II. POST-UNCED INTERNATIONAL INSTRUMENTS

1. Introduction

The responsibilities for flag State compliance with laws, treaties and international fisheries conservation and management measures has deep historical roots predating the 1982 Convention.

The rules regulating the conduct of ships on the high seas have long been regulated by customary international law, supplemented by bilateral and multilateral treaties and conventions relating to specific issues. The preamble to the 1958 Convention, the first attempt at establishing a comprehensive legal regime for the high seas, recognized that the provisions adopted were generally declaratory of established principles of international law.

As noted above, flag State responsibilities appearing in the 1958 Convention^[40] and 1982 Convention^[41] both require States to fix the conditions for the:

• grant of nationality to its ships;

• registration of ships within its territory; and

• right to fly its flag.

Both Conventions also provide that ships have the nationality of the State whose flag they are entitled to fly and require a genuine link to exist between the State and the ship.

As noted above, the concept of “genuine link” as it applies to flag States and ships has not been defined in international law or practice, and has come to signify the duty of a flag State to effectively implement its responsibilities.

The requirement for a State to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag is found in both the 1958 and 1982 Conventions.^[42] However, the provisions are considerably expanded in the 1982 Convention, especially with respect to safety at sea and qualifications of masters and crew.

Subsequently, the 1986 United Nations Convention on Registration of Ships (1986 Convention) expanded the role of flag States respecting the registration of ships. It adopts the language of the 1982 Convention respecting the freedom of navigation and granting of nationality to ships,^[43] but also requires a State to ensure that ships flying its flag have, at the very least, a representative who can meet the shipowner’s responsibilities in accordance with the laws of the flag State.^[44] Requiring an implementing “body” is important, but moves the focus to whether, and to what extent, the national laws in fact implement flag State responsibilities.

The 1993 FAO Compliance Agreement adds specificity to the flag State’s responsibilities set out in the 1982 Convention. It relates to fishing vessels on the high seas, and identifies clear responsibilities for flag States, including to:^[45]

• allow high seas fishing only pursuant to specific authorization;

• only authorize fishing vessels where the flag State can effectively exercise its responsibilities (considering the links with the vessel); and

• take effective measures against vessels undermining international conservation and management measures.

The Compliance Agreement also encourages the strengthening of international cooperation and increased transparency through the exchange of information on high seas fishing.

The 1995 UN Fish Stocks Agreement elaborates the flag State responsibilities of the 1982 Convention, but only for straddling fish stocks and highly migratory fish stocks primarily in areas beyond national jurisdiction.^[46] Significantly, this instrument progressed beyond the concept of not undermining conservation and management measures, to requiring flag vessels to comply with them.^[47]

The FAO Code of Conduct and FAO IPOA-IUU are voluntary instruments and apply to all fishing activity both within and beyond zones of national jurisdiction. The Code of Conduct contains the same flag State provisions that are similar in scope to the other international instruments. The objective of the FAO IPOA-IUU is to deal with the increase in IUU fishing, and the need for flag States to exercise responsibilities over their fishing fleets.^[48]

Cross-cutting areas showing common or related provisions in the instruments are described below, followed by a brief description of the law contained in each instrument.

2. Cross-Cutting Areas

Each instrument is important, with its own purpose and application. However, there are some cross-cutting areas for flag State responsibility, made stronger by near-universal recognition of such requirements in all documents. A synopsis of the instruments and their common flag State responsibilities is shown in Table 2.

3. The Instruments

3.1 The 1982 Convention

Underlying the 1982 Convention was the notion that all activities connected with ocean space are closely interrelated and need to be addressed as a whole. The Convention is widely recognised as providing the framework for further development of specific areas of the law of the sea. It entered into force on 16 November 1994.^[49]

Flag State responsibility forms an important component of Part VII of the 1982 Convention. This Part is concerned with both the freedom of the high seas and the responsible exercise of those freedoms. All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas,^[50] but are also obliged to take or cooperate with other States in taking measures for their respective nationals to for the conservation of the living resources of the high seas.^[51] States whose nationals exploit the same living resources, or resources in the same area, are to enter into negotiations with a view to taking such conservation measures.^[52]

Duties of the flag State^[53] are an essential component of the legal regime for the high seas, with other components including the:

• right of navigation;^[54]

• nationality of ships;^[55]

• status of ships;^[56] and

• jurisdiction and control of ships.

