by
Dean Robb
Attorney
Agana, Guam
INTRODUCTION
The new United Nations Convention on the Law of the Sea accords coastal States sovereign rights over fisheries in exclusive economic zones extending to 200 miles offshore. The vast majority of the world's fisheries are encompassed by such zones. What the coastal State may do with respect to foreign fishing within such a zone, in particular by way of creating conditions of access, appears to be relatively unfettered under the convention (see paper by Burke). Within the last 5 years or so most coastal States, spurred by the provisions being developed at the Law of the Sea Conference, have established jurisdiction over fisheries in 200 mile zones, in which they have prescribed conditions of access for foreign fishing. The interaction of foreign fishing with various 200 mile fishery regimes, and corresponding conditions of access, has matured sufficiently to evaluate the experience to date.
This paper examines conditions of access both in terms of the positive and negative relationship, to compliance by foreign fishing vessels, and of the supporting interests underlying the conditions. Compliance, in this context, means the degree to which foreign fishing conforms its activity to that which a coastal State requires, or desires and expects, with respect to a 200 mile fishery zone. Foreign fishing includes foreign fishing vessels as well as their flag State, fishery-related industrial associations and may include other fishery-related interests as well.
Conditions of access should be understood to include both the procedure and substance of what might be referred to as systems of access for foreign fishing.
The process of access generally entails a government to government relationship, usually an agreement, pursuant to which an allocation, either in terms of effort or catch or both, is given to the flag State. Thereafter, individual vessels may apply for permits, receive and pay for the same (or for fish caught in some cases). The substances of access conditions are embodied, respectively and variously, in the bilateral agreement, fisheries legislation, fisheries regulations, licence conditions and administrative actions by the coastal State. Except in the agreement, access conditions are in form, though not always in fact, unilaterally prescribed by the coastal State and not per se the subject of negotiation. In fact, however, not only the agreement but many of the unilaterally imposed conditions are often the product of consultation if not outright negotiation and agreement. The Law of the Sea Convention (Art. 62(5)) requires notice to be given of conditions. In practice many countries afford an opportunity for consultation as well.
Both the coastal State and foreign fishing have their own respective interests and needs regarding access to the coastal State's 200 mile fishing zone. Both sets of needs and interests must be considered in discussing the relationship of access conditions to compliance. In particular, the effectiveness of a coastal State's management of its fishing zone vis-a-vis foreign fishing is largely evaluated on its choice of access conditions and the extent of compliance therewith by foreign fishing.
On the other hand, the needs and interests of foreign fishing must also be considered not only for their own sake but also because, at least in many 200 mile zones, the process of compliance by foreign fishing is, to a significant degree, a function of self-regulation or, conversely, the lack of compliance is largely a function of the lack of self-regulation. Self-regulation includes both individual vessel self-regulation and flag-State regulation or control of its vessels and requires that the needs and interests of foreign fishing be given consideration in any fishery regime. This is especially true where the coastal State lacks effective means for direct surveillance and enforcement. In this regard, fisheries compliance is a process that is somewhat similar to the process of compliance by taxpayers with domestic tax regimes. Self-regulation implies the need for a reasonable, workable and understandable system of access conditions as seen from the foreign fishing vessel's and flag State's perspective. It also, of course, must be 'credible', subject to verification and at least partial enforcement.
As will be discussed in this paper, self-regulation is cost effective and desirable from the coastal State's and, arguably, from the flag State's perspective. Self-regulation is best facilitated by a bilateral agreement, as opposed to unilateral prescription by the coastal State. The agreement process tends to ensure that an account be made of each party's needs, that understandings be achieved, and that the access system be reasonable, workable and understandable. Further, an agreement obligates the flag State affirmatively to ensure that the agreement is fulfilled. The flag State may not be as inclined to actively assume such obligation with respect to unilateral coastal State regulation. However, to seek agreement on an issue implies the matter is somewhat negotiable and trade-offs inevitably occur. Coastal States must weigh the advantages of agreement on an issue versus unilateral prescription which limits, if not outright prevents, trade-offs and compromises on the particular condition to be required.
COASTAL STATE AND FOREIGN FISHING INTERESTS
(a)
Objectives of access
The objectives of foreign fishing concerns in obtaining access to fishery resources under coastal State extended jurisdiction are, generally, simple and straightforward, and do not go beyond the desire to secure access to supplies of fish, whether for the supply of home markets, for use in existing processing industries or as a source of hard currency, and the desire to avoid economic dislocation of sectors of the economy hitherto dependent upon distant water fishing operations. The objectives of a coastal State with respect to foreign fishing in its waters, on the other hand, will vary very considerably depending on its economic situation and stage of development and its fishery management goals. For many developing countries, having little or no locally based fishing industry, the main concerns may well be to secure revenue or other benefits in kind, while at the same time gathering information on the fishery resources available in waters under its extended jurisdiction and the feasibility of commercial fishing operations based on those resources. For other countries with more developed local fishing industries, optimum utilization of the fishery resources of its coastal waters may imply little room for foreign fishing, with the emphasis on increasing catch rates of local fleets, although even in such circumstances, foreign operations may often conveniently be used as a buffer for domestic management, it being easier for the coastal State to reduce effort through limiting foreign rather than domestic operations. The overall objectives of the coastal State will obviously determine the nature and stringency of the conditions to be imposed on access. In one situation effective controls over the amount of fish taken in the coastal States waters may be of the essence. In another the emphasis may be much more on ensuring that revenue is not diminished.
(b)
Interests with respect to compliance control conditions
With respect specifically to compliance control conditions, the coastal State and foreign fishing concern have both conflicting and convergent interests. They share an interest in the proper and efficient management of a target fishery, to the extent that such management tends to increase the value of the fishery. Subject to this, and in-so-far as fisheries represent an economic activity, both coastal State and foreign fishing concern also have a convergent interest in minimizing the costs of implementation and administration of compliance control conditions in order to maximize the total net economic benefits available from the fishery as a whole. Conflicts of interest arise more over the manner in which these benefits are to be shared. In this context the coastal State has a legitimate interest in asserting cost-effective compliance control over both authorized and unauthorized operations both for the purpose of revenue verification (i.e., existence of foreign fishing operations, effort, catch and value of catch) and for management purposes. It is also concerned to obtain a reliable supply of information on operations being undertaken in its waters on which to base its management of the fisheries and indeed its future plans for local fisheries development. The interests of the foreign fishing operators, on the other hand, are more to secure the maximum freedom from burdensome controls and the easiest mechanisms for gaining access to resources together with the maximum security possible for continued access, and the least enforcement of revenue and similar obligations.
Even here though, the interests, though divergent, are not unrelated. The coastal State, for example, cannot impose effective though over-burdensome conditions on foreign fleet operators if it wishes to retain foreign fishing in its waters and to attract voluntary compliance with its access requirements. The foreign fishing operator for his part will have a substantial interest in promoting a stable and mutually satisfying relationship with the coastal State that can only be based on a history of adequate compliance.
In short: firstly, the more an access system accommodates the legitimate needs of a foreign fishing interest, the more likely it is that the foreign fishing interest and its flag State would participate in self-regulation which, correspondingly, diminishes in degree the need to employ costly "hard enforcement"; secondly, the more divergent the interests of the coastal State and the distant-water State, e.g., protecting competing domestic fishing interests or demanding high fishing fees, the less likely it is that the system can tend to be self-regulating and the greater the need for the "hard enforcement".
