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3. ALL STATE RESPONSIBILITIES


3.1 Observance of international standards
3.2 National laws, regulations and practices
3.3 Cooperation between States

3.1 Observance of international standards


3.1.1 Areas under national jurisdiction
3.1.2 High seas

IUU fishing contravenes existing international standards for fishery conservation and management. In other words, if all States were fully implementing those international standards, there would be much less IUU fishing.

In light of this, the very first "tool" in the IPOA-IUU is a call upon all States to "give full effect to relevant norms of international law" in order to prevent, deter and eliminate IUU fishing. Those States that have not yet done so should become party to the 1982 UN Convention, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement. All States should also fully and effectively implement the Code of Conduct and its related IPOAs.

In addition, States whose vessels participate in fisheries regulated by RFMOs should either become members of those RFMOs or, at a minimum, apply the conservation and management measures adopted by those RFMOs to their own vessels or adopt measures consistent with those conservation and management measures. States should also cooperate to establish new RFMOs as needed for coordinated conservation and management of fish stocks. Section 8 of these guidelines discusses these commitments in greater detail.

3.1.1 Areas under national jurisdiction

Within areas under national jurisdiction, IUU fishing undermines international standards concerning the rights and responsibilities of coastal States with respect to living marine resources. The 1982 UN Convention recognizes the sovereign rights of coastal States to explore, exploit, conserve and manage those resources in areas under their jurisdiction. With those rights come responsibilities, as set forth in the 1982 UN Convention and elaborated in subsequent instruments, to adopt and implement appropriate measures to conserve and manage those resources.

IUU fishing in areas under national jurisdiction prevents coastal States from achieving compliance with conservation and management measures that apply in those areas. To the extent that IUU fishing is undertaken by vessels registered in the coastal State, it represents a failure of the coastal State to fulfil its responsibilities to properly conserve and manage fisheries in areas under its jurisdiction. To the extent that IUU fishing is carried out by vessels registered in States other than the coastal State, IUU fishing also represents a violation of the responsibilities of flag States to ensure that their vessels do not fish in ways that transgress fishery rules properly established by coastal States.[15]

For these reasons, the IPOA-IUU calls upon each coastal State to implement measures to prevent, deter and eliminate IUU fishing that occurs within waters under its jurisdiction. Section 5 of these guidelines describes these provisions of the IPOA-IUU in more detail and offers suggestions for practical steps that coastal States should take to address problems of IUU fishing.

Many developing coastal States unfortunately lack the capacity and resources to detect IUU fishing within areas under their jurisdiction, to apprehend those conducting such fishing and to impose penalties on them. For this reason, the IPOA-IUU calls upon all States to assist developing coastal States in building the capacity necessary to prevent IUU fishing from taking place in areas under their jurisdiction. Section 9 of these guidelines discusses these provisions of the IPOA-IUU in more detail.

3.1.2 High seas

IUU fishing on the high seas also contravenes international standards. While the 1982 UN Convention recognizes the right of all States for their nationals to fish on the high seas, it makes this right subject to a number of significant qualifications, including the obligations to conserve the living marine resources of the high seas and to cooperate with other States. Subsequent instruments, including the Code of Conduct, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, elaborate upon these basic standards, particularly with respect to the responsibilities of flag States. Among the flag State responsibilities reflected in these instruments are three basic rules that, if fully implemented, would significantly reduce IUU fishing on high seas:

Many international instruments acknowledge the primary responsibility of flag States for the fishing activities of their vessels on the high seas. However, a number of flag States make virtually no effort to fulfil that responsibility. Some States permit the registration of fishing vessels in their territories that have no genuine link to their State.[16] In many cases, the true or beneficial owners of the vessels have other nationalities, the master and crew have still other nationalities, the vessels rarely if ever visit the territory of the flag State, and the fish harvested by the vessels are not sold in (or even transshipped through) the flag State. Even more importantly, the flag State has neither the ability nor the apparent will to monitor the fishing activities of the vessels or to impose penalties on them for IUU fishing. Indeed, the vessels register in such flag States precisely to avoid such control.

In sum, IUU fishing on the high seas constitutes, first and foremost, a failure on the part of flag States to abide by responsibilities recognized by the international community and reflected in relevant international instruments. The IPOA-IUU contains a number of tools, discussed in Section 4 of these guidelines, to help willing flag States fulfil these responsibilities. Those flag States that are unwilling to use these tools could also help prevent, deter and eliminate IUU fishing by removing from their registries those fishing vessels whose activities they cannot control. Indeed, some States have begun to delete fishing vessels from their registers in response to requests from other States and RFMOs to end IUU fishing that their vessels had been conducting.

