14.1 Introduction

Great expectations are pinned on marine governance,Footnote ¹ including protecting the marine environment while promoting sustainable growth in ‘blue sectors’.Footnote ² At the same time, marine governance is widely recognised as being complex and characterised by fragmentation.Footnote ³ Many of the challenges associated with the marine environment and marine space have been described as ‘wicked’, implying that science does not provide clear answers and that addressing them is liable to generate winners and losers.Footnote ⁴

It is well established that measures taken in pursuit of marine policy objectives can have significant implications for the social, economic and cultural interests and identities of individuals as well as groups of people. This applies, for example, to the establishment of marine protected areas (MPAs),Footnote ⁵ measures taken to combat invasive marine speciesFootnote ⁶ or regulation of marine aquaculture.Footnote ⁷ Not surprisingly, recent years have seen increasing calls for paying more attention to the political dimensions and societal implications of marine policy and management processes in addition to the predominately natural science perspectives traditionally applied.Footnote ⁸

In an EU context, the last two decades have seen the development of a comprehensive legal framework that aims to protect the marine environment, promote sustainable growth of maritime economies and ensure efficient use of marine space. The main elements of this framework are three directives: the Water Framework Directive (WFD) adopted in 2000,Footnote ⁹ the 2008 Marine Strategy Framework Directive (MSFD)Footnote ¹⁰ and the Maritime Spatial Planning Directive (MSPD) of 2014.Footnote ¹¹ The immediate implications of some marine environmental objectives were also strengthened by the 2015 ruling of the Court of Justice of the EU (CJEU) in the so-called Weser case.Footnote ¹² In this case, the CJEU established that the core environmental objectives of the WFD are binding in relation to individual projects, including many industries, infrastructure facilities and public utilities.

Against this background, it is important to pose questions about the legitimacy of the EU’s marine law and governance, not least as a fundamental element of an effective and rule of law-based legal regime for the marine realm. There are numerous ways of approaching issues of legitimacy. The approach here is one focusing on legal texts, inquiring in particular as to what extent and how they address aspects of legitimacy as well as on any guidance provided for dealing with legitimacy in the implementation or operationalisation of legal requirements. Legitimacy of EU marine law and governance is a multidimensional issue. In addition to more generic aspects, it raises questions that are particular to the EU as a unique form of regional legal and policy integration, as well as issues that are more or less specific to activities in the marine domain. Before engaging with legitimacy in this particular context, some reflection is needed on legitimacy, as such, and how it may be understood.

14.2 On Legitimacy

Much like ‘rule of law’, legitimacy is a challenging concept since it can be defined in many ways and used in various contexts. When talking about legitimacy in relation to law and governance it tends to relate broadly to ‘the justification and acceptance of political authority’,Footnote ¹³ thus indicating a close connection to rule of law as a form of protection against capricious and unjustified exercise of power. Legitimate law-making and wider exercise of public authority is closely linked to ideas about democracy.Footnote ¹⁴ Effective democratic governance arguably requires that the governing organs are widely perceived as legitimate.Footnote ¹⁵ Legitimacy is also associated with more instrumental values. It is widely accepted that rules and decisions meet with higher acceptance and are better complied with if they are seen as legitimate.Footnote ¹⁶ This in turn should decrease the need for and thus the cost of monitoring, control and enforcement.Footnote ¹⁷ In this sense, legitimacy is a means of increasing compliance while reducing costs.

Discussions about legitimacy tend to approach the subject either from a theoretical perspective, often grounded in philosophy or political science, or a more sociological one. Whereas theoretical approaches are generally concerned with defining and testing various criteria for what may constitute legitimacy, the sociological ones rather aim to determine to what extent institutions, laws and decisions are de facto perceived as legitimate by those affected.Footnote ¹⁸

Many attempts have been made at defining or classifying different forms or versions of legitimacy. A common division is that between output legitimacy and input legitimacy.Footnote ¹⁹ Simply put, input legitimacy relates to participation and representation in decision-making and the reflection of citizens’ concerns and values in adopted laws and policies. Output legitimacy relates to the performance and effective delivery of laws and policies.Footnote ²⁰ In the words of Lord and Magnette, in a democracy, ‘elections provide input legitimacy and the delivery of voter preferences secures output legitimacy’.Footnote ²¹

A related concept is ‘throughput’ legitimacy, which is used to refer to the openness, accountability, transparency and efficacy of decision-making processes. Whereas this dimension is important – since, for example, incompetent or corrupt governance practices can undermine legitimacy – throughput legitimacy is no substitute for missing input or output legitimacy.Footnote ²² In practice, however, the perceived fairness of relevant institutions and procedures seems to have a strong impact on the extent to which the rules and decisions produced are in fact deemed legitimate and on the propensity of people to voluntarily defer to them.Footnote ²³

In relation to EU law-making, input legitimacy is associated with a major discussion on the ‘democratic deficit’ associated with, among other things, the partial bypassing of national parliaments and the strong position of the unelected European Commission in law-making, as well as the general lack of a ‘collective political identity’ underpinning EU law.Footnote ²⁴ These aspects of legitimacy are largely generic to EU law in general and will not be the focus here,Footnote ²⁵ although they should be borne in mind when engaging with legitimacy in relation to more specific measures or policy areas.

Although the present chapter will not, for reasons of space, attempt a systematic assessment of EU marine law and governance according to the different forms of legitimacy outlined in this section, they still constitute a useful backdrop for discussing issues of legitimacy in the more specific context of the EU’s marine legal frameworks.

14.3 Legal Frameworks for EU Marine Governance

Questions of legitimacy can be pertinently posed in relation to virtually any law or policy affecting the interests of groups or individuals or somehow arbitrating between competing objectives or values. Legal aspects of EU marine governance can in principle cover areas such as chemicals law, rules on species and habitats protection, as well as regulation of specific activities such as fishing or water treatment plants. In order to enable a more focused discussion, the analysis here deals with legitimacy in relation to EU legal acts that have a comprehensive aim in that they potentially apply to all or most activities in a particular marine area or those that affect the marine environment or marine space generally. This entails a focus on the three framework directives presented in the introduction, that is, the WFD, the MSFD and the MSPD. In the following, the three directives are briefly described with a focus on features that are particularly pertinent from the perspective of legitimacy. In addition to looking for provisions that explicitly address issues of legitimacy and fairness, those that have a clear potential to affect people’s (perceived) rights and interests, including trade-offs between rights or interests, are highly pertinent. The same goes for rules on participation and decision-making. That is followed by a more comparative analysis that also tries to point out how legitimacy may be enhanced where needed.

14.4 Concluding Discussion

Legitimacy is not a notion that is explicitly addressed by core EU marine legislation, although the potential of planning and participatory processes to enhance legitimacy is highlighted in some guidance documents. Interestingly, the WFD, which is likely to have the most tangible effects on the economic and social conditions of individuals, is least clear on how to deal with these dimensions of marine and water governance.

An important aspect of so-called output legitimacy is the extent to which politically agreed results are actually delivered. The WFD sets out substantive requirements that are – at least for those capable of comprehending the details – reasonably precise and liable to have a direct impact on what environmental quality to expect. It also enables individuals to rely on the quality standards of the Directive and to challenge individual authorisations that are inconsistent with their achievement.Footnote ⁷⁹ The Weser case increased the effects of the Directive’s environmental objectives in relation to individual projects. Still, there are challenges with complexity, making it hard to understand what rights or duties actually follow from the WFD, as well as insufficient implementation by Member States. The MSFD is in this regard similar to the WFD but vaguer in its requirements, not least due to the larger spatial scales of application and higher level of aggregation, making it harder to know at a local level what to expect from the Directive and to judge if it has delivered. This problem also tends to be exacerbated by time lags between measures and effects in many natural systems.

The binding nature and partly direct applicability of environmental objectives decided at EU level could also pose a challenge to legitimacy by decreasing the ability to balance different interests and consider ‘the bigger picture’.Footnote ⁸⁰ Overall, both the WFD and the MSFD have a strong focus on the environmental dimension of sustainability, and other aspects are mostly possible to accommodate through specific exemptions or the flexibility that is inherent to national implementation processes. This has the advantage of clarity; these legal acts primarily aim to protect the environment while other considerations require specific justifications or must be pursued without infringing on the environmental objectives. On the other hand, it may invite the criticism that prioritisation and decisions on trade-offs have already been made at EU level, leaving only technical details to the (hopefully) more transparent and participatory national implementation processes. In practice, however, there tends to be rather significant room for decisions on trade-offs at the national level, in particular beyond the situations covered by the Weser decision.

The need for legal frameworks dealing with ecosystems to be flexible and adaptive has itself the potential to decrease legitimacy by undermining legal certainty and foreseeability.Footnote ⁸¹ All three marine directives apply the programmatic approach which entails flexibility that can be used for adaptation and enables a fair allocation of economic development and costs for environmental protection but at the same time makes it harder to know what will be required in the longer term. Indeed, there is a considerable literature debating the challenges of reconciling traditional legal virtues such as rule of law and legal certainty with the flexibility required by adaptive governance models.Footnote ⁸² In practice, however, law is not static and is always subject to interpretation. Hence, intentionally adaptive legal structures are not inherently different from more traditional legal arrangements.Footnote ⁸³ They can even make the inevitable adjustments to changing circumstances more transparent and easier to anticipate.

