Institutional Reactions to the Flag State that has Failed to Discharge Flag State Responsibilities

‘Oceans and the Law of the Sea: Consultative Group on Flag State Implementation, Report of the Secretary-General’, UN Doc. A/59/63, 5 March 2004, p. 3. See also ‘Report of the Ad Hoc Consultative Meeting of Senior Representatives of International Organizations on the “Genuine Link”’, UN Doc. A/61/160, 17 My 2006, p. 6. For the purpose of this article, the term ‘international organization’ is used regardless of international legal personality (unless the context suggests otherwise). This usage is not without precedent. See, e. g., H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within Diversity, 5th rev. edn. (Leiden, Martinus Nijhoff 2011) pp. 31–32. For the sake of convenience, participating states in international institutions without international legal personality are referred to as ‘members’. Some of the regional fisheries management mechanisms take the form of ‘arrangements’ rather than organizations, without being established as a legal entity by a legally-binding instrument. For the purpose of this article, both ‘organizations’ and ‘arrangements’ are collectively referred to as ‘RFMOs’. On the term ‘arrangements’, see, e. g., Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (4 August 1995, entered into force 11 December 2001), 2167 UNTS p. 3 (‘UNFSA’), Art. 1(1)(d). For the purpose of this article, the term ‘CITES’ is hereinafter used to denote the multilateral regulatory regime established under that Convention unless the context indicates otherwise. Note that legal issues concerning EU action against flag states, whether they are its member states or not, deserve a separate analysis due to their specific nature. On these issues, especially the European Court of Justice proceedings, see, e. g., J.-A. Witt, Obligations and Control of Flag States: Developments and Perspectives in International Law and EU Law (Berlin, Lit verlag 2007) pp. 210–218. The UNGA is also influential in shaping the future of international fisheries governance. Given the broad scope of its discussions not confined to fisheries, however, it will be dealt with in section 4. On interactions between these regimes in general, see M.A. Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge, Cambridge University Press 2011). CITES, ‘Proposal to Include Atlantic Bluefin Tuna (Thunnus thynnus (Linnaeus, 1758)) on Appendix I of CITES in Accordance with Article II 1 of the Convention (Proposed by the Principality of Monaco)’, CoP15 Prop. 19 (2010). On the tension between RFMOs/FAO and CITES, see generally E.J. Molenaar, ‘Unregulated Deep-Sea Fisheries: A Need for a Multi-Level Approach’, 19 International journal of Marine and Coastal Law (2004) p. 223 at pp. 232–234. Some of the existing measures are briefly summarized by the secretariat of the Western and Central Pacific Fisheries Commission (‘WCPFC’) in WCPFC, ‘Paper Prepared by the Secretariat, Implementing a Process for Compliance Review and Enforcement with WCPFC Conservation and Management Measures and Other Decisions of the Commission’, WCPFC-TCC4-2008/25, 10 September 2008. See A. Serdy, ‘Accounting for Catch in Internationally Managed Fisheries: What Role for State Responsibility?’, 15 Ocean and Coastal LJ (2010) p. 23 at pp. 39–73. Quota adjustments can also be adopted by the Northwest Atlantic Fisheries Organization (‘NAFO’) and the International Commission for the Conservation of Atlantic Tunas (‘ICCAT’). See WCPFC, supra n. 9, pp. 5–7. See conservation measures by CCAMLR, e. g., CM 10-06 (2008). Convention on the Conservation and Management of the High Seas Fishery Resources of the South Pacific Ocean (14 November 2009, not yet in force), available at www.southpacificrfmo.org/assets/Convention-and-Final-Act/2353205-v2-SPRFMOConvention-textascorrectedApril2010aftersignatureinFebruary2010forcertificationApril2010.pdf (accessed 16 December 2011) (‘Auckland Convention’), Art. 8(h). See, e. g., International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, approved by the FAO Committee on Fisheries on 2 March 2001 (‘IPOA-IUU’), para. 84. Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (5 September 2000, entered into force 19 June 2004), 40 ILM 278 (‘WCPFC Convention’), Art. 32(4); Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (20 April 2001, entered into force 13 April 2003), 2221 UNTS p. 189 (‘SEAFO Convention’), Art. 22(1) and (4); Southern Indian Ocean Fisheries Agreement (7 My 2006, not yet in force), OJ 2006 L 196/15 (‘SIOFA’), Art. 17(4); North-East Atlantic Fisheries Commission (‘NEAFC’) Scheme of Control and Enforcement, amended by the 29th Annual Meeting — November 2010, Art. 46; NAFO Conservation and Enforcement Measures (‘CEM’), Art. 53(1)–(2). See also the Auckland Convention, Art. 32(3). Cf. UNFSA, Art. 33(1). WCPFC Convention, Art. 32(3); SIOFA, Arts. 6(1)(j) and 17(3). The NEAFC Scheme of Control and Enforcement provides for the notification of presumed IUU activities and the request to the flag state to take measures in accordance with its applicable legislation and to report back to NEAFC on the results of enquiries and/or on the measures it has taken. NEAFC Control and Enforcement Scheme, Art. 42. See also NAFO CEM, Art. 50(3)–(4). See, e. g., CCAMLR, ‘Report of the Twenty-ninth Meeting of the Commission (Hobart, Australia, 25 October to 5 November 2010)’, CCAMLR-XXIX (2010), para. 9.14. It also agreed that the Chair of the Commission would write to those non-contracting parties reported to be flag states of IUU vessels fishing in the Convention Area to request their written permission to board and inspect such vessels. See para. 9.8. WCPFC Convention, Art. 32(1); SEAFO Convention, Art. 22(3); SIOFA, Art. 17(1); Auckland Convention, Art. 32(1). See also UNFSA, Arts. 17(4) and 20(7). E. g., NEAFC Scheme for Control and Enforcement, Arts. 39–41. In addition, as noted above, it stipulates action vis-à-vis flag states in Art. 46. IPOA-IUU, para. 80.10. On the CCSBT, see CCSBT Action Plan, adopted at the Sixth Annual Meeting — Second Part; 21–23 March 2000, para. 6. As opposed to the other three RFMOs, CCSBT trade-restrictive measures concern only non-parties. The WCPFC is in the process of developing responses to noncompliance, including penalties. See Conservation and Management Measure 2010–03, para. 23. NEAFC Control and Enforcement Scheme, Art. 46(3) (‘appropriate multilaterally agreed non-discriminatory trade related measures, consistent with the World Trade Organisation (WTO)’ in respect of non-contracting parties identified). NAFO CEM, Art. 53(3) (‘restrict the export and transfer of [contracting parties’] formerly licensed fishing vessels to non-Contracting Parties identified’). See also a Canadian Proposal to NAFO (STACFAC/STACTIC W.P.04/5, Art. 35.3) as well as observations by the NAFO performance review panel (NAFO, Report of the NAFO Performance Review Panel 2011 (2011) pp. 126–128). Auckland Convention, Art. 8(g) (‘non-discriminatory market-related and trade-related measures’). See, e. g., CCAMLR, supra n. 16, paras. 12.62–12.73. CCAMLR conservation measures, in the context of both contracting parties and non-contracting parties, stipulate that, in respect of toothfish, contracting parties may cooperate to adopt appropriate multilaterally agreed trade-related measures, consistent with their obligations as members of the WTO. CM 10-06 (2008), para. 25; CM 10-07 (2009), para. 30. But note that CCAMLR only adopts decisions on matters of substance by consensus. Convention on the Conservation of Antarctic Marine Living Resources (20 May 1980, entered into force 7 April 1982), 1329 UNTS p. 47, Art. XII. See ICCAT, Recommendation Concerning Trade Measures (06–13); IOTC, Resolution 10/10 Concerning Market related Measures. The IATTC adopted Resolution C-06-05 in 2006; the measure lapsed in 2008 while amendment proposals for this resolution were still under discussion at the 82nd meeting in 2011. Procedures stipulated in the recommendation include: the identification of CPCs and NCPs by the Commission (para. 2(a)), requesting CPCs and NCPs concerned to rectify the act or omission identified (paras. 