EXAMINATION OF ACCESS CONDITIONS RELATED TO COMPLIANCE
This portion of the paper examines access conditions and associated measures (e.g., sanctions), as related to the process of achieving compliance by foreign fishing. How a particular condition may be correlated, either positively or negatively, with compliance, will be discussed as well as the attendant costs to the coastal State and foreign fishing interests. Emphasis will be placed on those measures that tend to reduce the need for hard enforcement and, to the extent that entails greater self-regulation, the interests of both coastal State and foreign fishing vis-a-vis access will be borne in mind. Where appropriate, recommendations will be suggested, especially as to the desirability of requiring particular conditions in terms of their costs and possibly positive or negative impact on compliance in general. It should be borne in mind that, in general, the greater the costs to either the coastal State or foreign fishing of a particular access condition, the more likely it is that the net revenue to the coastal State wilt be diminished. For that reason, if no other, access conditions should have demonstrable utility to coastal State needs.
The following discussion is organized into five areas:
1. Control of unauthorized fishing
2. Information generation
3. Operation conditions
4. Legal/financial conditions
5. Sanctions1. Control of unauthorized fishing
The threshold of compliance is to ensure that only licensed vessels engage in fishing. While this task, to a larger extent, can only be accomplished by physical surveillance and surface control, certain requirements are of valuable assistance. However, requirements imposed on unlicensed vessels may impinge upon their right to navigate freely through exclusive economic zones as provided in Article 58 (1) of CLOS. On the other hand, it can be, and has been, argued that some requirements, like stowage of gear and even entry and exit reporting, do not deny, or even impinge on, freedom to navigate and are a legitimate and necessary exercise of a coastal State's sovereign right to protect its economic interests in the zone. This is a delicate issue and beyond the scope of this paper. The United States' sensitivity to this issue is perhaps revealed in-so-far as not only are unlicensed vessels not required to report entry and exit, but even licensed vessels are not required to report entry or exit (rather, licensed vessels only report commencement and cessation of fishing operations).
Several coastal States require vessels to report when passing through areas within the zone in which they are not authorized to fish. Further, unlicensed vessels that may pass through a fishing zone are occasionally and/or potentially required to report prior to or upon entry and exit. Frequently the advance notice required is at least 24 hours. In some instances, the report must include catch on board at entry and departure. Further requirements for transiting vessels include stowage of fishing gear and the maintenance of an expeditious course through the zone. These conditions may be complemented by the coastal State's definition of fishing. In particular, some States have defined the act of fishing in such an inclusive manner that if gear is not stowed, or if the vessel is doing anything that could be considered as even exploring for fish, i.e., meandering or scouting, the vessel may be considered "fishing".
These conditions are of great utility in eliminating the possible defense of an unlicensed vessel that it was merely transiting, not fishing. The reporting requirements also aid by narrowing the scope of the enforcement authorities' surveillance efforts. Transit reporting coupled with position reporting by licensed vessels should enable the authorities to account for every fishing vessel within the zone at any point in time. The utility of that information is, however, questionable if there is no meaningful surveillance capability.
Another aspect of control over unlicensed fishing can be found in some fishing agreements whereby the foreign flag State may be required to appoint a legal agent, establishing legal jurisdiction in absentia over both licensed and unlicensed vessels. Further, pursuant to such agreement, the flag State may be obliged to ensure that all of its flag vessels, licensed or not, comply with the coastal State's requirements, which assists in controlling unlicensed fishing.
The costs to the coastal State for transit reporting are the potential overloading of its communication facilities and digestion of the information reported. Further, if there is no means of meaningful surveillance, reports of transit are probably of little actual value. Of course, if such requirement impinges on freedom of navigation the coastal State may be exposed to charges of violating international law.
The costs to the transiting vessel can be substantial. The process of reporting may be inconvenient depending on the facilities used and the substance of the information required. More significantly, the requirement that such reports be 24 hours, or more, in advance may be especially problematic for the vessel that is passing through several small zones or which in mid-voyage decides to go to another ground (in 24 hours, a fishing vessel may travel some 250 miles).
Meaningful stowage of gear is, for some types of fishing vessels, either impossible or very inconvenient and thereby impinges on freedom of navigation. For instance, a pole and line tuna boat cannot, it appears, meaningfully stow its gear so as to be incapable of fishing on short notice. The same conclusion appears to be true for purse seining and trolling vessels. However, trawl vessels and others may be capable of meaningfully and fairly conveniently stowing their gear. In any event, it is not always clear what stowage of fishing gear really means - perhaps that gear is carried or placed in circumstances so that it is not readily available for deployment in fishing. In-so-far as vessels with gear not "stowed" may be exposed to substantial legal penalties and thus should have some meaningful opportunity to satisfy the requirement, it is desirable that criteria be established as to what constitutes "stowage of gear" for particular types of fishing vessels.
2.
Generation of information
Almost every coastal State requires foreign fishing vessels to supply information regarding the vessel, its position, its catch and activity. This information is useful for numerous management purposes, but it also frequently can, and does, aid in achieving compliance.
Prior to receiving a permit or licence, foreign fishing vessels are usually required to submit an application. The application elicits information describing the vessel, its dimensions, gear and other particulars (occasionally a photograph is required), the name and addresses of the officers and crew and occasionally, in varying detail, information as to ownership of the vessel and other economic interests behind the vessel.
The information describing the vessel is of obvious use in enforcement and compliance related measures. If the vessel has a history of violations it may not receive a licence. Background information is useful in identifying a vessel from an observation and in ascertaining the scope of its probable activity while in the zone. Occasionally, an application format may be quite complicated and difficult for the fishermen to complete, which may lead to inaccuracy. In situations where the same vessels fish in several neighbouring coastal zones it is in everyone's interest to follow a similar application procedure in terms of both format and substance.
Information relating to ownership and other economic participation is valuable for the coastal State in ascertaining who might be notified in case the vessel is arrested and subject to fine or forfeiture. Such information is also useful in giving a coastal State a more complete picture of what interests actually, or potentially, benefit from, or are economically affected by, the activities of a particular vessel. The owner and mortgagee could, and indeed should, be contacted directly in seeking settlement of a dispute or impending forfeiture. They also should be contacted regarding reported transgressions or other incidents of non-compliance by the vessel. Owners and creditors, e.g., banks, are generally quite interested and concerned in knowing about any circumstances that may jeopardize their financial interests or security. Disclosure, or the threat of such disclosure, of non-compliance in this manner tends to encourage the operator of the vessel to take greater care in complying with the coastal State's law and fishing agreement.
Determining the nature and scope of economic participation can be a complex exercise. For instance, if the vessel is owned by a large corporation, should the coastal State demand the names, nationality and degree of investment of each individual shareholder? This could be quite cumbersome for all concerned. Should the names, nationality, extent and nature of financing of the various creditors of a vessel be required? What about creditors of the owner corporation? Obviously some lines have to be drawn regarding information on underlying economic interests in a particular vessel, but some information regarding the most directly affected economic interests could be quite useful to the coastal State, for instance, the name of the owner and, if corporate, basic information regarding shareholdings and the name of primary creditors of the vessel.
Information on economic participation in a vessel may be considered sensitive and perhaps confidential in nature. Its disclosure may constitute a considerable, even intolerable burden for the foreign fishing vessels. Some countries may have domestic laws that profit the disclosure of certain types of economic participation and for the coastal State to require such disclosure may force the corresponding fishing vessel to either fish illegally or not fish at all. Further, the mechanics and substance of disclosure can be complicated and somewhat difficult to keep current. A coastal State probably is well advised not to require, by way of a unilateral measure, extensive financial/ownership information unless it has ready means to digest and use such information. However, it may well wish to reserve that right and explore the issue with foreign fishing interests.