The MSPD, which is much more comprehensive in its aim than the two other directives, is also so vague in terms of substantive requirements that it hardly restricts the scope of (legitimate) national or local balancing of objectives. On the other hand, it is prone to criticism for being too thin on substance, making it impossible to know what to expect as a result of its implementation.

While the MSPD most explicitly recognises the need for considering multiple interests and objectives in marine governance, none of the marine directives is particularly clear on how to address the ‘wicked’ aspects of marine governance. Although the MSFD mandates consideration of social and economic impacts of targets and measures and a non-binding guidance to the WFD makes reference to the need for identifying and possibly compensating ‘the losers’, there is little clarity as to how this can or should be done and what results to expect. In some ways, this may be positive. The EU legislator may not be best placed to legitimately arbitrate between complex interests, and the WFD and the MSFD are explicitly focused mainly on ecological dimensions. At the same time, one could at least have expected clearer demands on the principles and processes to be used for dealing with such challenges in a transparent and legitimate way. Now, this is almost entirely left to individual Member States, making outcomes as well as processes very different between countries. Reasonably, the legitimacy of EU legal acts can suffer if what they are seen to deliver varies considerably across the Union. Both the WFD and the MSFD have also been criticised for being silent on access to justice as they do not ensure that the public have legal means to challenge the validity of an adopted programme of measures.Footnote ⁸⁴

As noted previously, the perceived fairness of decision processes has clear implications for the extent to which management is deemed legitimate. This lends support to the argument that increased attention to and transparency about actual and perceived trade-offs among users and interests are important, not least in maritime planning.Footnote ⁸⁵ To better address such aspects, the use of a ‘sociocultural approach’ has been proposed, dealing with issues such as procedural justice, social inclusion and knowledge pluralism.Footnote ⁸⁶ However, the Member States already have tools they can employ to increase transparency and quality in the way they deal with social dimensions of marine governance. These include social impact assessment and stakeholder perceptions and interest assessment.Footnote ⁸⁷

All three directives largely rely on participation for dealing with core legitimacy dimensions. While participation can be a way of enhancing both input and throughput legitimacy, participation as a provider of legitimacy is not unproblematic. Challenges pertain inter alia to defining who has a legitimate say in decision-making processes,Footnote ⁸⁸ and to ensuring that participation can be genuine, with stakeholders understanding what can and cannot be changed through a participatory process as well as seeing that their participation is meaningful and can affect the outcome.Footnote ⁸⁹ Sufficient time must also be allowed for deliberations and integration of varied interests and different kinds of knowledge.Footnote ⁹⁰

15.1 Introduction

Maritime environmental crimes are perpetrated in every part of the ocean and include a vast array of activities, mostly related to ship-source pollution, particularly accidental and wilful oil discharges, which are a major threat to the marine environment and human health, accounting for most of the oil pollution in the ocean. These crimes take place across the whole shipping sector, from unseaworthy vessels engaged in illegal, unreported and unregulated fishing, to oil tankers and luxury cruise liners.Footnote ¹

Despite a decline in accidental and intentional discharges in recent years, the impact of human-produced incidents greatly offsets natural processes, given the large volumes of oil that can be released in a single incident. It is estimated that 53 per cent of all petroleum reaching the marine environment is human-produced and occurs near coastlines, while natural processes account for the rest.Footnote ² It is also estimated that most of the 2.1Mt of oil discharged every year into the sea goes undetected.Footnote ³

Moreover, as a result of the ocean being interconnected and impermeable to any political or legal divisions, maritime environmental crimes happening in one part of the ocean will affect the whole ocean. No single State is able to tackle the causes and consequences of these crimes on its own. Indeed, the existing legal rules addressing spatial and functional jurisdiction at sea result in complex multijurisdictional challenges that can cause conflict of jurisdictions and, consequently, the ineffectiveness of international law to prevent and combat maritime environmental crimes. Specific legal rules addressing maritime environmental crimes are also lacking.

The harm and damage caused by maritime environmental crimes to vast areas of the ocean and coastlines, together with destruction of vulnerable and fragile marine ecosystems and devastation of marine life, affect the livelihood of many coastal communities and have an impact on economic activities that depend on the ocean, including international navigation. They also cause psychological distress and can seriously affect the wellbeing of entire populations. Despite improvements in oil-spill response, cleanup and restoration methods, restitution of affected areas is generally very difficult, in addition to being extremely costly and time consuming, lasting for several decades.Footnote ⁴ In some cases, damage is simply irreparable.

Maritime environmental crimes are committed to avoid compliance with international rules and regulations, thus obtaining substantial financial gain by not calling into port to use the necessary facilities and avoiding procedures established under national and/or international law, which are time-consuming and entail significant costs. These crimes are a quick and inexpensive solution, and the chances of criminals getting caught, prosecuted or convicted are very small.Footnote ⁵ Indeed, perpetrators are organized and act in a concerted and evasive manner, with the aim of committing these crimes at sea, taking advantage of existing gaps and overlaps in international law.

No specific data record the value of maritime environmental crimes, but they do pay off.Footnote ⁶ The rewards of maritime environmental crimes can be seen, for example, in the fact that illegal disposal can save a ship owner anywhere from US$80K–220K every year, depending on the size and age of the ship, the number of days at sea and how well it is maintained, which can represent 5–12 per cent of a ship’s operating costs.Footnote ⁷

Maritime environmental crimes are a global problem that has been severely overlooked. This is chiefly due to lack of awareness but also to absence of a clear sense of direction by States to address these crimes and to do so in a collective manner, in order to improve the international legal response to maritime environmental crimes. These include, for example, the proposal for recognition of ecocide as a new international crime.Footnote ⁸

This chapter suggests that a new global paradigm is needed for protection and preservation of the marine environment, in the shape of a rule of law that is able to deliver improved collective and effective legal responses to address maritime environmental crimes, in other words: departing from the law as it stands.

15.2 Conceptualization

Maritime environmental crimes can be broadly defined as acts committed at sea that breach national and/or international law, causing harm or damage to the marine environment. This broad definition includes acts perpetrated within and beyond national jurisdiction, as well as pollutionFootnote ⁹ from different sources, including ship-source pollution, such as illegal dumping,Footnote ¹⁰ especially of oil and oil-bunkering, or pollution from offshore installations and structures or cables and pipelines.

Notwithstanding, there is no set definition of maritime environmental crimes, nor does international law criminalize acts or conduct considered as such. Criminalization only exists under national law, subject to States’ discretion.Footnote ¹¹ Maritime environmental crimes are not permitted under international law, but they are also not subject to collective and international criminal suppression, despite the fact that they are a major threat facing the marine environment and humankind.

The proposed concept of maritime environmental crimes must be based on the recognition that individually or collectively, environmental rights are an extension of human rights. These include the right to a healthy environment, but also the right of access to information, public participation in decision-making and access to justice in environmental matters, all of which reinforce the connection between the human element and the environment.

Currently, several international and regional human rights instruments include references to the environment, but no international human rights legal instrument expressly mentions the ocean.Footnote ¹² Furthermore, although there is clearly a collective interest in protection and preservation of the marine environment,Footnote ¹³ international law has not made the right of each State to intercede on behalf of the marine environment in areas subject to the jurisdiction or sovereignty of other States. One State may only seek legal action against another State based on the latter’s responsibility for damage suffered, and not representing any community or collective interest, or on the basis of an actio popularis as a result of such interest being affected.Footnote ¹⁴ This is most remarkable in the high seas, where all States have a clear interest in protecting and preserving the marine environment.Footnote ¹⁵

Therefore, development of the notion that marine environmental rights are an extension of human rights will undoubtedly reinforce the theoretical basis of the new paradigm, which will, in turn, support the concept of maritime environmental crimes. Recognition of maritime environmental crimes must also be based on the acknowledgement that these crimes are a global problem and not one exclusively subject to national jurisdiction. Indeed, consistent with the notion in the law of the sea that problems of the ocean are interrelated and must be considered as a whole, an environmental crime committed at sea is a crime against the whole ocean. It is the marine environment and ultimately humanity that are at stake.

International environmental law is a combination of fragmented international legal instruments and general principles and rules, included in both binding and non-binding instruments. No overarching normative framework applies to international environmental law, despite the fact that there have been calls for adoption of ‘a comprehensive and unifying international instrument that gathers all the principles of environmental law’.Footnote ¹⁶

However, like most, if not all, fields of international law, international environmental law suffers from several gaps and shortcomings. These are mostly the result of lack of political compromise and consensus between States, as well as the fact that implementation of international environmental law at national level varies and, consequently, hinders the possibility of ensuring a coherent international legal system. Yet, despite sparse customary international environmental law, certain rules and principles have become widely accepted and recognized by international courts and tribunals as part of the legal corpus that forms international environmental law, such as the obligation not to cause transboundary harm or damage.Footnote ¹⁷

With respect specifically to protection and preservation of the marine environment, the entry into force of the United Nations Law of the Sea Convention (UNCLOS)Footnote ¹⁸ altered the perception of the relation between States and the ocean, giving way to awareness of the interconnectivity of different marine ecosystems and an understanding of the duty to cooperate as a fundamental principle in preventing pollution of the marine environment. The Convention also replaced the previously dominant reactive approach towards protection and preservation of the marine environment, with adoption of preventive measures and control of the sources of pollution. Moreover, UNCLOS comprises the notion that the obligation to protect and preserve the marine environment is connected with States’ exercise of sovereignty and jurisdiction.

