Transform Aqorau
Legal Counsel
Legal Services Division
South Pacific Forum Fisheries Agency
Honiara, Solomon Islands
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Aqorau, T. Illegal, Unreported and Unregulated Fishing: Considerations for Developing Countries. Document AUS:IUU/2000/18. 2000. 10. p ABSTRACT This paper discusses the problems of IUU fishing for
developing countries. The paper argues that IUU fishing has severe negative
impacts for the economy of developing countries especially those small island
developing States whose economies are overwhelmingly dependent on the
exploitation of fisheries resources. IUU fishing has the tendency to distort the
real value of the fish taken in waters of developing countries resulting in
economic losses which developing countries can barely afford. The paper
discusses some low cost and non-conventional measures which have been developed
in the South Pacific region which may offer reasonable models for the
development of an IPOA on IUU fishing. The paper argues that measures must be
developed against the background that developing countries generally lack the
resources to deal effectively with IUU fishing. These measures must be
reasonable and should not result in the transfer of a disproportionate burden of
managing IUU fishing to developing countries. The paper concludes by suggesting
short to long-term measures which may be incorporated into the IPOA on IUU
fishing. |
PREPARATION OF THIS REPORT
This paper has been prepared as one in a series of specialist background papers for the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000. It is expected that this series of papers and the expert consultation will contribute to the elaboration of an international plan of action (IPOA) to deal effectively with all forms of illegal, unreported and unregulated (IUU) fishing, the development of which is being undertaken in accordance with a decision of the 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries. The views expressed in this paper are those of the author and do not necessarily reflect the views of FAO or of any of its Members.
EXECUTIVE SUMMARY
The challenge posed by IUU fishing requires a global response. The IPOA on IUU fishing is therefore a welcome initiative to deal with an increasingly complex problem. Developing countries experience greater difficulties in dealing with IUU fishing because of their limited resources. Their problems are exacerbated by the large area of ocean space that they have to control and the migratory nature of stocks and fishing vessels that target the stocks. The fishing industry has also become more highly organized and sophisticated. Countries cannot unilaterally respond to the problems of IUU fishing because of the transnational nature of the fishery and the vessels that exploit the fishery. Thus, international cooperation is called for to address the problems of IUU fishing.
In recognition of the limitations suffered by developing countries in dealing with IUU fishing, various international instruments have called for special assistance to be given to developing countries. The United Nations Fish Stocks Agreement specifically calls on States to assist developing countries in monitoring, control and surveillance and to provide funding for national and regional observer programs. The FAO Code of Conduct for Responsible Fishing also enjoins States and intergovernmental organizations to give full recognition to the special requirements of developing countries. The IPOA on IUU fishing must reiterate the call to give special assistance to developing countries.
The problem of IUU fishing for developing countries has been manifested through the use of flags of convenience (FOC), reflagging of fishing vessels to the licensing State to avoid stringent conservation and management controls, illegal fishing on the margins of the EEZ and high seas, and misreporting of catch. Developing countries which depend on access fees for their economic development are particularly vulnerable because of distortions to the fees levels which are conditional upon the volume of catch. There are a number of tools which are available to developing countries to deal with IUU fishing. These include, port State enforcement, effective exercise of flag State responsibilities, harmonization of regulations so that fishing vessels are not subjected to different regulatory regimes, and transforming international fisheries law so that it is responsive to the needs of modern fisheries management.
Developing countries can learn from the experiences of the small island States in the South Pacific region who have developed low cost, non-conventional yet innovative means of dealing with controlling the activities of foreign fishing vessels. Although the measures have not been developed to deal with IUU fishing per se, their broad application is pertinent in combating IUU fishing. These measures include the following -
Harmonization of terms and conditions of access for fishing vessels;
The harmonization of terms and conditions of access for fishing vessels requires close coordination and cooperation amongst countries with contiguous EEZs so that fishing vessels can operate under uniform regulations. The need for information is addressed through the Regional Register which is an information database of fishing vessels operating in the region. Each vessel is given a unique Regional Registration number which guarantees that it can be licensed. Without a regional registration number, no fishing vessel may be licensed to fish in the region. The registration may be withdrawn or suspended if the vessel has been involved in a serious violation of the fisheries laws of any of the member countries of the Forum Fisheries Agency.