Several coastal States require the submission of a proposed fishing plan. This plan might be separately submitted, either formally or informally, or included in the application itself. The degree to which various coastal States require strict adherence to a plan varies. It is a useful tool in monitoring a particular vessel's activities and allows the coastal State to anticipate such activities and deploy its surveillance capabilities accordingly. Of course, the plan may serve other management interests as well; this is true for most of the conditions discussed in this paper.
To require a foreign fishing vessel to anticipate and adhere to a plan where it will go and what it will do and what it will catch may be considered a significant burden, especially in fisheries where it is virtually impossible to predict one's fishing activity. The primary burden besides the administrative overhead of developing a plan and submitting it is that it can significantly and artificially constrain the fishing vessel's flexibility to pursue its harvest under changing circumstances. This need can be accommodated by allowing variations in the fishing plan provided prior notice is given thereof. Again this creates some costs for foreign fishermen by way of increased communications and potential disruption of their operation. In some fisheries the requirement of the fishing plan may be easily met; in other fisheries such as tuna purse seining it may be impossible or extremely difficult to detail a planned course of operation. In any event, the coastal State should tailor its fishing plan requirements to particular fisheries and allow some flexibility - to do otherwise may just encourage or in fact compel non-compliance.
The next category of information that is useful for compliance concerns reporting by fishing vessels. Reporting by fishing vessels is at the heart of the self-regulating process; in general vessels are required to self-report subject to random - or in some systems, not-so-random - checks to conform accuracy.
Generally, vessels are required to report at varying intervals, e.g., daily, every third day or weekly, their position and time of position. This information is useful to monitor vessel movements and to allocate surveillance capacity. However, depending on the frequency and the nature of the reports, such reporting can create substantial administrative overhead, overload communication systems and generate perhaps unnecessarily detailed information. Indeed, it is questionable how necessary position/time reporting is as an aid to compliance unless the coastal State has the means to absorb and to use such information. In particular, if the coastal State has no, or limited means of surveillance, self-reporting of position is not useful, at least in the short run, for compliance purposes.
Again, for many coastal States it may be best to reserve, in their legislation or regulations, the right to require position reports but not actually require the same, and thereby incur the costs and possible diminish revenue, unless or until there is clear utility in doing so. Position reports may be valuable in discerning fishing patterns and movements on the medium and long term basis, but the same information can be derived from catch logs - see below.
For those countries that require a fishing plan and adherence thereto, position/time reports are not as necessary and perhaps need not be required at all. In this regard, some countries only require position/time reporting with respect to major shifts in fishing operation, i.e., leaving one fishing ground for another and the like. Some States also require that when reporting position/time, the vessel report the presence of any other foreign fishing vessels, licensed or unlicensed, of which it is aware. Of course this is useful information to the coastal State as an enforcer, but it can place a foreign fishing vessel in the somewhat untenable position of an informant, a role it may not wish to assume.
Many countries, as mentioned earlier, require prior notification of entry into the zone as well as exit from the zone for both licensed and occasionally unlicensed fishing vessels. The same considerations mentioned before regarding unlicensed vessels apply to licensed fishing vessels. In particular, the burden of reporting entry and exit 24 or more hours in advance, especially in areas of several adjacent fishing zones, can prove to be an unenviable and perhaps unworkable task for the fishing vessel, especially a transiting highly mobile vessel. Coastal States in some instances have tried to accommodate this problem for licensed vessels by allowing two categories of entry-exit reporting: one category for the initial entry and the final exit and another category, which does not require advance notice, where a fishing vessel is merely crossing boundaries in pursuit of its fishing activity. Presumably such reporting aids in monitoring activities of the vessels, but as a practical matter for many coastal States there would appear to be no immediate utility in knowing such information. However, just as in position reporting, there may be a long term use of such information in ascertaining fishing patterns and movements as well as Cross-checking reported catch activity.
Besides reporting anticipated entry and exit, a foreign fishing vessel is often required contemporaneously to report catch on board. This information can be used to establish subsequent catch violations. Again, however, if the coastal State has only limited means physically to inspect catch on board, this information is not very useful. Nonetheless, entry/exit reporting, complete with catch-on-board information, and even reasonable position/time reports while within the zone can be said to encourage a more disciplined pattern of behaviour by foreign fishing vessels vis-a-vis the coastal State's fishing regime and, to that extent, may be of medium to long term utility. But if too burdensome, such requirements may tend to discourage compliance. Further, if such requirements are largely ignored and incapable of enforcement by the coastal State, the credibility of the entire access system tends to deteriorate. A fishing vessel must evaluate the risks of (1) only being able, or willing, partially to comply with a fishing regime and thereby expose itself to sanctions that are more readily applied to licensed vessels fishing pursuant to a fishing agreement and, thereby, more subject to coastal State authority, or (2) fish without a licence, not submit to coastal State authority, avoid exposure to readily enforced sanctions and accept the comparatively smaller risk of being detected and seized by the coastal State.
In addition to reporting of position and time, virtually all coastal States require some form of catch and effort reports. Typically, a coastal State will require catch-effort information to be recorded currently in a prescribed log format on board the vessel. Additionally, some States require the vessel while fishing to report periodically by radio, or other electronic means, the same sort of catch and effort information.
Logs of catch and effort are usually to be maintained current on board and to be available for presentation upon request, usually during an on-board inspection or when calling in port. Further, most, although oddly enough not all, States require subsequent submission of the logs upon completion of their voyage. The requirement of keeing the vessel's logs up-to-date and on board is to aid inspection efforts and to avoid the possibility that the fishing vessel fills out the catch log upon his return to the home port. To allow the fishing vessel operator, or anyone else for that matter, to fill out the log sheets after the voyage is completed creates a greater opportunity to manipulate the information on a fleet-wide basis, or otherwise. Nonetheless, if the coastal State has no means effectively to require contemporaneous presentation of the log-sheet during the fishing operation, there is no assurance that it will be kept on an up-to-date basis as opposed to subsequent completion or adjustment.
It may be useful for the coastal State to pattern the required catch log format to follow the system or format that may be required from a foreign fisherman by his own flag authorities. This eases the administrative burden and alleviates possible confusion for the foreign fisherman and may enhance accurate reporting. Further, if several neighbouring coastal States are regulating the same group of fishing vessels, it is advisable for those States to coordinate and even standardize all reporting requirements, including catch log formats; again this increases the likelihood of accuracy and utility in management, as well as alleviates any unnecessary burden on, or confusion for the foreign fishing vessel. In any event, the log format should not be overly complicated or detailed so that it can be completed without undue difficulty by a fisherman at sea and the information required should be limited to that which is actually and realistically needed for the particular coastal State management needs. In terms of aiding compliance, a written log is useful not only to establish what was caught but also can be used as an admission in court by the fishing vessel if the log reveals illegal activity. Information from logs can be compiled to develop a picture of past fishing patterns which may be useful for a variety of purposes. Logs should be required; they are not costly to anyone, they are a good source of information and are not less likely to be accurate than radio reporting in the absence of air surveillance.
The requirement that in addition to the maintenance of logs, catch information be reported periodically, by radio and other electronic means, generally is to serve the purpose of monitoring quotas and/or establish a current basis for fees. These reports may be required on a daily, bi-weekly, weekly or other basis. If a coastal State is not closely regulating its fishery in terms of quotas or limits on species of fish to be caught it would not appear too necessary to require contemporaneous transmission of such information; a subsequent submission of log sheets would suffice. However, there may be value in using such reports as a means to verify the subsequently submitted log sheets under the theory that, if the vessel operator is going to manipulate the information, it is more difficult to do so, and thus more likely to be revealed, if such information is required in two or more formats, e.g., radio reports and logs, at various times. Reporting such information by electronic means may overload available communication facilities of both the vessel and the coastal State and can be a significant burden for the fishing vessel, especially if the required format is complicated and overly detailed. A coastal State probably is well advised to require such radio or telegraphic catch reporting only if it serves a real, immediate, management need or can be proven useful as a verification device.