Nonetheless, at present no international legal regime specifically criminalizes and/or requires States to criminalize and punish acts and conduct that cause harm or damage to the marine environment.Footnote ¹⁹ Indeed, although protection and preservation of the marine environment has rightly captured global attention, little or no consideration has been given to the recognition of maritime environmental crimes in international law. Furthermore, in addition to the absence of an international effective response to tackle these crimes, the multijurisdictional challenge resulting from the intricate legal rules applicable to spatial and functional jurisdiction at sea have contributed to a permissive setting in which maritime environmental crimes take place, often going unreported, undetected and unpunished.

15.3 The Multijurisdictional Challenge

In order to overcome the multijurisdictional challenge caused by the rules on spatial and functional jurisdiction at sea, it is necessary to tackle existing gaps and overlapping rules that cause conflict of jurisdictions and, consequently, the ineffectiveness of international law to prevent and combat maritime environmental crimes. In this regard, the M/V “Norstar” Case (Panama v. Italy) addressed the possibility of non-flag States exercising prescriptive jurisdiction on the high seas where flag States traditionally enjoy freedom of navigation.Footnote ²⁰ This development in the interpretation and application of international law reinforces the ground-breaking approach required for development of a new paradigm, which, together with innovative solutions available in State practice, could have a game-changing effect, such as the exercise of extraterritorial jurisdiction over maritime environmental crimes.Footnote ²¹

15.4 The Importance of International Cooperation

Important differences exist between environmental crimes taking place at sea and those on land. The maritime dimension of environmental crimes is a departure from the factual and legal reality of environmental crimes taking place on land, within the territory of one single State or across the territory of more than one State. On land, evidence of environmental crime, such as illegal transportation of waste, most notably hazardous waste and increasingly of plastic,Footnote ³⁴ is more ample and easily obtained. Likewise, existing legal regimes addressing environmental crimes on land are greatly advanced and provide a more efficient response, particularly regarding responsibility and liability, including that of corporations.

Perpetrators use deceit and concealment as part of their modus operandi. In most cases, crimes occur while the vessel is on route, taking advantage of growing maritime traffic and avoiding detection, as well as during nighttime when visibility is low, seeing that detection of oil discharges relies on visual inspection.Footnote ³⁵ Moreover, damage at sea is not always easily detected.Footnote ³⁶ Even in situations of accidental pollution, ships often fail to report for fear of legal and financial repercussions.

Establishing causation can also be extremely difficult and is dependent on States cooperating by sharing information and intelligence, in addition to collaborating at operational level together with international law enforcement agencies. Also relevant in this regard is the need to ensure a certain level of harmonization with respect to the standard of evidence admissible under different national jurisdictions.Footnote ³⁷

In 2018, Interpol headed an international operation involving 276 law enforcement and environmental agencies across 58 States and a global network of 122 national coordinators. This operation lasted one month and carried out 5, 200 inspections that resulted in approximately 185 investigations and detected more than 500 offences, including illegal discharges of oil and garbage from vessels, shipbreaking, breaches of ship emissions regulations and pollution in rivers and land-based runoff to the sea.Footnote ³⁸

The following year, in 2019, Interpol led an operation encompassing sixty-one States and regional law enforcement partners, which identified thousands of illicit activities behind severe marine pollution. The preliminary results of this concerted operation that lasted one month, gathering more than 200 enforcement authorities worldwide across all continents, revealed more than 3,000 offences, detected during 17,000 inspections. These offences were committed primarily to avoid the cost of compliance with environmental legislation.Footnote ³⁹

These examples highlight the vital importance of international cooperation between States and international law enforcement entities, such as InterpolFootnote ⁴⁰ and Europol,Footnote ⁴¹ for gathering and sharing data and evidence, establishing causation and acting in a coordinated, timely and effective manner. However, the prevailing interpretation of applicable international law is that criminal acts and conduct that constitute maritime environmental crimes are subject to the exclusive jurisdiction of national law, even though only a few States have legislation on maritime environmental crimes and even fewer exercise jurisdiction. The United States is one of those States that has efficiently exercised prescriptive and enforcement jurisdiction. In addition to accepting and rewarding collaboration by whistleblowers,Footnote ⁴² the United States established exterritorial jurisdiction through the Oil Pollution Act of 1990, in addition to the well-known Aliens Tort Claims Act of 1789.Footnote ⁴³

Lastly, regarding international cooperation, it should be noted that there is no international body to monitor maritime environmental crimes or measure performance and progress, and identify ways to enhance cooperation between States. Existing organizations such as the International Maritime Organization or the United Nations Office on Drugs and Crime do not have the competence to tackle these crimes, despite the natural contiguity of their mandates in terms of protection and preservation of the marine environmentFootnote ⁴⁴ and combating transnational organized crime or providing maritime law enforcement capacity building.Footnote ⁴⁵ Consequently, important governance gaps exist between different organizations and a lack of aggregated information regarding the full impact of maritime environmental crimes throughout the world.

In short, lack of cooperation results in the ineffectiveness of international law to prevent and effectively combat maritime environmental crimes.

15.5 Is There Room for Maritime Environmental Crimes within International Law?

Despite the shortcomings of international law for not including specific rules on maritime environmental crimes, this does not mean no room is available for maritime environmental crimes in international law. It is necessary to consider the unity of international law and the need to achieve the functional systemic integration of different legal regimes. No international legal instrument is a self-contained regime and is certainly not impermeable to other legal regimes. Systemic integration can help fill the gaps and maximize efficiency of fragmented legal rules.

In order to deliver an improved collective and effective legal response to address maritime environmental crimes, it is necessary to go beyond the law of the sea and into other sources of international law. This is because maritime environmental crimes straddle different fields of international law. Prima facie, these include the law of the sea, international environmental law and international criminal law but also human rights law, as environmental rights are also human rights.Footnote ⁴⁶ Indeed, international law has gradually widened the range and reinforced protection of environmental rights. This is the case for the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention),Footnote ⁴⁷ which has influenced national and regional legislation on recognition of procedural environmental rights, as is the case for the European Union and its Member States.Footnote ⁴⁸

The international legal framework on protection and preservation of the marine environment consists of several international legal instruments, in addition to regional frameworks and non-binding guidelines and recommendations from different international and regional organizations. The most relevant instruments addressing ship-source pollution are UNCLOS and the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the 1978 Protocol (MARPOL 73/78).Footnote ⁴⁹ These instruments were drafted in the wake of the 1967 ‘Torrey Canyon’ and the 1978 ‘Amoco Cadiz’ disasters involving oil tankers, which revealed the urgent need for improvement and enforcement of preventive measures in light of a rapidly expanding shipping sector and new developments in the field of marine pollution control. This called for adoption of more stringent requirements for ships entering or nearing States’ waters in order to eliminate substandard ships.Footnote ⁵⁰

Although international legal instruments are not directly applicable to maritime environmental crimes, they bear relevance. In addition, when integrated with other sources of international law they can substantially improve the international response to maritime environmental crimes. Moreover, international liability rules in relation to environmental damage are still developing, notwithstanding general principles of international law that impose responsibility and liability for illegal acts, or the adverse consequences of lawful activities, many of which are included in the 2001 International Law Commission Draft Articles on State Responsibility, and some are considered to reflect customary international law.Footnote ⁵¹ In this regard, a new paradigm will enable establishment of communication veins where none exist at the moment as a result of the gaps caused by fragmentation of international law.

Perhaps the strongest example of the ability to establish communication veins can be found in the Rome Statute of the International Criminal Court (ICC), by clearly establishing a link between international criminal law and the environment. In the definition of war crime the Statute considers ‘intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.Footnote ⁵² In this regard the proposal to introduce ‘ecocide’Footnote ⁵³ as a new international crime under the Rome Statute,Footnote ⁵⁴ in addition to a new preambular paragraph and amending Article 5, can undoubtedly contribute towards a change of paradigm.Footnote ⁵⁵

In order to achieve the ultimate goals of recognition of maritime environmental crimes within international law, no distinction should be drawn as to whether these crimes are committed in wartime or in peacetime. Instead, there should be integral protection of the environment under international criminal law.Footnote ⁵⁶ Nonetheless, the underlying rationale of the example provided by the Rome Statute could be expanded, mutatis mutandis, and possible communication veins replicated between different legal regimes that are not sufficient, on their own, to support the concept of maritime environmental crimes within international law.

However, since international law is essentially state-centric, one could question how environmental rights can be interpreted and protected under the existing rules, when there is no international legal instrument establishing international criminal responsibility of natural or legal persons for maritime environmental crimes. This question exposes the deep disconnect between international law and protection of the marine environment from criminal acts, particularly as most maritime environmental issues are global in nature and not the specific problems of one or a group of persons.

Also challenging under international law is the need to demonstrate that pollution has had a harmful effect on the rights of persons and not simply a general deterioration of the environment.Footnote ⁵⁷ With respect to individual criminal responsibility, it should be noted that Article 25 of the Rome Statute determines that the ICC wields jurisdiction over natural persons. So, should ‘ecocide’ be recognized as a new international crime within the jurisdiction of the ICC, the Court would have jurisdiction over a person who commits ecocide and, consequently, who would be individually responsible and liable for punishment under the Rome Statute, without prejudice to the responsibility of States under international law. However, the Rome Statute does mention corporate criminal responsibility.

