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8.1 Role of RFMOs in addressing IUU Fishing
8.2 Examples of measures adopted by RFMOs
8.3 Possibilities for further action

8.1 Role of RFMOs in addressing IUU Fishing

As the preceding sections have demonstrated, RFMOs[109] have a central role to play in preventing, deterring and eliminating IUU fishing. Many of the world's most valuable stocks of fish, and a large number of those stocks most subject to significant IUU fishing, fall under the purview of RFMOs. Accordingly, RFMOs are uniquely positioned to promote and coordinate efforts to implement the IPOA-IUU.

The RFMOs in existence today vary greatly in their mandates, legal authorities, membership and geographical coverage. Some RFMOs have been in operation for decades, while others are only now coming into existence.[110] Yet despite these differences among the RFMOs, recent international instruments have called upon States to strengthen the capacities of RFMOs in general and to establish new RFMOs to cover regions and/or fish stocks that are not yet covered.[111] The IPOA-IUU has echoed these calls for strengthening the breadth and capacities of RFMOs in order to deal more effectively with problems of IUU fishing.[112]

Many RFMOs face similar problems of IUU fishing. As stocks decline, a number of RFMOs have adopted increasingly stringent rules to manage the fisheries for which they are responsible. Some fishing vessels comply with the stricter rules, but others choose to ignore the rules or to register in States that are not members of the RFMOs and are thus not directly bound by the rules. In this respect, it must be emphasized that vessels of both members and non-members of RFMOs engage in IUU fishing. No strategy for dealing with IUU fishing can succeed unless it addresses both groups effectively.

Nor can RFMOs succeed if they try to address IUU fishing as a problem unconnected to the rest of their mandates. To the contrary, RFMOs must find ways to integrate measures to control IUU fishing with their other basic missions, including, for example, conservation of resources, control of catches and effort, management of fishing capacity, by-catch reduction, scientific research, general data collection and dissemination, etc.[113]

As highlighted in paragraph 83 of the IPOA-IUU, RFMOs should address the issue of access to the resources under their purview in order to foster cooperation and enhance sustainability. The inability of some RFMOs to agree on equitable access to these resources has undoubtedly contributed to IUU fishing.

In one sense, RFMOs can be only as effective in dealing with IUU fishing as their members (and others who participate in their work) direct or allow them to be. In another sense, however, RFMOs can often accomplish things that their members, acting individually, cannot. One reason for this is that governments are generally more willing to impose controls on their fishing fleets if other governments do so as well. RFMOs are obvious fora for coordinating such action and for creating "level playing fields" on which international fisheries can be conducted. RFMOs also lend legitimacy to measures, such as trade restrictions, that would be controversial if applied unilaterally.

Earlier sections of these guidelines have already touched on a number of the critical steps that RFMOs can take to prevent, deter and eliminate IUU fishing. To review, RFMOs can:

8.2 Examples of measures adopted by RFMOs

A growing number of RFMOs have already adopted at least some measures directed at preventing, deterring and eliminating IUU fishing, a number of which have been discussed above. One analysis prepared in advance of the Expert Consultation on Illegal, Unreported and Unregulated Fishing that took place in Sydney, Australia, from 15 to 19 May 2000 indicated adoption of the following types of measures at the regional level:

For updated information on what these and other RFMOs are doing to prevent, deter and eliminate IUU fishing, please refer directly to their websites, many of which are listed in Appendix VI to these guidelines.

8.3 Possibilities for further action

8.3.1 Institutional strengthening
8.3.2 Additional compliance measures
8.3.3 Better collection and exchange of information
8.3.4 Improved monitoring, control and surveillance
8.3.5 Comprehensive port State regimes
8.3.6 Certification/Documentation schemes
8.3.7 Controls on chartering
8.3.8 Actions in response to remaining non-member problems
8.3.9 Cooperation among RFMOs and between RFMOs and other international organizations

Paragraph 80 of the IPOA-IUU suggests a number of ways in which States, acting through RFMOs, can do more to prevent, deter and eliminate IUU fishing. The following material reviews these suggestions in further detail.

8.3.1 Institutional strengthening

At the most basic level, members of RFMOs should ensure that the RFMOs as institutions have the resources necessary to carry out their assigned functions. This entails, among other things, the adoption of realistic budgets and the prompt payment of assessed contributions.

