International Law of the Sea

7 de novembro

What kind of issues are we going to study here? Exploitation of deep sea bed and mineral
resources. One very important mineral is oil, natural gas, etc.
Difference between exploitation (extract of the mineral) and exploration.

What kind of maritime activities can be regulated by law of the sea? Fishing activities, maritime
delimitation, piracy and terrorism (nuclear devices transported on vessels), navigation, maritime
trade, oil tankers, labour standards, marine pollution (oil is like the cleanest pollution although it is
very nasty), military activities, migrations, leisure activities, energy activities (aeolic energy).
2/3 of the world are oceans and not land. The oceans are extremely polluted and the sources are
very diverse oil spills by vessels, air based pollution. 90 come from land and not from vessels.

What is the law of the sea? What is the object of international law of the sea? What can we include
and exclude? Rules assigning rights and duties to States when it comes to navigation, maritime
delimitation, etc.
Set of norms that establish the legal regime governing activities at sea. What do I include in this
definition? It must be a supra national concern, with respect to maritime affairs. It will exclude
private law. Maritime law is different from international law of the sea. It will also exclude domestic
law.

What are the main goals and functions of contemporary law of the sea? Law of the sea was the
first field to be regulated internationally. Why this social relevance? As we dont have physical
boundaries, its subject is to establish a regime of governance and order.
Spatial distribution of authority and jurisdiction of States division of the oceans into maritime
zones. This division refers to spatial jurisdiction of the States.
Clear rights and duties of coastal States.
Spatial jurisdiction to States.

Plechkov v. Romania what human fundamental right is at stake? Art. 7. It is not possible for the
person to know which jurisdiction he is under, therefore he didnt know he was committing a crime.
You cannot be punished unless there is a..

Internal waters under full sovereign of the State.

Territorial sea
Contiguous zone -
Exclusive economic zone -
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Continental shelf
High seas international waters.
Second function important instrument of reconciling conflicting interests of States. Cooperation
between States. Why is it more important than cooperation on land? Being the oceans a single unit
it requires international cooperation to improve its resources and preservation of the maritime
environment.

Boundaries are non existent. The States might face one of 2 challenges:
1. The prisoners dilemma
2. The Nash equilibrium dilemma You should stop land pollution if everyone stop it, it will
benefit everyone else. You cannot over exploit fishing activities, in long term everyone will
benefit if stop. Interfere with the strategy of other States.
The 2 main functions are incompatible with each other. Appropriation versus cooperation.
Exclusive authority versus supersede authority. Zonal management versus universal management.

History and Evolution

Late development compared with other fields of law. Deepsea bed exploitation, oil exploitation..
Very hard if you dont have the right instruments. Fishing activities there is one problem with fish
that solves every problem with delimitation it was impossible to fish far away from the coast (long
distance navigation not possible). Lack of technology. No means of communication.
Giddens origin of the word risk the first used was in Portuguese and Spanish and it was used
to describe the maritime threads. Limit to what could be exploited.
The process of appropriation of the seas is a by product of the Discoveries and technological
developments.
What could be the arguments that could be outlined in favour of appropriation of the seas by
rulers? Authority versus freedom of navigation. Mare clausus versus mare liberum. English king
versus Dutch fisherman you cannot fish in these waters because I own them versus I can fish in
these waters because of the freedom of navigation.
One of the arguments oceans should be free for everyone thus is hard to determine boundaries.
Natural properties of water are an obstacle to the appropriation of the seas.
Arguments in favour of appropriation security of States, and fish stocks.
Battle of the books Grotius. 1605. Property and contract law concepts.

Freedom of the seas Francisco Vitria freedom of communication and freedom of proselitism.
Grotius (mare liberum) freedom of communication supporting freedom of the sea.
Idea of natural society and common property. Seas cannot be captured or possessed. They are res
publica.

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All goods are susceptible of appropriation. Because seas are limitless and infinite it cannot be
appropriated or seized.
Although rulers could acknowledge some kind of jurisdiction with respect of coastal zones.