Regarding the need to show harmful effect, it should be noted that with recognition of maritime environmental crimes comes a new perspective, one that envisages protection of the environment for its own sake and ultimately that of humanity.Footnote ⁵⁸ As mentioned in the introductory remarks, there is a need for a new global paradigm that is able to deliver an improved collective and effective legal response to address maritime environmental crimes, departing from what the law currently is and contributing towards progressive development of international law. In this regard, the inter-normative dialogue between international and national law could make a significant contribution. Indeed, although international environmental criminal law is an emerging field of international environmental law, there are examples of state practice involving prescription of maritime environmental crimes.

Similar to the development and progressive codification of international law, national legislative developments are also connected with environmental disasters that too often demonstrate the inadequacy of protection regimes to deter and prevent environmental crimes but also to punish those responsible and provide adequate remedies. This was the case of the US Oil Pollution Act of 1990, adopted following the 1989 Exxon Valdez oil spill disaster off the coast of Alaska, and the US Act to Prevent Pollution from Ships of 1980 in order to implement MARPOL 73/78.

National laws addressing environmental crimes vary considerably. Some are very lenient and others very stringent. Some impose strict liability, while others do not. Very often States adopt a complex system where environmental criminal law coexists with civil liability and administrative regulation, as is applicable to natural persons and/or to legal persons, namely corporations. In this regard the 1999 Erika and 2002 Prestige disasters involving oil tankers, respectively off the coasts of France and Spain, are a clear reminder of how lack of inter-normative dialogue can lead to conflict between different sources of law and pose serious liability and jurisdictional challenges. It also demonstrates the many obstacles facing environmental criminal law when these incidents take place at sea and the difficulty in applying international and national law.Footnote ⁵⁹

Therefore, development of the new paradigm should also focus on the inter-normativity and reciprocal influence between international, regional and national law, taking into consideration the growing expansion of both international and regional law with respect to the marine environment. For example, by establishing extraterritorial jurisdiction with respect to maritime environmental crimes States are able to extend the applicability of the law and the use of penalties beyond national borders. This is the case of the US Oil Pollution Act of 1990, which provides that its criminal provisions may apply to foreign nationals beyond its territory, giving the USA a broader range for action than provided under international law. These and other similar national legislative developments regarding the exercise of prescriptive and enforcement jurisdiction at sea can significantly influence international law.

15.6 Conclusions and Outlook

The ocean is getting busier. The increasing number of ships at sea and the growing facilitation of movement of persons and goods across borders constitute a serious challenge to individual flag States in regulating and monitoring all ships flying their flag. This is also a challenge for coastal and port States, because of the limitations imposed by spatial and functional jurisdiction at sea.

Moreover, the shipping industry is entering a new era, with the introduction of unmanned ships. Likewise, there are new usages and activities in the ocean, in addition to global threats, such as climate change, sea level rise and ocean acidification. These pressures are having a significant impact on the marine environment and humankind, but none more so than maritime environmental crimes.

The body of rules and principles applicable to protection and preservation of the marine environment, drafted in the 1970s and early 1980s during the III United Nations Conference on the Law of the Sea and other codification efforts, does not meet current expectations and the environmental rights discourse. Simply put, existing international legal rules do not echo the overall concern for protection and preservation of the marine environment, and neither do they meet the expectations of those looking for implementation and enforcement of more stringent and effective rules. There is no international legally binding rule, body of rules or principle that criminalizes or establishes an obligation for States to criminalize transnational organized maritime environmental crime.

Consequently, recognition of and adherence to the notion of transnational organized maritime environmental crime would have the effect that criminalization would no longer be dependent solely on domestic law, even though it would be difficult to overcome the limitations resulting from the existing legal framework applicable to prescriptive, and especially enforcement, jurisdiction at sea. In this regard, proposals for a new international crime such as ‘ecocide’ could potentially lead the way for further development of international law and of the legal tools necessary to ensure a collective and effective legal response to maritime environmental crimes.

In the meantime, under the current international regime, States have very limited powers of enforcement when a flag State fails to fulfil its obligations regarding protection and preservation of the marine environment, despite the fact that, arguably, flag States that fail to protect and preserve the marine environment under domestic law are subject to the principle of state responsibility. In these cases, the basis for responsibility lies in the obligations inherent to the concept of sovereignty as both control and responsibility, taking into account the context of international accountability.Footnote ⁶⁰ States remain responsible for lack of due diligence and ultimately for allowing the persistence of permissive circumstances for acts of pollution to occur and remain unpunished. A difficult legal challenge arises when a coastal State or a flag State with jurisdiction is unable to enforce its own jurisdiction.

Therefore, States must lawfully and legally assert their maritime jurisdiction, both spatial and functional. This should also include extraterritorial jurisdiction.

Following the exercise of prescriptive jurisdiction, States must also establish the situations and conditions for the exercise of enforcement jurisdiction, or maritime law enforcement, in accordance with international law and in particular the law of the sea, including with respect to boarding, detention, arrest, search and seizure of a ship. States must further provide internal remedies and access to justice.

Lastly, international cooperation is essential to ensure effective protection and preservation of the marine environment, as well as to address circumstances favourable to organized crime, such as the presence of corruption, bribery and obstruction of justice. Law enforcement cooperation and the sharing of investigative tools and evidence and intelligence are particularly important, including for the purpose of enforcement and prosecution.

16.1 Introduction

Illegal, unreported and unregulated (IUU) fishing is a serious threat to the world’s food resources, frustrates efforts to conserve and protect marine living resources and ecosystems, and threatens geopolitical stability.Footnote ¹ The resources and economies of developing States, in particular, are badly affected by IUU fishing operations in their EEZs.Footnote ² The purpose of this chapter is to consider whether it can be argued that States whose nationals are owners or operators of fishing vessels involved in IUU fishing activities have an obligation to act against those persons.Footnote ³

Although a considerable number of international, governmental and non-governmental organisations are involved in the fight against IUU fishing, it still occurs on a large scale, and the rules, as currently applied, have for various reasons not proven to be very effective. For example, the UN Convention on the Law of the Sea (UNCLOS)Footnote ⁴ imposes primary responsibility on coastal States to regulate fishing operations in their EEZ and to enforce such regulations. However, States, in particular developing States, may not have the resources and capacity to regulate fishing in their EEZ and to enforce such regulations meaningfully. Moreover, although international law gives flag States an important role in the fight against IUU fishing, not all flag States are willing to fulfil this task or capable of doing so. This is often the case with States that offer flags of convenience.Footnote ⁵ However, there are also more established flag States whose vessels are regularly involved in IUU fishing, without the flag State appearing to take much visible action against such activities.Footnote ⁶

A further reason, intertwined with the failure of coastal States and flag States to act against IUU fishing operations, is the relationship between these operations and the involvement of transnational corporations that are active ‘behind the scenes’, often as operators or beneficial owners of the vessels involved in these operations. Given the profits that can be made by engaging in IUU fishing, these corporations are willing to take considerable risks. Therefore, the sanctions that can be imposed by coastal States for IUU fishing infractions are not treated as a deterrent but as a cost of doing business.Footnote ⁷ Often advantage is taken of weaknesses in the administrative and enforcement systems of coastal States and port States.Footnote ⁸ The financial interests involved also result in the use of more sophisticated methods for circumventing applicable regulations, such as trans-shipment of fish from fishing vessels to refrigerated transport vessels or by reflagging vessels on a regular basis.Footnote ⁹ Corporations that engage in IUU fishing are sometimes involved in other, related, criminal activities such as forced labour, corruption, human trafficking, smuggling or drug running.Footnote ¹⁰

By prohibiting persons from being involved in IUU fishing activities, for example as operators or owners of vessels, and imposing appropriate sanctions in the case of breach of the prohibition, fewer incentives will exist for IUU fishing operations.

16.2 IUU Fishing: Current Framework

16.3 Challenging the Persons behind the Scenes

16.4 Obligation to Act against Nationals Involved in IUU Fishing?

16.5 Conclusion

The traditional approach of combating IUU fishing, with strong reliance on flag State enforcement, has proven not to be effective due to use of flags of convenience and stateless vessels and the involvement of internationally operating organisations with considerable financial interests in IUU fishing. This chapter suggests involving other States in the fight against IUU fishing, in particular those States in which owners and operators of vessels engaged in IUU fishing activities are located. Although the focus under UNCLOS for challenging IUU fishing in a State’s EEZ has been on coastal States and flag States, it can be argued that UNCLOS also obliges States whose nationals are directly or indirectly involved in the fisheries sector to ensure that those nationals do not engage in or support IUU fishing. Such obligations could be based on the ITLOS Advisory Opinion, that is, a due diligence obligation to ensure that a State’s nationals refrain from being involved in IUU activities, including as operator or owner of a vessel engaged in fishing in the EEZ of another State, and to comply with the conservation measures applying to that EEZ.Footnote ⁷⁶

17.1 Introduction

The advisory function of the plenary of the International Tribunal for the Law of the Sea (ITLOS or Tribunal) has existed since the first rules of the Tribunal, adopted in October 1997, pursuant to Article 16 of the Statute of the ITLOS. This judicial function remained disused and undisputed until 2015 when the Tribunal delivered the advisory opinion Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion).Footnote ¹ On that occasion, the ITLOS considered that the legal basis for its advisory function derived from the foundational agreement of the requesting entity, in connection to Article 21 of its Statute and Article 138 of its Rules. As explained in this contribution, many States and scholars criticized the Tribunal for exercising this judicial function whereas others supported the decision to do so. Notwithstanding the debate, the advisory function prevails as a tool to enhance the rule of law for oceans and adapt it to tackle new challenges. Indeed, after nearly forty years since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS),Footnote ² new challenges call for re-interpreting and calibrating UNCLOS. For example, climate change alone poses legal challenges that were even unthinkable during the Third Conference on the Law of the Sea, including the rise in sea levelsFootnote ³ or ocean acidification.Footnote ⁴ Similar complex issues derive from technological advances and the quest for natural resources and maritime power. In this context, understanding the advisory function of the ITLOS stands as a tool in enhancing ocean governance.

