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4. FLAG STATE RESPONSIBILITIES


4.1 Fishing vessel registration
4.2 Record of fishing vessels
4.3 Authorization to fish
4.4 Transport and support vessels
4.5 Other control measures

The flag State has responsibility under international law for controlling the fishing activities of a vessel, no matter where the vessel operates:

In light of the above, flag States may generally be said to have the primary responsibility for preventing, deterring and eliminating IUU fishing. The extent of IUU fishing in the world today indicates that flag States are not fulfilling this responsibility adequately. Indeed, lack of effective flag State control has been cited as the primary cause of IUU fishing.[39]

All flag States can achieve greater control over their fishing vessels. As discussed below, the IPOA-IUU offers an extensive assortment of tools for flag States to do that.

To achieve greater control, however, a State must have the political will to do so. In this regard, unfortunately, a number of flag States appear to have lacked the political will up until this time. These States allow fishing vessels to be registered in their territories and to fly their flags without taking any of the basic steps necessary to control the fishing activities of those vessels.

The IPOA-IUU and the previous international instruments on which it builds reflect the intention of the international community to persuade such flag States to develop the political will necessary to control the fishing activities of their vessels. The adverse economic, social and environmental consequences of IUU fishing have become too great to allow the status quo to continue. Those flag States that, to date, have been unwilling or unable to control their fishing vessels must make special efforts to implement the IPOA-IUU or, at a minimum, to remove the fishing vessels from their registries.[40]

As noted above, a first step for flag States is to ratify and/or implement the relevant international instruments that embody the modern norms relating to flag State responsibility, including the 1993 FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement and the Code of Conduct.

To assist flag States in the implementation of these norms, the IPOA-IUU sets forth a series of tools under three sub-headings: (1) Fishing Vessel Registration; (2) Record of Fishing Vessels; and (3) Authorization to Fish. The following sections discuss each in turn.

4.1 Fishing vessel registration


4.1.1 Chartering arrangements

In most situations, the act of registration is the means by which a State grants its nationality to a vessel. Once registered, a vessel usually becomes entitled to fly the flag of that State. In other words, the State in whose territory the vessel is registered becomes the flag State and assumes primary responsibility for the vessel vis-à-vis other States.

The IPOA-IUU provides that a flag State should ensure, before it registers a fishing vessel, that it can exercise its responsibility to ensure that the vessel does not engage in IUU fishing.

Although a State cannot necessarily predict that a vessel will engage in IUU fishing, the chance that it might do so is probably greater if the vessel has done so before. For this reason, the IPOA-IUU strongly discourages States from registering a vessel that has a history of IUU fishing.[41] Experience has shown that the same vessels are often involved in IUU fishing, despite changes in name and registration.

As noted above, owners of IUU vessels sometimes evade controls by frequently changing flag States, a practice known as "flag hopping." A State should require a vessel owner seeking to register a fishing vessel to specify all previous States in which the vessel has been registered, including under any other names. Should a pattern of possible flag hopping emerge, a presumption should arise that the vessel may have been used for IUU fishing. The State should, at a minimum, require the vessel owner to explain any frequent changes in registration.

As the IPOA-IUU notes, the functions of registering a vessel and providing it with an authorization to fish are separate. In many States, these functions are the responsibility of different governmental agencies that sometimes do not communicate well with each other. For example, transportation ministries are often responsible for registering vessels, while fisheries (or agriculture) ministries issue authorizations to fish.

Many flag States could strengthen their control over fishing vessels by ensuring that there is a strong link between the process by which they register fishing vessels and the process by which they grant authorizations to fish.[42] States should work to coordinate these functions and to facilitate communications among the agencies involved. Fisheries (or agriculture) ministries, which may be more likely to have information concerning the past fishing activity of a vessel seeking to be registered, should find ways to communicate such information quickly to the ministries in charge of registration. Moreover, as the IPOA-IUU suggests, States should consider registering only those vessels that it is prepared to authorize to fish either in its waters or on the high seas.

Many States do not require registration of small fishing vessels at all. However, in light of the growth of IUU fishing, including by small vessels, States are encouraged to register as many fishing vessels as possible, preferably all of them, and to enter all of them on its record of fishing vessels, discussed below. Given that the requirement of registration is a fundamental tool by which a flag State can control its fishing vessels, the administrative cost of expanding a State's registry to include all vessels should be more than offset by the savings realized by reducing the IUU fishing that unregistered vessels may now be committing.[43]

4.1.1 Chartering arrangements

Some IUU fishers seek to evade controls by abusing the arrangements for the chartering of fishing vessels. The IPOA-IUU calls on all States involved in a chartering arrangement to take steps, within the limits of their respective jurisdiction, to ensure that chartered vessels do not engage in IUU fishing.