Effective flag State control is essential to proper management of the fisheries resources. The best illustration of comprehensive flag State control is provided for in the Treaty on Fisheries between the Governments of certain Pacific island States and the United States. Port state control is also being advanced in the region through the prohibition of the importation of fish caught illegally in the waters of another State. This does not require investment of enormous financial and human resources. However, it would require training to improve boarding and inspection skills.
Linked to the need for improved information is the development of a violations and prosecutions database. This database houses information on vessels that have violated the fisheries laws of the member countries of the Forum Fisheries Agency. Suggestions are made to consider the development of a database that can be linked to a central hub site which would allow licensing authorities to verify whether vessels that apply for a license have a clean compliance record. The satellite-based vessel monitoring system now makes it possible to track the movement of vessels. The problem with the system is that only licensed vessels can be monitored. Some consideration needs to be given to expanding the scope of the system so that it includes non-licensed vessels. This is a function that could be given to regional fisheries management organizations.
Finally, consideration could be given to the establishment of a framework that would enable developing countries to cooperate through the sharing of enforcement equipment and personnel. Logically, it makes sense for countries with resources to share them with those that are not as well endowed. The paper concludes by proposing actions that can be considered in the IPOA on IUU fishing. These are -
Actions immediately feasible
Actions feasible in a medium term timeframe
Actions feasible in the longer term
SUGGESTIONS FOR THE IPOA TEXT
Actions immediately feasible
Actions feasible in a medium term timeframe
Actions feasible in the longer term
1. INTRODUCTION
1. Developing countries experience greater difficulties in dealing with IUU fishing because of limited resources. The large ocean area combined with the increasing complexity of international fisheries operations compounds the problem for developing countries. The social and economic consequences of IUU fishing are great especially when it occurs within the framework of access agreements where fee levels are determined by the volume and value of landed catch.[379]
2. In dealing with developing countries, the IPOA on IUU fishing must be realistic and enforceable. The need for financial and technical assistance must also be recognized and the assistance rendered sustainable over the long-term. The United Nations Fish Stocks Agreement recognizes the special requirements of developing countries and thus calls on States to give full recognition to the special requirements of developing countries to conserve and manage fish stocks.[380] Furthermore, the Agreement requires States to co-operate and assist developing countries in monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programs and access to technology and equipment.[381]
3. The FAO Code of Conduct for Responsible Fishing recognizes that developing countries deserve special assistance in the management and conservation of fisheries resources. The Code enjoins States, inter-governmental organizations and financial institutions to give full recognition to the special circumstances and requirements of developing countries and address the needs of developing countries especially in the areas of financial and technical assistance, technology transfer, and training and scientific co-operation.[382] In a recent resolution, the General Assembly of the United Nations called on organizations with development assistance programmes to give high priority to supporting, including through financial and/or technical assistance, the efforts of developing coastal States, in particular the least developing States, to improve monitoring and control of fishing activities and the enforcement of fishing regulations.[383]
4. Traditionally, the main means of enforcement is through the physical apprehension of offenders. This requires the purchase of physical enforcement platforms such as patrol boats and surveillance aircraft. It is often beyond the ability of developing countries to purchase such capital equipment. Thus, in developing measures to deal with IUU fishing, consideration must be given to the feasibility and sustainability of those measures and the ability of developing countries to support them over the long-term.
5. The purpose of this paper is to propose specific action to ensure that developing countries have access to the means, domestically and regionally, to combat IUU fishing on equitable terms. The paper begins by describing the problems of IUU fishing for developing countries. A number of non-conventional means of dealing with IUU fishing have been developed in some regions of the world. These will be discussed and offered as possible models for consideration. The paper will conclude by suggesting specific actions that the international community can take to assist developing countries to deal with IUU fishing.