Institutional strengthening must take place on a broader level as well. The IPOA-IUU reaffirms that States have a duty to cooperate with RFMOs and that they should give effect to that duty either by becoming members of RFMOs or at least by ensuring that their vessels do not undermine measures adopted by RFMOs.[116] In turn, RFMOs should encourage non-members with a real interest in the fishery concerned to become members or should at least develop ways to facilitate cooperation by non-members in the work of RFMOs.[117]

On the basis of these concepts, many RFMOs could strengthen their institutional regimes to deal with IUU fishing by creating more positive bases for interacting with non-members. As noted above, RFMOs are increasingly inviting non-members to become members or at least to attain "cooperating" status.[118] These trends should be continued, as RFMOs cannot hope to manage fisheries effectively if vessels of non-members participate in the fisheries without regard for the measures adopted by the RFMO.

For those States that are not yet willing to join RFMOs (or for those entities not eligible to join), "cooperating" status can provide a flexible arrangement that can reduce the possibility of IUU fishing and enhance the integrity of RFMOs overall. Although the terms and conditions of "cooperating" status can be tailored to fit the particular circumstances of a given RFMO, the basic idea is to create an understanding along the following lines. Those granted "cooperating" status by a RFMO would agree to abide by the basic conservation and management measures adopted by that RFMO and, in exchange, would be considered eligible for access to some portion of the fishery resources under the purview of the RFMO.

Ultimately, however, "cooperating" status may be more effective and equitable if it is implemented as a temporary arrangement, pending full membership by all those with a real interest in the fishery and that are eligible to join the RFMO. Otherwise, "cooperating" status could evolve into a sort of permanent second-class condition that would not necessarily benefit either the RFMO or those with such status.

Another way in which RFMOs could strengthen their institutional regimes would be to re-examine their decision-making procedures to ensure that decisions concerning IUU fishing can be made promptly and consistently.[119] For example, most RFMOs have one annual plenary meeting (along with a growing number of intersessional meetings often used to deal with specific projects). Incidents of IUU fishing, however, can occur at any time of the year and may require a quick response by a RFMO and its members. To address this circumstance, members of RFMOs may need to authorize RFMO secretariats to be proactive in dealing with individual incidents of IUU fishing; e.g. by sending immediate notifications to relevant States and helping with MCS activity.

RFMOs may also wish to consider the relationship between IUU fishing and the use of objection procedures. In this regard, a number of RFMOs were established by treaties that give each member the right to lodge objections to decisions taken by those RFMOs within a certain period of time after the adoption of the decision. Such objections typically free the objecting member from any obligation to abide by the decision in question. Further, the filing of an objection by one member usually allows other members additional time in which to file objections of their own to the same measure.[120]

While it may be inappropriate or impractical in the near-term to amend the various treaties to limit or eliminate such objections, RFMOs could nevertheless consider steps to minimize the possibility that the filing of objections will undermine the integrity of their measures and lead to IUU - particularly unregulated - fishing. For example, the RFMOs could adopt resolutions calling on those members who file objections (1) to justify their objections; (2) to impose restrictions on their vessels comparable in effectiveness to the measure objected to; and (3) to make known the restrictions that are imposed in lieu of the measure objected to.

8.3.2 Additional compliance measures

RFMOs should also develop additional means to promote compliance by their members with adopted conservation and management measures. One fundamental approach that could be better employed is for RFMOs to limit or deny access to the fisheries resources under their purview to fishing vessels of members that do not comply with the measures adopted by the RFMOs, including any obligations to report fisheries data.[121] Another approach, under consideration by CCAMLR and NEAFC, is for all members of RFMOs to deny licenses to fish and port access to any vessels identified by the RFMO as having been involved in IUU fishing, even if the vessels have subsequently been renamed or registered in new States.

RFMOs can encourage the application of consistent penalties imposed on IUU fishers. To this end, Paragraph 21 of the IPOA-IUU calls on each State to:

ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. This may include the adoption of a civil sanction regime based on an administrative penalty scheme. States should ensure the consistent and transparent application of sanctions.
To promote consistency and transparency in the application of sanctions, RFMOs can take steps to urge their members to develop equivalent or standardized penalty schemes. For example, the Convention establishing NPAFC has given that RFMO the authority to "consider and make proposals to the Parties for the enactment of schedules of equivalent penalties for activities contrary to the provisions of this Convention."[122] Another approach is the one adopted by the International Dolphin Conservation Program administered by the IATTC, under which a panel of government, industry and environmental representatives analyse reports of tuna-fishing trips, identify possible infractions, inform the flag State of those identifications and receive from flag States information on actions taken in response.[123] At a minimum, RFMOs can require their members to report on violations committed by their vessels and penalties imposed as a consequence.[124]