If chartering arrangements are not carefully designed and enforced, the identity of those individuals or corporations that have the ultimate interest in the vessel may not be apparent. For example, a vessel may be owned by someone from State A, be registered in State B and be chartered to fish in waters under the jurisdiction of State C. The relationships between the owner, the charterer and flag State are often unclear to the coastal State.

To address this problem, States should require all chartering arrangements to be fully transparent. For example, the Regional Register of Foreign Fishing Vessels administered by the South Pacific Forum Fisheries Agency (FFA)[44] requires foreign fishing vessels to submit an application to the Director for Registration. The applicant vessels must include the name(s) of any charterer in addition to other required information (names of applicants, radio call sign, State of registration, and flag State registration number, previous vessel name(s), name(s) of the vessel owner, operator, vessel master captain and fishing master).[45]

RFMOs have a role to play in ensuring that chartering arrangements for stocks under their purview are transparent. For example, NAFO has recently adopted rules to regulate chartering arrangements for quotas and shrimp fishing days.[46] Those rules impose relatively tight controls on chartering arrangements and require full transparency. In the context of developing new allocation criteria, ICCAT members have also made a commitment to create rules to regulate chartering operations for stocks under its purview.

Another problem may arise when a vessel registered in State A is chartered by nationals in State B to fish in waters under the jurisdiction of State B as well as on the high seas. Responsibility for controlling the high seas fishing activity may not be clear - does it rest with State A (the flag State) or with State B? While the vessel operates in waters under the jurisdiction of State B, that State would have responsibility as a coastal State over the vessel's fishing activities. But when the vessel ventures onto the high seas, the flag State (State A) might generally be thought to have responsibility over the fishing activities. State B may have no authority to board or inspect the vessel on the high seas or have other practical means to control its high seas fishing activities. Yet State A may have no way to know when the vessel is fishing on the high seas.

One possible solution to the above situation is to require that chartered vessels take on the nationality of State B - that is, have State B become the flag State - for the duration of the charter arrangement. This would give State B responsibility for the fishing activities of the vessel in both areas where it has been chartered to fish - in waters under the jurisdiction of State B as well as on the high seas. Another approach would be for State B not to allow chartered vessels to fish on the high seas at all.

A third possibility is to make both State A and B responsible for controlling the high seas fishing conducted pursuant to a charter arrangement. The charter arrangement could, for example, provide express authority for State B (as well as State A) to board and inspect the vessel on the high seas and require reporting of catch data to both States. Along these lines, the NAFO chartering rules provide that:

A final possibility is to provide for boarding and inspection of chartered vessels on the high seas through regional arrangements of the sort provided for in articles 21 and 22 of the 1995 UN Fish Stocks Agreement.[47]

In any case, just as States should generally not permit vessels with a history of IUU fishing to register in their territories, States and RFMOs should generally not allow chartering arrangements to be made for such vessels.

4.2 Record of fishing vessels

There is no single and complete database or record of fishing vessels in the world, a situation that undoubtedly creates opportunities for IUU vessels to escape detection.

While a comprehensive database may not be possible to develop immediately, the IPOA-IUU calls on each flag State to maintain a record of fishing vessels entitled to fly its flag. For fishing vessels authorized to fish on the high seas, the record should include the information listed in article VI, paragraphs 1 and 2 of the 1993 FAO Compliance Agreement. Paragraph 42 of the IPOA-IUU suggests additional information to be included in the record. The IPOA-IUU further suggests that all flag States maintain a record that includes all such information with respect to each of its registered vessels (those authorized to fish on the high seas as well as others). In addition, the Coordinating Working Party on Fishery Statistics has recommended that records of fishing vessels should indicate whether vessels are actively fishing.[48] Please refer to Box 2 for a compilation of all these elements.

As envisioned in the 1993 FAO Compliance Agreement, FAO has already established a database for compilation of information on high seas fishing vessels. Some flag States have begun to submit the relevant data on their vessels to FAO, even prior to entry into force of that Agreement. To help prevent, deter and eliminate IUU fishing, particularly on the high seas, all flag States should submit this data to FAO and update their submissions regularly. FAO, in turn, will make available the compiled data, subject to any restrictions imposed by a State with respect to the data it has submitted. In some situations, there may be advantages to the creation of records of fishing vessels on a regional basis. For a discussion of the Regional Register maintained by the FFA, see Section 5 of these guidelines (Coastal State measures).