2. THE PROBLEM OF IUU FISHING FOR DEVELOPING COUNTRIES
6. IUU fishing poses one of the biggest threats to fisheries management for developing countries.[384] Efforts to deal with the problem are hampered by a number of factors. The large area of ocean space relative to the land area, the migratory nature of fleets and fisheries resources, lack of financial and technical resources and skilled manpower compound the problem of dealing with IUU fishing for developing countries. There is often a lack of adequate information about the vessels that operate in their waters. In some instances, a vessel may be owned by someone from country A, flagged in country B and chartered in country C. The interrelationship between the owner, the charterer and flag State is not usually clear to the licensing country. A more recent trend in IUU fishing is the registration of vessels in the developing coastal State to avoid the stringent conservation and management measures ordinarily applied to foreign fishing fleets. Most developing countries do not have the capacity to verify information provided by these vessels. More often than not, vessels which purport to change their registration to the developing coastal State usually retain their original registration.
7. The consequences for developing countries are twofold. The vessels that change their flag are deemed local fishing vessels and therefore do not have to pay the higher fees that foreign fishing vessels usually have to meet. This represents a loss of income for developing countries because the difference between fees paid by local fishing vessels and foreign fishing vessels are significantly high. There are also consequences for access to the fishing grounds which is often differentiated between local fishing vessels and foreign fishing vessels. Foreign fishing vessels are generally restricted from fishing in certain areas for various reasons, one of which is to protect artisanal fishing and the local fishing industry. Reflagged vessels are usually allowed access to areas which they would not normally be permitted to enter as foreign fishing vessels. The loss to developing countries is, therefore, not only expressed in economic terms by the lower license fees paid, but also in resource terms, by the greater accessibility to the resource.
8. There is increasing unauthorized fishing by vessels setting on the margins of the EEZ, in particular, by longline vessels that release their gear on the high seas and allow them to float into areas under national jurisdiction. A trend which has occurred with increasing frequency has been for vessels to fish in areas under national jurisdiction and report their catch as high seas catch. This has serious implications for the calculation of fee levels for developing countries that base access fees on the number of fishing trips and volume of catch per trip. IUU fishing also occurs amongst licensed vessels that fail to comply with marking requirements. Vessel marking requirements are intended to assist licensing authorities to identify licensed vessels and distinguish vessels that are licensed from those that are not licensed. The failure of vessels to fully comply with vessel marking requirements hampers enforcement because the characteristics which would distinguish the vessel from other vessels would not be visible to enforcement officers checking from physical enforcement platforms such as a patrol vessel.
9. The use of flag of convenience (FOC) vessels raises a number of problems for fisheries management, and developing countries in particular. The lack of flag State responsibility for vessels that violate the fisheries laws and regulations of the coastal State vitiates the ability of coastal States to effectively enforce their laws through sanctions imposed by the flag State. Generally, FOC States are not concerned about exercising effective flag State responsibility and in some cases are incapable of exerting any such authority. Developing countries often do not have the capacity to fully investigate the authenticity of FOC vessels and their registration. This impacts on their investigations and can result in cases not being prosecuted.
3. ISSUES FOR CONSIDERATION IN DEALING WITH IUU FISHING
10. A number of enforcement tools are available to developing countries which are recognized under international law. Port State enforcement is one of the most effective means of dealing with IUU fishing. When vessels enter the ports of coastal States, international law recognizes the authority of enforcement officers to board and inspect the vessels’ documents. The problem facing developing countries is the lack of training and expertise in detecting violations through port State control and enforcement. Often, enforcement officers who board fishing vessels in port can be intimidated by vessel captains who do not want to co-operate with the enforcement officers. It also requires highly specialized skills to detect logbooks which may be concealed, and logbook data which are deliberately falsified. Training for enforcement officers to undertake effective port State enforcement is essential. The use of port State enforcement mechanisms is an avenue which developing countries could make more use of to regulate IUU fishing. Fishing vessels often make port visits to unload their catch, transship on to carrier vessels, refuel and reprovision. During these visits enforcement officers may board the vessels and examine their logbooks. This would not entail enormous financial costs but would require intensive training in boarding and inspection skills.
