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5.1 Coastal state rights and responsibilities
5.2 Access and access agreements
5.3 Cooperation among coastal States

5.1 Coastal state rights and responsibilities

International law provides that coastal States have sovereign rights to manage fisheries in waters under their jurisdiction. More than ninety percent of the global fish catch is estimated to be taken within waters under the jurisdiction of coastal States. Although reliable data is not available, it may be presumed that a significant proportion of IUU fishing also occurs in those waters. Much of that IUU fishing is conducted by vessels registered in the coastal States themselves, particularly in the form of underreporting or misreporting of catch. In other cases, fishing vessels registered elsewhere operate without permission of the coastal State (poach) or fish in violation of the terms of access granted to them by the coastal State.[54]

IUU fishing within waters under national jurisdiction primarily harms the coastal States in question and the legitimate fishers who operate in those waters. It is therefore manifestly in the interest of coastal States to do all they can to prevent, deter and eliminate IUU fishing in those waters, as they will reap the benefits most directly.

In addition, because fish stocks (and other species in the ecosystem) often migrate through waters under the jurisdiction of more than one coastal State or between areas under national jurisdiction and the high seas, such IUU fishing harms the interests of others as well. In part because of the migratory nature of these resources, the sovereign rights of coastal States to manage fisheries in waters under their jurisdiction also imply a responsibility to manage the fisheries properly and in accordance with international standards.

The IPOA-IUU calls upon each coastal State, in the exercise of these sovereign rights, to implement measures to prevent, deter and eliminate IUU fishing.

The large majority of fishing activity taking place in waters under the jurisdiction of most coastal States is undertaken by vessels registered in the coastal States themselves. In such situations, the coastal State is also the flag State and, as such, should carry out its responsibilities as a flag State with respect to its vessels operating in waters under its jurisdiction. As discussed in Section 4 of these guidelines, each coastal State whose vessels operate in waters under its own jurisdiction should:

Paragraph 51 of the IPOA-IUU sets forth a variety of tools for each coastal State to use to prevent, deter and eliminate all forms of IUU fishing that may occur in waters under its jurisdiction, whether carried out by its own vessels or by vessels registered elsewhere. Many of these tools are similar to measures to be taken by flag States, summarized above. For example, paragraph 51.1 calls upon coastal States to undertake "effective [MCS] of fishing activities in the [EEZ]." As discussed in Section 3.2.5 of these guidelines, establishment of effective MCS requires a broad-based effort to monitor fishing activity, investigate possible infractions and impose appropriately severe penalties. Each coastal State should strengthen its MCS capacities and, in particular, should consider requiring vessels operating in waters under its jurisdiction to use VMS.

Similarly, paragraph 51 of the IPOA-IUU calls upon coastal States to ensure that no vessel, domestic or foreign, undertakes fishing activity in waters under its jurisdiction without a valid authorization to fish issued by that coastal State. Such authorizations should be issued only to vessels that are properly entered on a record of vessels maintained by the coastal State.

As discussed above, transshipment of fish at-sea often facilitates IUU fishing. For this reason, paragraph 51 also calls upon each coastal State to ensure that both at-sea transshipment and processing of fish in waters under its jurisdiction are either expressly authorized by the coastal State or, at a minimum, are conducted in conformity with appropriate regulations adopted by the coastal State.

To assist those fishers who wish to operate legitimately, a coastal State should ensure that waters under its jurisdiction are clearly marked on charts. The charts should also identify any protected sensitive areas where fishing is prohibited and areas limited to fishing by certain categories of fishers or types of fishing gear.

5.2 Access and access agreements

A coastal State that does not have the capacity to harvest the total allowable catch of fish in waters under its jurisdiction has an obligation to grant access to those waters to fishers from other States.[56] Determining the terms and conditions for such access, however, gives the coastal State opportunities to limit the possibilities that foreign fishers will conduct IUU fishing in those waters. In light of this, paragraph 51 of the IPOA-IUU calls on coastal States to regulate fishing access to their waters in a manner that will help prevent, deter and eliminate IUU fishing.

The coastal State granting access is often a developing State without the capacity to patrol waters under its jurisdiction effectively. In such cases, the coastal State must rely on other tools to control possible IUU fishing.

