The “Post-UNCED”[1] decade, since 1992, has ushered in a new era of responsibility for States in respect of their fishing fleets. The rules requiring them to secure compliance by fishing fleets flying their flags with national laws, treaties and international conservation and management measures have multiplied and solidified in a range of international instruments. The term “flag State responsibility” has taken on some compelling new dimensions.
The reason for this was growing global concern about the state of the world’s fish stocks and the associated problem of poorly controlled fishing fleets. Action was needed to address irresponsible fishing activity, both in areas of national jurisdiction and on the high seas. Practices undercutting sustainable management included reflagging vessels to evade controls, undermining international conservation and management measures, illegal fishing in areas of national jurisdiction and unreported fishing.
The action taken by the international community to address the alarming situation caused by these activities rested on two complementary pillars: strengthened law, and strengthened management over the resource.
The way forward for such action was identified:[2] for strengthened law, to enhance the requirements of the 1982 United Nations Convention on the Law of the Sea (the 1982 Convention) in new international legal instruments; and for improved fisheries management to identify agreed new approaches in instruments developed under the auspices of the Food and Agriculture Organization of the United Nations (FAO).
The 1982 Convention had itself adopted and in some respects enhanced many of the provisions of an earlier convention - the 1958 Geneva Convention on the High Seas (1958 Geneva Convention) relating to flag State rights and responsibilities on the high seas.[3] First among these was freedom of the high seas, including freedom of fishing. [4] This was a basic tenet of the 1958 Geneva Convention, regarded as codifying existing international law but which never entered into force.
The historic right of each State to sail ships under its flag on the high seas first appeared in the 1958 Convention.[5] The ship was subject to the exclusive jurisdiction of the flag State on the high seas.[6] The retention - or loss - of nationality was to be decided by the State from which nationality was derived.[7] The duty of the flag State to “effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag,”[8] also appeared under both Conventions.
This was the basic legal framework upon which the post-UNCED legally binding international instruments were built. These core “rulebooks” contain a range of requirements relating to flag State responsibilities, duties, compliance and enforcement and are the:
1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the FAO Compliance Agreement);
1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995 UN Fish Stocks Agreement);
The post-UNCED international instruments that are voluntary, and management-oriented, were formulated to be interpreted and applied in conformity with the relevant rules of international law. They address threats to the long-term sustainability of fisheries and contribution of fisheries to food supply, including over-exploitation of important fish stocks, modifications of ecosystems, significant economic losses and international conflicts on management and fish trade. Irresponsible fishing activity that directly undermines management efforts is clearly identified, together with flag State and other measures that should be taken to counter such activity. They are the:
1995 Code of Conduct for Responsible Fisheries (FAO Code of Conduct);
2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing[9] (FAO IPOA-IUU).
Information relating to the development and provisions of these instruments is described in Part II.
Other agreements and documents to implement the above instruments on regional, sub-regional and bilateral levels have been developed.[10] In addition, many regional fisheries management organizations or arrangements (RFMOs) are implementing these instruments according to their mandates, and States are incorporating the requirements into their national laws.
The number of instruments incorporating flag State responsibility reflects the considerable international concern about the proportions of the problem, but the operative question is - are these instruments effective; in particular, are they effective in view of the operation of open registers by an increasing number of States?
A State that operates an open register will accept vessels owned by nationals from other States, which will then fly the flag of the open registry State.[11] The 1982 Convention [12] provides that the flag State assumes jurisdiction in respect of administrative, technical and social matters concerning the ship, as well as other matters such as labour conditions and seaworthiness. The flag State is responsible for the diplomatic and naval protection of its flag vessels. And, under the post-UNCED international instruments, the flag State is responsible for the vessel’s compliance with applicable laws and international fisheries conservation and management measures, including on the high seas.
However, for many States, open registers are just another way to make money. While some States that operate open registers have taken positive steps to fulfill international flag State compliance responsibilities in respect of fishing vessels, others have yet to engage in the process, and do not exercise these responsibilities. Most of these States do not belong to, or cooperate with, any RFMO that has adopted international conservation and management measures. This makes it very attractive for fishing vessels that would otherwise have to comply with such measures to buy a “flag of convenience” (FOC) from an open registry State that does not exercise effective flag State compliance responsibilities over fishing fleets.[13]
While use of the term “flag of convenience” is widely used and recognised, whether a flag is “convenient” is a matter of interpretation. Some States operating open registers have adopted laws and administrative practices that are not as relaxed, or convenient to shipowners, as others. Some flags are considered to be FOCs by common consent,[14] and a more extensive list has been established by the International Transport Workers Federation (ITF).[15] However, although a vessel may fly what is considered a FOC, it may be genuinely owned and operated by nationals of the flag country.