3–4), the adoption by the Commission of non-discriminatory trade-restrictive measures, upon a proposal by the Compliance Committee or the Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures and the recommendation to the Contracting Parties to take such measures, consistent with their international obligations (paras. 6–7), actions in exceptional circumstances (para. 10), and the lifting and reintroduction of trade-restrictive measures (paras. 9–10). Recommendation by ICCAT Concerning Trade Measures (06–13), preambular paras. 5–6 (e. g., ‘only as a last resort’, ‘in accordance with international law, including principles, rights and obligations established in [WTO] Agreements’ and ‘in a fair, transparent and non-discriminatory manner’). MA. Palma, M. Tsamenyi and W. Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Leiden, Martinus Nijhoff Publishers 2010) p. 229. They argue that these measures are consistent with para. 66 of the IPOA-IUU. See pp. 229–230. Constitution of the Food and Agriculture Organization of the United Nations (16 October 1945, entered into force 16 October 1945), I Basic Texts of the Food and Agriculture Organization of the United Nations Part A, Art. XIV. The Director-General of the FAO also exercises depositary functions in respect of treaties concluded outside the FAO framework (e. g., SIOFA). FAO, Report of the Twenty-seventh Session of the Committee on Fisheries, Rome, 5–9 March 2007, FAO Fisheries Report No. 830 (Rome, FAO 2007) para. 71. Fisheries and Oceans Canada, ‘Expert Workshop on Flag State Responsibilities: Assessing Performance and Taking Action, 25–28 March 2008, Vancouver, Canada: Guidance Document, May 2009’, May 2009, pp. 13–14. See FAO, Report of the Expert Consultation on Flag State Performance, Rome 23–26 June 2009, FAO Fisheries and Aquaculture Report No. 918 (Rome, FAO 2009). Discussions were held on the basis of a paper prepared by Rosemary Rayfuse, which examined a wider range of actions against flag states, including: institutional responses of RFMOs such as the withdrawal of quota, the withdrawal of cooperating non-contracting party status and the withdrawal of voting rights. R. Rayfuse, ‘Possible Actions against Vessels Flying the Flags of States not Meeting the Criteria for Flag State Performance’, in FAO, supra n. 32, p. 28, in particular at pp. 34–35, paras. 26–31. She argues that such actions ‘encompass a graduated scale of responses and reflect the stages and purposes of the unilateral and multilateral assessment processes’. See p. 34, para. 27. Information on the Technical Consultation is available on the FAO website at www.fao.org/fishery/nems/39973/en (accessed 3 February 2012). Convention on International Trade in Endangered Species of Wild Fauna and Flora (3 March 1973, entered into force 1 July 1975), 993 UNTS p. 243 (‘CITES’), Art. I(c). Ibid., Art. I(e). See CITES, ‘Introduction from the Sea’, SC61 Doc. 32 (2011), pp. 2 and 9. CITES, ‘Compliance with the Convention’, CoP12 Doc. 26 (2002), paras. 37–49. CITES, Resolution Conf. 14.3 ‘CITES Compliance Procedures’ (2007), Annex. It is not legally binding and the procedures described therein are without prejudice to any rights and obligations and to any dispute settlement procedure under the Convention. See paras. 1 and 3. Ibid., para. 4. The term ‘compliance matters’ is not defined in the Guide but it seems that the term is used in a broad sense of any matters related to compliance with obligations under CITES unless the context indicates otherwise. Ibid., para. 12. Ibid., paras. 