3.2 National laws, regulations and practices


3.2.1 Review of pertinent laws, regulations and practices
3.2.2 State control over nationals
3.2.3 Vessels without nationality
3.2.4 Eliminating subsidies and other economic support
3.2.5 Monitoring, control and surveillance

3.2.1 Review of pertinent laws, regulations and practices

At an early stage in the implementation of the IPOA-IUU, each State should undertake a thorough review of its national laws, regulations and practices relating to IUU fishing.[17] Such a review could be done in connection with the development or revision of fishery management plans, as are called for in the Code of Conduct. The principal goal of the review should be to rationalize and strengthen the legal regime and to make possible the use of all relevant tools in the IPOA-IUU "toolbox". The review should consider such questions as:

3.2.2 State control over nationals

One reason why IUU fishing has been such a persistent problem is that many States have not been successful in controlling the fishing activities by their nationals. Admittedly, it may be difficult for many States to control, or even to be aware of, activities of their nationals that take place in the territory of other States or aboard vessels registered in other States. States may also have difficulty in preventing their nationals from reflagging fishing vessels in other States with the intent to engage in IUU fishing.

The IPOA-IUU nevertheless calls on all States to take measures or cooperate to ensure that their nationals do not support or engage in IUU fishing. In particular, all States should cooperate to identify those nationals who are the operators or beneficial owners of vessels involved in IUU fishing.

Under international law, a State is free to enact laws prohibiting its nationals from engaging in IUU fishing, even if the activity in question takes place aboard a foreign vessel or in waters under the jurisdiction of another State.[19] Some States have already done so.

For example, Japan requires its nationals to obtain the permission of the Japanese Government before working aboard non-Japanese fishing vessels operating in the Atlantic bluefin tuna and southern bluefin tuna fishing areas. The goal of this measure is to prevent Japanese nationals from becoming involved in IUU fishing aboard foreign vessels. Japan also intends to deny permission to any Japanese national to work aboard a foreign fishing vessel in any other fishery, if the vessel's flag State is not a member of the RFMO regulating that fishery.[20] New Zealand and Australia have also enacted legislation restricting the activities of their respective nationals aboard foreign vessels registered in States meeting certain criteria.

In the United States of America, the Lacey Act makes it unlawful for any person subject to U.S. jurisdiction to "import, export, transport, sell, receive, acquire, possess or purchase any fish... taken, possessed or sold in violation of any... foreign... law, treaty or regulation." Hence, a U.S. national may be prosecuted for engaging in certain forms of IUU fishing aboard foreign vessels.[21]

To fulfil the commitments contained in the IPOA-IUU relating to control of nationals, all States should consider adopting measures along these lines and should consider taking the following steps as well:

3.2.3 Vessels without nationality

Although reliable data is unavailable on the proportion of IUU fishing conducted by vessels without nationality, anecdotal evidence indicates that such vessels are responsible for a significant amount of it. In some cases, the vessels in question are actually without nationality, in that they are not are not properly registered in, and hence not entitled to fly the flag of, any State. In other cases, the vessels in question may be deemed to be without nationality (i.e. may be assimilated to vessels without nationality) because they sail under the flags of two or more States, using them according to convenience.[26]

The IPOA-IUU calls upon all States to take measures consistent with international law in relation to vessels without nationality that are involved in IUU fishing on the high seas.[27] Taking action against such vessels should be a high priority, because their very statelessness frustrates the primary means to control fishing activity on the high seas - through flag State jurisdiction. A vessel without nationality operates outside of this form of control.

At least some States take the view that a vessel without nationality on the high seas is subject to the jurisdiction of any State.[28] Under this view, any State may impose penalties on a vessel without nationality for engaging in IUU fishing on the high seas. The Canadian Coastal Fisheries Protection Act, for example, makes it an offence for vessels without nationality to fish in areas designated as managed by a RFMO. Canadian fisheries protection officers may exercise any power conferred upon them by that Act (e.g. boarding, inspection, seizure, arrest) against vessels without nationality found in such areas. Legal proceedings would follow, as appropriate, on the exercise of those powers.[29] In 2001, Norway amended its legislation to adopt a comparable approach.[30] Similarly, the United States of America has taken law enforcement action (seizure, prosecution, imposition of fines) against vessels without nationality that were engaged in fishing for salmon on the high seas of the North Pacific Ocean.