Catch information is largely a function of self-reporting and must be considered suspect in the absence of verification. This is especially likely because such information can, and almost surely will be, used to the detriment of the foreign fishing interest. That is, if the foreign fisherman is fishing against an allocation, the more catch he reports the quicker he reaches his quota and will be required to cease his fishing. Also, catch and effort information is used at one time or another, in some manner or another, as a basis for the coastal State to establish a fishing fee. Thus the greater the catch reported by the foreign fisherman, presumably the greater the fee he will have to pay at some point or other. (This linkage is more direct where the fee is charged as a percentage of actual current catch and quite a bit less direct under other systems. Possibly, the less direct the linkage the more likely catch information will be unaffected, in degree, by the economic consequences.) Thus, the foreign fisherman has sufficient motivation to under-report his catch to the degree possible. Indeed, it has been often observed that the accuracy of catch and effort information throughout much of the world may have significantly deteriorated in the wake of extended coastal State jurisdiction because of the built-in bias in reporting. The only way to combat this tendency is to have the ability to verify the reports. Verification is at best difficult, costly (observers, inspections) and rarely comprehensive.
The most desirable, cost-effective, verifiable and accurate means of ascertaining catch and activity information is to require a full voyage report by way of a log (i.e., not just while within a particular zone) supported by authenticated documentation of catch offloaded at landed places. If regionally oriented coastal States uniformly required this information, in a standardized format, the need for radio reporting of catch would be largely eliminated (for many States at least), the administrative burden for foreign fishing would be greatly reduced and the accuracy and value of the information would or should be significantly enhanced and subject to more efficient means of verification.
3.
Operational conditions
Access conditions concerning the operation of foreign fishing vessels roughly fall under three categories:
(a) Passive conditions(b) Conditions requiring some sort of response by the foreign fishing vessel under certain circumstances
(c) Conditions which limit aspects of the fishing vessel's operations or activities.
Among the conditions that can be considered passive in nature are the requirement that fishing vessels display certain markings or identification symbols, fly their flag of registry, have certain position fixing and communication equipment on board, and maintain a licence and up-to-date prescribed log on board.
Several coastal States require fishing vessels to display their international radio call sign on both sides and, occasionally, on the top side of the vessel. The numbers and letters of the radio call sign are usually required to be in contrasting colours and of certain dimensions, frequently one metre in height. This sort of requirement coupled with the requirement to fly its flag renders the vessel capable of ready identification by air or surface surveillance. The advantage of requiring the symbols of the international call signs is that most fishing vessels have an individual call sign and once the symbols are so displayed the vessels are satisfactorily identified for many coastal States purposes. However, some coastal States require a more individualized form of identification, including the display of their own permit numbers on the vessels. This appears to be unnecessary since it is not difficult to link a particular call sign, or equivalent international identification, to a particular vessel permit number and thus alleviate the burden of the vessel having to individualize its markings for one fishing zone and possibly having to change such markings as it passes onto other fishing zones. If a fishing vessel is small, it may be difficult to comply with the requirement that its identification symbols be of certain dimensions, thus there may have to be some flexibility on the coastal State's part to accommodate certain size vessels. The requirement that the identification marking be displayed on the deck of the vessel is also occasionally problematic depending on the nature of the vessel and its decks. However, the display of such information is quite useful to the coastal State in expediting its air surveillance, and unless the vessel is quite small and there is no available surface area on its decks or on top of the bridge, this requirement is productive and reasonable. Coastal State identification marking requirements should be standardized and be based on international call sign or equivalent.
The requirement that the fishing vessel's licence be maintained on board is designed to aid enforcement officials in ascertaining whether the vessel is authorized and to be able immediately to ascertain the conditions of such authorization, presuming the conditions are contained on the licence itself. The only possible difficulty for a foreign fisherman in maintaining a licence on board lies in the mechanics of actually getting a piece of paper from the coastal State onto a vessel. This difficulty is not to be under-estimated, especially where fishing vessel licences are issued for relatively short periods, thus forcing the foreign fishing vessel repeatedly to go through the mechanics of acquiring the physical licence. Some coastal States actually send a specified quantity of licences to the flag State of the foreign fleet for subsequent distribution to the vessels while in home port. If this approach is followed, some leeway must be given to allow vessels at sea an opportunity to pick up licences on their next return to home port. Other coastal States require the vessels or a vessel from a fleet to come to port and to pick up the licences and distribute the same to fellow members of the fleet while at sea. Several coastal States do not require permits on board, or, even if required, do not enforce this requirement. Rather they rely on their own information as to which vessels appear in the coastal State's records as having been issued a licence. This approach appears to be satisfactory from the coastal State's point of view in that it should be easy to ascertain from its records whether a particular vessel has been issued a licence or not without requiring the permit to be on board. However, some States may lack the means of acquiring that information readily and may desire absolute certainty of licensing by requiring the document to be on board.
Some coastal States use a licence format to give very specific instructions to the vessel as to what it can or cannot do and for that reason it is important that the vessel operator has a licence on board for ready reference. Also, several coastal States make use of this licence requirement to make annotations on the licence itself of any warnings given or inspections completed. To the extent the instructions on a licence are individually tailored, it seems necessary that each vessel has a licence on board. Otherwise, if the instructions are general in nature, it appears possible for the coastal State to send such instructions out en masse to the foreign fishing State for distribution to its vessels.
The purpose of requiring vessels to maintain certain types of position-fixing equipment is to accommodate the possibility of requiring vessels to maintain an electronic transmitting device to be used via satellite, or otherwise, to give position and time. As far as is known, no coastal State currently imposes this requirement on fishing vessels but rather reserves the right to do so. Should the technology be feasible to utilize this method of surveillance and information gathering, it would appear to be possible to eliminate a great deal of reporting requirements currently required of fishing vessels and at the same time increase both the quantity and quality of the information received by the coastal State regarding the fishing vessels' activities. Because transmitting devices are not seemingly actively required by any coastal State, the subject will not be further discussed. It might be mentioned, however, that many fishing vessels now maintain satellite navigation devices which are capable of printing a continuing series of position fixes which would establish the location and course of any particular vessel. To the extent such record is authentic and tamper-proof, the information could be quite valuable to a coastal State where, for instance, a dispute as to the vessel's course or location may have developed. Again, as far as known, neither satellite navigation equipment nor copies of print-outs of such devices are actually required by any coastal State.
Coastal States requiring specified communication equipment presumably require specified radio or radio-telegraphy equipment. The compliance aspect of this requirement is obvious: to be able to communicate to the vessel directly for the purpose of giving instructions and/or receiving reports and general communication with coastal State authorities. While this is certainly a useful tool for the coastal State, there can be some problems for the foreign fishing vessel. In particular, language is frequently a problem, although that difficulty could be overcome by a language requirement, e.g., an interpreter on board. Some States require an interpreter to be on board but, for many fisheries, perhaps all, this would not seem a practical nor reasonable requirement to be applied across the board.
Further, some communication equipment may not match with the coastal State's equipment, and some fishing vessels may not have any suitable radio communication capability nor a realistic possibility of acquiring the same (Taiwan). Even those vessels that have suitable communication equipment must also have a qualified international operator of such equipment to communicate to citizens of another State. Certain vessels cannot afford or otherwise do not have such personnel. Generally, even if vocal radio communications are somewhat difficult due to language or equipment, it should be possible and generally satisfactory to communicate directly to a foreign fishing vessel using radio telegraphy or other forms of international communication, e.g., flags or certain movements. As for radio reports, these can be relayed through the flag State or a local representative, thus alleviating language/equipment difficulties though increasing the cost somewhat.