11. The increasing number of FOC vessels which are involved in international fisheries raises problems for enforcement. The main problem resulting from the management of vessels that fly flags of convenience is the lack of flag State control over their activities. The exercise of flag State control can be an effective tool for regulating the activities of fishing vessels. Flag State control involves the transfer of responsibility for enforcement on to the flag State, thus reducing the administrative costs of enforcement for the coastal State and sharing the burden of enforcement between the coastal State and the flag State. Generally, FOC countries are not interested, neither are they in a position to exert effective responsibility over their vessels. Flag State control can be a useful mechanism in dealing with IUU fishing.[385] Although it may not result in eliminating IUU fishing, it could nonetheless lead to flag States ensuring that their vessels behave responsibly and apply the same standards of conservation and management in other areas as they would in their own. The effective exercise by flag States of their responsibility would assist developing countries deal with IUU fishing, in particular, ensuring that vessels succumb to the jurisdiction of the coastal State if they are beyond areas of national jurisdiction and comply with any penalties imposed by the authorities of the coastal State. Dealing with the problem of flag of convenience vessels, however, requires international action.
12. A corollary of the problem of FOC vessels is their ability to undermine management and conservation measures agreed to by international fisheries organizations. Fishing vessels have also been able to avoid the application of conservation and management measures promulgated by international fisheries organizations by reflagging to a non-member country of the organization. Under international law, these vessels may fish in the high seas region of the area of competence of international fisheries organizations by virtue of the principle of freedom of fishing. While it is accepted that the freedom of fishing on the high seas is a fundamental principle of customary international law, it is inimical to sound conservation and management of fisheries resources. Freedom of fishing is anathema to the notion of responsible fisheries management because it results in overcapitalization of fleets and overexploitation of the fisheries resources. One of the major flaws in current international fisheries management is the inability to deal with so-called “free-riders”. Free-riders are those who are not members of an international fisheries organization but continue to fish in the area of competence of the organization thus undermining the effectiveness of agreed conservation and management measures.
13. To deal with the problem, the idea of a “closed-shop” should be considered whereby access to the fisheries resources is available only to countries who agree to exercise effective control over their fishing vessels and agree to comply with the conservation and management measures. The idea that the fisheries resource is common property is still prevalent and evident by the principle of freedom of fishing. Consideration could be given to developing some property rights and allocation on the high seas. The opportunity to fish on the high seas should be linked to compliance and payment of an additional levy that would contribute to the costs of managing the resource.
14. The mechanisms to deal with IUU fishing are hampered by the lack of a comprehensive information database on the fishing vessels. Thus, when a fishing vessel applies for a fishing license, it is difficult to ascertain whether the vessel has been involved in IUU fishing. The database should hold information on the vessel characteristics including its owner and where the company that owns, and or, charters the vessel is based. The lack of comprehensive and detailed information on the vessel precludes licensing authorities from knowing precisely where the vessel has been fishing and whether it has been involved in IUU fishing. The lack of comprehensive database is exacerbated by the different licensing and registration forms which are being used by the licensing authorities. The problem of lack of information needs to be addressed. Consideration could be given to some level of harmonization of the types of information required from fishing vessels.
4. LOW KEY NON-CONVENTIONAL MEANS OF DEALING WITH IUU FISHING
15. Developing countries do not have the means to invest in expensive physical enforcement hardware such as patrol boats and surveillance aircraft. There are, however, certain characteristics which generally define developing countries and their fisheries which could provide the parameters for any international response to IUU fishing. Most developing countries are generally located within the same geographic region or subregions and share a common maritime boundary. They have EEZs that are either adjacent or contiguous to each other and share common fish stocks. Generally, fishing vessels that operate within the region or subregions are licensed in more than one country. The homogeneity in the socio-economic and geophysical characteristics of developing countries requires that their responses to IUU fishing should be through co-operative measures. Unless developing countries co-operate and co-ordinate their responses to IUU fishing, their efforts would not have the efficacy expected of them.
16. The South Pacific region has had a long history of co-operation and co-ordination in the development of MCS, conservation and management measures which could provide a useful starting point for considering how developing countries deal with IUU fishing. The discussion that follows draws on the experiences of the small island States of the South Pacific region. The caveat is made that the measures discussed may not necessarily lend themselves to replication in other regions, but the lessons gained are nonetheless valuable and worthy of consideration.
