreement.

Flag use behavior and IUU activity within the international fishing fleet: Refining definitions and identifying areas of concern

Attention has been given in recent years to the topic of international fisheries governance and the drivers of illegal, unreported and unregulated (IUU) fishing. Issues relating to Flag State responsibility and the use of ‘flags of convenience’ (FoCs) or ‘flags of non-compliance’ (FoNCs) have been prioritized by international organizations seeking solutions to the problems that currently plague the high seas. To fully address these problems, it is necessary to develop concise and relevant operational definitions. Here, the international fishing fleet has been characterized using categories that describe differing flag use behaviors. Behaviors most associated to IUU activity were also identified through classifying an official list of IUU vessels using these same definitions. Flagging behaviors were found to differ between the subset of IUU vessels and the global fleet of fishing vessels examined. In particular, vessels flying flags of States exhibiting consistent patterns of failure in compliance with international obligations, defined here as ‘flags of non-compliance’ (FoNCs); vessels flying flags of States that did not match the State of vessel owner control or residence, defined here as ‘flags of convenience’ (FoCs); and vessels for which limited information was available on ownership, flying flags defined here as ‘flags of unknown affiliation’ (FoUAs) were more common within the group of IUU-listed vessels. In seeking solutions relating to the prevalence of IUU fishing, focus should be given to improving our understanding of the underlying drivers and incentives motivating vessel owners to engage in these flag use behaviors more closely associated to IUU activities.

Flag State Responsibility for Maritime Terrorism

Modern international shipping is largely a flag state-based system. Only the flag state has complete authority over the vessels that fly its flag, and as a result, other states’ jurisdiction over these vessels is very limited. Against this backdrop, this article examines the flag state’s responsibility for maritime terrorism, a major security issue and vulnerability in the global supply chain. It is not an exaggeration that the global community’s repeated statements regarding the illegality of terrorism have created a customary international law obligation for states to take all possible steps for the prevention of terrorism. This article argues that providing flags to suspicious entities in an obscure registration system is not compatible with this obligation.

INSTITUTIONAL REACTIONS TO THE FLAG STATE THAT HAS FAILED TO DISCHARGE FLAG STATE RESPONSIBILITIES

The international regulatory system for the oceans is to a considerable extent dependent upon the effective exercise of flag state responsibilities but general concerns have been raised that some flag states are not fulfilling their international obligations under the international law of the sea.

Taiwan's response to international fisheries management after 2005 as influenced by ICCAT and fishers' perception

Abstract It is widely recognized that fishing states are obliged to exercise flag state responsibility over their vessels. In an attempt to become a responsible fishing actor, Taiwan has endeavored to manage its distant water fishing fleet in accordance with international fisheries management. However, the long-standing problems of illegal, unreported and unregulated (IUU) fishing, fish laundering, and fishing overcapacity, which remained unsolved during the 1990s and early 2000s, brought its management capability into doubt. Failure to address these problems undermined the credibility of all management measures and ultimately resulted in a recommendation adopted by International Commission for the Conservation of the Atlantic Tunas (ICCAT) in 2005. This recommendation significantly affected Taiwan's distant water fishing policy. This paper examines how Taiwan assimilated this outside force into its fishing policy as a new response to international fisheries management and how fishers perceived this response. It shows that Taiwan's efforts in controlling distant water fisheries marked a big change, specifically manifest in three noticeable actions – reducing excessive bigeye-targeted efforts, deterring IUU fishing, and strengthening fisheries management. The study advises that management of small tuna vessels be effectively exercised and recommends future actions on providing subsidies for fishers to partially offset costs incurred by rule compliance, streamlining their administrative work, enhancing communication with them, putting more enforcement and meaningful penalties in place. Finally, the study indicates the existence of an interaction in the international fisheries management scheme, potentially favoring Taiwan to bargain for fishing rights and a favorable status in the participation of regional fisheries management organizations (RFMOs) in the future if it continues to exercise effective control of distant water fisheries.

China's distant water fisheries and its response to flag state responsibilities

Abstract The paper discusses China's policy adjustment responding to flag state responsibilities of the Fish Stocks Agreement and the Compliance Agreement. China's incorporation and application of the management measures of the two instruments into its domestic legislations regarding distant water fishing vessels is examined to illustrate China's compliance as a flag state. It will be shown that China has taken concrete steps to bring its management practice in line with the requirements of international fisheries instruments and has endeavoured to respond to the two instruments positively. However, China needs to set priorities to improve its overall management capacity so as to make it ready to ratify the two instruments and to live up to their terms.