This chapter aims at elucidating the scope of the advisory function of the ITLOS plenary. In particular, it revises the configuration of this judicial function and underscores the potential use of ad hoc jurisdictional agreements to request advisory opinions. To that end, this contribution will first present the utility of advisory opinions to strengthen the rule of law for oceans; second, it will then examine ambiguities within the legal basis of the advisory function of the ITLOS to determine the plausibility of using special agreements to request advisory opinions..

17.2 Advisory Opinions and Ocean Governance

Since the Permanent Court of International Justice, certain international judicial bodies can exercise the judicial function of delivering advisory opinions.Footnote ⁵ These can be defined as a judicial service to assist with comprehension and compliance with international obligations.Footnote ⁶ This function allows identification of the abstract field in which the rules apply, their application to concrete situations and the legal consequences flowing from their application.Footnote ⁷ The main difference with a contentious jurisdiction is that the outcome of an advisory jurisdiction is not binding and thereby does not entail stigmatization as in contentious proceedings.Footnote ⁸ Exceptions to this are particular cases where an advisory opinion functions as a preliminary ruling,Footnote ⁹ as a dispute settlement mechanismFootnote ¹⁰ or as an appeal instance,Footnote ¹¹ entailing a compulsory effect.

Notwithstanding its non-binding nature, an advisory opinion entails authoritative statements that contribute to clarification of the applicable law and, in so doing, help to prevent disputes from arising.Footnote ¹² Likewise, the legal findings in advisory opinions are generally authoritative for the members of a legal system and even foster judicial cross-fertilization between courts and tribunals.Footnote ¹³ As stated by the ITLOS, judicial determinations in advisory opinions carry no less weight and authority than those in judgments.Footnote ¹⁴ Therefore, advisory opinions have the same value under Article 38 (1) (d) of the Statute of the International Court of Justice. Furthermore, they might prove to be useful in designing international and domestic public policies, or as suggested, preventing future disputes.

In the context of the law of the sea, recent challenges are finding new legal vacuums in the UNCLOS. Put differently, it seems unclear whether this treaty provides guidance or if it is necessary to adopt new rules. Far from fostering an amendment to the Convention, the advisory function stands as a significant tool to shed light on how to interpret and apply UNCLOS to recent issues. An urgent example is climate change and its effects on the rule of law for oceans such as ocean acidification, ocean deoxygenation or rising sea levels.Footnote ¹⁵ The International Law Commission (ILC) is already considering the topic within its agenda.Footnote ¹⁶ In this regard, an advisory opinion on the legal consequences of sea-level rise might assist the ILC’s work on the issue by identifying applicable rules and, perhaps, providing novel interpretations.Footnote ¹⁷ Moreover, an opinion could provide factual and legal statements that later can foster international climate change litigation.Footnote ¹⁸ Another example is marine litter and plastic pollution, which entail cross-cutting legal considerations in international law. An advisory opinion on this point might provide important material for negotiating a new global instrument. In this context, Article 55 ter of the draft text of the ABNJ agreement introduces a jurisdictional clause for requesting advisory opinions from the ITLOS.Footnote ¹⁹ If accepted in the final text, Article 55 ter will be helpful in interpreting the provisions of the agreement in the context of technical and scientific changes. Judge Lijnzaad proposes the possibility of an ITLOS Special Chamber on Marine Biodiversity bestowed with an advisory function.Footnote ²⁰

Another aspect to consider is the utility of two previous ITLOS advisory opinions, which resulted in main inputs to global ocean governance and the development of international law.Footnote ²¹ The first opinion entails valuable considerations on the scope and content of environmental obligations towards the marine environment in the context of deep seabed mining.Footnote ²² Some authors consider this opinion to be the most comprehensive treatment of international environmental law by any international court or tribunal.Footnote ²³ The second advisory opinion provided legal inputs for tackling illegal, unreported and unregulated fishing.Footnote ²⁴ Thus, advisory opinions indeed stand as a judicial mechanism to enhance the rule of law for oceans. Nevertheless, in the particular case of the ITLOS plenary, the architecture of its advisory function places legal questions on its operation by potential requesting entities.

17.3 Architecture of the ITLOS Advisory Function: Vacuums and Opportunities

In international law, everything exists because of the consent of subjects of international law. Among other aspects, States can agree to establish an international tribunal with particular judicial functions to bring legitimacy to the norms and institutions created by a regime where they will perform its judicial functions.Footnote ²⁵ Consent operates as a legal condition of jurisdiction imposed by the mandate providers and the parties to a specific dispute; and as an important factor in legitimating the operation of international courts and tribunals.Footnote ²⁶ Therefore, international judicial bodies can exercise those functions conferred by their creators. In the case of the advisory function of the ITLOS plenary, this statement calls for analysing its legal basis and operation.

This section elaborates on four points: (1) The legal basis of advisory jurisdiction; (2) the scope of the ‘international agreements’ requirement; (3) special agreements for advisory proceedings; (4) the discretionary powers of the ITLOS.

17.4 Conclusions

Following the 2015 SRFC Advisory Opinion, the advisory jurisdiction of the ITLOS plenary has not been used despite the vast legal uncertainties arising from new challenges to ocean governance. One may wonder whether the reason behind this inaction is lack of knowledge on how to trigger the advisory jurisdiction or just a way to avoid awakening the debate on the advisory jurisdiction triggered in 2015. Drawing on the lex lata governing the advisory jurisdiction of the ITLOS plenary, this chapter examined the opportunities offered by this judicial function, as well as the limits that the ITLOS should set.

As a first remark, the advisory function stands as a valuable tool to enhance the UNCLOS system and foster strengthened global governance in the ocean. In other jurisdictions, advisory opinions are demonstrable guidance in the interpretation and application of law. Yet, it should be clear that advisory opinions will not by themselves resolve an issue; rather, they are a complement to a parallel effort. However, their legal effects entail opportunities for stakeholders to reach concrete solutions following the law. In this context, stakeholders should consider the opportunities and the limits of the advisory jurisdiction of the ITLOS to seek legal guidance on how to tackle current challenges in the law of the sea.

Considering the guidance provided by the ITLOS in the SRFC Advisory Opinion on the requirements for triggering the advisory jurisdiction, this research underscores the role of an international agreement as the cornerstone of the advisory function. In this regard, this chapter proposes that the terminology ‘international agreement’ should mean that this jurisdiction emanates from multilateral, regional, bilateral and substantive treaties. Yet the terminology likewise enables the use of ad hoc jurisdictional agreements to request an advisory opinion. As established, a group of States and international organizations can conclude an ad hoc jurisdictional agreement to request an advisory opinion. However, this agreement should comply with the minimum requirements under Article 21 of the Statute and Article 138 of the Rules. These minimum requirements could function as a standard to provide legitimacy to the ITLOS. Nevertheless, the use of ad hoc jurisdictional agreements requires meticulous consideration by the ITLOS to avoid potential abuses. In this vein, the discretionary powers of the ITLOS stand as the main mechanism of control that the Tribunal should employ to prevent abuses when using the advisory jurisdiction. The ITLOS should determine whether there are compelling reasons that will menace judicial propriety. Among these compelling reasons, the Tribunal should pay special attention in protecting the principle to consent to adjudication, mainly due to the particular architecture of its advisory jurisdiction.

As mentioned, Antigua Barbuda, and Tuvalu created COSIS to inter alia trigger an advisory proceeding before the ITLOS on questions concerning climate change and the oceans. This new entity will remain open for other States to join the efforts.Footnote ⁷⁰ The question is whether this agreement will fulfil the requirements imposed by Article 138 of the Rules to seise advisory jurisdiction. Drawing on the analysis of this chapter, the answer will depend on the legal question submitted to the ITLOS and the utility of an advisory opinion for the requesting states. Furthermore, COSIS will open a new chapter in the understanding and operation of the advisory jurisdiction of the ITLOS. It will be on the Tribunal and States to determine the outcome of a new request for an advisory opinion.

18.1 Introduction

The fisheries subsidies mandate of the World Trade Organisation (WTO) recently celebrated its twentieth birthday. Somewhat clarified and reshaped over the years, the mandate remains only partially fulfilled.Footnote ¹ The 12th WTO Ministerial Conference (MC12), scheduled to take place in November–December 2021, at which the negotiations were hoped to finally be concluded, was postponed indefinitely due to a new outbreak of the COVID virus. While fish stocks are at risk of further depletion in the face of increasingly capable fleets, among other hazards, the WTO Members need to take pragmatic yet ambitious steps as a matter of urgency, in order to be able to contribute to the search for solutions.

The WTO is authorised to reduce (or even eliminate) fisheries subsidies through new rules to be integrated in its framework and enforceable via its own dispute settlement mechanism (DSM). This task is not common for a body mostly concerned with trade regulation rather than sustainability (which is treated in a somewhat restricted manner through exceptions), or, even more broadly, the law of the sea. However, if accomplished, it would contribute to current ocean governance through restricting financial inflows into enhancement of the fishing effort, which is damaging for stocks.