4.1 Harmonization of Terms and Conditions of Access for Fishing Vessels
17. The harmonization of terms and conditions of access for foreign fishing vessels is intended to provide a framework in which all fishing vessels operate under the same regulations. If a multinational fishery is to be managed effectively, fishing vessels must comply with the same terms and conditions regardless of which EEZ they fish. The need for a harmonized approach is more pronounced where the fishery is transboundary in nature and the vessels that prosecute the fishery are highly mobile. Logically, management measures would be rendered meaningless if fishing vessels are allowed to fish in one EEZ under stringent conditions and the adjacent EEZ under lax regulations. Thus, there is a need to develop a homogeneous regulatory regime throughout the range of the resource targeted by fishing vessels.
18. The harmonized terms and conditions developed in the South Pacific region provide for the following:
19. Some discussion of how the specific regulations could address IUU fishing would be useful. The requirement to have all fishing vessels licensed in order to operate in a region is fundamental for fisheries management. As a minimum, licensing authorities must have an idea of how many vessels are operating in their EEZ at any given time. The information, however, is rendered useless unless it is shared amongst countries within the region or subregions, in particular where the fishery concerned is transboundary. Licensing authorities should have some idea of vessels that are licensed to fish in the EEZ, at least, of the adjacent coastal States. Access to this information could assist in surveillance, monitoring and enforcement especially co-operative action facilitated by adjacent States. The types of assistance may range from making general inquiries with the vessel operators to taking enforcement action through port State enforcement. The possibilities of joint-cooperative enforcement through exchange of information of licensed vessels are enormous but must be carried out within the limits of a legal framework.
20. As noted above, IUU fishing and efforts to address it are limited by the principle of freedom of fishing within the high seas. The regulation that all vessels must be licensed before they can fish therefore does not address vessels that do not intend to fish in the EEZ. The issue is more acute when the fishery being prosecuted also occurs on the high seas, and a substantial proportion of the fishery is being caught on the high seas. Unless there are strong flag State controls over vessels that fish on the high seas and regionally agreed measures to curtail effort, overfishing on the high seas could result in the dislocation of an industry dependent on those stocks. A classic example is the bigeye (Thunnus obesus) fishery in the western and central Pacific which is showing evidence of lower catch per unit effort (CPUE) because of the possible interaction between the purse seine and longline fishery. The lack of information on vessels operating in the high seas areas thus leaves a gap. It is not possible to estimate precisely how many vessels are operating within a fishery at any given point in time, how much fish are being caught, and where the fish are landed. In a transboundary fishery, it is fundamental that such information is available to determine conservation and management measures that can be applied throughout the entire range of the fisheries resource.
21. Traditionally, international law has been slow to respond to changes in the fishery resulting in reactive rather than proactive responses that are often too late to alleviate the problem. These responses, however, have not included precluding access to the fishery by vessels that fail to comply with agreed conservation and management measures. The UN Fish Stocks Agreement provides a useful start in dealing with the problem stipulating that only those States which are members of an organization or participant in an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply.[386] Does this mean that a regional fisheries organization can effectively adopt a “closed shop” to the area under its competence including high seas areas? The fact that article 11 of the UN Fish Stocks Agreement allows international fisheries organizations to determine the nature and extent of the participatory rights of new members would suggest that it is not possible to completely deny access to vessels which fish on the high seas. Some consideration, however, needs to be given to transforming international fisheries law, so that if a State does not agree to comply with agreed conservation and management measures, its vessels will not have access to the fishery resources including those in the adjacent high seas areas.
22. To assist enforcement officers carry out their duties, the operators of foreign fishing vessels are required to give full access to authorized officers of the licensing State to the vessel’s log book and catch records. Examination of the logbook and catch records can reveal if the vessel has complied with the licensing State’s laws. In order to monitor the level of catch, which is fundamental for fisheries management, the operators of foreign fishing vessels are required to maintain and submit catch logs for operations in the EEZ and adjacent high seas areas. Monitoring the activities of fishing vessels is essential and this is achieved by placing observers on board vessels. Thus, the Minimum terms and Conditions require foreign fishing vessels to carry authorized observers for scientific, compliance and monitoring purposes with full access to the bridge, fish on board and the vessel’s records. To ensure that unlicensed vessels do not fish while they transit through the EEZ, the Minimum Terms and Conditions stipulate that they have their fishing gear securely stowed when transiting through the EEZ. The marking of fishing vessels is important for enforcement purposes because through the identification marks, enforcement officers can discriminate between those vessels that are licensed from unlicensed vessels. Thus, all licensed foreign fishing vessels to be marked and identified in accordance with the FAO approved Specifications for the Marking and Identification of Fishing Vessels.