4.3 Authorization to fish

The next basic means by which a flag State can control its fishing vessels is to prohibit them from undertaking fishing activities except pursuant to express authorization issued by the flag State. By authorizing a vessel to fish, a flag State is in effect expressing its intent to exercise control over the fishing activities of the vessel. A flag State should issue such an authorization only to a vessel properly registered in its territory and entered in its record of fishing vessels.

Box 2

RELEVANT DATA FOR INCLUSION IN RECORD OF FISHING VESSELS

Article VI.1 of the 1993 FAO Compliance Agreement calls for submission to FAO of the following data with respect to vessels authorized to fish on the high seas:

  • name of fishing vessel, registration number, previous names (if known), and port of registry;

  • previous flag (if any);

  • International Radio Call Sign (if any);

  • name and address of owner or owners;

  • where and when built;

  • type of vessel;

  • length.

Article VI.2 of the 1993 FAO Compliance calls for submission to FAO of the following data with respect to vessels authorized to fish on the high seas, to the extent practicable:

  • name and address of operator (manager) or operators (managers) (if any);

  • type of fishing method or methods;

  • moulded depth;

  • beam;

  • gross register tonnage;

  • power of main engine or engines.

Paragraph 42 of the IPOA-IUU calls on flag States to include all the above data for every vessel in its record of fishing vessels, as well as following additional data:

  • the previous names, if any and if known;

  • name, address and nationality of the natural or legal person in whose name the vessel is registered;

  • name, street address, mailing address and nationality of the natural or legal persons responsible for managing the operations of the vessel;

  • name, street address, mailing address and nationality of natural or legal persons with beneficial ownership of the vessel;

  • name and ownership history of the vessel, and, where this is known, the history of non-compliance by that vessel, in accordance with national laws, with conservation and management measures or provisions adopted at a national, regional or global level; and

  • vessel dimensions, and where appropriate, a photograph, taken at the time of registration or at the conclusion of any more recent structural alterations, showing a side profile view of the vessel.

The Coordinating Working Party on Fisheries Statistics recommends that, where possible, States should indicate whether each vessel listed in the record is actively fishing.


International standards already require flag States to prohibit their vessels from fishing on the high seas without express authorization to do so.[49] The IPOA-IUU reaffirms that responsibility and calls upon flag States to require their vessels to obtain express authorization before fishing in any marine area. The authorization to fish, which vessels should carry on board, should include at least the information specified in paragraph 46 of the IPOA-IUU.

Authorizations to fish must be conditional; i.e. vessels should receive authorizations to fish only if the owners/operators agree to fish in accordance with specified conditions designed to allow the flag State to maintain control over the fishing activities. These conditions should set forth, for example, what species can be caught, what gear can be used, where the vessels may operate and at what time of the year. Paragraph 47 of the IPOA-IUU suggests a broad range of such conditions, not all of which will be applicable in all situations.

Before a coastal State permits a vessel registered in another State to fish in waters under its jurisdiction, it should verify that the vessel has received from its flag State a specific authorization to fish in waters beyond the jurisdiction of the flag State. Ideally, a coastal State should not permit such a vessel to fish in waters under its jurisdiction unless it is requested to do so by the flag State, or the flag State at least indicates that it does not object to the proposed fishing.

In any event, the permission granted to such a vessel by a coastal State serves in effect as a second authorization to fish, which should contain conditions designed to allow the coastal State to control the fishing activities of the vessel undertaken in waters under its jurisdiction. Just as a flag State should not issue authorizations to fish to vessels it cannot control, a coastal State should not permit foreign vessels it cannot control to fish in waters under its jurisdiction.

4.4 Transport and support vessels

In many cases, harvesting vessels need the assistance of transport and other support vessels in carrying out IUU fishing. Indeed, a common means of conducting IUU fishing involves the unreported (or misreported) transshipment of fish at sea, where monitoring of the transshipment is extremely difficult. When the harvesting vessels later come to port, the fish remaining on board often represent a small fraction of what they actually took from the sea. Meanwhile, the true origin of the fish they transshipped at sea to transport vessels goes undiscovered.

The IPOA-IUU calls upon flag States to ensure that their transport or other vessels do not support IUU fishing. In particular, where vessels have been identified as having engaged in IUU fishing, flag States should ensure that other vessels registered in their territories do not transship fish from that vessel, re-supply that vessel or assist it in other ways (except for humanitarian purposes, including the safety of crew members).