Occasionally, coastal States use the so-called "message drop" as a means of furthering their inspection of a vessel or actually to facilitate a seizure. Message drop simply means that when a vessel is spotted by an aircraft (or other platform observation), the aircraft, or observer, either literally drops some sort of message in a canister near the vessel or communicates directly with the vessel on its radio equipment and orders it to proceed to a designated port for further inspection. This approach eliminates the need of actually having to intercept a fishing vessel while at sea by a surface patrol craft. Of course, it is much more likely that a vessel will do what is has been instructed to do if a surface patrol craft is in the vicinity. However, under the perceived or a real threat of certain sanctions that could be employed by the coastal State if the vessel refused to do as ordered, many vessels have affirmatively responded to the so-called message drop. In utilizing a message drop, the coastal State should be aware that the diversion of the vessels over what is often a great distance to the nearest port of inspection can be extremely costly for the vessel involved and is a sanction in and of itself. Accordingly, to order the vessel to call at a port should be tempered by a reasonable probability that the vessel has actually violated some provision of the fishery law. Also, there is ample room for confusion and misunderstandings in voice communication, or even identifying the authority of the ordering party, which should be taken into account.
A second category of operation conditions is those that require some sort of response, under certain circumstances, from the foreign fishing vessel. These include: the obligation to comply with instructions of coastal State officials, to accept boarding parties, to allow and not to otherwise impede inspections by officials, to accept and accommodate on-board observers, and to appoint a national or a fleet representative to act as a liaison with the coastal State.
The general requirement to comply with coastal State officials' instructions is obvious and almost universally required. Port calls by way of message drops and the like have already been discussed. The requirement to accommodate boarding and inspection parties can pose a problem for the foreign fishing vessel if the officials desiring to board and search are not clearly identified or known as authorized representatives of the coastal State. In particular, in many parts of the world fishing vessels are very, and understandably, reluctant to allow their vessels to be boarded by parties unknown or not fully identified. This must be taken into account by the coastal State and there must be an understanding between the coastal State and the foreign fishing interests as to means of identification and procedures to be followed. In many instances, the coastal State will be well advised to ensure that its inspection officials are adequately trained and follow set procedures to avoid potentially serious confrontations. Boardings at sea are frequently hazardous both physically and procedurally, and difficulties should be anticipated and addressed.
Many coastal States require that foreign fishing vessels accept on-board observers. Indeed, in the United States, the law calls for 100 percent observer coverage of foreign fishing. The cost of the observers, including their maintenance and wages is generally, though not always, required from the foreign fishing interest. Provided that the observers are trained personnel, they constitute a very effective means by which to monitor and verify activities of foreign fishing vessels. However, numerous difficulties may arise if the observer is not a trained individual or if the fishing vessel is not cooperative in accommodating the observer's activities. To this end, the role of the observer should be clarified. In particular, is the observer an enforcement officer, a scientist collecting information, and/or a monitor/reporter? If the role of the observer includes that of an enforcement officer, he or she may find that role very difficult to perform and it may compromise other, non-enforcement functions.
The logistical difficulties of conducting an on-board observer's programme are manifest. Whether or not it will work frequently depends on the nature of the fishery, the circumstances of the coastal zone and the coastal State involved. For instance, in an inshore, geographically defined fishery that employs large fishing vessels, an observer programme may not be so difficult to accomplish. On the other hand, in a very large, dispersed fishery utilizing numerous small vessels that do not call in local ports, a programme would pose considerable difficulties and costs, especially if the programme is intended to be comprehensive. Questions as to how and where to embark and disembark observers, accommodations for observers, communication facilities and so on can plague an on-board observer programme. It should also be pointed out that an observer is often in a fairly lonely position in a potentially hostile environment and may be subject to hazards. The observer, especially if he or she performs in an enforcement capability, is very susceptible to improper influence from the foreign fishing vessel or, indeed, coercion.
Whether it is possible or practical to employ on-board observers or not, the utility to the coastal State for compliance purposes is considerable. Observers not only can accurately report and confirm what occurs on board their particular vessel but also can report on the activities of other vessels in the vicinity. Further, it is possible to extrapolate from one observer's report as to the activities, including catch rates, of other, similarly situated foreign fishing vessels, (For developing States, an observer programme may have secondary value in that it exposes the observer to the technology and methods employed by foreign fishing vessels and, for that matter, because the costs will be paid by the foreign fishermen, it creates new employment opportunities.)
However, from the foreign fishermen's point of view, it is clear that the requirement to take observers on board is a considerable burden, both in an operational sense and because of the substantial cost that may be involved. Indeed, there are coastal zones in which foreign fishermen refuse to seek licences precisely because of observer requirements. In this regard, if the observer requirement is unduly burdensome for the foreign fishing vessel, especially where the vessels are small and ill-equipped to accommodate another person and if it depends upon very large or wide-ranging fishery, an extensive mandatory observer programme may well encourage unlicensed fishing. For that reason, if for no other, the coastal State will be well advised to at least seek an appreciation of foreign fishermen's possible difficulties with regard to the observers and to try to accommodate the same.
Many coastal States require the foreign fishing interest to appoint a local representative for the purpose of acting as a liaison on behalf of the vessels. This can be a valuable and convenient means to facilitate transactions and communications between the coastal State and the foreign fishing vessels and thereby greatly enhances compliance in a cost-effective manner. It shifts the responsibility from the coastal State to the local representative having to deal with numerous foreign fishing vessels for reports, licence distribution, and numerous other administrative details (see, for instance, New Zealand and Canada local representative requirements).
Individual foreign fishermen also are forced to organize and coordinate their activities within a fishing zone by having a deal with their own representative on a collective basis. However, in situations where foreign fishing vessels only sporadically, or to a very limited degree, fish in a particular coastal State's zone, possibly because the zone is quite small or fishing opportunities are limited, it may not be realistic to expect the fishermen to appoint an agent. Indeed, to require a representative under those circumstances may encourage non-compliance, i.e., unlicensed fishing. It may be possible and certainly desirable for similarly situated coastal States to require a regional representative to represent the foreign fishermen fishing sporadically or to a limited degree within several proximate zones.
The cost to the foreign fishing interest of maintaining a local representative, while not crippling, may be substantial, depending on the scope of the representative's duties. However, the same functions would have to be discharged by someone in any event and a local representative may serve the interests of both the foreign fishing interest and the coastal State.
The final category of operational conditions includes effort-restrictions, restrictions on landing and transshipment of catch, stowage or gear and port calls. Both the stowage of gear and on-demand port-call requirements have been discussed and need no further mention except to comment that they do constitute restrictions, in some cases quite severe restrictions, on the operations of fishing vessels and are also quite valuable as compliance tools.
Coastal States often impose restrictions on various aspects of foreign fishing effort (sometimes referred to as "windows" and "boxes"). These restrictions, as most conditions of access, serve purposes other than compliance. However, effort restrictions are also quite useful to coastal States in achieving compliance. In particular, coastal States may limit the number, or the type, of fishing vessels and the area and time in which they operate, which reduces the scope of activity to be monitored by the coastal State and allows for a more efficient employment of surveillance activity. Of course, restrictions on area, time, number of vessels or even gear merely for the purpose of narrowing the coastal State's enforcement responsibilities can be a very harsh compliance tool from the perspective of the foreign fishermen. Accordingly such restrictions should, and usually do, serve other purposes as well and, in any case, should be reasonably designed to accommodate the legitimate interests of the foreign fisherman to conduct expeditiously and efficiently his fishing operation. For instance, it would not be reasonable, and indeed would encourage non-compliance,' for a coastal State to limit a tuna fishery to a small, segregated geographical area. If a balance can be struck, some limits on area and time may serve compliance purposes; but they may also tend to reduce revenue otherwise available to the coastal State from foreign fishing.