23. The Minimum Terms and Conditions are not self-executing. They are implemented by incorporation in legislation or bilateral access agreements. Lessons that can be learnt from the Minimum terms and Conditions are that it provides a uniform code under which fishing vessels operate irrespective of whose EEZ they fish. However, the regulations can only be effective if they are applied uniformly and by all coastal States. Thus, the failure of one coastal State to impose the Minimum Terms and Conditions renders the collaborative effort of other States meaningless.
4.2 The Regional Register of Foreign Fishing Vessels
24. As noted above, access to information about vessels and their patterns of fishing is critical to sound fisheries management. The idea of a Regional Register is that it encapsulates in a common database all the relevant information about a vessel including its owner, operators and masters, call sign and port of registry.[387] The information is updated annually so that changes to a vessel can be monitored. In viewing whether such a register could deal with IUU fishing, consideration must be given to what vessels can register and whether only those vessels that are on the Register can have access to the fisheries resources. Under international law, authorization for vessels to fish on the high seas is vested in the flag State. This means that, at least for the high seas areas, not being registered on the Regional Register would not preclude a vessel from fishing in high seas areas. The interrelationship between flag State authorization, the Regional Register, and having access to the fisheries resource therefore needs to be examined.
25. The Regional Register administered by the Forum Fisheries Agency requires foreign fishing vessels to submit an application to the Director for Registration. The applicant vessels are required to provide their names, radio call sign, country of registration, and flag State registration number. If the vessel has changed its name, it must also provide this information. The applicant vessel must provide the name(s) of the vessel owner, charterer, operator, vessel master and captain and fishing master. Other information provided pertains to the particulars of the vessel including its hull material, gross tonnage, total power engine, satellite communication system and overall length. One problem is there is no system to verify the information. Another problem is that the fisheries business has become more complex with the use of FOC, shelf-companies, and third-party charters that often it is not possible to deduce who actually owns the vessel. This raises difficulties for long arm non-conventional enforcement because the coastal State bodies authorities cannot deal with a single entity for the purposes of investigating a violation.
26. The Regional Register is not only used as a source of information. It is a useful tool in ensuring compliance by vessels that have violated coastal State laws and the vessel has left the jurisdiction of that State. No fishing vessel can be licensed unless it has good standing on the Regional Register. Good standing is a status, which is automatically conferred on a vessel upon registration. The status may be withdrawn or suspended in certain circumstances, including where the vessel has committed a serious fishery offense. Once good standing is withdrawn or suspended, the vessel is effectively prevented from fishing in the region. In considering the idea of a Regional Register a number of factors have to be borne in mind. Regional registration of vessels that fish within a region can only work where there is a common fishery. A regional registration scheme must be centrally administered and coordinated. The idea of good standing cannot just be transmuted for the high seas unless there is a correlation between the flag state authorizing the vessel to fish on the high seas or the regional organization administering the Regional Register. The alternative would be to transfer powers of authorization to fish to the regional organization. However, this option would raise issues impinging on sovereignty which States may not find palatable. The IPOA on IUU may need to address some of the fundamental flaws in international fisheries law and recommend how these could be transformed to meet current fisheries management needs.
4.3 Flag State Responsibility
27. It is recognized that effective flag State responsibility is fundamental to fisheries management.[388] The exercise of flag State responsibility must not be limited to ensuring the application by vessels of agreed conservation and management measures. It should also encompass assistance in enforcement where there are allegations of violations.