Meanwhile, lacking fishing management-related experience or capacity to develop it, the WTO is bound to rely on the procedures and findings of specialist fisheries management bodies as triggers for its disciplines. This requires efficient interaction with other ocean governance players not only throughout negotiations but also (or even more so) during implementation of a future agreement. Similarly, the WTO is inevitably put into the network of the core law-of-the-sea notions embodied in the United Nations Convention on the Law of the Sea (UNCLOS) and related binding and soft law instruments, as well as their implementation.

Having first addressed the impediments encountered by the WTO Negotiating Group on Rules (NGR) despite mounting pressure to deliver, which the Group faces (I), this chapter will further proceed with briefly outlining the history of fisheries subsidies negotiations at the WTO (II); present the factors attracting fisheries subsidies issues to the Organisation (III); explore the potential for integration of disciplines-to-be within the WTO framework already regulating subsidies (IV); and detail and analyse the three key disciplines under discussion, assessing the viability and enforceability of their potential contributions to the Rule of Law for the oceans (V).

18.2 The [Poorly Shaped] Pressure to Deliver: Impediments Faced by WTO NGR Negotiators

An aspiring wish list for the future WTO Fisheries Subsidies Agreement includes numerous and varied entries. In particular, the outcome is expected to (to name a few): respect the mandate(s); show due care for fish; account for developing concerns; duly interplay with the other Sustainable Development Goals (SDGs) and their targets;Footnote ² integrate into both the legal framework of the WTO (its Single [Legal] Undertaking) and that of the other fora concerned with fisheries management; be [immediately] implementable; balance the three groups of sustainability concerns (i.e., environmental, social and economic); and prove the ongoing relevance of the multilateral trading system (MTS) embodied in the WTO.Footnote ³ In the meantime, one other objective – attesting that SDG [early] deadlines could be respected – was missed when the negotiators were unable to reach a deal by the end of 2019.

Despite enhanced attention to future fisheries subsidies disciplines, their sense, scope and dimensions are not well known or understood outside of the WTO negotiating rooms. Even more so, WTO and fisheries experts are each often able to see only part of the picture (e.g., ‘subsidies’ and ‘fisheries’, respectively), whereas other stakeholders demand delivery ‘as is’, not paying enough attention to the manifold technicalities that have so far emerged along the way. Lack of transparency over the progress of negotiations for over a decadeFootnote ⁴ has contributed towards misperceptions and misunderstandings and, arguably, inhibited the establishment of working relationships between the WTO and other international organisations and arrangements operating in fisheries and/or fisheries management. These issues were partially addressed through publication of the evolving NGR chair’s draft texts in May,Footnote ⁵ JuneFootnote ⁶ and NovemberFootnote ⁷ 2021, the explanatory notes theretoFootnote ⁸ and the draft text of the agreement, expected to be considered during the MC12,Footnote ⁹ also accompanied by an explanatory note.Footnote ¹⁰ Nonetheless, the documents evidenced the existence of numerous disagreements, reflected in square brackets and placeholders.

Interaction between the WTO and the other ‘fisheries’ players will be necessary in implementation of the new agreement. The negotiators have indeed benefited from the knowledge shared by fisheries experts invited to participate in the technical sessions of the fisheries subsidies negotiations clusters and in the side events, as well as through studies and datasets on specific topics prepared in support of the negotiations. However, this is a ‘one-way street’ since news pertaining to progress in developing WTO fisheries rules did not necessarily spread. As a result, effective contributions from many of the fisheries specialists were disabled. Worse, the risk is that the outcome might make those same specialists somewhat reluctant to participate in implementing an unknown deal, fearing that its design might have a negative impact on the other initiatives.

The same prolonged lack of transparency has also made academic inquiry into the matter more complicated. This is because most of the submissions and communications by the Members, as well as other working papers, are restricted. In addition, in the past (up until May 2021, when the first version of the new NGR chair’s consolidated text was shared beyond WTO walls), summaries or updates rarely reached the public domain. In combination, these factors were impeding holistic and objective analysis from being accomplished and/or published.

18.3 Fisheries Subsidies at the WTO: The History

The history of WTO fisheries subsidies negotiations dates back to 1995. Then, right after establishment of the Organisation, issues related to the harmful effects of these subsidies on fish stocks were raised before the WTO Committee on Trade and Environment. The Committee started by updating itself on recent developments in the area, for instance, through studying Articles 11.2 and 11.3 of the Food and Agriculture Organisation of the United Nations (FAO) Code of Responsible Fisheries, devoted to responsible trade; laws and regulations relating to the fish trade and addressing sanitary and phytosanitary (SPS) measures, technical barriers to trade (TBT) measures, tariffs and non-tariff measures, relevant technology transfer requirements, transparency and cooperation.Footnote ¹¹

Inquiring into the core of the phenomenon, one of the proponents of establishing the disciplines in the area recognised: ‘Fisheries subsidies, irrespective of whether they take the form of cost reduction or price supports, encourage increased fishing effort. Thus, fisheries subsidies exacerbate the already serious common property problem of ocean fisheries … ’.Footnote ¹² On the other hand, an alternative approach has also started to crystalise. This approach – supported by Japan, among others – emphasises fisheries management rather than fisheries subsidies, as a result, advocating in favour of establishing considerably more modest and selective effect-based disciplines.Footnote ¹³

Numerous submissions – mostly by the Friends of Fish: Iceland, New Zealand, the United States, Australia, Chile, Peru and Norway – have addressed many of the core points, including a drastic lack of transparency over fisheries subsidies granted by WTO Members,Footnote ¹⁴ posing real difficulties in terms of estimating the true impact of those subsidies. As a result, the first ever draft version of the WTO fisheries subsidies mandate, introduced during the MC3 in Seattle (yet never adopted), comprehensively captured most of the important elements of the discussions-to-be. It addressed ‘certain subsidies that may contribute to over-capacity in fisheries and over-fishing’; provided that ‘the work on fisheries subsidies shall be carried out in cooperation with the FAO and drawing also on relevant work under way within other intergovernmental bodies, including RFMOs’ and included ‘identification and examination of subsidies which contribute to over-capacity in fisheries and over-fishing’ and ‘the clarification and strengthening, as appropriate of disciplines under the Agreement on Subsidies and Countervailing Measures (SCM) with respect to such subsidies … ’.Footnote ¹⁵ However, it is important to note that the mandate as drafted had an additional, purely ‘trade-related’ facet, which has gradually disappeared as the work progressed. Namely, it was also dealing with fisheries subsidies that ‘cause other adverse effects to the interests of Members’ and ‘have trade-distorting effects’.Footnote ¹⁶ The only area not addressed by the Seattle fisheries draft, which has later become a central element of the mandate, was that of development.

After the failure of the Seattle Ministerial to deliver,Footnote ¹⁷ unrelated to fisheries subsidies, a much more modest version of the relevant mandate was introduced in paragraph 28 of the Doha Ministerial Declaration.Footnote ¹⁸ This referred to clarification and improvement of the ‘WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries’ within the framework of ‘negotiations aimed at clarifying and improving disciplines under the Agreements on Implementation of Article VI of the GATT 1994 and on Subsidies and Countervailing Measures’. This provision was supplemented by a broadly phrased undertaking to negotiate on ‘the reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services’ (non-specific to fisheries subsidies) in paragraph 31 (iii) of the same Declaration. The dual – trade and environmental – emphasis was thus, for the moment, preserved.

A largely identical mandate was restated in paragraph 28 of the 2005 Hong Kong Ministerial Declaration.Footnote ¹⁹ However, in paragraph 9 of its Annex D, the same instrument, in addition, explicitly referred to ‘prohibition of certain forms of fisheries subsidies that contribute to overcapacity and over-fishing’, also containing a much more elaborate special and differential treatment (SDT) clause.

The NGR chair’s Draft 2007,Footnote ²⁰ even if not having normative value, is also worth a mention, since it has influenced the future of the negotiations in at least two respects. The first is by offering a definition of fisheries subsidies, containing an explicit reference to their ‘specificity’ (by suggesting, in Article I.1, that ‘… the following subsidies within the meaning of paragraph 1 of Article 1, to the extent they are specific within the meaning of paragraph 2 of Article 1, shall be prohibited’. The second is by introducing an extra negotiation track for subsidies to fishing on overfished stocks (Article I.2: ‘In addition to the prohibitions listed in paragraph 1, any subsidy referred to in paragraphs 1 and 2 of the Article 1 [listing varied types of capacity-enhancing subsidies] the benefits of which are conferred on any fishing vessel or fishing activity affecting fish stocks that are in an unequivocally overfished condition shall be prohibited’ (emphasis added). Both these items remain on the agenda up until today.

The situation evolved in late 2015 with adoption of SDG’s, in particular, SDG 14.6, designed to ‘by 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU fishing, and refrain from introducing new such subsidies … ’. The prohibitory language of SDG 14.6 was picked up by the Ministerial statement of the 10th WTO Ministerial Conference (MC10), supported by some twenty-six WTO MembersFootnote ²¹ and, later, the Ministerial Decision on Fisheries SubsidiesFootnote ²² of the 11th WTO Ministerial Conference (MC11) in which, expanding the prior mandate, the Members agreed ‘to continue to engage constructively in the fisheries subsidies negotiations building up on the progress already made … , with a view to adopting, by the Ministerial Conference in 2019, an agreement on comprehensive and effective disciplines that prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU-fishing … ’. This way, the mandate was supplemented by reference to Illegal, Unreported and Unregulated (IUU) fishing, and now contains two de-jure and three de-facto substantive elements.