The right of navigation gives every State the right for ships flying its flag to sail on the high seas. The nationality of ships is important as it determines the laws which will apply to that ship and its crew. The ship’s nationality is determined by the flag it flies, but the ship must meet the conditions set by the flag State. As noted above, the 1982 Convention requires the flag State to fix conditions for the following:

• granting its nationality to ships;

• registration of ships in its territory; and

• the right to fly its flag.^[57]

To be granted the right to fly the flag of a State, there must exist a genuine link between the ship and the State.^[58] The 1982 Convention does not define a genuine link. However, this provision in combination with the requirement that a State effectively exercise its jurisdiction and control in respect of administrative, technical and social matters over ships flying its flag^[59] mirrors the requirements of the 1958 Convention.^[60]

The 1982 Convention also requires flag States to:

• 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 violations 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. ^[61]

It seems logical therefore that a genuine link requires that there be located within the flag State an entity which can be made responsible for the actions of the ship.^[62] When the flag State gives a ship the right to fly its flag, it must issue documents to that effect, ^[63] and must maintain a register of ships which fly its flag. ^[64]

For legal and practical reasons, it is important that ships have a single nationality only. To allow otherwise would raise issues respecting conflict of laws and could allow ships to evade the jurisdiction of all nations. To address this concern, the 1982 Convention requires that ships sail under the flag of one State only and be subject to that State’s exclusive jurisdiction on the high seas.^[65]

The 1982 Convention also addresses management responsibilities for fish that occur both on the high seas and in areas under national jurisdiction. Articles relating to straddling fish stocks and highly migratory species required States to cooperate either directly or through appropriate regional, subregional or international organizations to ensure conservation and promote the objective of optimum utilization of these species.^[66] Although flag State responsibilities for management of these stocks on the high seas are not designated in those Articles, they clearly signalled the need for cooperation in management. This was followed up by the UN Fish Stocks Agreement, which expressly include flag State responsibility as an essential management pillar.

3.2 The 1986 Convention on the Registration of Ships

The 1986 Convention on the Registration of Ships (1986 Convention) provides for the registration of ships and sets out the conditions for the establishment and operation of a Shipping Register.^[67] The 1986 Convention was concluded under the auspices of the United Nations Conference on Trade and Development (UNCTAD), and because it is directed towards trade, fishing vessels are excluded. It has not entered into force after nearly two decades,^[68] but provides sound precedent for registration requirements and flag State responsibilities. It could form the basis for any future initiative by FAO to provide guidelines for the registration of fishing vessels under the Code of Conduct. This could be done in collaboration with IMO and, as indicated in section III.1, below, could include further study on whether measures which have been used to improve the management of open registers for commercial shipping could be adapted to those for fishing vessels.

An objective of the 1986 Convention is to strengthen the implementation of the genuine link responsibilities between a State and ships flying its flag. Its provisions require flag States to exercise effectively their jurisdiction and control over their ships with regard to identification and accountability of shipowners and operators, and administrative, technical, economic and social matters.^[69]

The 1986 Convention adopted the nationality provisions from the 1982 Convention:^[70] a ship has the nationality of the flag it flies^[71] and shall sail under the flag of one State only.^[72] No ship shall be entered on the register of ships of two or more States at a time.^[73]

To properly implement the provisions of the 1986 Convention, a flag State must have a competent and adequate national maritime administration which exercises jurisdiction and control^[74] over the vessels registered under its flag. The maritime administration is required to ensure that ships comply with national laws and regulations and applicable international rules and standards respecting registration of ships and safety of ships and persons on board and prevention of polluting to the marine environment.^[75]

Flag States must also implement applicable international rules and standards concerning the safety of ships and persons on board and the prevention of pollution of the marine environment.^[76]

Full identification and accountability is an important element in ensuring flag State control. To achieve this, the State of registration must obtain information^[77] on ship’s owner(s) and operator(s)^[78] to ensure that the owner(s) and/or operator(s) or any other person can be held accountable for the management and operation of ships flying its flag and can be easily identified.^[79]

The requirements for ownership of ships should be catered for in a State’s laws,^[80] which are to include appropriate provisions for participation by that State or its nationals as owners - or in the ownership - of its flag ships. These laws must be sufficient to permit the flag State to exercise effectively its jurisdiction and control over ships flying its flag.^[81]

The State of registration, before entering a ship in its register, must ensure that the shipowning company or a subsidiary of such company is established and/or has its principal place of business within its territory in accordance with its laws.^[82] Alternatively, the flag State shall ensure that the shipowning company has a representative or management person who shall be a national of or domiciled in the flag State. This representative must be available for any legal process and to meet the shipowner’s responsibilities in accordance with the laws of the State of registration.^[83]

A State of registration must establish a register of ships flying its flag, and ships are to be entered in it under the name of the owner(s) or the bareboat charterer, if appropriate.^[84] The register is to record: the name of the ship and previous name and registry if any; the place or port of registration or home port and official number or mark of identification; international call sign; name of builders, place and year of build; name, address and nationality of owner(s), bareboat charterers and. or operators, as appropriate; date of deletion or suspension of previous registration.^[85]

To prevent vessels from flag-hopping, a State must assure itself that the previous registration, if any, is deleted^[86] before it registers a vessel on its register. This is a significant measure to assist States in monitoring the activities of fishing vessels.