Another very important effort restriction is a limitation on quality and/or species of fish that may be caught. However, such direct limitation on catch cannot be considered an aid to compliance; rather it compounds compliance difficulties for both the coastal State and foreign fishing interests. It is one thing to seek compliance in terms of requiring licences, reporting and payment of fees and quite another to limit numbers and species of fish actually harvested.
Some coastal States require, or reserve the right to require, a percentage of catch to be landed locally and, while this is primarily done for other purposes, it also contributes to compliance in the same way as mandatory port calls. The vessel must call in at port for unloading and can be inspected at that time. However, it would not appear reasonable for a coastal State to require local landing merely for the sake of obtaining compliance. The requirement that no fishing vessel transship its catch unless previously authorized is an aid to compliance in that it assists the coastal State to monitor and control catches of vessels while in its zone.
Mandatory port calls, for inspection, at time of entry and prior to exit are occasionally required. While this is doubtlessly a very valuable and cost-effective (for the coastal State) method of achieving compliance, the burden on foreign fishing vessels is considerable. Frequently zones are quite large and the distance from a target fishery to the nearest port can be great and the corresponding costs in fuel and time substantial. This may be especially so, for example, where tuna longlining operations are concerned, if they are conducted only on the fringes of the 200 mile zone. The incentive not to comply with this requirement, especially if surveillance is weak, must be considered very high. Nonetheless, for certain offshore fisheries, port calls may represent the best means to ascertain and verify accurate catch information and control the vessels in general.
4.
Financial/Legal Conditions
By requiring certain financial and legal conditions to be met by foreign fishing vessels, coastal States create circumstances that aid in compliance. For instance, a few States purport to require foreign fishing vessels to establish a bond to secure satisfactory performance. While this is a very useful and cost-effective tool in encouraging compliance, as well as providing the coastal State a ready source from which fines can be claimed, it could be somewhat costly to the foreign fishing vessels, especially if they fish in several zones, each requiring a bond. It may also diminish revenues otherwise available to the coastal State. To require a bond for every fishing zone, large or small, is not feasible. However, where a group of States have consolidated their management on a regional level, or where a coastal State controls a major fishery, it would appear more promising to require a bond. The expense of bonding to a foreign fishing vessel is not inconsiderable and they would want to ensure that adequate safeguards are in place to protect their bond from arbitrary forfeiture, partial or total.
The United States requires the local representative to maintain a letter of credit to pay assessed fishing fees. This concept could be used as a cost-effective enforcement aid as well, e.g., if a court judgement is presented, the terms of the letter mandates payment. The same considerations regarding bonding would apply from the foreign fishing perspective. Seemingly no other coastal State requires a letter of credit and it is not currently used as a compliance method.
Short of bond requirements, some coastal States require the flag State, or fishing association, to serve as a guarantor, in varying degrees, of its vessel's performance. For instance, if a judgement for a violation is entered (for either unlicensed fishing or violations by a licensed vessel), the flag State may be required to secure payment of the fine, or exercise its best efforts to do so. Depending upon the responsibility and capability of the guarantor, this is a very beneficial and inexpensive method of encouraging compliance. It is inexpensive because, like the bond, it alleviates the need for a coastal State to physically arrest a vessel; rather, if a violation can be independently established, the vessel can be proceeded against in absentia under some coastal States' legal systems.
The guarantor obligation creates just that; a considerable obligation, and possibly considerable costs, for the flag State or fishing association. Some flag States can exercise considerably more control over their fishing vessels than others. If the flag State is unable to compel its vessels to pay the fine, it will end up with the loss. However, most fishing is conducted pursuant to an agreement and an agreement implies obligations and the capability and intention to carry out those obligations. If a guarantee or bond or even liquidated damages can be the object of agreement then the method of compliance control can work, and work well, because a flag State doubtlessly will feel more obligated to fulfil the terms of that which it has formally agreed than terms that are unilaterally prescribed by coastal States. This is one of the main reasons why States should consider using agreements as a vehicle for establishing access conditions. Certainly some coastal States have succeeded in requiring agreement to some form or other of outright indemnity from parties responsible for foreign fishing (see Australia, Taiwan) and many more require, by agreements, the flag State to shoulder part of the burden of ensuring compliance (the burden of detecting violations, however, remains uniquely the coastal State's).
Just as the method and substance of effort restrictions can affect compliance, so can the method of charging a fishing fee. For instance, if one lump sum is charged for an entire fleet, and the burden is correspondingly on the fleet to distribute the charges and ensure that every one pays his share. Anyone not paying or otherwise sharing is cheating not so much the coastal State as the other members of his fleet that assumed the lump sum obligation. This will result in pressure from the fleet on its membership to comply and pay for a licence. Whereas, if it is left to each individual vessel to apply and pay for a licence, there is less, or no incentive for the peer group or association to pressure individuals to comply. Thus, the coastal State bears the burden of ensuring all member vessels pay a licence fee. There are, of course, other reasons for not requiring a lump sum fee, but compliance does not appear to be one of them.
The requirement that a legal agent be appointed to accept legal process, and establish legal jurisdiction, on behalf of individual foreign fishing vessels is a useful and cost-effective tool to achieve compliance. Sometimes, though not necessarily, the legal agent is the same as the already mentioned local representative. However, a legal agent is often merely a vehicle whereby a coastal State can legally proceed in a court of law against a transgressing fishing vessel, even if the vessel was only detected by air surveillance, or otherwise, and no physical arrest or custody of the vessel was ever achieved. That is, firstly, the legal agent establishes the court's jurisdiction over the represented vessel and, secondly, by serving the legal papers on the agent, the coastal State is legally considered as having served the same on the fishing vessel. The vessel is thus considered as having an adequate opportunity to appear in court and respond. If it does not choose to appear then a default judgement can be entered against it. The judgement can then be satisfied pursuant to the bond, indemnity or equivalent guarantee pursuant to an agreement with the flag State. Again, it is desirable if not outright legally necessary to have an agreement, as opposed to unilateral prescription, to appoint an agent and assume a guarantor responsibility. The agent is not normally legally responsible on his own account for activities of those he represents. Used in conjunction with an indemnity, bond or guarantee, this process can result in a sanction or penalty while largely obviating the need to intercept the offending vessel and escort it to port (it does not, and should not, eliminate the need for objectively and convincingly establishing a violation, however).
In requiring a local legal agent to be appointed, the coastal State should take care to ensure that the appointor, usually the flag State or fishing association, makes the appointment on behalf of all its constituent members, including both licensed and unlicensed vessels, and on an individual basis. Accordingly, the terms of appointment should be carefully expressed.
The appointment of a legal agent can be very effective, in terms of cost and otherwise, for the coastal State. For the foreign fishing interest, there is not a great cost involved other than the potential ease of enforcement and the possibility that the process can be abused if there are insufficient procedural safeguards. For instance, the coastal State can file a somewhat unsubstantiated complaint and force the foreign fishing vessel to settle rather than incurring possibly substantial costs to go to the coastal State and defend the matter. The foreign fishing vessel has a legitimate interest in assuring that any legal process taken against it is fair and subject to procedural and substantive legal safeguards.
It should be noted that at least one coastal State requires the local representative/agent to be financially and legally responsible for the foreign fishing vessel. It is not clear whether this means the agent, in his own right may be held legally and financially responsible for the actions of foreign fishing vessels, i.e., pay the fine out of his own funds, or not. If this is the requirement, then the agent's role is similar to that of a bonded agent and a great deal of the costs of enforcement for the coastal State thereby could be diminished although the risk for the agent is considerable if he is liable in his personal capacity.