8.3.3 Better collection and exchange of information

RFMOs can be focal points for the collection and dissemination of a wide variety of information relating to IUU fishing. To fulfil this role, however, members of RFMOs must reliably provide information to the RFMOs not only on their own vessels, but also on vessels of other States that fish in waters under their jurisdiction and that use their ports. Members of RFMOs must also be willing to provide appropriate market data to RFMOs, including information on fishery imports and exports. In this regard, Paragraph 80.3 of the IPOA-IUU recognizes that RFMOs should develop and implement "comprehensive arrangements for mandatory reporting."

Paragraph 80.4 of the IPOA-IUU calls on States to establish and cooperate in the exchange of information on vessels engaged in or supporting IUU fishing. RFMOs can serve as hubs for sharing of this information as well. For example, RFMOs can develop lists of vessels that are believed to have engaged in IUU fishing, as well as lists of all vessels fishing in areas under their respective purviews. RFMOs can also develop databases of information concerning fishing violations and prosecutions. The FFA, for example, maintains a database on vessels that have violated the fisheries laws of its members. It might be possible for RFMOs to make such databases generally available to flag States in order for them to know whether a particular vessel seeking registration or a license to fish has previously engaged in IUU fishing.[125]

8.3.4 Improved monitoring, control and surveillance

The collection and dissemination of information described above should also extend to "real time" situations involving possible IUU fishing. In this connection, paragraph 80.7 of the IPOA-IUU encourages:

development of MCS, including... real time catch and vessel monitoring systems, other new technologies, monitoring of landings, port control, and inspections and regulation of transshipment, as appropriate.
To succeed in implementing this provision, States will need to coordinate their activities through RFMOs to a greater extent than they have done so to date. One model of strong cooperation in MCS efforts is provided by the North Pacific Anadromous Fish Commission (NPAFC), whose members coordinate closely in taking action against vessels that may be fishing for salmon and other anadromous stocks on the high seas of the North Pacific Ocean.[126]

The creation of real time catch and vessel monitoring systems to cover major fisheries, for example, will require expansion and harmonization of differing VMS arrangements currently in use by a number of States. Through RFMOs, States can develop common data formats, data sharing arrangements and standards for maintaining the technical integrity of the systems. RFMOs can also serve as a neutral recipient of VMS data to help preserve the confidentiality of any proprietary information that may be involved, while also facilitating the exchange of information necessary for effective MCS.[127]

Similarly, it may be possible to monitor changes of fishing vessel registration in something approaching "real time." Members of RFMOs could be obliged to report promptly to the RFMO on the registration of any new vessels that may operate in a fishery under the purview of the RFMO. To make this system effective, non-members must be encouraged to share such information with RFMOs as well.

RFMOs can also develop schemes for boarding and inspecting fishing vessels on the high seas, as envisioned in paragraph 80.8 of the IPOA-IUU.[128] For some fisheries, it may also be useful to create arrangements under which members can exchange inspectors, with the aim of standardizing approaches to boarding and inspection. It may even be possible to create joint inspection schemes, pursuant to which members of a RFMO provide personnel for a given period of time to serve as inspectors who act on behalf of the RFMO itself.[129]

As noted in Section 3.2.5 of these guidelines, States should also seek to coordinate their MCS activities through the International Network for the Cooperation and Coordination of Fisheries-Related Monitoring, Control and Surveillance Activities.

8.3.5 Comprehensive port State regimes

Those RFMOs that have not already done so should consider the establishment of comprehensive systems for port State measures for fishing vessels. Such systems should include requirements for inspection of vessels in port and exchange of information between port States and flag States in the event inspections indicate the possibility of IUU fishing. The RFMOs should at a minimum consider mandatory inspection in port of all non-member fishing vessels, with obligations to report the findings of such inspections to the RFMO, which can disseminate the reports to other members.

8.3.6 Certification/Documentation schemes

As discussed in Section 7 above, RFMOs are the obvious fora for developing and refining fisheries certification and documentation schemes. Though quite a few RFMOs have already done so, there may well be the need for additional schemes, or for existing schemes to cover additional species that are harvested or traded internationally. For some fisheries, particularly high value fisheries, RFMOs can compile trade data with which to monitor IUU fishing, as called for in paragraph 80.5 of the IPOA-IUU. However, the proliferation of such schemes has created a threat of its own, as the paperwork burden on legitimate fishers has increased steadily. To help address this problem, RMFOs should work together to standardize these schemes to the extent feasible, including through the use of electronic systems, and thus assist in the implementation of paragraph 76 of the IPOA-IUU.