28. The best example of effective flag State responsibility may be found in the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States.[389] Under the Treaty, the United States agrees to enforce the provisions of the Treaty and licenses issued by the FFA. The United States has a duty to take the necessary steps to ensure that US vessels do not fish in the Licensing Area and Closed Areas without appropriate authorization. The US is also required to assist if requested to investigate the alleged breach of the Treaty by a US fishing vessel. To accelerate the processing of claims, the US is obliged to facilitate claims made against US vessels, including claims for the market value of the fish taken without authorization. The US is required to institute legal process by or on behalf of national or government of a Pacific Island State and ensure prompt and full adjudication in the US of any claims made pursuant to the Treaty.
29. What is different about the Treaty on Fisheries is the detailed procedures for the investigation by the United States of offenses against the Treaty and Pacific Island State’s laws, the imposition of penalties and the payment of fines, forfeitures and penalties collected. The IPOA on IUU could usefully borrow some of the more elaborate principles of flag States found in the Treaty on Fisheries. These may include -
30. The IPOA on IUU fishing should recommend strengthening the exercise of flag State responsibilities. One alternative would be to suggest that no foreign fishing vessels should be licensed unless the flag State agrees to enforce the conservation and management measures adopted by the coastal State and take measures to assist the coastal State in obtaining compliance with those measures. Such legislation can be found in the Solomon Islands Fisheries Act 1998. Section 54 of the Act provides as follows:
54.31. Developing countries should not bear a disproportionate burden of enforcement. A major problem, however, is how to deal with FOC vessels. The IPOA on IUU fishing should recommend that FOC vessels not be licensed unless they can show evidence of effective flag State control. Article 95 of the 1982 LOS Convention provides that “every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”. The IPOA on IUU fishing should recommend strengthening international law by requiring the flag State to-(1) No foreign fishing vessel shall be licensed to fish in Solomon Islands waters unless the flag State of the vessel takes measures to enforce this act and the terms and conditions of the license under this act.(2) The measures to be taken by the flag State include -
(a) applying the terms and conditions of the license;(3) The flag State shall ensure that the master and crew of its fishing vessels -(b) prohibiting fishing by vessels that are not licensed to fish in Solomon Islands waters;
(c) requiring vessels fishing in Solomon Islands waters to carry the license at all times and to produce it on demand for inspection by an authorized officer;
(d) marking of fishing vessels and fishing gear for identification in accordance with the Food and Agriculture Organization the United Nations Standard Specifications for the Marking and Identification of Fishing Vessels;
(e) recording of and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data;
(f) verifying the catch of target and non-target species through observer programs, inspection schemes, unloading reports, supervision of transshipment and monitoring of landed catches and market statistics; and
(g) monitoring, control and surveillance of fishing activities.
(a) accept and facilitate prompt and safe boarding by authorized officers;(4) The flag State shall appoint an agent who shall be responsible for receiving and responding to any legal process.(b) cooperate and assist in the inspection of the vessel;
(c) do not obstruct, intimidate or interfere with the performance by the authorized officers of their duties;
(d) permit the authorized officers to communicate with the authorities of the flag State;
(e) provide reasonable facilities, including, food and accommodation to the authorized officers; and
(f) facilitate safe disembarkation by the authorized officers.
4.4 Port State Enforcement
32. Port State enforcement is recognized as an effective tool in ensuring compliance with conservation and management measures. Its manifestation in the South Pacific region is through enactment of legislation prohibiting the importation of fish caught illegally in another State’s waters. The deterrent in such prohibition is illegal fishing can be detected and prosecuted in by a third Party.[390] The IPOA on IUU fishing could suggest similar provisions which already exist in the national legislation’s of several coastal states. The elements of such a recommendation could include the following -
33. The effectiveness of such a prohibition depends on how closely countries co-operate to implement it. An issue that needs to be considered in the IPOA on IUU fishing is how can illegal fishing in the high seas be dealt with by international fisheries organizations that have competence over the fisheries resources in those areas. The IPOA could suggest consideration of more effective measures one of which could potentially be the prohibition of the importation of fish caught in violation of agreed conservation and management measures on the high seas. As noted above, detecting violations in other State’s waters require training and specialized skills which is not readily available in developing countries. The IPOA on IUU fishing should therefore call for special assistance for developing countries in boarding and investigation of logbooks and catch records.