Fishing by vessels without nationality also threatens the integrity of measures adopted by RFMOs. Some RFMOs have responded to these threats by calling on their members to take action against vessels without nationality. ICCAT, for example, adopted a binding measure that became effective in 1998 that provides in pertinent part:

Any sightings of vessels that appear to be without nationality (stateless) that may be fishing for ICCAT species shall be reported immediately by the appropriate authorities of the Contracting Party whose vessel or aircraft made the sighting. Where there are reasonable grounds for suspecting that a fishing vessel targeting ICCAT species on the high seas is stateless, a Contracting Party may board and inspect the vessel. Where evidence so warrants, the Contracting Party may take such action as may be appropriate in accordance with international law. Any Contracting Party receiving a report of a sighting or conducting an action against a stateless fishing vessel shall immediately notify the ICCAT Secretariat, which, in turn, shall notify all other Contracting Parties. In addition, Contracting Parties are encouraged to establish points of contact to facilitate cooperation and other appropriate actions.[31]
All States can also help to prevent IUU fishing on the high seas by vessels without nationality by exchanging information about the activities of such vessels, including sightings information or information derived from landings or trade data.

3.2.4 Eliminating subsidies and other economic support

Some States provide subsidies and other forms of economic support for fishing activities. Where such support is or may be used for IUU fishing, States should terminate the assistance promptly.

It should be noted in this respect that the IPOA on the Management of Fishing Capacity also contains commitments relating to subsidies and other economic incentives. Specifically, that IPOA calls on all States to reduce and progressively eliminate all factors, including subsidies and economic incentives, which contribute to the build-up of excess fishing capacity, thereby undermining the sustainability of marine living resources. While the implementation of this commitment will require considerable work at the international and national levels, some of which is already underway,[32] States should move immediately to end all forms of government economic support for IUU fishing. There can be no justification for States to continue to assist those who carry out IUU fishing.

3.2.5 Monitoring, control and surveillance

IUU fishers must evade detection in order to succeed. As noted above, the operators of IUU vessels often conduct fishing operations in areas where MCS is lacking, particularly in remote high seas regions or in waters under the jurisdiction of coastal States, particularly developing States, that do not have the ability to stop such fishing. The owners of these vessels also seek to avoid detection through deceptive business practices. For example, they create extended and complex corporate arrangements to hamper investigators, they repeatedly change the names and call signs of their vessels and they regularly reflag the vessels in States that continue to maintain open registries.

Improvement in MCS capabilities and their effective implementation in waters under national jurisdiction and on the high seas represents the best hope for preventing, deterring and eliminating IUU fishing. Fortunately, States have developed a number of MCS tools in recent years and have worked to strengthen and refine them. Cooperation among States, including through RFMOs and other more informal networks, has also recently broadened. For example, States should consider participating in the International Network for the Cooperation and Coordination of Fisheries-Related Monitoring, Control and Surveillance Activities, described in Box 1.

There are other recent examples of cooperation among States to improve MCS capabilities. One is the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, which allows parties to share their assets in fisheries surveillance and law enforcement activities, including boarding, inspection and seizure of vessels.[33] Norway has also entered into agreements with several other States providing for exchange of information on inspections at sea, exchange of information on port control, exchange of personnel and training.[34]

Box 1

INTERNATIONAL NETWORK FOR THE COOPERATION AND COORDINATION OF FISHERIES-RELATED MONITORING, CONTROL AND SURVEILLANCE ACTIVITIES

The International MCS Network is an arrangement of national organizations/institutions in charge of fisheries-related MCS activities, which have been authorized by their States to coordinate and cooperate in order to prevent IUU fishing.

The objectives of the International MCS Network are to improve the efficiency and effectiveness of fisheries-related MCS activities through enhanced cooperation, coordination, information collection and exchange. The Technical Terms of Reference of the International MCS Network can be found in Appendix II to these guidelines.

The International MCS Network arose out of a meeting in Santiago, Chile, in January 2000. Membership in the International MCS Network is voluntary.