Countries maintaining open registers that currently include or may have included fishing vessels are indicated in APPENDIX 1.
What is the scope of the “flag of convenience” problem? One view was expressed cogently at the Commission on Sustainable Development (CSD 7)[16], during the review of oceans and seas at its Seventh Session in April 1999. The Chair of CSD 7 stated that:
“ ... fishing activities continue to take place in contravention of the applicable regional conservation regimes and States are not meeting their obligations under the Law of the Sea Convention to control the activities of their flag vessels. Even more problematic is the use of flags of convenience. When fishing companies based in countries that have signed fisheries agreements and conventions then design arrangements that allow ships under their control to go to sea and ignore those agreements under cover of the flag of a non-signatory they make a mockery of the agreement. Governments have to respond.”[17]
This concern followed swiftly on the heels of a March 1999 report by the ITF that the flag of convenience fishing fleet was growing dramatically - from 11 open registers in 1980 to 29 in 2000[18] and the EU reports that the 392 fishing or fish transport vessels flagged outside the EU are distributed among 48 different registers.[19]
On a global level, estimation of the size and impact of the open register fleets can be difficult as they are very fluid, with vessels changing names and flags easily and frequently, moving from fishery to fishery and using a series of “shell” companies to conceal the real identity of their owners.[20] It has, however, been estimated that fishing vessels operating under open registers represent less than 10 per cent of the world fishing fleets.[21] Although their numbers are relatively low, these vessels have a disproportionately negative impact on fisheries conservation and management measures.[22]
The majority of open registry States are not bound by the many international instruments that require the exercise of flag State control over fishing vessels,[23] nor do they exercise flag State control on a voluntary basis. Therefore, some fishing vessel owners are able to circumvent international requirements by flagging their vessels in non-party States that do not exercise flag State responsibility.[24]
The CSD[25] review highlighted the issue of flag State responsibilities and the need for FAO and the International Maritime Organization (IMO) to cooperate on solving problems related to IUU. Fishing. Significantly, port State responsibilities were also included in the review; i.e. States where a port is located and a fishing vessel registered in another State is geographically located at a given time. Further, the UN General Assembly urged IMO, FAO and regional fisheries organizations and other relevant organizations to collaborate in defining the concept of a “genuine link” between fishing vessels and the flag State.[26]
Agreement on a clear definition of what constitutes a “genuine link” between the vessel and the flag State could assist in the implementation of Article 91 of the 1982 Convention regarding the nationality of ships. This gives a State the right to fix the conditions for the:
grant of its nationality to ships;
registration of ships in its territory; and
right to fly its flag.
In this context, Article 91 also provides that “...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.”[27]
The fact that the State has the right to fix the conditions noted above, including the grant of nationality to ships, provides the basis for the flag State’s right to grant nationality to the ship. But this right is accompanied by the requirement that a genuine link must exist between the State and a ship. The purpose of the genuine link requirement has been in issue especially because many open registry States do not require any such link, and its scope is not defined. In fact, the difficulties of defining the scope are compounded by the reality that a ship can, and often does leave a trail of nationalities in its wake - of the owner, operator, charterers, corporate headquarters and others
At issue is whether the purpose of the genuine link requirement to ensure that effective flag State control can be exercised, [28] or to set the conditions for recognition of the nationality of ships by non-flag States - States other than the State of registration?