4.5 Violations and Prosecutions Database
34. One of the problems in dealing with IUU fishing is the lack of comprehensive information about the previous background and compliance records of fishing vessels especially where the vessels have fished in other regions. Generally, licensing authorities are not aware of the historical record of fishing vessels that apply for a fishing license. The information is not readily available or accessible to the licensing authorities. The Forum Fisheries Agency has developed a Violations and Prosecutions (VAP) Database which contains information on vessels that have been involved in violations of the fisheries laws of the FFA member countries. The VAP Database is correlated with the Regional Register. However, at present the VAP Database is only accessible to staff at the FFA Secretariat. If resources permit, and subject to considerations of confidentiality and due process, the VAP Database could be accessible online so that licensing authorities can check the historical record of fishing vessels that apply for a fishing license.
35. The IPOA on IUU fishing could recommend the establishment of a global violations and prosecutions database which would complement regional database’s which have already been established.
4.6 Cooperation in Fisheries Surveillance and Law Enforcement
36. Cooperation in fisheries surveillance and law enforcement is an effective means of dealing with IUU fishing especially where the fishery is transboundary. The South Pacific countries cooperate under the framework of the Niue Treaty on Cooperation in fisheries Surveillance and Law Enforcement.[391] The Treaty allows a Party by way of a subsidiary agreement to permit another Party to extend its fisheries surveillance and law enforcement activities to the territorial sea and archipelagic waters of that Party. The Treaty also allows two or more Parties by way of a subsidiary agreement to cooperate in the provision of personnel and the use of aircraft or other items of equipment used for fisheries surveillance and law enforcement purposes. In recognition of the need to share the use of surveillance personnel, the Treaty permits the cross jurisdictional exercise of enforcement powers of surveillance officers. A number of subsidiary arrangements have been made to implement the Treaty.[392]
37. The IPOA on IUU fishing should urge governments to develop cooperative mechanisms that would allow the exchange of information and sharing of equipment for enforcement purposes, and recognize the authority of authorized officers from a different State.
4.7 The Satellite-based Vessel Monitoring System
38. The satellite-based vessel monitoring system (VMS) is capable of providing near real time position reports and is a tool that is available to licensing authorities to monitor the activities of fishing vessels.[393] The system, however, only applies to licensed vessels which still leaves in a gap in the monitoring of all vessels operating in a region. The VMS is an effective means of monitoring fishing vessels for developing countries.
39. The IPOA on IUU fishing should urge regional fisheries organizations to require all fishing vessels that operate within its area of competence to carry a satellite-based vessel monitoring system
5. CONCLUSION
40. Developing countries cannot afford the expensive enforcement tools required to deal with IUU fishing. Increasing use has been made of low-cost but long arm non-conventional means of bringing about compliance. The foregoing discussion has identified a number of measures which have been developed successfully in the South Pacific region. The region is characterized by large areas of ocean space, developing nature of the majority of the countries, lack of resources to deal with IUU fishing and high level of cooperation amongst the developing countries concerned. The lessons learnt in the region could usefully be applied to other regions where the majority of coastal States are developing countries.
41. The IPOA on IUU fishing could usefully borrow from the South Pacific region especially in dealing with developing countries’ interests. However, in order to deal effectively with some of the issues raised, the IPOA must be innovative and forward looking. The discussion highlighted some of the weaknesses in current international fisheries law and the need for reform if there is to be a shift in fisheries management paradigms. International law has often been slow to respond to fisheries management problems, and the IPOA on IUU fishing represents a unique opportunity to deal with the problems through innovative approaches.
42. The discussion has also noted that dealing with IUU fishing requires a global approach. Many of the recommendations made in this paper will require the strengthening of regional and international fisheries management organizations. Increased powers must be given to regional and international fisheries management organizations to deal with IUU fishing especially on the high seas. Obviously, this will require some transformation in traditional principles of international law. However, any changes that would improve fisheries management should always be welcomed.
43. The IPOA on IUU fishing should consider the following timeframe in the development of measures to combat IUU fishing -
Actions immediately feasible
Actions feasible in a medium term timeframe
Actions feasible in the longer term