8.3.7 Controls on chartering

As discussed in Section 4 above and noted in paragraph 80.14 of the IPOA-IUU, RFMOs may have a role to play in ensuring that chartering arrangements for stocks under their purview do not lead to IUU fishing. Among other things, agreed rules for chartering arrangements can ensure that vessels to do not engage in "flag hopping" to gain access to more than one member's quota. Chartering rules can also provide for the orderly development of fisheries by developing States, while also allowing the RFMO to allocate access to fishery resources in a fair and transparent manner.

8.3.8 Actions in response to remaining non-member problems

As noted above, paragraph 79 of the IPOA-IUU reaffirms that non-members of RFMOs are not discharged from their duty to cooperate. While RFMOs should certainly seek such cooperation by encouraging non-members to become members, or at least to obtain "cooperating" status, RFMOs must also consider additional steps to deal with those non-members whose vessels continue to engage in IUU fishing.

Some of the measures described earlier in this section are designed to address IUU fishing by vessels of both members and non-members (such as exchange of information, port inspection, certification and documentation schemes, etc.). In addition, paragraph 84 of the IPOA-IUU provides that:

When a State fails to ensure that fishing vessels entitled to fly its flag, or, to the greatest extent possible, its nationals, do not engage in IUU fishing activities that affect the fish stocks covered by a relevant [RFMO], the member States, acting through the organization, should draw the problem to the attention of that State. If the problem is not rectified, members of the organization may agree to adopt appropriate measures, through agreed procedures, in accordance with international law.
Increasingly, RFMOs have been drawing evidence of IUU fishing to the attention of non-member flag States. ICCAT members, for example, have directed the ICCAT Secretariat to send dozens of inquiries and warnings to non-members whose vessels appear to be undermining the effectiveness of ICCAT measures. Failure of non-members to take corrective action can lead to identification by ICCAT and, ultimately, to trade restrictions. NAFO and NEAFC members have directed their respective secretariats to send similar communications. In 2001, CCAMLR declared that its Secretariat will compile and maintain a list of flags of convenience of vessels operating in the CCAMLR region, together with a consistent process for identifying such flags.[130]

Other RFMOs may need to take similar measures to address persistent IUU fishing by non-members. Flag States whose vessels undermine the effectiveness of measures adopted by a RFMO are failing to abide by their international commitments. Where repeated attempts to seek the cooperation of such States fail or are ignored, other States, acting through RFMOs, must take action, using tools set forth in the IPOA-IUU.

8.3.9 Cooperation among RFMOs and between RFMOs and other international organizations

Finally, RFMOs should enhance the coordination of their actions to prevent, deter and eliminate IUU fishing. Many RFMOs and related institutions have begun to do so, or at least have expressed the intention of doing so.[131] In particular, RFMOs must increase the speed and scope of the exchange of information on IUU fishing, particularly with respect to fleet movement, compliance, management and trade.[132]

While the mobility of fishing fleets makes cooperation among all RFMOs a necessity, this is particularly true in regions where IUU fishing is the concern of two or more RFMOs. One possibility for reducing IUU fishing throughout such a region would be to link measures adopted by one RFMO with those of the others in that region. For example, ICCAT, NAFO, NEAFC, GFCM and SEAFO could conceivably have an interlocking system for port State measures with respect to fisheries in the Atlantic region.[133]

Other international organizations and mechanisms can contribute to implementation of the IPOA-IUU as well. In 1999, for example, the APEC Fisheries Working Group adopted recommendations on the issuance of "flags of convenience" and on IUU fishing. These actions recommended that each APEC member economy, among other things, discourage its nationals and companies from engaging in activities on fishing vessels that are undermining fishery conservation and management regimes, and promote international cooperation for progressively eliminating such activities. The recommendations also called upon member economies to participate fully in efforts to deal effectively with all forms of IUU fishing, including fishing by vessels flying "flags of convenience."[134]