Foreign fishing vessels are generally required by law to accept boardings, inspections and searches even though the same may be conducted without a warrant. Under the US system, this legal provision has effectively defused, to date, several procedural defenses that might have otherwise been available to foreign fishing vessel searched and seized without a warrant and thus aided in enforcement. (Note: the US law still requires the official to have a reasonable suspicion that a violation has occurred, so the process is not completely arbitrary.)
Coastal States frequently create legal presumptions to aid in enforcement. For instance, for the purpose of forfeiture, fish found on board are, rebuttably, presumed to have been caught within the zone. (Note: if vessel is transiting, some States require a report of catch at time of entry and, if such report is not made, fish found on board are presumed to have been caught within the zone.) As mentioned earlier, transit reporting in general may tend to create a legal presumption of illegal fishing, or at least shifts the burden, if a vessel fails to report. Since it is generally illegal "to fish", how a coastal State defines fishing also aids in enforcement. For instance, under US laws, not only is a wide range of activities defined as "fishing" but anything done that could reasonably be expected to result in the capture of fish is "fishing", including at the extreme, the searching for fish by electronic or visual means and, as such, is illegal unless licensed. This definition is somewhat related to the already mentioned stowage requirements; if the gear is not "stowed" or not placed in a condition so to be not readily available for fishing it may create a presumption of illegal fishing in addition to being a direct violation in and of itself.
It is possible to require foreign flag States, by agreement generally, to implement legal measures designed to ensure their vessels fish legally. In at least two instances, flag States have implemented legal measures to require their fishing vessels to comply with other coastal State fishing laws (see Spain and Taiwan). Indeed, Spain requires that any of its vessels fishing in another State's zone possess a Spanish licence as well; the requirements for a Spanish licence include evidence of a licence issued by the relevant coastal State. Taiwan, by regulation, imposes its own domestic punishment for Taiwanese fishermen who violate the laws of other coastal States. Even where flag States have not developed legal measures to this end, there are numerous instances where they have taken punitive action against their vessels, or citizens, in response to requests by an aggrieved coastal State.
Generally, the flag State is in a much better position to impose punishment and control its citizens and vessels, although the coastal State still bears the burden of establishing violations. It is in the interest of the flag State to take steps to compel compliance by its vessels, especially if it has been consulted as to the substance of some, or all, of the access conditions and has agreed to abide by them. However, the coastal State cannot shift the entire burden of compliance to a flag State and to the degree it does, must realize that the flag State will assist only to the degree that what is being required and enforced, including the process of establishing a violation, is viewed as reasonable and convincing from its general perspective as well as its system of law.
5.
Sanctions
While sanctions are not necessarily conditions of access, a discussion of the effect of such conditions on compliance necessitates a review of the wide array of sanctions available to the coastal State. Sanctions may range from fairly straightforward fines and forfeitures where a violating vessel has been seized to economic, political or legal sanctions on a fleet-wide basis for the indiscretions of one member. Additionally, the compliance value of fisheries-related sanctions lies, to a large degree, not in what actually may be imposed by way of a direct penalty but rather the potential, even if remote, calamity that could befall in the wake of non-compliance. To review sanctions, they are divided into two rough categories: those that are directly imposed on an offending vessel or operator and those that are more indirect in nature.
Most fishing laws provide for a schedule of fines for various offenses. Fines usually should bear some relation to the perceived seriousness of the offence, e.g., illegal fishing vs. tardy reporting of exit from the zone. But the coastal State must also consider the deterrent value of a fine. Under many circumstances the economic advantage achieved by the violation, e.g., over-fishing, may exceed the costs of a fine. Thus the fine is not a deterrent in that the risk is economically justified. Not infrequently, the time elapsed from the infraction to final payment of the fine is one year or more due to court proceedings and the like. Under these circumstances, the fine's value as a deterrent is also diminished, especially if the vessel is allowed to continue fishing in the interim. Moreover, rarely does a fine offset the costs incurred by the coastal State in detecting the violation and seizing the vessel. However, where the fine is sufficiently large, the fishermen may not be able to pay it.
Perhaps for these reasons, as well as others, many States allow a court to order forfeiture of catch, gear and/or vessel. Indeed, some States allow no discretion but automatically require forfeiture upon conviction of illegal fishing. The forfeiture of a vessel remedy has great psychological impact and conclusively deters that particular vessel from future violations. Moreover, the often staggering costs to the vessel owner of having his vessel seized and tied up is a sanction in and of itself and encourages settlements. Indeed, the process of seizure and holding a vessel where the violation is minor or dubious can be abused in-so-far as the vessel may be effectively coerced to settle to avoid further costs of the vessel's remaining inactive and of remaining under seizure and taking legal action far from home to challenge the prosecution. Most States, and the CLOS Convention, allow for "prompt" release on bond - but prompt cannot be soon enough for a seized vessel and the costs of bonding can be considerable.
There are some problems with forfeitures for the coastal State. First, depending on the nature of the vessel and its catch, and the needs of the coastal State, the catch and vessel may be of little value; rather, they may be somewhat of a burden to dispose of. Indeed, in one instance, a State forfeited a chartered vessel, put it up for auction and had only one bidder - the charterer who was also the offender. He purchased the vessel for a pittance and saved himself a great deal of money in charter fees (it is possible to profit from one's own wrong-doing). This story also points out the possibility that a forfeiture does not always punish the violator but rather punishes the sometimes distant and uninvolved economic interests behind the vessel (or course, such action may cause such interests to become involved with the operation and compliance of the vessel, as mentioned earlier).
A forfeiture can be costly to the coastal State. Having lost their boat, the crew has no transportation and possibly no means to provide for themselves. The costs and responsibility of transporting and providing for the crew not infrequently falls on the arresting authority and not infrequently is considerable and problematic. Disposal, by auction or otherwise, of the vessel and catch can also be problematic, especially where no market exists and almost always involves considerable costs and unexpected difficulties. For these reasons and others, mandatory forfeiture may be counter productive. States have been compelled by their own law to order forfeitures ever where their other diplomatic and economic interests clearly indicated a forfeiture was not desirable.
In general the remedy of forfeiture should be left to the discretion of the court. Additionally, it may be desirable to allow, as some States have provided, a forfeiture of only part of a vessel, that is, a proportionate monetary value equal to some or all of the value of the vessel. Further, because of the frequent difficulties of disposal, some States allow forfeiture of the monetary value of the catch on board, rather than the actual catch. Both approaches alleviate the sometimes undesirable aspects of having to seize physically the vessel and catch and sell the same.
To ensure that the person who committed the violation is punished, some States impose fines oh the person or, more significantly, ban that person from the fishery. In some instances, a ban from an important fishery effectively precludes the banished from all future employment as a fisherman. This, of course, is a substantial deterrent to those who are in best position to avoid violating the law in the first place. While imprisonment is sometimes provided as a penalty, it is contrary to provisions of CLOS Art. 75(3) unless agreed to otherwise.
Some States have discovered, somewhat to their surprise, that permit sanctions, e.g., no permit to be issued for a period of time, are more effective deterrents than direct monetary fines. A licence to fish is a privilege, not a right, and can be prospectively withdrawn at the coastal State's discretion. However, a licence that has been issued, and paid for, cannot be so readily withdrawn under some systems of law. Nonetheless, if legal permission to fish in a particular zone is of a certain value, then the threat to withhold it can be a powerful sanction. Of course, a permit sanction is only as valuable as is the legal right of access to that particular zone. Therefore, in a relatively unimportant fishery, or an unenforced one, a monetary fine is a stiffer sanction than the loss of prospective fishing rights. Further, if the coastal State has weak enforcement capability, by denying permits it may just be forcing unlicensed fishing to take place.