29–30. In relation to a non-party state, such a recommendation may be made in cases of the non-issuing by a non-party state of the documentation referred to in Art. X of the Convention, which concerns export or re-export to or import from a non-party state. The Guide mentions that the list of measures therein is not necessarily an exhaustive list of measures applied ‘to date’. Ibid., para. 31. On the drafting process of this instrument, in particular on this point, see CITES, ‘Guidelines for Compliance with the Convention’, CoP14 Doc. 23 (2007), p. 8, where a strong preference was shown by the Standing Committee Working Group on Compliance’s members to explicitly state that the list of measures is not necessarily exhaustive. Resolution Conf. 14.3, supra n. 39, para. 32. These are the Paris MOU, the Latin-America Agreement, the Tokyo MOU, the Caribbean MOU, the Mediterranean MOU, the Indian Ocean MOU, the Abuja MOU, the Black Sea MOU and the Riyadh MOU. For an overview of these MOUs and the US Coast Guard (‘CG’) port state control, see IMO, ‘Progress Report on Regional PSC Regimes: Note by the Secretariat’, IMO Doc. FSI 18/7/2, 31 March 2010. The USCG also established a list of targeted flag administrations. Paris Memorandum of Understanding on Port State Control, 26 January 1982, 33rd amendment adopted 3 May 2011 (effective date: 1 July 2011), sub-section 4.1. The ‘flag’ factor alone does not result in access refusal. Witt, supra n. 5, p. 192. For information, including the declarations, see Transport Canada, ‘2004 Port State Control Conference’, at www.tc.gc.ca/eng/marinesafety/pscconference-menu.htm (accessed 21 February 2011). See Joint Ministerial Declaration adopted at the First Joint Ministerial Conference of Paris and Tokyo Memoranda of Understanding on Port State Control, Vancouver, Canada, 24–25 March 1998, para. III(b). See ibid., para. III(c). Convention Establishing the Inter-Governmental Maritime Consultative Organization (6 March 1948, entered into force 17 March 1958), 289 UNTS p. 48. Its name was changed to the IMO in 1982. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1 December 1978, in force 28 April 1984, as amended and modified by the 1995 Protocol), 1361 UNTS p. 2 (‘STCW Convention’). Ibid., Annex, reg. I/7(2). Ibid., Annex, reg. I/7(3). On the issue of a potential overlap between the STCW Convention and the IMO Audit Scheme, see IMO, ‘Report of the Joint MSC/MEPC/TCC Working Group on the Voluntary IMO Model Audit Scheme: Note by the Secretariat’, IMO Doc. MEPC 49/11/7, 12 June 2003, Annex, para. 6.4. The Group’s recommendation is reflected in the adopted text of the Scheme. See IMO Assembly Resolution A.974(24), 1 December 2005, Annex, para. 7.2.2. IMO, ‘71 Countries Make IMO’s Initial STCW White List’, Press Briefing, 7 December 2000, www5.imo.org/SharePoint/contents.asp?topic_id=68&doc_id=513 (accessed 1 July 2010). Before the introduction of a new system in 2005, there was a system of flag state self-assessment through the submission of the so-called ‘Self-Assessment Form’. On the system and its deficiencies, see Witt, supra n. 5, pp. 227–229. The FSI Sub-Committee also developed ‘Guidelines to Assist Flag States in the Implementation of IMO Instruments’, IMO Assembly Resolution A.847(20), 27 November 1997, which was revoked by IMO Assembly Resolution A.973(24), 1 December 2005, para. 4. The Assembly adopted the Code for the Implementation of Mandatory IMO Instruments as Resolution A.973(24) and the Framework and Procedures for the Voluntary IMO Member State Audit Scheme as A.974(24). See Witt, supra n. 5, pp. 236 et seq. The Code was revoked by IMO Assembly Resolution A.996(25), 29 November 2007, which adopted the Code for the Implementation of Mandatory IMO Instruments, 2007; the latter was amended by IMO Assembly Resolution A.1019(26), 2 December 2009. See Resolution IMO Assembly A.975(24), 1 December 2005, preambular paras. 5–6. It seems unchanged in the Code of 2007 in IMO Assembly Resolution A.996(25) as amended in 2009 by IMO Assembly Resolution A.1019(26). The Scheme does not cover the LOSC, either. For the exclusion of the LOSC from the scope of the Scheme, see IMO, supra n. 57, paras. 6.2–6.3. Resolution A.975(24), paras. 