In fact, the development of the concept of genuine link in international law is deeply rooted in the nationality of persons.[29]
In the mid-1950’s, the International Court of Justice (ICJ)[30] considered whether a State’s grant of citizenship to a person who had a tenuous connection to it would entitle it to represent his claim against another State - and require that other State to recognize the grant of nationality. In concluding that the other State was not obligated to recognize the grant of nationality, the ICJ described nationality as a “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”[31]
This decision was handed down shortly before the 1958 Geneva Convention on the High Seas (1958 Convention) required a ship to have a genuine link to the flag State,[32] in language identical to the current requirement in Article 91 of the 1982 Convention.[33]
More recently the International Tribunal on the Law of the Sea (ITLOS) concluded[34] that the purpose of the provisions of the 1982 Convention[35] on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States. The Tribunal also found no support in the 1986 Convention on the Conditions for the Registration of Ships (not yet in force) that a State could refuse to recognize the right of a vessel to fly the flag of a State on the ground that there is no genuine link between the ship and the flag State.
It therefore does not appear productive to focus on what constitutes a “genuine link” as a prerequisite for vessel registration; instead, current jurisprudence views flag State duties and responsibilities as a consequence of the grant of ship’s registration. As noted above, the genuine link requirement was imported from the relationship between individuals and States, and the situation between ships - with their trail of nationalities - and States is dramatically different.
Indeed, the Joint FAO/IMO Ad Hoc Working Group tasked by the General Assembly[36] with establishing the criteria for defining a genuine link did not do so. They agreed there was little benefit in attempting to define the concept of “genuine link” between a vessel and the State whose flag it flies and instead addressed the key issues that might constitute effective flag State control of a fishing vessel.” [37] In addition, the FAO IPOA-IUU simply 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.”[38]
This approach, applying to all flag States, indicates it is not just the open registry flag States that avoid responsibilities. In fact, some of them are taking positive steps towards effective flag State control. The purpose of this paper is to review activities relating to the fishing fleets of States that operate open registers, and in particular to assess the extent to which flag State control measures are being implemented by those States.
The post-UNCED international instruments reflect the increasing international consensus that the effective exercise of flag State responsibilities is key to the future of the global fisheries resource. The 1982 Convention and the 1995 UN Fish Stocks Agreement are in force and binding upon ratifying States, and others are not yet in force or are voluntary, as indicated in Table 1.[39] A review of the provisions in the international instruments relevant to the exercise of flag State responsibility follows in Part II.
The rationale for the operation of open registers is addressed in Part III, noting the interests of - and benefits to - open registry States, shipowners and fishing vessels.
Part IV addresses effective flag State control. For open registry States, general information relating to registration procedures is set out, and national policy, laws and administrative arrangements described, with a view to assessing the effectiveness of flag State control. The experience of key RFMOs with fishing activities by open registry flag vessels, and open registry States is presented, noting the sanctions and enforcement action that has been taken against open registry States and fishing vessels. Available information on offences by vessels operating under open registers, and their disposition by the flag State and the RFMOs is also described.
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[1] United Nations Conference
on Environment and Development. [2] The genesis of the international instruments are identified in Part II of this paper. Note especially references to Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, vol. 1, Resolutions Adopted by the Conference (United Nations publication, Sales No. E.93.I.8 and corrigendum), Resolution 1, Annex II, and proceedings of the FAO Committee on Fisheries (COFI). [3] See discussion in Part II for further detail on the provisions in the 1982 Convention. [4] Article 2: freedom of the high seas, including the right to fish, must be exercised with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. This appears in Article 87 of the 1982 Convention. [5] Article 4 in the 1958 Geneva Convention; Article 90 in the 1982 Convention. [6] Article 5 in the 1958 Geneva Convention, with the qualification that international law or agreement does not provide otherwise. Article 92 of the 1982 Convention. [7] This requirement is clear in: Article 5.1, that each State is to 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; and Article 18, that a ship or aircraft may retain its nationality even though it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived. See Articles 94.1 and 104 of the 1982 Convention. [8] Article 5.1 in the 1958 Geneva Convention, Article 94 of the 1982 Convention. [9] Adopted by the FAO Committee on Fisheries (COFI) at