To learn more about the International MCS Network, go to its website:

http://swr.ucsd.edu/enf/mcs/mcs.htm
User name: mcs
Password: mcsnet


Paragraph 24 and other relevant provisions of the IPOA-IUU describe a wide variety of MCS tools for use against IUU fishing, including (but not limited to) vessel monitoring systems (VMS), observer programs, catch documentation schemes, inspections of vessels in port and at sea, denial of port access and/or privileges to suspected IUU vessels, maintenance of "black" and "white" lists,[35] and the creation of presumptions against the legitimacy of catches by non-party fishing vessels in areas regulated by RFMOs.

VMS is a tool that can greatly increase the efficiency and effectiveness of MCS. In recent years, a growing number of States, including quite a few developing States,[36] have introduced VMS requirements for their fishing vessels or as a condition of access for foreign vessels to fish in waters under their jurisdiction. A number of international agreements also require VMS. It is estimated that, at present, at least 8,000 fishing vessels are reporting their positions by VMS. By using VMS, vessels can transmit basic data quickly and inexpensively. All States should strongly consider introducing or expanding requirements for their vessels to use VMS. To assist in this effort, FAO has published and disseminated technical guidelines on the subject.[37]

In many cases, the key to effective MCS lies in the ability of fisheries managers and enforcement officials to exchange information on possible IUU fishing activity as quickly as possible. To speed and broaden the exchange of such information, States should work to standardize the formats and modes in which the information is transmitted.

It must be emphasized that MCS measures do not relate exclusively to taking enforcement action against IUU fishing that is already underway, but also encompass prevention and deterrence. A critical part of any strategy to combat IUU fishing lies in securing understanding and support among fishers for the applicable conservation and management measures that have been adopted. States can foster voluntary compliance with such measures and reduce IUU fishing through:

Those fishers who persist in breaking the rules should face the likelihood of sufficient penalties. To make that a reality, all States should invest in building the capacity to inspect, investigate and to prosecute violators successfully. All States should also ensure that its judicial or administrative system for handling cases of IUU fishing operate promptly and efficiently.

One important challenge is to use MCS to prevent, deter and eliminate IUU fishing while not unduly burdening legitimate fishing operations. For example, States should conduct inspections in ways that minimize the inconvenience to vessel operators and protect the confidentiality of private and proprietary data. By doing so, fisheries managers and enforcement officials are more likely to receive the cooperation of law-abiding fishers, who have good reason to help combat IUU fishing.

The specific MCS tools contained in the IPOA-IUU are discussed more thoroughly below in the sections dealing with flag States, port States, coastal States and RFMOs.

3.3 Cooperation between States

Cooperation among States is absolutely necessary if IUU fishing is to be prevented, for several reasons:

Paragraphs 28-31 of the IPOA-IUU set forth a number of ways in which States should cooperate to prevent, deter and eliminate IUU fishing, including through their participation in RFMOs. Of primary importance is the sharing of relevant information and the provision of assistance to developing States. In order to facilitate cooperation, the IPOA-IUU calls on each State to appoint an initial "point of contact" and to make this appointment known to all. Possible ways to publicize the appointment of such points of contact would be to post the relevant names on the websites of national fishery administrations and to include them in reports to FAO on implementation of the IPOA-IUU.


