On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its Advisory Opinion on the request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC). The SRFC comprises seven West African States: Cabo Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. Faced with serious problems concerning illegal, unreported and unregulated fishing in the Exclusive Economic Zones of the SRFC Member States and the fully exploited or overexploited status of most fish stocks in the region, the SRFC requested an ITLOS advisory opinion on these questions:
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 (EEZ) 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?
The Advisory Opinion cites duties to cooperate in its answers to questions 1 and 4. First, in relation to question 1, the Tribunal recalls (para. 140) that "the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law" (MOX Plant Case (Ireland v United Kingdom), Order 3 Dec. 2001, ITLOS Rep. 2001, 95 at 110, para. 82).
Significantly, the Tribunal now confirms (para. 140) that "this obligation extends also to cases of alleged IUU fishing activities." Accordingly, in the operative part of the Advisory Opinion (para. 219), the Tribunal's unanimous answer to question 1 includes the clear affirmation that:
The flag State and the SRFC Member States are under an obligation to cooperate in cases related to IUU fishing by vessels of the flag State in the exclusive economic zones of the SRFC Member States concerned.
In relation to question 4, the Tribunal's considerations include a discussion of the cooperation obligations contained in the United Nations Convention on the Law of the Sea (UNCLOS or Convention). Having considered the relevant provisions, the Tribunal confirms their application to the SRFC Member States for the sustainable management of the fish stocks at issue and holds (para. 213):
The Tribunal is of the view that cooperation between the States concerned on issues pertaining to the conservation and management of shared fisheries resources ... is a well-established principle in the Convention. This principle is reflected in several articles of the Convention, namely articles 61, 63 and 64.
For jurisdictional reasons, the Tribunal limits its examination of the rights and obligations of the coastal State to the EEZs of the SRFC Member States. However, the Tribunal nevertheless emphasizes the need for cooperation with States that are not members of the SRFC. In this regard, the Tribunal not only holds that SRFC Member States "may ... seek the cooperation of non-Member States sharing the same stocks along their migrating routes", but also that "when it comes to conservation and management of shared resources, the Convention imposes the obligation to cooperate on each and every State Party concerned" (para. 215).
What is particularly noteworthy in relation to this confirmation of the obligation to cooperate with relevant regional fisheries management organizations is the added consideration on the correlative right to cooperation (para. 218):
The Tribunal further observes that with respect to tuna species the SRFC Member States have the right, under article 64, paragraph 1, of the Convention, to require cooperation from non-Member States whose nationals fish for tuna in the region, "directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species."
This statement is fundamental to questions of wrongful non-cooperation in international law. It confirms that the cooperation obligation gives rise to a correlative right to cooperation pertaining to the other Parties to which the obligation applies. Cooperation is thereby not only a duty but also implicitly a right vis-à-vis the other Parties to the obligation, even if the obligation is – as is the case here – multilateral rather than bilateral in nature.
This right to require cooperation is also included in the operative part of the Opinion (adopted by 19 votes to 1) that answers question 4, along with further pronouncements on cooperation obligations. In particular, the Tribunal affirms that SRFC Member States have "the obligation to cooperate, as appropriate, with the competent international organizations, whether subregional, regional of global" for the sustainable management of shared stocks. Moreover, in relation to tuna species, they have "the obligation to cooperate directly or through the SRFC" for the conservation and optimum utilization of such species in their EEZs (para. 219).
Finally, the Advisory Opinion provides some clarification of the content and nature of the duties to cooperate in holding (in relation to article 64, paragraph 1, of the Convention) that these:
...are "due diligence" obligations which require the States concerned to consult with one another in good faith, pursuant to article 300 of the Convention. The consultations should be meaningful in the sense that substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks.
These considerations provide a helpful starting point from which to examine the legal nature and application of the cooperation obligations in question. However, the Tribunal arguably could and should have gone further in clarifying the content, scope and implications of these obligations, as is also compellingly argued by Judge Paik in his Separate Opinion.
Judge Paik explains the key issue in relation to question 4 as follows:
30. [...] According to the SRFC, some Member States experience serious difficulties in effectively conserving and managing their shared resources due to a lack of cooperation. In particular, the SRFC notes the practice of some States of issuing fishing licenses in respect of such resources without consultation with neighbouring States.
31. If this is the case, the main task of the Tribunal in answering Question 4 should be to clarify the meaning and scope of the duties to cooperate in managing the shared resources laid down in the relevant provisions of the Convention, and possibly of the MCA Convention, and to examine how they should be applied between the SRFC Member States. [...] Only then can the present Opinion be of some meaningful help in mitigating the predicament of the SRFC Member States and in facilitating cooperation between them for the sustainable management of shared resources. I regret that the present Opinion is rather short on this aspect.
34. It is undisputed that cooperation is a key element in the sustainable management of shared resources. Such resources, by their very nature, cannot be conserved or managed effectively without cooperation. However, in addressing the problem arising from the lack of cooperation in this case, simply emphasizing the obligation of cooperation or repeating the relevant provisions of the Convention would hardly be sufficient. In a sense, it begs the question what specifically is required to discharge that obligation, a question this Opinion does not answer satisfactorily.
Having explained this, Judge Paik's Separate Opinion goes on to provide insightful commentary (paras. 35-39) on the meaning and scope of the obligation to cooperate and its application to the situation for which the Advisory Opinion is sought. Judge Paik clarifies, among other things, that although the obligation "does not entail an obligation to arrive at an agreement",
36. [...] The obligation to cooperate may include duties to notify, to exchange information, and to consult and negotiate. While it is unclear how this obligation is to be discharged, the UN Fish Stocks Agreement is instructional in this regard, as it gives a few indications about how the obligation to cooperate on the conservation and management of straddling fish stocks and highly migratory fish stocks is to be performed. For example, article 7, paragraphs 3, 4 and 5, of the Agreement provides that in giving effect to their duty to cooperate, States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time; if no agreement can be reached within a reasonable period of time, any of the States concerned may invoke the procedures for the settlement of disputes provided for in Part VIII; and pending agreement on compatible conservation and management measures, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature.
37. Understood this way, the SRFC Member States have an obligation to cooperate for the sustainable management of their shared resources. For transboundary stocks, they must exchange information and data relevant to their conservation and management and negotiate in good faith with a view to agreeing upon cooperative arrangements. Such arrangements may include, inter alia: joint determination of the total allowable catches for those stocks, their allocation among States concerned, the coordination or joint adoption of conservation measures, and the establishment of mechanisms for effective monitoring, control and surveillance. [...]
As to the consequences arising from failure to comply with an obligation to cooperate (considered in paras. 37-38), Judge Paik notes that "the right course of action for a SRFC Member State in cases where another Member State sharing the transboundary stocks refuses to cooperate without justifiable reasons is to invoke the liability of that State" (para. 38).