In addition to these elements, the exact language of the mandate clearly evidences its evolution, starting from ‘clarification’ and reaching achieving agreement on new ‘comprehensive and effective disciplines’.

18.4 Factors Attracting the Issue to the WTO Agenda

The initial reason for introducing fisheries subsidies on to the WTO agenda seems to be clear. That is: the [once] strong dispute settlement that could extend to ensuring compliance with these trade-related obligations,Footnote ²³ albeit mostly grounded in environmental sustainability. Redress for violating the fisheries governance rules is underexplored elsewhere, especially as far as the domain of capacity-enhancing subsidies is concerned, the one originally submitted for creation of the WTO rules-to-be. In this area, fisheries management plans, quasi-voluntary in nature, currently predominate. This leaves States questioning their neighbours’ conservation efficiency to resort either to a) reinforcing it through technical assistance and enhancing cooperation within the framework of free trade agreements (FTAs) or fishing access agreements (FAAs), or b) adopting unilateral trade-restrictive measures, some of which were even contested before the General Agreement on Tariffs and Trade (the GATT) and WTO panels,Footnote ²⁴ also featuring parallel counter-proceedings elsewhere.Footnote ²⁵ In this light, the desire to legitimise at least some conservation measures within the global trade order looks justified, at least beyond the capriciousness of the GATT Article XX(g) exception. The situation with the IUU disciplines, joined to the WTO fisheries subsidies mandate, appears to be similar. However, arguably, these are already subject to harsher enforcement mechanisms. Despite the recent entry into force of the UN Port State Measures Agreement (PSMA),Footnote ²⁶ as of now, such arrangements are predominantly of a unilateral nature.

Other factors of attraction – though arguably of comparatively less significance – include, for example, the nature of the measure, bearing in mind that the GATT, followed by the WTO, has significant experience in putting together, implementing and enforcing varied subsidies rules, proving that the subject matter of the new deal – fisheries/fish – is not foreign to the WTO, having been subject to market access measures, including tariffs and non-tariff measures (NTMs), such as SPS, TBT, transit and export/import restrictions. It might be also argued that the rules on fisheries subsidies could potentially benefit from peer pressure enhancing compliance, ensured by the institutional structure of the WTO. Finally, after the change of circumstances these days, in particular, the demise of the WTO Appellate Body (AB) and the resulting crisis of the WTO dispute settlement mechanism as a whole, the mandate remains on the agenda thanks to the pacta sunt servanda principle, supported by the efforts made in clarifying it earlier.

18.5 Squaring the New Subsidies with WTO Subsidies Disciplines

If adopted, the Agreement on Fisheries Subsidies would become the fourth covered agreement addressing subsidy matters at the WTO, after the GATT, the Agreement on Agriculture (AoA) and the Agreement on Subsidies and Countervailing Measures (SCM). It should be noted that the principle of effectiveness requires that the ‘provisions [of the WTO agreements] are read in a coherent and consistent manner which gives full and effective meaning to all of their terms’.Footnote ²⁷ Remarkably, while both the SCM and the AoA have adopted different regulatory approaches and structural solutions, they seem to overlap in attributing different weight to different types of subsidies, the SCM – through the ‘traffic light’ approach, while the AoA – via its boxes. This results in stricter treatment of the most trade-distorting measures. In the SCM, more restraining treatment is, for instance, reserved for the case of export subsidies, which, together with import substitution subsidies, forms the ‘prohibited subsidies’ category. While the SCM prohibited such subsidies from the start by virtue of its Article 3(1)(a), the AoA in its Part V (Articles 8-11) first subjected them to detailed regulation. This, however, was also later followed by the prohibition introduced through the Ministerial Decision on Export competition in the Bali Ministerial package,Footnote ²⁸ which is now subject to gradual implementation. The typologies are closely linked to the issue of enforceability, with the more stringent disciplines being subject to better streamlined procedures.

Even should the Fisheries Subsidies Agreement be integrated into the SCM, its distinctive character and pursuit of non-trade objectives would certainly make it stand out as a lex specialis with respect to the other, general, subsidies rules incorporated therein. Fisheries (like other) subsidies are already covered by the SCM disciplines as far as their trade-related effects are concerned. Most of these subsidies are actionable, which means that a Member contesting a measure should be able, as per Part III of the SCM, to show (and quantify) adverse trade effects. As was suggested by Australia, Chile, Ecuador, Iceland, New Zealand, Peru, Philippines and the United States during early elaboration of the Doha Mandate,

The same submission further noted that the distortions caused by the fisheries subsidies might be difficult to address under the SCM Agreement, operating the notions of price cuts and import impediments or displacements.Footnote ³⁰ The proponents also pointed out that the task of identifying market distortions by fisheries subsidies is made more difficult by the diversity in nature of fisheries products and of the economic structures used by the industrial segment concerned.Footnote ³¹

This might suggest the reasons why no cases challenging fisheries subsidies provided by a Member were ever raised before the WTO panels and the AB. The same structure proves highly impracticable if ‘trade’ effects are replaced by ‘environmental’ concerns. Nor would it meet the mandate, unambitiously calling for no less than ‘prohibition’. The fisheries subsidies rules, which are being elaborated, are not directly aimed at disciplining trade restrictive measures otherwise resorted to by the Members in the fisheries sector, such as import, export and transit restrictions. Those would likely continue their parallel existence, even though, indeed, they might be impacted by synergies created by better fisheries management practices, the introduction of which might be catalysed by the Fisheries Subsidies Agreement, or even a run-up thereto, and, where applicable, the other WTO rules disciplining trade restrictions. What is suggested is an alternative avenue. Lastly, the fisheries subsidies disciplines might be relevant in interpreting the text of GATT Article XX(g) as applied to other trade restrictive measures taken to meet conservation ends.

18.6 What the Negotiations Are Really About: The Three Elements of a Future Deal

Even if it might be argued that at the core of the ongoing negotiations are disciplines tackling overcapacity and overfishing, two other additional issues are on the table. One of those – subsidies to fishing overfished stocks – was added de facto, not de jure. These three substantive areas will be assessed next.

18.6.1 Capacity-Enhancing Subsidies (e.g., Contributing to Overcapacity and Overfishing)

Input of overcapacity into overfishing is clear (see Chart 18.1) and widely recognised. Moreover, as the term ‘contributing’ itself suggests, even if this is not the only cause of overfishing, it remains an important one. In addition, overcapacity is the area offering most comfort to the WTO negotiators, since it largely relies on economic terms and indicators, to which they are accustomed. The impact of capacity-enhancing subsidies on the conditions of fish stocks is demonstrated on the adjusted version of the Kobe (or the phase) plot. This constituted part of the Report of the first joint meeting of the tuna RFMOs, which is used to evaluate the status of a stock based on fishing mortality (F) and biomass (B) associated with maximum sustainable yield (MSY; FMSY and BMSY).

Chart 18.1. Impact of capacity-enhancing subsidies on fish stocks (on adjusted Kobe Plot)

Subsidies increasing capacity – even more so when coupled with poor or inexistent fisheries management practices – appear also to contribute to IUU. Thus, overcapacity disciplines could, in addition, curtail IUU fishing, which, as noted by Lee, is a by-product rather than a subject of subsidisation.Footnote ³² Tackling a broader perspective, prohibition of certain overcapacity subsidies would make an important contribution to fisheries governance overall, since this particular issue is not pre-empted by the existing framework. That is especially so with respect to fishing on the high seas – outside the areas/ species covered by the RFMO/As, or even within them – since the measures taken by different organisations and arrangements are not identical in their efficiency. Finally, considering the migrating, straddling and shared nature of many fish stocks, which make management efforts particularly difficult, blocking enhancement of fisheries effort could be a viable addition or alternative.

Even though the WTO Members seem to agree that subsidies contributing to overcapacity and overfishing have to be curtailed, reaching consensus over the way in which this result could be achieved has proven to be a difficult task. The three main approaches suggested and debated are as follows. First, the positive list approach, according to which most harmful types of capacity-enhancing fisheries subsidies would be identified and so listed and prohibited. Second, the negative effect test, according to which only capacity-enhancing subsidies negatively impacting stocks would face prohibition. And third, the approach establishing (scheduling) subsidy caps, specific to particular Members or their groups, which would limit the total allowable amount of subsidies provided, and might be subject to further reductions. These approaches were considered alone and in combination.

While the list and the caps approaches require consensus upfront – in establishing the lists and quantifying the caps respectively – the negative effect test postpones determination of what is prohibited to the future – as a matter of a highly problematic step in light of the ongoing WTO DSM impasse, the overall complexity of the WTO DSM and particular challenges fisheries subsidies might contribute thereto.

