CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ DUE DILIGENCE UNDER THE LAW OF THE SEA (hereinafter „MAC Convention“). The MAC Convention sets up a basic legal framework for access to fisheries resources under the jurisdiction of other States. During its 14 th session of the SRFC has adopted resolution, which authorized Permanent Secretary of the SRFC to obtain advisory opinion of the International Tribunal for the Law of the Sea (hereinafter “the Tribunal”) on following matters: 1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States? 2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag? 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 the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna? 34 The Tribunal found that the primary obligation for taking necessary measures to prevent, deter and eliminate IUU fishing activities rests with the coastal State. 35 However, pursuant to article 58, paragraph 3 of the Convention, other States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State, whilst exercising their rights and performing their duties under this Convention in the exclusive economic zone. Pursuant to Article 62(4) of the Convention: „ Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. “, this provision continues and provides examples of laws and regulations such as licensing of fisherman and fishing vessels, setting up quotas of particular stock, regulating seasons and areas of fishing, requirement for the training of personnel and so on. This means that, even though the primary obligation rests with the coastal State, it does not relieve other states, namely flag States, of their obligation to fight IUU fishing activities. 36 The flag States are under the due diligence obligation to ensure compliance with said rules and laws and to prevent IUU fishing activities by vessels flying its flag. 37 The Tribunal also finds that the relationship between the sponsoring States and contractors, as presented in the 2011 Advisory opinion of the Chamber, is not entirely comparable to the relationship between flag state and vessels flying its flag, but the Tribunal holds the view that certain aspects are fully applicable in the present case. 38 The content of due diligence obligation of flag States requires „ to take necessary measures to ensure compliance by vessels flying its flag with the laws and regulations adopted by the SRFC Member States in accordance with provisions

34 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission , Advisory Opinion, 2 April 2015, ITLOS Reports 2015, pp. 4-5.

35 Ibid . para. 106. 36 Ibid . para. 124. 37 Advisory opinion 2015, op. cit. 34, para. 129. 38 Ibid . para. 125.

135