Flag States should also closely control the transshipment process. To the greatest extent possible, flag States should prohibit their vessels from engaging in transshipment of fish at sea without prior authorization issued by the flag State. An even more effective approach would be to prohibit transshipment of fish at sea entirely, as some States have already done. For example, the Harmonised Minimum Terms and Conditions for Foreign Fishing Vessel Access, established by the FFA, permit transshipments only in designated ports and not at sea whatsoever.[50] At a minimum, flag States should require all their vessels engaged in transshipment of fish at sea to report the information set forth in paragraph 49 of the IPOA-IUU.

4.5 Other control measures

By creating a system for comprehensive registration of fishing vessels, by maintaining a comprehensive record of those vessels, by prohibiting vessels from fishing without express authorizations to fish, by carefully considering whether to grant such authorizations to fish, and by not registering fishing vessels that it is not prepared to authorize to fish, a flag State will have established the formal (or legal) basis for exercising its responsibilities with respect to the fishing activities of its vessels.

To achieve actual control over those vessels, a flag State should choose from a variety of practical tools described in the IPOA-IUU.

For example, a flag State should have some means to know where its vessels are located, if not at each moment, then at least at regular and frequent intervals. Typical tools for tracking vessels include mandatory position reporting by radio and mandatory maintenance of logbooks with frequent recording of vessel position. Indeed, acceptance of these requirements by vessel operators should be necessary before issuing an authorization to fish.

Unfortunately, while legitimate vessel operators may reliably comply with these requirements, IUU fishers often do not. A flag State should therefore develop some independent means of verifying the location of their vessels at sea. As discussed above, VMS is one means of doing this. The costs of creating and maintaining VMS regimes has fallen significantly in recent years, even while the technology has dramatically improved. For some fisheries, particularly those that take place in remote regions, VMS may be the only reliable method of tracking vessels at sea.

Another tool is the placement of independent observers on board vessels, who can monitor vessel positions as well as observe fishing operations. The costs of training observers and of providing for their salary and sustenance can be high. The placement of observers aboard small vessels may also be impractical. Despite these obstacles, the number and scope of observer programs has grown substantially in recent years.

Flag States are also encouraged to develop the capacity to conduct regular patrols at sea in areas where their vessels are known to fish. For many developing States, this will require financial and technical assistance. There are, nevertheless, ways to reduce the cost of at-sea patrols, particularly by pooling resources in cooperation with other States. Participation in the International Network for the Cooperation and Coordination of Fisheries-Related Monitoring, Control and Surveillance Activities, discussed above, can facilitate joint action in this respect.

Flag States, including those that do not currently have the capacity to board and inspect their own vessels on the high seas may also authorize other States to carry out those boardings and inspections on their behalf. Authorization may be given on an ad hoc basis, for example in response to a particular request from another State to board a vessel on the high seas that is suspected of engaging in IUU fishing. Flag States may also authorize other States to board and inspect their vessels on the high seas by participating in regional arrangements that have been designed for this purpose and by becoming party to the 1995 UN Fish Stocks Agreement.[51]

As set forth in paragraph 47.8 of the IPOA-IUU, flag States should also require, as a condition of issuing an authorization to fish, that each vessel is properly marked in accordance with internationally recognized standards, such as the FAO Standard Specification and Guidelines for the Marking and Identification of Fishing Vessels. Fishing gear should also be marked in ways that permit easy identification and tracing.

A flag State must also have some means of determining what each of its fishing vessels is catching, both for short-term management of the fishery and for longer term assessment of the affected stocks. Accordingly, flag States must require their vessels to report on their fishing activities at regular intervals in order to receive an authorization to fish. VMS, radio and fax methods all provide convenient and time-sensitive means for such reporting. Mandatory reporting of catch data through logbooks is also common. Other methods are also available.[52]

Although the data to be reported will vary from fishery to fishery, flag States should require their fishing vessels at a minimum to report timely, complete and accurate information concerning fisheries activities at the time of harvest including:

Flag States should also establish a mechanism to verify the accuracy of reported data and should penalize the failure to report and the misreporting of data. Approaches include routine inspections in port and the use of independent on-board observers.

As discussed above, flag States should ensure that penalties imposed for IUU fishing are of sufficient gravity to be effective in deterring future IUU fishing and to deprive the offenders of the benefits accruing from the IUU fishing. For serious offences, such sanctions should include withdrawal or suspension of the vessel's authorization to fish. Sanctions applicable in respect of masters and other officers of fishing vessels should include withdrawal or suspension of their authorizations to serve in those capacities.