1–2. Resolution A.1018(26), 25 November 2009, para. 1. See also para. 6. The Time Frame and Schedule of Activities annexed to Resolution A.1018(26) indicates the adoption of amendments to the mandatory IMO instruments concerned in 2013 for entry into force on 1 January 2015. IMO, ‘Consideration for Further Development of the Voluntary IMO Member State Audit Scheme, Submitted by Japan’, IMO Doc. FSI 18/14/4, 11 June 2010, p. 2. In addition to the complaint procedure described below, the Governing Body may take action with regard to representations under Arts. 24 and 25 of the Constitution. Constitution of the International Labour Organisation (1 April 1919 (adopted by the Peace Conference as Part XIII of the Treaty of Versailles), entered into force 28 June 1919, last amended in 1997 (not yet in force)) (‘ILO Constitution’), Art. 28. Information is available on the ILO website. ILO, ‘Complaints’, www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/complaints/lang∼en/index.htm (accessed 23 November 2011). ILO Constitution, Art. 29(2). Ibid., Art. 33. See ILO, ‘Measures, Including Action under Article 33 of the Constitution of the International Labour Organization, to Secure Compliance by the Government of Myanmar with the Recommendations of the Commission of Inquiry Established to Examine the Observance of the Forced Labour Convention, 1930 (No. 29)’, GB.276/6, November 1999, paras. 12 and 19. See also F. Maupain, ‘Is the ILO Effective in Upholding Workers’ Rights?: Reflections on the Myanmar Experience’, in P. Alston, ed., Labour Rights as Human Rights (New York, Oxford University Press 2005) p. 85 at pp. 108 and 118. ILO, ‘ILO Governing Body Opens the Way for Unprecedented Action against Forced Labour’, press release, 17 November 2000, available at www.ilo.org/global/about-the-ilo/press-and-media-centre/press-releases/WCMS_007918/lang∼en/index.htm (accessed 2 February 2011). For a thorough account of sanctions against Myanmar, see Maupain, supra n. 70, pp. 94–123. Before taking measures under Art. 33, the ILO Conference had already imposed penalties such as prohibiting technical assistance and denying Myanmar the possibility to attend most of the meetings. See KA. Elliott, ‘The ILO and Enforcement of Core Labor Standards’, 00-6 International Economics Policy Briefs (2000) p. 1 at p. 6; Maupain, supra n. 70, p. 99 (‘internal sanctions’). Burmese Freedom and Democracy Act of 28 July 2003, PL 108-61, sections 3–6 (e. g., a trade ban, asset freezing and an expanded visa ban). ILO, supra n. 70, para. 20; Maupain, supra n. 70, p. 96. Maupain considers compatibility in the context of member state-initiated trade measures. Maupain, supra n. 70, pp. 108–117. This does not mean that the ILO procedures are not effective in forcing unwilling members to comply with its standards. Ibid., p. 95. See ILO, supra n. 70, para. 15. See also Maupain, supra n. 70, p. 119 (‘[i]t seems more than doubtful by contrast that violations of more “technical” conventions … would ever lead to an Article 33 Resolution’). Cf. PL 108-61, section 3(a)(3)(B)–(C) (specifying numerous conditions other than compliance with the ILO Convention for the lifting of the trade ban against Myanmar). Charter of the United Nations (26 June 1945, entered into force 24 October 1945) (‘UN Charter’), Art. 24(1). UNSC, ‘Note by the President of the Security Council’, UN Doc. S/23500, 31 January 1992, p. 3. UN Charter, Arts. 39–42. On the difference of terms used in UN Security Council resolutions and their binding force, see, e. g., R.R. Churchill, ‘Conflicts between United Nations Security Council Resolutions and the 1982 United Nations Convention on the Law of the Sea, and Their Possible Resolution’, in M.D. Carsten, ed., International Law and Military Operations (Newport, Rhode Island, Naval War College 2008) p. 143 at pp. 145–146. In some cases, a continued breach of existing sanctions by vessels was a motivation behind the tightening of sanctions. McLaughlin comments that the prohibition of entering the territorial sea of the Federal Republic of Yugoslavia in Resolution 820 was motivated by the concerns over breaches by vessels purportedly directed to other states’ ports. R. McLaughlin, ‘United Nations Mandated Naval Interdiction Operations in the Territorial Sea?’, 51 ICLQ (2002) p. 249 at p. 265. See generally A.H.A. Soons, ‘Enforcing the Economic Embargo at Sea’, in V. Gowlland-Debbas, ed., United Nations Sanctions and International Law (The Hague, Kluwer Law International 2001) p. 307 at pp. 307–324. See, e. g., UNSC Res. 1874 (2009), UN Doc. S/RES/1874, 12 June 2009, para. 13; UNSC Res. 1929 (2010), UN Doc. S/RES/1929, 9 June 2010, paras. 