Turning point English king versus Dutch fisherman

Welwood (mare clausum) arguments the liquidity of the water is a natural property but not an
absolute obstacle to appropriation; sea is surrounded by land and not the opposite; rules of
geometry can help to determine imaginary boundaries; fish stocks are being depleted.
In the end they were saying the same. How to reconcile these authors? The terms look opposite,
but, it was an empty discussion. Grotius was talking about the whole ocean, no one can
appropriate the whole ocean while Wellwood was talking about a small portion, and of course you
can own small adjacent maritime belts designed for fishing regulation and fight against piracy.
Bynkershoek freedom of high seas and dominium over a narrow adjacent maritime belt. This
author closes the battle of the books.
Galiani general rule fixed the measure of States maritime belt in 3 nautical miles, since it was
the maximum distance of a cannon shot. At some point no one knew what this meant.
Mare liberum prevailed, and with new technologies made possible to exploit new resources.
Technological developments. Demographic boom. Discovery of new off shore resources bigger
spatial maritime jurisdiction
US presidential proclamation 2667 most important paragraphs 3 and 4
Right to exploit marine resources including its continental shelf.
What are the arguments here? The continental shelf that is under water is contiguous nation.
Natural extension of the land mass.
Pardo no one owns the planet and were not entitled to exploit all the natural resources. These
should be international and should never belong to any State.

Class 2, Tuesday, 8th November

Questions concerning the last class:
Freedom vs appropriation (when a certain costal state claims sovereignty or exclusive jurisdiction
over a certain area of the sea). There are several maritime zones but different categories, namely
the ones that fall under the jurisdiction of certain states and the ones that dont.
UN convention about international law of the sea.

Principles of the law of the sea:

1. Freedom of the high seas: article 87 of UNCLOS, freedoms such as navigation, fishing, over-
flight, etc.
2. Principle of sovereignty: creeping jurisdiction

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3. Principle of the common heritage of mankind: its designed to preserve some reserves of
natural goods and so on for future generations. The resources that exist in a space are subject
of international law. Also, states that aren't in direct contact with the resources acquired from
the sea also have to be able to enjoy the goods that are exploited at sea. These are called the
land-locked states (e.g.: Switzerland and Austria).
4. Unity of marine space- cooperation etc.
These are the 4 core, most important principles of the law of the sea!

()

Making international law of the sea:

The ICJ has decided that the international costume (pt) in international law of the sea has
different rules: even if the practice hasn't started yet, if there is a conscious of some rule, that
counts has an binding rule.
Legislation by reference: making soft law binding. What about the soft law instruments that are not
referred to by other binding hard law instruments? Is soft law per se binding? Yes, states might get
an incentive
Hard Law vs. Soft Law: hard law is adopted by states and there is force of authority behind it. Soft
law is not adopted by a state and doesn't have any authority or sanction behind it.

Participation in the law of the sea:

States are the main recipients of norms, the main bearers of rights and duties, they are the main
participants in the law of the sea. What rights or duties do states hold? National resources of the
sea bottoms, right to navigation, right to trade, right to fish in the high seas for their nationals, duty
to preserve and protect, duty not to interfere with other statess sovereign sea area. Under the
norms of the law of the sea, ships are recipients of rights, they are compared to legal persons.
NGOS and Industry owners are also important participants of the law of the sea. There are also
others that can be subjects of the law of the sea, namely, pirates, terrorists, ship owners, crew
members, slaves on board of vessels, etc.

Marine Spaces
Measured in nautical miles. Maximum of 12 nautical miles. Ground zero is the baseline (coast).
How does one draw a baseline? It is supposed to be more or less straight. Problems regarding the
establishment of baselines: rules must be general, objective, replicable, predictable, etc. but there
are specific geographic considerations to consider in each case There are 4 types of baselines:

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1. Normal baseline: the low-water line along the coast (article 5). The difference the high tide and
the low tide of the sea. The low tide elevation is the starting point, that will be the baseline,
ground zero.
2. Straight baselines: these are applicable when the coastline is too complex. Baselines can be
drawn across the water, instead of the states coast- e.g.: Norway, see ICJ Fisheries United
Kingdom v. Norway, 18 December 1951
3. Closing lines:
a) at bays- it depends on the difference of the space from shore to shore;
b) river mouths
c) islands- article 121 (2) LOSC
4. (?)

