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IUCN WCEL Oceans Coasts and Coral Reefs Specialist Group written statement submitted to the International Tribunal for the Law of the Sea (ITLSO) for Case no. 21, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission

February 18, 2014

Note by

Nilufer Oral

Introductory Note

The IUCN and the World Commission on Environmental Law

The International Union for Conservation of Nature (IUCN) was established in 1948 and is the largest conservation organization in the world. The IUCN has some 1,200 Members from 160 countries that include 800 non-governmental organizations (NGOs), close to 100 international non-governmental organizations (INGOs) and many government agencies. In addition, there are 11,000 volunteer scientists and other experts from more than 160 countries. This hybrid composition provides a unique model of global cooperation for promoting conservation policies, laws and best practices across the world.

Many of the 11,000 thousand volunteer experts are members of IUCN’s six Commissions. While the IUCN, despite its size and impact, does not have the high public profile as many of its members, its work and influence can be found in all areas related to conservation and at all levels, from working with local indigenous communities in remote areas to working with high level governmental officials, private sector and international bodies, notably the United Nations.

The World Commission on Environmental Law (WCEL) is one of the six IUCN Commissions. It is currently chaired by Antonio Herman Benjamin, judge of the Brazil Supreme Court and one of the founders of Green Planet NGO in Brazil and co-chaired by Emeritus Professor Ben Boer from Sydney University. The WCEL and the Environmental Law Center in Bonn, headed by environmental law pioneers Dr. Wolfgang Burhenne and the late Dr. Francoise Burhenne-Guilmin, together with Dr. Alejandro Iza, make up the Environmental Law Program of the IUCN. Over the years these two bodies were key actors in the development of international environmental law. Many of the MEAs developed over the years have the imprint of the IUCN Commission on Environmental Law and the ELP.

The WCEL is composed of the following 10 Specialist Groups:

Access and Benefit- sharing, Armed Conflict and the Environment, Energy Law and the Environment, Enforcement and Compliance, Ethics, Indigenous Peoples, Customary & Environmental Laws and Human Rights, Oceans, Coasts and Coral Reefs,  Protected Areas and Policy, Sustainable Use of Soil, and Water and Wetlands.

The Oceans Specialist Group is co-chaired by David Vanderzaag Canada Research Chair (Tier 1) in Ocean Law and Governance, Schulich School of Law, Dalhousie University and Nilufer Oral from the University of Istanbul Law School.  The Oceans SG has member experts from around the world working in a broad range of ocean areas. Most recently, the Oceans SG was invited to prepare a legal statement on behalf of the WCEL and IUCN for the International Tribunal for the Law of the Sea Advisory Opinion on illegal, unregulated and unreported (IUU) fishing under the 1982 United Nations Law of the Sea Convention.

The Specialist Group on Oceans, Coasts and Coral Reefs’ submission to the International Tribunal for the Law of the Sea Advisory Opinion

In March 2013 the Sub-Regional Fisheries Commission (IGO), composed of six western African States (Cape Verde, Guinea, Guinea Bissau, Senegal, Sierra Leone and Mauritania), submitted to the International Tribunal for the Law of the Sea (ITLOS) a request for  judicial advisory opinion on four important questions of international law concerning the rights and obligations of States for illegal, unreported and unregulated (IUU) fishing activities, including state and international organization liability for IUU fishing.  The questions were as follows:

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?

ITLOS issued invitations to UN Agencies, other regional fisheries organizations, and the IUCN- as an IGO- to submit a written statement. This marks the second time that The IUCN WCEL and Oceans Specialist Group has been invited to submit a statement to the Tribunal for an advisory opinion. While advisory opinions are not binding, nonetheless they can be influential and provide guidance in interpreting state obligations under international law. The issue of IUU fishing is one of these areas in need of legal guidance in relation to the question of state responsibility. A great need exists for the international community to address gaps in the international legal framework on IUU fishing. The advisory opinion provides an invaluable opportunity for a high level interpretation of key questions of state responsibility for the exploitation of a rapidly depleting natural resource of tremendous economic and social consequences. This invitation to submit a legal statement to ITLOS provides the IUCN and WCEL an important opportunity to influence policy on sustainable fisheries at a very high level, both at the level of the judiciary and also governmental level.

The written statement submitted by the WCEL Oceans Specialist Group* provides an in-depth analysis of the obligations for flag States under the 1982 UN Law of the Sea Convention as well as customary international law and general principles of international law. The IUCN written statement also presented a legal framework for incorporating “soft” law instruments, in particular FAO instruments, as sources of due diligence obligations for flag States.  Additionally, the written statement examined the challenging question of flag state obligations in the high seas providing the Tribunal an opportunity to address this important gap in fisheries governance. The written statement puts forth the view that the failure to fulfill flag State obligations creates flag State liability, which in turn requires reparation for loss of fish stocks. The written statement further provides a detailed analysis of rights and obligations of coastal State for conservation of shared fish stocks, highlighting the obligation on all states to protect and preserve the marine environment, stressing key principles such as precautionary principle, ecosystem based management and use of environmental impact assessments.

To view the complete text of the IUCN Statement as prepared by the WCEL Oceans Specialist Group press here

* The legal statement was prepared by Robin Churchill, David Freestone, Martin Tsamenyi, Don Anton, Cymie Payne, Anastasia Telesetksy, Nilufer Oral, and with the additional contribution of David Vanderzwaag,  Robert MakGill,  Matt Gianni, Youna Lyons, Sherry Broder, Jeremy Firestone,  Adriana Farba,  Maria Gavouneli, Shaheen Moola, Joanna Mossop,  Marcos Orellana, Irini Papanicolopulu, and Rosemary Rayfuse.

Nilufer Oral is a member of the Law Faculty of the Istanbul Bilgi University Law School and serves as a Councillor for West Europe on the IUCN Council. She is also Co-chair of the IUCN Specialist Group on Oceans, Coasts and Corals Reefs for the World Commission on Environmental Law. She is a Senior Distinguished Scholar at the Law of the Sea Institute of the University of California Berkeley Law School, and has advised the Turkish Foreign Ministry on law of the sea and climate change.

About the author

Nilufer Oral

Co-chair of the IUCN Specialist Group on Oceans, Coasts and Corals Reefs for the World Commission on Environmental Law, Faculty of Law, Istanbul Bilgi University, Turkey

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