8 and 15; and UNSC Res. 1973 (2011), UN Doc. S/RES/1973, 17 March 2011, para. 13. Resolution 1874 in para. 13 also imposes an obligation on the flag state to direct its vessel to proceed to an appropriate and convenient port for inspection by local authorities if it does not give consent to the inspection of that vessel. See, e. g., UNSC Res. 1874, para. 16; UNSC Res. 1929, para. 17; UNSC Res. 1973, para. 15. See, e. g., UNSC Res. 1540 (2004), UN Doc. S/RES/1540, 28 April 2004. See, e. g., ibid., para. 2. Ibid., para. 4. On the identification of non-compliance and possible actions, see also B. Kellman, ‘Criminalization and Control of WMD Proliferation: The Security Council Acts’, 11 The Nonproliferation Review (2004) p. 142 at pp. 153–155. See, e. g., K. Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Leiden, Martinus Nijhoff Publishers 2006) pp. 12–40; A. Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (New York, Oxford University Press 2011) pp. 54–84. UN Charter, Art. 10. See, e. g., UNGA Res. 66/231 (24 December 2011) ‘Oceans and the Law of the Sea’, UN Doc. A/RES/66/231, para. 128. This provision was first inserted in 2003, following a recommendation by the Informal Consultative Process. See UNGA, ‘Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea’, UN Doc. A/58/95, 26 June 2003, pp. 5 and 22. See, e. g., UNGA Res. 66/68 (6 December 2011) ‘Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments’, UN Doc. A/RES/66/68, para. 52. On driftnet fishing, see UNGA Res. 44/225 (1989) ‘Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas’. UN Doc. A/RES/44/225, 22 December 1989, and UNGA Res. 46/215 (1991) ‘Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas’, UN Doc. A/RES/46/215, 20 December 1991; on bottom fisheries, see UNGA Res. 61/105 (2006) ‘Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments’, UN Doc. A/RES/61/105, 8 December 2006, paras. 80–91 as well as subsequent reviews on this issue in 2009 and 2011. Tonga suspended its international registry following the Karine-A affair in 2002. It was pointed out that this decision was taken as a result of public pressure, rather than any international regulatory sanctions. International Commission on Shipping, ‘Final Report’, 27 July 2005, www.itfglobal.org/seafarers/icons-site/pdfs/Report_27072005.pdf (accessed 16 December 2011) p. 13. UN Charter, Arts. 5–6. As noted earlier, RFMOs and port state control MOUs have quite different competences. Besides, RFMOs (or port state MOUs) in different regions have different competences. With a few exceptions, neither the work of the ILC on state responsibility nor its work on the responsibility of international organizations is intended to directly cover the rules regulating the possible actions taken by international organizations against the flag state responsible for the violation of its duties. See Articles on Responsibility of States for Internationally Wrongful Acts, adopted at the fifty-third session of the International Law Commission in 2001 (‘ARSIWA’), Art. 54 and the commentary thereon; Articles on Responsibility of International Organizations, adopted at the sixty-third session of the International Law Commission in 2011 (‘ARIO’), Art. 1. However, as some aspects of its work offer useful insights into the current state of general international law on this issue, in particular on collective measures falling within the category of counter-measures, the following paragraphs analyze the work of the ILC on the responsibility of international organizations. Documents of the ILC referred to in this article are available on its website at www.un.org/law/ilc/. Note that the term ‘international organization’ in ARIO is used in the sense of ‘an organization … possessing its own international legal personality’. ARIO, Art. 2(a). Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 27 January 1980), 1155 UNTS p. 331 (‘VCLT’), Art. 34. A more difficult case may be obligations under RFMO conservation and management measures to which the member state concerned has used the objection procedure excluding the binding force of such measures. Fishing activities by vessels flying the flag of that objecting state could arguably be considered as ‘unregulated’ fishing in the sense of IPOA-IUU under certain circumstances. See ILC, ‘Responsibility of International Organizations, Comments and Observations Received from International Organizations’, UN Doc. A/CN.4/637/Add.1, 17 February 2011, pp. 25–27 (United Nations); ILC, ‘Eighth Report on Responsibility of International Organizations, by Giorgio Gaja, Special Rapporteur’, UN Doc. A/CN.4/640, 14 March 2011, pp. 22–23. ARIO, Art. 22. Ibid., Art. 22(2)–(3). Ibid., Commentary on Art. 22, para. 3. Ibid., Art. 22(3). See also ILC, ‘Statement of the Chairman of the Drafting Committee’, 3 June 2011, available at http://untreaty.un.org/ilc/sessions/63/DCResponsibilityofInternationalOrganizations2011.pdf (accessed 22 August 2011). ILC, ‘Responsibility of International Organizations: Comments and Observations Received from Governments’, UN Doc. A/CN.4/636, 14 February 2011, pp. 21–22 (Germany and Portugal). ILC, supran. 103. In this regard, see ARIO, Art. 22 and its commentary. See also ILC, supra n. 103. ARIO, Art. 22(2). See also ILC, supra n. 104, p. 21 (Austria). ARIO, Commentary on Art. 22, para. 5. See ILC, ‘Statement of the Chairman of the Drafting Committee’, 5 June 2009, available at http://untreaty.un.org/ilc/sessions/61/2009_DC_Chairman_RIO_5June2009.pdf (accessed 6 February 2012) (e. g., ‘[o]ther members of the Drafting Committee however felt that a qualifier was needed[:] an element of comparison between the means and the countermeasures was necessary, if only to avoid the paradoxical case in which an organization would be entitled to resort to measures of a more drastic nature … than countermeasures’; ‘[f]he phrase “effective means” … received some support but was ultimately abandoned as … making the taking of countermeasures too attractive’). See ILC, ‘Sixth Report on Responsibility of International Organizations, by Giorgio Gaja, Special Rapporteur’, UN Doc. A/CN.4/597, 1 April 2008, p. 21, para. 58 and the literature cited in its fn. 60. See also ARIO, Art. 57. This issue is not salient for the global organizations examined in this article because they have quasi-universal membership: 193 member states for the UN, 191 member nations and two associate members and one member organization for the FAO, 183 member states for the ILO, 175 parties for CITES and 169 member states and three associate members for the IMO (the figure was surveyed on the website of the respective organizations on 14 October 2011). See E. Franckx, ‘Pacta Tertiis and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’, FAO Legal Papers Online No. 8, June 2000, available at www.fao.org/legal/prs-ol/lpo8.pdf (accessed 19 December 2011). See, e. g., ILC, ‘Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur’, reproduced in ILC Yearbook (1964) Vol. II, UN Doc. A/CN.4/SER.A/1964/ADD.1, p. 26 (Art. 63). This theory was not included in the ILC draft articles on the law of treaties or the VCLT. For an assessment, see C. Fernández de Casadevante Romani, ‘Objective Regime’, Max Planck Encyclopedia of Public International Law, April 2010, available at www.mpepil.com (accessed 17 October 2011). See ILC, supra n. 104, p. 21 (Austria and Germany). See UNGA Res. 65/19 (6 December 2010) ‘Responsibility of States for Internationally Wrongful Acts’, UN Doc. A/RES/65/19, 10 Januari 2011.