Internal waters- article 8(1) LOSC. Over its internal waters coastal states enjoy full perspective and
enforcement jurisdiction. Limits: access to ports and ships in distress

The territorial sea- article 3 LOSC. Articles 27 and 28 LOSC are also important in this matter,
though difficult to apply. We don't need to know how. With article 17 LOSC, a ship has the right of
innocent passage- the passage needs to have a specific goal or destination. Otherwise the ship
will require a specific authorization. Is it a right (or freedom) to claim territorial sea or is there a duty
to establish or claim a territorial sea?
Vattel: freedom of communication is very important, namely in crossing straits. Right of transit
passage exists in crossing straits (e.g.: Gibraltar). In either case, the most important straits have
specific treaties to govern them. International straits: usually we are dealing with territorial seas,
however there are other cases in which internal waters are at stake.
(Est quase tudo nos slides!)

3rd class, Wednesday, 9th November

Archipelagic States - Article 46(a) LOSC (UNCLOS) - a state constituted wholly by one or more
archipelagos and may include other islands. A group o islands which form a single unit, be it
socially, economically, politically, culturally, etc. E.g.: Cape Verde, So Tom, Indonesia,
Philippines.

Article 46
Use of terms
For the purposes of this Convention:

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(a) "archipelagic State" means a State constituted wholly by one or more archipelagos and may
include other islands;
(b) archipelago"means a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have
been regarded as such.

What is the difference between archipelagos and archipelagic states?

We only have an archipelagic state when the State is in itself constituted solely by islands
The purpose is to protect the internal waters of all the water around (or in between) the islands
and the archipelagos. The waters inside the baseline (which goes around all the islands) are
archipelagic waters and not internal waters. Than from the baseline on we can measure the
internal waters.

Legenda: the blue circles are islands of an archipelagic state and the circles around it would be
their internal waters. The big circle around all this is the baseline one uses in archipelagic states to
start counting the internal waters.

Contiguous Zone - Article 33 (1) UNCLOS -There is only enforcement jurisdiction in what was
agreed by the states. Even if the contiguous zone isn't claimed it exists. The status of the water
columns is not impacted. The only purpose of the contiguous zone is enforcement jurisdiction
(there is no prescriptive jurisdiction) ?? It is a limited extension of enforcement ??
No percebi nada do que ele estava a dizer.

Exclusive Economic Zone - Article 57 + Article 121 UNCLOS (ver imagem slide). The EEZ has
only 188 nautical miles. This space includes the water column, the seabed, the subsoil and the
airspace above the waters. The EEZ doesn't possess territorial sovereignty and isn't part of the
high seas - Article 86 UNCLOS.

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Resources and activities. It is a functional-spacial nature of the EEZ makes it a suis generis
maritime zone: the State has no rights over that area, it only has property rights of the resources
and activities in it. It isn't the owner of the water column but it can fish exclusively there. It isn't
the owner of the subsoil but it can exclusively extract natural goods from it. Sovereign rights of a
Coastal state, according to article 56 (1) UNCLOS: the state has sovereign rights for the purpose
of exploring and exploiting conserving and managing the natural resources. E.g.: fishes, oil and
other minerals.
These sovereign rights are exclusive and exclusionary, even if third states might perform these
activities dependent upon the coastal states express consent.

Coastal states have jurisdiction (over the EZZ) with regard to:
1) the establishment and use of artificial islands,
2) installations and structures,
3) marine scientific research, and
4) the protection and preservation of the marine environment.
(Depois disto ele saltou um monte de slides que depois devemos ler em casa mas que no deve
ser difcil de perceber.)

Bunkering activities- the right of bunkering in the EEZ instead of the internal waters derived from
freedom of navigation. ITLOS concluded that coastal states are entitled to regulate about
bunkering activities (article 56 doesn't say it specifically but it talks about fishing vessels and they
interpreted it in a broader sense- Armando Rocha doesn't agree with this but thats what ITLOS
decided).

Continental shelf- different maritime zone. It is a natural prolongation of a landmass but that is
underwater. Geologically its a natural prolongation of the coast at relatively shallow waters. It is
located before the continental slope.
(ver imagem do slide)
The vast majority of coastal states have claimed there is a continental shelf. It is an international
custom - ICJ North Sea Continental Shelf (Germany v. Netherlands), 20 February 1969 63 - read
slide.
Article 76
Definition of the continental shelf
1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines

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from which the breadth of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance.
This article establishes a very difficult practical process. The continental shelf only begins where
the territorial sea ends. This is sometimes so difficult to determine that the international
commission on the limits of the continental shelf was created. Mostly geologists work there.