Flag States whose vessels regularly fish in waters under the jurisdiction of other States, e.g. pursuant to access agreements, should enter into arrangements with the coastal States to prevent, deter and eliminate IUU fishing in such circumstances. For example, a treaty between certain Pacific Island States and the United States of America requires the latter to assist the former in MCS efforts. The treaty also requires the United States to transfer to the FFA any fines it collects from its vessels for having fished in violation of the treaty.


[38] See, e.g. the 1995 UN Fish Stocks Agreement, articles 21-22; the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, article V; the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, article XI; the 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, article 26 (not yet in force). The Contracting Parties of NAFO have also adopted a Scheme of Joint International Inspection and Control that entails non-flag-State boarding and inspection of fishing vessels on the high seas. The IPOA-IUU recognizes these arrangements and calls for their effective implementation.
[39] See “A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing,” collated and edited by Kevin Bray.
[40] Some positive developments can be reported in this regard. Panama, for example, recently reduced the number of fishing vessels on its register from more than 1,500 to approximately 100 and has subjected the remaining vessels to monitoring and data reporting requirements. Panama also joined ICCAT in 2000. ICCAT responded by lifting prohibitions on the importation of bluefin tuna and swordfish from Panama that it had adopted in the mid-to-late 1990s. Honduras, which has also been the subject of ICCAT trade restrictions, joined that RFMO in 2001 and offered evidence that it was taking measures to reduce IUU fishing by vessels flying its flag. In 1996, Belize amended Section 25 of its Registration of Merchant Ships Act to authorize revocation of a vessel’s registration for certain serious offenses, which could include fisheries offenses.
[41] In this regard, the IPOA-IUU recognizes that exceptions may be made, for example, in cases where ownership and control of the vessel has truly changed. Similarly, article III of the 1993 FAO Compliance Agreement prohibits parties from issuing an authorization to fish to a vessel with a history of illegal fishing, while also allowing for limited exceptions of the same sort. However, some States and RFMOs have taken steps to deny registration or other benefits to vessels that have engaged in IUU fishing, despite any change in ownership or control.
[42] See Report of the Joint FAO/IMO Ad hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters, Rome 9-11 October 2000.
[43] The international standards for the registration of ships have been codified in the UN Convention on the Conditions for the Registration of Ships (1986). Although this Convention is not yet in force and exempts fishing vessels, it clearly describes the procedures to be followed in order to avoid any misuse or fraudulent practice associated with registration. For instance, it describes the procedures to be followed in bare-boat chartering when the vessel is subject to dual registry.
[44] The FFA was established by South Pacific Forum Fisheries Agency Convention, 10 July 1978. The 16 members of the FFA are Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. It should be noted that the Regional Register of Foreign Fishing Vessels maintained by the FFA does not serve the same function as a national register of ships.
[45] See T. Aqorau, supra note 33.
[46] See NAFO/FC Doc. 01/1 - Conservation and Enforcement Measures - Supplement of FC Doc. 00/1, Part I.B.
[47] Chartering arrangements may also give rise to problems concerning the attribution of catch. For a discussion of the approach to such problems adopted by the Coordinating Working Party on Fishery Statistics, see “Legal Aspects of Collection of Fisheries Data.”
[48] Report of the Nineteenth Session of the Coordinating Working Party on Fisheries Statistics, paragraph 150.
[49] See, e.g. the 1993 FAO Compliance Agreement, article III.2; the 1995 UN Fish Stocks Agreement, article 18.3; Code of Conduct, article 8.2.2.
[50] For further background information and the operational aspects of the minimum terms and conditions, see T. Aqorau, Illegal Fishing and Fisheries Law Enforcement in Small Island Developing States: The Pacific Islands Experience, The International Journal of Marine and Coastal Law, Vol. 12, No. 1, 45-46.
[51] See note 38, supra.
[52] For a discussion of the advantages of reporting systems based on VMS technology, see Andrew Smith, Vessel Monitoring Systems, FAO March 2000 (Paper presented at Annual Conference of the Center for Ocean Law and Policy, University of Virginia and Food and Agriculture Organization, Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, FAO Rome 16-17 March 2000).
[53] Taken from B. Kuemlangan, supra note 21. For further information, see FAO, Guidelines for Routine Collection of Capture Fisheries Data, FAO Fisheries Technical Paper 382, Rome 1999.

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