Permit sanctions, either complete withdrawal or reductions in effort allocations, can be extended to cover a national fleet for the repeated transgressions of its composite members. This is a harsh measure but can shift responsibility to the fleet to control its members. Of course, it is not always possible for a flag State, or fleet association, to control the actions of its members. Thus fleet-wide sanctions could be requiring the impossible and thus backfire resulting in wholesale non-compliance rather than individual non-compliance. A wise approach is to advise the flag State in question and request that in a given period of time it takes measures to control its citizens or, after having been notified and given this opportunity, fleet-wide permit sanctions may result.
Along the lines of fleet-wide permit sanctions and reducing effort allocations, several more developed coastal States rely heavily on the threat of reducing portions or all of national catch allocations to achieve compliance by individual vessels. Indeed, one State not only staggers allocations throughout the year, the release of each successive allotment being subject to a record of satisfactory compliance with that State's needs, but it also additionally withholds a portion of that which it allocates as a sort of bond also to ensure compliance; if compliance is satisfactory then all of that which was allocated is released. While that approach may encourage compliance it also encourages under reporting of catch. In particular, a fisherman, as a businessman with creditors, must have a fairly certain idea of what catch he may produce if he is to continue in business. Fishing is an uncertain business at best, and if a State's management increases that risk to an unacceptable economic level, the fisherman is compelled to circumvent the management requirements in order to survive economically.
As already mentioned, a coastal State may take legal action against an offending vessel that was never arrested by proceedings via a local legal agent. However, that process does not by itself guarantee a remedy where the vessel is physically beyond the reach of the courts. If a bond has been posted or the flag State or some organization has assumed a guarantor's responsibility, a means for satisfying the fine may exist. In the absence of a satisfactory guarantee, the coastal State can use its leverage against the entire fleet by way of effort reductions, port closures, quota reductions and so on to compel an accounting by the individual offender and satisfaction of the judgement.
Some small coastal States are implementing compliance related measures in a concerted action on a regional basis to achieve greater authority vis-a-vis foreign fishing. One aspect of this regional approach is to require, as a pre-condition to licensing, that the prospective licensee appear on a register. The register would not only contain all the information normally required in individual applications, thereby facilitating the process and diminishing the costs of supplying such information on an individual coastal State basis, but also would contain compliance-related information collected on a region-wide basis for each vessel. Thus, each prospective licensing State would have such information at its disposal in general, and most importantly, when considering each applicant for a licence. The implications of publishing the indiscretions of one vessel throughout a region encompassing important fisheries may be enough to ensure that the vessel, and/or its underlying financial backers, take appropriate steps to settle any outstanding allegations of improprieties. Further, subject to certain and necessary procedural safeguards, serious or repeat offenders might not be entitled to remain on the register, thus barring them from licences throughout the region.
With respect to all fleet-wide sanctions as well as, or in combination with, region-wide sanctions, the foreign fishing interests have reason to be concerned that such procedures are not abused or arbitrarily triggered by unproven allegations or for fairly minor violations. However, fleet-wide sanctions and a regional registration process can be constructively and judiciously employed by coastal States to corn, to an accounting of the matter in dispute. This is particularly valuable for coastal States that lack the means physically to control foreign fishing, i.e., seize violating vessels. The need to detect and establish violations of course remains, but the effect of such enforcement action may be considerably enhanced by the leverage of fleet-wide and/or region-wide sanctions.
CONCLUSION
Compliance with fisheries regimes is inseparable from the substance of the regime, i.e., access conditions. Some conditions are clearly cost-effective aids to compliance; others, depending on the nature of the fishery and capacity of the coastal State, not only do not aid or are not cost-effective, but are counter-productive in terms of achieving compliance.
The following recommendations suggest, in general terms, principles that should aid in compliance with access conditions.
1.
Reasonableness, Agreement and Flag-State Control
For many coastal States, the option of comprehensive, direct enforcement of fishery laws simply is not feasible. Therefore, compliance control must include a large degree of self-regulation and flag State control which, in turn, mandates the need to reach agreement or at least understanding between the two parties regarding access conditions. Unless that which is going to be required of foreign fishermen takes into consideration as much as possible their legitimate needs and interests and is otherwise reasonable, their collaboration in complying will be minimal. Flag-State collaboration and control is essential to achieve compliance. However, that which is agreed to is generally the product of compromise; thus certain essential conditions must be unilaterally prescribed if they are not to be diluted.
2.
Utility
A coastal State should not require conditions that are not of demonstrable utility to its current management needs. Can the information required be meaningfully digested and put to use? Does the access condition serve a real and immediate need? Frequently, the fisheries legislation addresses this need by providing that the authorities may, rather than shall, require a particular condition - this allows the coastal State to expand its regime as the needs arise without placing it into a compliance dilemma with the foreign fishing vessel.
3.
Credibility
It is not difficult to draft extensive fisheries legislation and regulations patterned after a developed, sophisticated coastal State's model. However, to prescribe requirements on paper and to possess the ability to ensure that these requirements are fulfilled are two very different matters. In the absence of enforcement, law remains merely paper; enforcement is the "crucible of law, the test of its reality" (W. Michael Reisman, "Sanctions and Enforcement", in Cyril E. Black and Richard A. Falk, Eds., The Future of the International Order: Conflict Management, Vol. 3. Princeton, N.J., Princeton University Press, 1971, p.275). If foreign fishing interests perceive that enforcement of a complicated, elaborate regime is sporadic and characterized by exceptions to the rule - by necessity or otherwise - compliance, and thereby the regime, will deteriorate at the expense of credibility. If the costs of complying exceed the costs, or risks, of not complying, the choice for fishermen, who tend to be bold and risk-taking in any event, is clear. Therefore, the maxim should be: do not require that which you cannot be fairly assured will be obeyed, or at least which can be verified, whether by direct enforcement and/or collaboration by the foreign fishery interest. Certain conditions are more capable of verification than others. It is better to have full compliance with a modest regime than partial, or no, compliance with a sophisticated access system.
4.
Cost effectiveness
Not infrequently, a coastal State may find itself spending more on management and enforcement of a fisheries regime than it receives in benefits from its efforts. Previously, the coastal State had no jurisdiction over these resources, now in exercising that jurisdiction it must ask itself: Has its exercise of jurisdiction resulted in net benefits for the nation as a whole - or not? Further, each access condition that imposes a cost on foreign fishing, one way or another, in theory, reduces the net benefits available generally from the fishery and the net revenue perhaps otherwise available to the coastal State. Both coastal State and distant water fishing interests have a common interest in maximizing the net benefits available from a fishery through minimizing the costs of administration and implementation of access conditions.
5.
Regional approach and harmonization
Where possible, States that are involved with similar or common fisheries should seek to harmonize the process and substance of access conditions. This is not only cost effective and enhances their leverage in exacting compliance but also is of benefit to foreign fishing. If violations of conditions may lead to region-wide implications, greater efforts by foreign fishing to comply can be expected. If conditions are standardized throughout a region the process of compliance by foreign fishing will be greatly facilitated, and cost reduced, from their perspective as well. For instance, requirements regarding markings, reporting, log books, local representatives and so on, should be standardized to the extent practicable.
6.
Sanctions
Provided the coastal State can verify compliance or, more importantly, non-compliance, emphasis should be placed on region-wide and/or fleet-wide or sanctions to compel an accounting for the transgression in question. Further, proceedings in absentia coupled with bonds or similar guarantees of performance should be employed. Exclusive reliance on physical surveillance and, especially, physical arrests and seizures of vessels should be avoided, albeit such actions are occasionally required to maintain credibility.