[15] To underscore the seriousness of this problem, the United Nations General Assembly adopted resolution 49/116 of 19 December 1994, in which it called upon States to take measures to ensure that no fishing vessels entitled to fly their flag fished in waters under the national jurisdiction of other States, unless duly authorized by the competent authorities of the coastal State or coastal States concerned, and that such fishing operations be conducted in accordance with the conditions set out in the authorization.
[16] As provided in the 1982 UN Convention, article 91.1, “Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.”
[17] Such a review would not necessarily entail the enactment of legislative changes. But even in cases where legislative changes are necessary, States should attempt to implement as many aspects of the IPOA-IUU as possible even prior to the culmination of legislative action, which can often involve lengthy delays.
[18] For suggestions on the enactment of a wide range of legislation relating to IUU fishing, see “Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement,” by William Edeson, David Freestone, and Elly Gudmundsdottir.
[19] For further discussion, see “Tools to Address IUU Fishing: The Current Legal Situation,” by William Edeson.
[20] See “The Importance of Taking Cooperative Action Against Specific Fishing Vessels that are Diminishing Effectiveness of Tuna Conservation and Management Measures,” by Masayuki Komatsu.
[21] See United States Code, Title 16, Chapter 53. For further discussion of how the Lacey Act might be adapted for other situations involving IUU fishing, see “National Legislative Options to Combat IUU Fishing,” by Blaise Kuemlangan.
[22] Such a law could be drafted as follows:
A person subject to the jurisdiction of [State] who -
(a) on his or her own account, or as partner, agent or employee of another person, lands, imports, exports, transports, sells, receives, acquires or purchases; or
(b) causes or permits a person acting on his behalf, or uses a fishing vessel, to land, import, export, transport, sell, receive, acquire or purchase, any fish taken, possessed, transported or sold contrary to the law of another State or in a manner that undermines the effectiveness of conservation and management measures adopted by a Regional Fisheries Management Organization shall be guilty of an offence and shall be liable to pay a fine not exceeding (insert monetary value).
[23] Spanish legislation, for example, provides for the suspension of a captain’s licence for up to five years for committing certain offenses aboard flag of convenience vessels.
[24] Cf., article IV(3) of the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (“Each Party shall take appropriate measures aimed at preventing vessels registered under its laws and regulations from transferring their registration for the purpose of avoiding compliance with the provisions of this Convention”).
[25] Japan, for example, has since 1999 denied all requests to export large-scale tuna longline vessels. In addition, Japan has worked through industry channels to develop understandings that certain former Japanese vessels owned in Taiwan Province of China should be scrapped and that others constructed in Taiwan Province of China should either be registered and regulated there or scrapped.
[26] See 1982 UN Convention, articles 91 and 92.
[27] The IPOA-IUU does not explicitly refer to IUU fishing in areas under national jurisdiction by vessels without nationality. In any event, the coastal State in question would have jurisdiction to penalize such fishing.
[28] Oppenheim states that, in the interest of order on the open sea, a vessel not sailing under the flag of a State enjoys no protection whatsoever. Only vessels having the nationality of a State - i.e. vessels properly registered in a State and entitled to fly the flag of that State - enjoy the freedoms of the high seas. See Lauterpacht, H. (ed.), Oppenheim’s International Law, 7th ed., Vol. I, §261, p. 546.
[29] The Coastal Fisheries Protection Act may be found at: http://laws.justice.gc.ca/en/C-33/index.html
[30] On 21 June 2001, Norway amended its Sea Fisheries Act to enable Norwegian authorities to prosecute stateless vessels for high seas fishing violations.
[31] Recommendation 97-11 on Transshipments & Vessel Sightings. Similarly, the Scheme to Promote Compliance by non-Contracting Party Vessels with Recommendations established by NEAFC provides that, “where there are reasonable grounds for suspecting that a vessel, which has been sighted engaging in fishing activities in the Regulatory Area, is without nationality, a NEAFC Contracting Party may also board and inspect the vessel. Where evidence so warrants, a NEAFC Contracting Party may take such action as may be appropriate in accordance with international law. Contracting Parties are encouraged to examine the appropriateness of domestic measures to exercise jurisdiction over such vessels.”
[32] Paragraph 28 of WTO Ministerial Declaration adopted in Doha, 14 November 2001, agreed to negotiations to clarify and improve WTO disciplines on fisheries subsidies. Paragraph 32 of that Declaration also encouraged the WTO Committee on Trade and Environment to give particular attention in its future work to those situations (including situations involving subsidies to the fisheries sector) in which the elimination or reduction of trade restrictions and distortions would benefit trade, the environment and development. Recent decisions of other international organizations, including FAO and OECD, to continue to work on the issue of fisheries subsidies will buttress these efforts within the WTO.
[33] For a detailed discussion of this treaty, see “Illegal, Unreported and Unregulated Fishing: Considerations for Developing Countries,” by Tranform Aqorau.
[34] See “Measures to be Adopted by the Port State in Combating IUU Fishing,” by Terje Lobach.
[35] “Black” lists in this context are generally understood to mean lists of vessels that have been determined to have been used for IUU fishing. “White” lists are generally understood to mean lists of vessels that are authorized to fish in a given area by the relevant national (or regional) authorities.
[36] Developing States that are either using or are actively considering the use of VMS for fisheries vessels include Malaysia, Maldives, Morocco, Mozambique, Namibia, Seychelles and the member States of the FFA.
[37] FAO. 1998. FAO Technical Guidelines for Responsible Fisheries. Fishing Operations: Vessel Monitoring Systems.

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