International Tribunal for the Law of the Sea (ITLOS) SRFC Advisory Opinion (2015)

• Jurisdiction: South Africa
• Author: None
• Published date: 22 May 2019
• Date: 22 May 2019
• Citation: 2017 JOLGA 176
• Pages: 176-224

176

INTERNATIONAL TRIBUNAL

FOR THE LAW OF THE SEA

YEAR 2015

2 April 2015

REQUEST FOR AN ADVISORY OPINION

SUBMITTED BY THE SUB-REGIONAL FISHERIES

COMMISSION (SRFC)

(Request for Advisory Opinion submitted to the Tribunal)

ADVISORY OPINION

Present: President YANAI; Vice-President HOFFMANN; Judges

NELSON, CHANDRASEKHARA RAO, AKL, WOLFRUM,

NDIAYE, JESUS, COT, LUCKY, PAWLAK, TÜRK, KATEKA,

GAO, BOUGUETAIA, GOLITSYN, PAIK, KELLY, ATTARD,

KULYK; Registrar GAUTIER.

On the Request submitted to the Tribunal by the Sub-Regional

Fisheries Commission,

THE TRIBUNAL,

composed as above,

gives the following Advisory Opinion:

I INTRODUCTION

Request

(1) By letter dated 27 March 2013, received electronically by the

Registry on 28 March 2013, the Permanent Secretary of the

Sub-Regional Fisheries Commission (hereinafter ‘the SRFC’)

transmitted to the Tribunal a Request for an advisory opinion

(hereinafter ‘the Request’), pursuant to a resolution adopted

by the Conference of Ministers of the SRFC at its fourteenth

session, held on 27 and 28 March 2013. The originals of that

letter and of the resolution were filed with the Registry on

2 April 2013.

(2) The resolution adopted by the Conference of Ministers of the

SRFC reads:

2017 JOLG 176

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SRFC Advisory Opinion 177

14TH SESSION OF THE CONFERENCE OF THE MINISTERS

27TH to 28TH MARCH 2013, DAKAR, SENEGAL

Resolution of the Conference of Ministers of the Sub-Regional

Fisheries Commission (SRFC) on authorizing the Permanent

Secretary to seek Advisory opinion pursuant to Article 33 of the

Convention on the definition of the minimum access conditions

and exploitation of fisheries resources within the maritime zones

under the jurisdiction of SRFC Member States (MAC Convention)

The Conference of Ministers of the Sub-Regional Fisheries

Commission,

CONSIDERING the United Nations Convention on the Law of the

Sea signed at Montego Bay on 10 December 1982;

REAFFIRMING their commitment to supporting the principles

and standards stipulated in the Code of Conduct for Responsi-

ble Fisheries of the United Nations Food and Agriculture Orga-

nization (FAO);

RECALLING their resolve to implement the International Plan

of Action for preventing, opposing and eliminating illegal,

unreported and unregulated fishing adopted in 2001 by the

FAO Conference;

CONSIDERING the Convention of 29 March 1985 on the

establishment of the SRFC, and as amended in 1993 especially

with respect to its articles on enhancing cooperation between its

member States for the wellbeing of their respective populations;

CONSIDERING that the Convention of 14 July 1993 on the Definition

of the Conditions of Access and Exploitation of Fisheries

Resources off the Coastal Zones of SRFC Member States (MAC

Convention), plays an essential role in the harmonization of

fisheries policies and legislations of the States in the sub-region;

DESIROUS to aligning the Convention of 14 July 1993 to the

technical and legal changes which have occurred since its

adoption, in particular with respect to the definition of the

conditions for responsible fishing, the use of the eco-systemic

approach for a sustainable management of fisheries resources

and the fight against illegal, unreported and unregulated fishing,

in accordance with international law;

CONSIDERING the Convention of 8 June 2012 relating to the

definition of the minimum conditions of access and exploitation

of fisheries resources within the maritime zones under the

jurisdiction of SRFC member States (CMAC) on the review of

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178 JOURNAL OF OCEAN LAW & GOVERNANCE IN AFRICA

the MAC Convention, which entered into force on 16 September

2012;

CONSIDERING the provisions of Article 33 (Seizure of the

International Tribunal for the Law of the Sea for advisory

opinion) of the CMAC of 8 June 2012, which stipulates as

follows:

The Conference of Ministers of the SRFC shall authorize

the Permanent Secretary of the SRFC to seize the Interna-

tional Tribunal for the Law of the Sea on a specific legal

matter for its advisory opinion

CONSIDERING Article 20 of the Statute of the Tribunal and

Article 138 of its Rules of Procedure;

DECIDES, in accordance with Article 33 of the CMAC, to authorize

the Permanent Secretary of the Sub-Regional Fisheries Com-

mission to seize the International Tribunal for the Law of the

Sea, pursuant to Article 138 of the Rules of the said Tribunal,

in order to obtain its advisory opinion on the 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?

(Signed)

His Excellency Moussa CONDE,

Minister of Fisheries and Aquaculture, Republic of Guinea

And Chairman in office of the Conference of Ministers of the SRFC

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