2. The continental shelf of a coastal State shall not extend beyond the limits provided for in
paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the land mass of the coastal
State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not
include the deep ocean floor with its oceanic ridges or the subsoil thereof.
()

4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the
continental margin wherever the margin extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by either:
(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed
points at each of which the thickness of sedimentary rocks is at least 1 per cent of the
shortest distance from such point to the foot of the continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more
than 60 nautical miles from the foot of the continental slope.
(b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined
as the point of maximum change in the gradient at its base.
Gardiner formula v. Hedberg formula- ver slides com imagens.

5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed,
drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from
the baselines from which the breadth of the territorial sea is measured or shall not exceed 100
nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.
This is very difficult to apply because its difficult for geologist to look at the morphology of the coast
and measure all of this.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the
continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of
the territorial sea is measured. This paragraph does not apply to submarine elevations that are
natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.

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7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends
beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points,
defined by coordinates of latitude and longitude.
This whole process is very difficult and it envolves more geology than law. We don't need to know
all of this.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured shall be submitted by the coastal State to
the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of
equitable geographical representation. The Commission shall make recommendations to coastal
States on matters related to the establishment of the outer limits of their continental shelf. The
limits of the shelf established by a coastal State on the basis of these recommendations shall be
final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and
relevant information, including geodetic data, permanently describing the outer limits of its
continental shelf. The Secretary-General shall give due publicity thereto.
If a state wants to claim to an extent continental shelf, it has to submit information before the
commission on the limits of the continental shelf. The commission doesn't have a binding decision,
it is rather a recommendation, based on mandatory requirements. The secretary general will then
issue a public decision.

10. The provisions of this article are without prejudice to the question of delimitation of the
continental shelf between States with opposite or adjacent coasts.

Coastal States want to extend their continental shelves but this is being contested because:
a) it promotes an unbalance in the access of natural resources
b) promotes extensive maritime claims over the seabed which should be under a principle of
common heritage of mankind
c) resorts to natural concepts whose evidence is hard to get.
(Desliguei da aula)
Jurisdiction over the continental shelf- Article 77 UNCLOS. This article implies that:
i. the sovereign rights of coastal states are inherent and original,
ii. non-natural resources are outside of the scope of jurisdiction of coastal states,
iii. natural resources are mostly non-living resources (exception made to some oysters, lobsters,
pearls etc.).

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Prescriptive and enforcement jurisdiction is limited functionally. The sovereign rights over the
continental shelf do not impact the rights of third states nor the legal status of the water column (if
over the continental shelf an EEZ was established thats its status, if not, the waters are the high
sea).
4th class, Thursday, 10th November

To be considered an island, it must be able to sustain human life.

PART VII of UNCLOS- High Seas

Article 86 UNCLOS - explains the concept of high seas and it doesn't include the ocean floor of
the area.
Article 86
Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic
waters of an archipelagic State. This article does not entail any abridgement of the freedoms
enjoyed by all States in the exclusive economic zone in accordance with article 58.

Principle of freedom - article 89 UNCLOS. No state can claim jurisdiction or sovereignty of any
portion of the high seas. Spacial sovereignty of property doesn't exist in the high seas. RES
COMMUNIS: it belongs to everyone at the same time. Its the contrary of RES NULLIUS. Because
there is no spacial jurisdiction over the high seas there is an issue of governance when a vessel is
at high seas. There is a need for a jurisdiction that applies to that vessel at high seas. The link of
jurisdiction that exists is the link of the flag state of the vessel. Rule of the law of the flag state. A
vessel that uses 2 or more flags is considered a stateless vessel, a ship without country. Activities
at the high seas are, in principle, free. Some actors thought that crimes could be committed at the
high seas. We don't go that far. An activity that used to be free at the high seas was polluting,
however this is now regulated. Article 87 UNCLOS- the freedoms stated in this article are
conditioned! There is no absolute freedom.