The blended approach, embodied in the latest Chair’s draft, relies on the stabilised demonstrative list of prohibited subsidies (subsidies for fixed and operational costs, including fuel), followed by effect-based flexibility and exceptions incorporating certain elements used in elaborating the capping proposals. The design of these provisions implies that the setting of action is the territorial sea, EEZ or RFMO/A area. Special provisions prohibit subsidies contingent on fishing on the high seas in whole or in part, as well as subsidies to vessels flying a flag of a different Member. The flexibility tolerates capacity-enhancing subsidisation ‘if the subsidising Member demonstrates that measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level’. Meanwhile, the exceptions reflected (save for the one devoted to disaster relief and available to all Members) are targeting low income, resource-poor or livelihood fishing, or fishing-related activities of the developing Members and LDCs in their territorial seas or EEZs. These exceptions are not only time-limited but are also subject to exemptions from eligibility, referring to the Member’s share of the annual global marine capture fish production and, potentially, other indicators.

18.7 Concluding Remarks

The contours of the potential contribution by the WTO to the Rule of Law for the Oceans are largely defined by now. It will include rules contributing to minimising financial inflows supporting enhancement of the fishing effort and so damaging stocks. These rules would be divided into three streams, shaped as prohibitions of: a) subsidies contributing to overcapacity and overfishing; b) subsidies for fishing on overfished stocks; and c) subsidies to vessels and/or operators involved in IUU fishing. Reflecting the accessory role of the WTO in ocean governance and once again emphasising that the WTO does not exist in a clinical isolation, the new disciplines are built around law of the sea notions and are relying on the efforts taken and findings made by fisheries management organisations and arrangements as triggers.

While the oceans are well-inscribed into the environmental sustainability pillar of a future agreement, which appears to feature a higher degree of convergence, the other two – social and economic sustainability – elements, are still subject to heated discussion. Indeed, a reduction in the usual state support might have a considerable impact on fishers and their communities, especially in the short term. On the other hand, the impossibility of investing in fleets could interfere with the industrialisation strategies of developing countries and LDCs, most of which, nowadays, are responsible for only an insignificant share of subsidisation due to their restricted relevant budgets. Mutually acceptable solutions to these issues are hoped to be found by the MC12, now postponed to March 2022 at the earliest due to the COVID pandemic.

The WTO fisheries subsidies negotiations are a marathon rather that a sprint. Another lap or several might be required to make sure that the agreement is ripe for delivery and subsequent implementation. On this track, every step forward is of importance to both the WTO and the oceans. A win-win outcome might well be achievable: through establishing the new, sustainability-driven subsidies rules, the WTO could help the oceans to recover, while the progress and the eventual successful conclusion of the fisheries subsidies negotiations could affirm that the WTO remains relevant and could meaningfully deliver on trade-related issues of global concern.

19.1 Introduction

As recognized by the UN General Assembly, the rule of law requires that States ‘abide by all their obligations under international law’.Footnote ¹ Against this standard, the traditional regime regulating international fisheries appears inadequate, since many States are unwilling or unable to respect their relevant obligations. This issue is enabled or compounded, at the global level, by the absence of a well-established, inter-governmental compliance mechanism to hold them accountable.Footnote ² Such a mechanism would be tasked, first, to verify, independently, whether States are respecting their obligations and then, if needed, to take measures to trigger modification of behaviour.

This chapter examines the potential of using litigation to increase compliance with existing norms in the field of fisheries. International courts and tribunals are indeed important contributors to the rule of law,Footnote ³ be it by solving the specific dispute in front of themFootnote ⁴ or clarifying the law.Footnote ⁵ Existing research has examined case-law relevant to fisheries or the marine environment more generally,Footnote ⁶ and has analysed the potential of litigation for environmental purposes.Footnote ⁷ The present chapter aims to add to this body of literature by analysing the potential of and obstacles to using litigation in three specific fisheries-focused scenarios: litigation against a flag State, against a coastal State and against a fishing State.

The adjudicative bodies examined in the present chapter focus on public international law, leaving aside trade law as a more discrete field. In addition to references to contentious cases in front of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and arbitral tribunals, the chapter considers advisory opinions and conciliation commissions. Litigation is hence understood in an expansive fashion.

It is worth noting at the outset that the main framework for the law of the sea, the United Nations Convention on the Law of the Sea (UNCLOS), establishes a robust and compulsory system for the settlement of disputes. Part XV of that nearly global treaty contains dispute settlement procedures applicable to all parties to the treaty since reservations are not allowed under the Convention, unless provided otherwise in specific provisions. Disputes regarding interpretation or application of the Convention can, if certain conditions are fulfilled, be submitted unilaterally to third-party dispute settlement.

19.2 Litigation against a Flag State

A first possibility to improve compliance with existing obligations would be to focus litigation strategy on flag States, which are central players in maritime activities, including fisheries.

The obligations of the flag State are, inter alia, to control vessels flying its flag, both on the high seas and in the Exclusive Economic Zone (EEZ) EEZs of third States, and to ensure that they respect applicable conservation and management measures (CMMs). The obligation is provided for in Article 94 of UNCLOSFootnote ⁸ and further elaborated, in relation to the fisheries sector, in other treaties.Footnote ⁹ This obligation of due diligence does not imply that a flag State will be held responsible for each violation of applicable rules by one of its vessels, but that it must ‘take all necessary measures to ensure compliance and to prevent IUU [illegal, unreported and unregulated] fishing by fishing vessels flying its flag’.Footnote ¹⁰

While this is an obligation of conduct rather than result, it should not be underestimated; the order of the oceans, in particular on the high seas, is based on assigning jurisdiction to the flag State. Unfortunately, the issue of flags of non-compliance is widespread in the fisheries field.Footnote ¹¹ In that light, the potential impact of addressing this issue would be considerable. The law of the sea is not so much a legal regime with major gaps as a legal regime insufficiently implemented and enforced.

19.3 Litigation against a Coastal State

A second possibility to improve compliance with existing obligations would be to focus litigation strategy on coastal States, whose waters are the most productive in the oceans, and where most fishing occurs.Footnote ³⁴

Coastal States must ensure that the resources under their jurisdiction are not over-exploited.Footnote ³⁵ To do so, they must set a total allowable catch, taking into account the best scientific evidence and adopting measures to maintain or restore stocks to a level where they can produce maximum sustainable yield.Footnote ³⁶ Failings by the coastal State may be due to unwillingness and/or inability, as managing vast expenses of waters is a costly endeavour. Since a large proportion of stocks are overfished,Footnote ³⁷ it seems clear that the obligation to avoid overexploitation is not properly respected.

19.4 Litigation against a State Fishing Shared Stocks

A third litigation possibility to improve compliance with existing obligations would be to address the duty that States involved in fishing transboundary, straddling or highly migratory fish stocks have to cooperate in conserving these resources.

Both coastal States – when dealing with fish stocks not exclusively located in their waters – and the flag States of vessels active on the high seas are under an obligation to cooperate in the conservation of marine living resources.Footnote ⁵² The obligation found in UNCLOS is further developed in the United Nations Fish Stocks Agreement (UNFSA), which provides that States shall cooperate with the relevant RFMO – or in the absence of one establish one – before they are allowed to fish straddling and highly migratory fish species in the high seas.Footnote ⁵³ In practice, RFMOs adopt CMMs, which member States and cooperating parties are supposed to comply with – except if they have opted out, although this option only applies to parties.

This double obligation of cooperation and conservation stemming from UNCLOS is particularly crucial in areas beyond national jurisdiction, as, in its absence, the regime is one of free-for-all, leading to a potential tragedy of the commons.Footnote ⁵⁴ The worrisome state of fish stocks, in particular in the high seas, speaks volumes as to the existence of problems in the regional management of these marine resources.

19.5 Conclusion

In light of the long-standing issue of non-compliance in the fisheries field and the resulting unsustainable management of stocks, litigation is an option that should be considered by States. As examined, recent cases have clarified that many avenues are open, even if some issues, such as jurisdictional restrictions or adequacy of remedies, may remain. Having recourse to litigation in some of the situations examined in this chapter would be beneficial for the rule of law, in that it could bring an end to specific violations, hence tackling the most egregious cases of non-compliance. By doing so, it would provide a strong message against impunity, hopefully serving as a deterrent against similar behaviour by others. In particular, cases with a non-negligible impact and which are likely to succeed are those against notorious flags of non-compliance. Moreover, bringing a case to a court or a tribunal may also enable clarification of certain obligations, especially by way of advisory opinions. In that respect, one should consider a request for an advisory opinion to clarify the content of the obligation to cooperate in the conservation of shared stocks.

However, litigation has serious limitations. First and foremost, it is costly to start proceedings against another State, in both monetary and political terms. Hence, it will remain a rarity, especially if States are not reacting to direct injury but acting on behalf of the international community. Moreover, beyond the indirect deterrent effect on third States, a case will only ever solve a specific bilateral dispute, thus coming nowhere close to a comprehensive review of States’ compliance with their obligations in the fisheries field. Furthermore, litigation cannot replace well-functioning science-based management: judges are not scientists, and a case is brought ex post, instead of focusing on prevention of damage. Finally, litigation is only able to successfully address non-compliance due to lack of willingness. It is not geared towards solving the large(r) problem of lack of capacity.

Hence, while litigation may certainly have a role to play in the field of fisheries, and even if several cases were started in front of international courts and tribunals, other mechanisms should also be developed and/or strengthened. Compliance procedures under global or regional frameworks should serve for comprehensive, in-depth and regular review of States’ compliance with their obligations. As established procedures, they furthermore have the advantage of not relying on a particular State’s willingness to invest resources in litigation against another State. In comparison to the ad hoc nature of litigation, this characteristic of compliance procedures has the potential to add much-needed objectivity, impartiality and comprehensiveness to the pursuit of accountability.