[109] The term “regional fishery management organization” (RFMO) would appear to be somewhat narrower than the term “regional fishery body or arrangement”. Meetings of “FAO and Non-FAO Regional Fishery Bodies or Arrangements” in 1999 and 2001 have included representatives from more than 30 international institutions that have some responsibility for fisheries issues. A number of these institutions, however, have no mandate for fishery management as such and, hence, would not be covered by the term “RFMO”.
[110] The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, which will establish the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, was opened for signature on 5 September 2000. The Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean, which will establish the South-East Atlantic Fisheries Commission, was opened for signature on 20 April 2001.
[111] See, e.g. article 13 of the UN Fish Stocks Agreement and, more generally, various provisions of article 7 of the Code of Conduct.
[112] Paragraph 80 of the IPOA-IUU calls for institutional strengthening of RFMOs to deal more effectively with IUU fishing. Paragraph 78 of the IPOA-IUU reaffirms the call to establish RFMOs where they do not yet exist.
[113] For extensive discussion on actions taken by RFMOs to address IUU fishing and related matters, see “The Role of National Fisheries Administrations and Regional Fishery Bodies in Adopting and Implementing Measures to Combat IUU Fishing,” by Judith Swan.
[114] As discussed in Section 3.2.3 of these guidelines, schemes adopted by ICCAT and NEAFC call upon their respective members to take action against vessels without nationality in accordance with international law. To the extent that the rules of international law regarding the permissible scope of such actions may not be entirely clear, RFMOs may wish to provide more specifically which types of actions against stateless vessels should be taken.
[115] For extensive discussion on actions taken by RFMOs to address IUU fishing and related matters, see J. Swan, supra note 113.
[116] See paragraph 79 of the IPOA-IUU. This provision is drawn in part from article 8(3) of the 1995 UN Fish Stocks Agreement.
[117] See paragraph 83 of the IPOA-IUU. This provision is also drawn in part from article 8(3) of the 1995 UN Fish Stocks Agreement.
[118] See, e.g. GFCM Resolution 97/2, adopted at its Twenty-second Session; ICCAT Resolution 94-6 on Coordination with Non-Contracting Parties, and ICCAT Resolution 97-17 on Becoming a Cooperation Party, Entity or Fishing Entity; Resolution of the IOTC Concerning Cooperation with Non-Contracting Parties (Annex M to the Report of the Third Session of IOTC).
[119] Cf. article 10(j) of the 1995 UN Fish Stocks Agreement (“In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, States shall ... agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner.”). See also paragraph 82.2 of the IPOA-IUU.
[120] For further discussion on objection procedures and other issues relating to the ways in which RFMOs make decisions, see “A Review of Options for Making Decisions to Conserve and Manage Pacific Fish Stocks,” prepared by the Center for International Environmental Law.
[121] In 2001, for example, ICCAT adopted new criteria for allocating its stocks. One of the criteria to be taken into account in making quota allocations is “the record of compliance or cooperation by qualifying participants with ICCAT’s conservation and management measures.”
[122] Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, article IX.
[123] See Annex VII to the 1999 Agreement on the International Dolphin Conservation Program.
[124] See, e.g. article 14 of the Convention for the Conservation of Salmon in the North Atlantic Ocean; article 24 of the 1998 NEAFC Recommendation on a Scheme of Control and Enforcement in Respect of Fishing Vessels Fishing in Areas Beyond the Limits of National Fisheries Jurisdiction in the Convention Area.
[125] See T. Aqorau, supra note 33.
[126] See, e.g. Report of the Committee on Enforcement, 9th Annual Meeting of NPAFC (2001), NPAFC Doc. 581.
[127] For further discussion of the harmonization of VMS systems, see “Monitoring, Control, Surveillance and Vessel Monitoring System Requirements to Combat IUU Fishing,” by John M. Davis.
[128] States that are party to the 1995 UN Fish Stocks Agreement have consented to allow their vessels to be boarded and inspected on the high seas by officials of other States under certain circumstances, in accordance with articles 21 and 22 of that Agreement. RFMOs have the possibility to develop or refine the rules under which such boardings and inspections may be carried out, or to establish alternate mechanisms to ensure compliance.
[129] See, e.g. NAFO’s Scheme of Joint International Inspection and Surveillance.
[130] See Report of the 2001 CCAMLR meeting, paragraph 5.20.
[131] CCAMLR, CCSBT, FFA, IATTC, IBSFC, ICCAT, IOTC, NAFO, NASCO, NEAFC and NPAFC report participation in, or plans for, coordination with other RFMOs.
[132] J. Swan, supra note 113.
[133] For further discussion of this concept, see T. Lobach, supra note 34.
[134] M. Komatsu, supra note 20.

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