Exclusive jurisdiction of flag states on the high seas: The traditional rule is that flag states have
exclusive jurisdiction over persons on board vessels flying their flag- article 92 (1) UNCLOS. Lotus
Judgement PCIJ- a vessel is a floating part of the territory. This is obviously not true. The reason
of exclusive jurisdiction is the principle of rule of law. We need rule of law including the high seas.
Gidel said that this exclusivity of jurisdiction is justified by the judicit of the high seas.
This exclusive jurisdiction exists in theory but there might be exceptions to this rule, namely article
110 (1) UNCLOS (+ articles 98 and 99 UNCLOS): right of interception and visit when there is

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reasonable ground for suspecting that the ship ism engaged in piracy, slave trade, etc. Is this a
right or a duty of interference? According to UNCLOS it is a right and not an obligation. Some
authors have begun discussing if there shouldn't be any type of positive or legal binding duty to
interfere in such cases. Under human rights conventions there is a duty.
(- pedir o resto ao Taveira)
14th november
Prof Irini Papanicolopulu
We will study 4 topics:
1. Maritime delimitation
2. Protection of marine environment
3. biodiversity protection
4. Human activity? No percebi
Textbook: Yoshifumi Tanaka- The International Law of the Sea
Law: UNCLOS

Delimitation of maritime zones:

It is very rare that a state can claim the full extent of their maritime zone (200 nautical miles of
exclusive economic zone). Why does this happen? Geography often doesn't allow it- issue of over-
lapse. When there is this problem, what can one do? Treaties between the countries in order to
divide the areas are the best option. The areas must be divided because of possible issues (like
who can fish in the area). How are they divided? One draws a line over the map. Treaties are one
of the sources of public international law and they are binding on the states that have accepted it.
No state is obliged to accept a treaty. So sometimes treaties don't work because they aren't
mandatory unless a state freely accepts it.
Sometimes states are claiming the same area- claimed area. How does one solve this?
UNCLOS. The Geneva Convention has rule on the contiguous zone which UNCLOS doesn't have,
because it was considered to be a secondary problem. And UNCLOS introduces the EEZ (article
74).
Article 15 UNCLOS on delimitation of territorial sea: the first option is an agreement; when the
states cant reach an agreement, equidistance shall be applied- the states draw a median line that
is equidistant - you take the closest points on the coasts of the states and you draw equal lines
from each coast to points along the coast. The construction of these lines was made by
compasses, now its made by a computer program. This all seems fair and the method seems good
because it is certain, based on fixed geographical things. Its a fair line and a line of certainty.
However, there is the exception of historic title or exceptional circumstances. Usually there are
special circumstances. What are these? There can be several types of special circumstances,
namely economic, geographic, etc.

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E.g.: Case of Germany in the northern sea. Germany has a concave coast whereas the
Netherlands and Denmark have convex coasts. Germany considered that the coastal configuration
was a special circumstance. The ICJ considered that the equidistance line was not a fair line and
that this was a special circumstance. But now one can ask the question of what is a fair line and
there is no fix answer. However, who has the burden of proof to show the special circumstance?
The state that considers the equidistant line to be unfair. In this case it was Germany.

Since there was a need for the states to proof their special circumstances, when drafting the parts
about continental shelf and EEZ, the rule of article 15 wasn't appealing. Therefore, article 74 (1)
proposes firstly an agreement between states to reach an equitable solution as predicted on article
38 of the Statute of the ICJ. So, this article doesn't say much. The fact that you have to find a
special circumstance says more and its easier than finding an equitable solution, which is too
vague. Article 74 doesn't say much more important, especially since it doesn't say how to establish
a line. The third paragraph (article 74 (3) UNCLOS) is however very important in the practical
sense because it establishes what to do/ how to act when there is an ongoing dispute. Basically:
when there is a dispute the ICJ judges decide so most law is made by judges and previous
decisions (following previous decisions is not binding but judges like to be more or less consistent).

How does one delimit the EEZ and continental shelf then? Early judgements like Denmark,
Netherlands, Germany 1969, France, UK 1977, etc on continental shelf boundaries. But there is a
need to delimit more than that. () Single line which divides the maritime areas both vertically and
horizontally: single (all-including) maritime boundary. No percebi nada desta parte! ICG in 2002
basically explained that the court applies equidistance and then it makes some adjustments or
shiftings when it considers that it is required in light of special circumstances. Its basically an
equivalent rule to the one of article 15 UNCLOS but the court doesn't want to make this
comparison. What really counts in this decision of the court is the special circumstances
considered by the court. The special circumstances are what defines the line though the
equidistance is the starting point. Special circumstances means special criteria, criteria that is
really difficult to define.