its Twenty-fourth Session in March 2001. [10] For example, the 2000 Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean and the FAO Technical Guidelines for implementation of the FAO Code of Conduct. [11] The relevant international instruments do not provide a legal definition for “open register” or “flag of convenience”. In the experience of IMO, FAO and UNCTAD there are no legally accepted definitions of these terms, but both are widely used and have in a sense been "defined by usage". UNCTAD’s working approach considers that an open register is the one including vessels owned by nationals of other countries. If the percentage owned by nationals of other countries is very high, above 99%, then one speaks of a flag of convenience. If the percentage owned by nationals of the country is high, above 80-90%, then the register is an international one. [12] Article 94. [13] See European Parliament Committee on Fisheries, Working Document 1 on the role of flags of convenience in the fisheries sector, 11 April 2001; rapporteur Patricia McKenna, hereafter “McKenna Report”. [14] They are, for example, Panama, Belize and St. Vincent & the Grenadines. Australia, Canada and Norway are considered not to be FOC States. McKenna Report, op. cit. n. 13. [15] This is based in large part upon social criteria such as ratification of the ILO conventions, safety record, respect for human and trade union rights, etc. Countries so classified include Barbados, Liberia, Mozambique, Netherlands, Antilles, Sierra Leone and Vanuatu. McKenna Report, op. cit. n. 6. [16] Commission on Sustainable Development, Seventh Session, New York, 19-30 April 1999. [17] Simon Upton, Chair, Second London Oceans Workshop, December 1998. [18] In addition to these, ITF considers a number of other registries are also on the rise including Mongolia, Equatorial Guinea, Bolivia and Jordan. [19] McKenna Report op. cit. n. 13, Revised Working Document 3 on the role of flags of convenience in the fisheries sector, 21 October 2001. The report notes that the most important registers are Mauritania and Belize (51 vessels in each), Panama (47), Morocco (35), Honduras (29) and St. Vincent & the Grenadines (27). [20] See www.seaweb.org. [21]Lloyd’s Register – Fairplay Limited World Fleet Statistics 2001. Lloyd's Maritime Information Service has listed over 1300 fishing vessels greater than 24 metres in length flying flags of convenience. This does not include the large network of refrigerated cargo vessels (reefers) and fuel tankers which support the FOC fishing fleets at sea and allow them to avoid port control measures implemented by some countries. See www.seaweb.org. [22] Troubled Waters, Fishing Pollution and FOCs, Major Group Submission for the 1999 CSD Thematic Review: Oceans and Seas by International Confederation of Free Trade Unions, Trade Union Advisory Committee to the OECD, International Transport Workers’ Federation and Greenpeace International, March 1999. [23] See Part III, 1 and 3. [24] Op cit n. 16. [25] During the review of oceans and seas at its seventh session in April 1999, as noted in above text. [26] United Nations General Assembly Resolution 54/32 19 January 2000, para 8. [27] In this context, one interpretation is that the ship is “awarded” nationality by the State, which – because Article 91 gives the State the right to determine various conditions – appears to also have implicitly given the right to determine whether a “genuine” link exists. [28] As required in Article 94, and Article 217. The latter appears under the Enforcement Section respecting the marine environment, and requires that the flag State shall: effectively enforce applicable international rules and standards irrespective of where the violation occurs; prohibit vessels flying its flag from sailing until they can proceed to sea in compliance with the requirements of international rules and standards; investigate violation of international rules and standards and where appropriate institute proceedings irrespective of where the violation occurred; and provide by laws and regulations penalties of adequate severity to discourage violations of applicable international minimum rules and standards, wherever they occur.” [29] The Conference for the Codification of International Law, held at The Hague in 1930, inserted in Article I of the Convention relating to the Conflict of Nationality Laws, a provision that the law enacted by a State for the purpose of determining who are its nationals "shall be recognized by other States in so far as it is consistent with . . . international custom, and the principles of law generally recognized with regard to nationality." In the same spirit, Article 5 of the Convention refers to criteria of the individual's genuine connections for the purpose of resolving questions of dual nationality which arise in third States. [30] Liechtenstein v. Guatemala, 1955 ICJ Rep 4. [31] Ibid. In that case, informally called the Nottebohm case, addressing the nationality of an individual, the judgment of the International Court of Justice reads in part as follows: According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national. [32] Article 5(1). [33] Article 91. [34] "M/V Saiga” (No.2), International Tribunal for the Law of the Sea 1999. [35] And the 1958 Geneva Convention on the High Seas, Article 5. [36] See footnote 26. [37] The Report of the Joint FAO/IMO Ad Hoc Working Group on Illegal, Unregulated and Unreported Fishing and Related Matters, Rome, Italy, 9-11 October 2000 para. 24. [38] Paragraph 35. [39] All tables referred to in the document are presented in Appendix 9. |