One general approach is to make any access subject to an agreement with the flag State that clearly delineates the continuing responsibilities borne by the flag State with respect to the fishing activities conducted by its vessels that are granted access. At a minimum, the agreement should commit the flag State to penalize its vessels that have violated the terms and conditions of access.[57] The agreement might also commit the flag State, among other things, to:

Access agreements of this sort can create an active partnership between the coastal State and the flag State in preventing, deterring and eliminating IUU fishing. In order for the partnership to be fully effective, however, the access agreement should only provide access for vessels that are registered in the access-seeking State. In other words, the access-seeking State must be the flag State with respect to all vessels covered by the access agreement. If, instead, the agreement allows access for vessels registered in third States - e.g. through charter arrangements - the access-seeking State will not have flag State responsibility with respect to those vessels.[59]

Whether or not a coastal State enters into an access agreement with the flag State, the coastal State should use a number of other tools at its disposal to control possible IUU fishing conducted by vessels granted access. Those tools include:

Just as flag States should generally avoid registering vessels with a history of IUU fishing, coastal States should avoid granting access to those vessels as well. Norway, for example, has established a regulation providing that an application for a licence to fish in Norwegian waters may be denied if the vessel or the vessel owner has taken part in an unregulated fishery in international waters on a fish stock subject to regulations in waters under Norwegian fisheries jurisdiction, or under the regulation of a RFMO. A vessel may be denied access to Norwegian waters even if it has new owners or operators.[60]

5.3 Cooperation among coastal States

To maximize its ability to prevent, deter and eliminate IUU fishing in waters under its jurisdiction, a coastal State must work closely with other States on a variety of levels. The IPOA-IUU calls on coastal States in particular to cooperate and exchange information with others, including neighbouring coastal States and RFMOs.

Such cooperation could include exchanging information and data on illegal activity, developing and exchanging "black lists" of vessels and owners involved in poaching, developing regionally harmonized legislation and regulations, delegating to and sharing with neighbouring States certain enforcement rights (including the right of hot pursuit),[61] regionally coordinated use of surveillance and apprehension capabilities, and the provision of other assistance to improve MCS capabilities.

For example, a group of coastal States in West Africa comprising the Sub-Regional Fisheries Commission have created a Surveillance Operations Coordinating Unit to coordinate MCS activities and thereby strengthen the enforcement of national fisheries laws.[62] In addition, a recent Protocol on Fisheries concluded by the South African Development Community (SADC) includes an article on law enforcement that provides for sharing of MCS assets and information.[63]

A group of neighbouring coastal States may also find it advantageous to create joint or common rules for fisheries access as a way to combat IUU fishing. One well-known example of such action has been undertaken by the members of the FFA. Those coastal States have created an effective Regional Register as well as the Harmonised Minimum Terms and Conditions for Foreign Fishing Vessel Access.

A foreign fishing vessel included on the FFA Regional Register automatically obtains "good standing." Should it lose its good standing due to violation of conservation and management measures of one FFA member, the vessel will lose the ability to operate in waters under the jurisdiction of any of the other 15 FFA members. This creates a powerful incentive in favour of compliance.

The effectiveness of this approach depends on strong regional cooperation and cohesion. Regional registration of vessels can only work where there is a common fishery. A regional registration scheme must be centrally administered and coordinated. The FFA Regional Register also benefits from the desire of most fishing vessels to operate in waters under the jurisdiction of more than one FFA member.

In addition, FFA Members undertake to ensure that any access agreements they negotiate include all requirements set forth in the Harmonised Minimum Terms and Conditions for Foreign Fishing Vessel Access:

[54] Some coastal States, particularly developing coastal States, seek to control the fishing activities of foreign vessels granted access to operate in their waters more strictly than those of vessels registered in their own territory. This has prompted some vessel owners to register fishing vessels in those coastal States as a way to avoid more stringent controls. See T. Aqorau, supra note 33.
[55] For basic information on catch reporting requirements, see FAO, Guidelines for Routine Collection of Capture Fisheries Data, FAO Fisheries Technical Paper 382, Rome 1999. Among other things, these guidelines suggest procedures for verifying catch reports from vessels, e.g., by comparing those reports with actual landings.
[56] See 1982 UN Convention, article 62.2.
[57] In this regard, article 8.2.7 of the Code of Conduct calls upon flag States to take enforcement measures in respect of fishing vessels entitled to fly their flag which have been found to have contravened applicable conservation and management measures, which include measures developed by a coastal State that apply in waters under its jurisdiction.
[58] These commitments are present, for example, in the 1987 Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America.
[59] For more information on fisheries access agreements, see W. Martin, M. Lodge,
J. Caddy and K. Mfodwo, “A Handbook for Negotiating Fisheries Access Agreements,” (World Wildlife Fund, 2000).
[60] Norway also denies to such vessels the right to fly its flag or to use its port facilities. For a full discussion of Norway’s measures in this regard, see T. Lobach, supra note 34.
[61] For general rules relating to the right of hot pursuit, see the 1982 UN Convention, article 111.
[62] Luxembourg has provided funding for this initiative, through FAO. For further information on this initiative, contact the Surveillance Operations Coordinating Unit at [email protected]. For further information on IUU fishing in this region, see “Pirate Fishing: Plundering West Africa,” by Greenpeace.
[63] Representatives of all 14 SADC Member States signed the Protocol on Fisheries on
14 August 2001. The Protocol will enter into force 30 days after the deposit of instruments of ratification by two-thirds of the SADC Member States.
[64] FFA, Harmonised Minimum Terms and Conditions for Foreign Fishing Access as amended by FFC34 (24-28 November 1997).”

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