The coast is what generates maritime areas. When there is a big coastline the country should have
a big maritime area. When in comparison (and dispute) the country with the bigger coastline will
have a bigger maritime area, even if this means shifting the equidistance line- e.g.: Libya v. Malta
1984 ICJ. () Article 121 UNCLOS: islands matter. Most of the time they will receive part of the
waters. Sometimes they will only receive part or half effect. Man made islands don't generate
maritime zones. Discusso sobre o que uma rock e o que uma island. Perceber o que isso
significa em termos de EEZ e maritime zones.

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15th november

Who may enforce the laws in the sea in particular regarding environmental matters? From article
213 to article 222 UNCLOS. Substancial law: from 207 to 212 UNCLOS.
Enforcement usually belongs to the state with coastal area; when in the high seas the enforcement
is by the flag state.
Issue of flags of convenience: when the jurisdiction of a state is less harsh on environmental issues
vessels will choose that flag in order to benefit from the lighter laws. This problem would be solved
if the states worked towards uniformity of laws concerning this. Compromise: we may not be able
to adopt the stricter way, the stricter laws but at least we have some form of protection. Its better to
have this than nothing and then try to develop it to stricter rules.

(Discussion on practical issues of law enforcement concerning pollution- Conclusion: we have

made a lot but there is still a lot to do)
16th november

Territorial sea- right of safe passage

After territorial sea- freedom of navigation
Regarding fishing in the EEZ, the state that the EEZ belongs to has to give its permission for
vessels that aren't from said state. E.g.: A german vessel can only fish in Portuguese EEZ if
Portugal gives permission.
It is better to have only one state responsible for law enforcement because then there is no
discussion on who should act. However, one can also argue that it is better that both states may
intervene so that at least one does.

IUU fishing activities- ilegal unreported unregulated fishing activities.

ITLOS advisory opinion 2015

- Obligations of the flag states in cases of IUU fishing activities in the EEZ of third party states?
The flag state of the vessel has jurisdiction over the vessel and it CAN act on it, but the question
remains: does it HAVE to act?
The ITLOS said yes. The flag has the obligation to take the necessary measures including those
of enforcement to ensure that vessels are in compliance with the laws and regulations of the
SRFC (sub regional fishing commission) member states. These are obligations of due
diligence. What is due diligence? If the flag state suspects that its vessel is fishing illegally, it
has to take the proportional necessary measures to ensure that your vessels comply with the
legislation of the coastal state.

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- The flag state is not ALWAYS responsible for that vessel. How can the flag state avoid
responsibility? It has to prove that it had no way of knowing about the IUU fishing activities.
How? It has to prove it took all necessary / justifiable measures (preventive and consequently) to
avoid illegal fishing and ensure compliance with laws.
- Flag state should be held liable for IUU fishing? The liability of the flag state arises from its
failure to comply with its due diligence obligations concerning IUU fishing activities conducted by
vessels flying its flavin the EEZof the SRFC MS. These Member States may hold liable the flag
state of a vessel conducting IUU fishing activities in their EEZ for a breach attributable to the flag
state of its international obligations referred above (necessary measures to prevent these
activities). The flag state isn't liable if it has taken all necessary and appropriate measures
to meet its due diligence obligations to ensure that vessels flying its flag do not conducti
IUU fishing activities.
- What is liability? In the context of state responsibility, liability refers to the secondary obligation
namely the consequences of a breach of a primary obligation- you have to pay something to
compensate the other part.
UNCLOS article 194
CBD Decision 2008
17th november

Discussion on monetary penalties and if they are effective or not, if they should exist or not.
Art. 230 UNCLOS.
Core value of fair trial: to be heard by an independent court. When it was an administrative party, it
was dependent on the executive power, thus it didn't ensure an independent party, like an
independent judge in a trial would. The fact that now problems are presented to a court ensures a
fair trial or at least it helps to.
Article 73 (2), (3), (4) UNCLOS.
International tribunal from the law of the sea.

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