3.3 The 1993 FAO Compliance Agreement

The Nineteenth Session of the FAO Committee on Fisheries (COFI), held in March 1991, recommended the development of new approaches to fisheries management which would embrace conservation, environmental, social and economic considerations. FAO embarked on the process which ultimately resulted in the Code of Conduct for Responsible Fisheries. In this process, at the Twentieth Session of COFI, held in March 1993, FAO was requested to prepare on a “fast track” basis, as part of the Code, proposals to prevent re-flagging of fishing vessels which affect conservation and management measures on the high seas. This resulted in the FAO Conference, at its Twenty-seventh Session in November 1993, adopting the FAO Compliance Agreement which is an integral part of the Code.^[87]

The primary objective of the FAO Compliance Agreement is to deal with the problem of fishing vessels re-flagging into flags of convenience to avoid compliance with agreed conservation and management measures. It applies to fishing vessels that are used for fishing on the high seas,^[88] and after entry into force will be legally binding in respect of accepting States.^[89]

The FAO Compliance Agreement sets out in more detail than does the 1982 Convention the responsibilities of the flag State.^[90] While the 1982 Convention simply provides that States must seek to agree upon the necessary conservation measures, the FAO Compliance Agreement requires States to take measures to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures.^[91]

The FAO Compliance Agreement, for the first time, makes a connection between the right to fly a State’s flag and the right to fish on the high seas. This is an important advance in flag State control as it is provides a means for States to control vessels flying its flag. Each Party is required:

• to take measures to ensure that its fishing vessels do not engage in any activity that undermines the effectiveness of international conservation and management measures;^[92]

• not to allow its vessels to be used for fishing on the high seas unless authorized to do so by the appropriate authorities of the flag State;^[93] and

• to be satisfied that it can effectively exercise its responsibilities under the Compliance Agreement before it authorizes any fishing vessel to fish on the high seas. ^[94]

Authorizations to fish may be subject to conditions^[95] and will be deemed cancelled if a vessel is no longer entitled to fly the flag of the authorizing State. ^[96]

The freedom of vessels with a poor compliance record to reflag is limited by preventing them from reflagging into another State that is a Party to the Compliance Agreement while it is subject to suspension. Parties are to authorize these “non-compliant” vessels to fish only if they are satisfied that the vessels will abide by fisheries conservation and management measures.^[97]

These provisions are bolstered by requirements on monitoring, control and surveillance (MCS). Parties must ensure that their flag vessels comply with vessel marking standards,^[98] and provide information that allows the Party to fulfill its obligations under the Compliance Agreement.^[99] Parties are required to take enforcement measures against vessels that contravene the Agreement, including creating offences and under national legislation and imposing sanctions to enforce compliance.^[100] Sanctions should deprive offenders of the benefits accruing from their illegal activities and may result in the refusal, suspension or withdrawal of the authorization to fish on the high seas.^[101]

Parties are required to maintain records of their fishing vessels authorized to be used for fishing on the high seas.^[102]

Flag State control measures are overlaid by the requirement that Parties work together to take proactive measures to authorize, monitor and inspect vessels flying the flag of other Parties ^[103] FAO plays a significant role in the collection and exchange of information, including the establishment of a database of vessels authorized to fish on the high seas which will facilitate vessel monitoring and help track reflagging of vessels.^[104]

The FAO Compliance Agreement also encourages the strengthening of international cooperation on a global, regional, subregional or bilateral basis and increased transparency through the exchange of information on high seas fishing.^[105] This strengthening of cooperation has significant implications for improving fisheries management.

3.4 The 1995 UN Fish Stocks Agreement

The 1995 UN Fish Stocks Agreement arose out of a call by UNCED that States should take effective action to ensure that high seas fisheries are managed in accordance with the 1982 Convention.^[106] Agenda 21 called for an intergovernmental conference to be convened under United Nations auspices on straddling fish stocks and highly migratory fish stocks.^[107] On 17 December 1992, the Second Committee of the United Nations General Assembly adopted a resolution convening such a conference for 1993.^[108] The Conference was tasked with identifying and assessing the existing problems related to the conservation and management of straddling fish stocks and highly migratory fish stocks, considering means of improving fisheries cooperation among States and formulating appropriate recommendations.

The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks adopted the UN Fish Stocks Agreement on 4 August 1995. It was open for signature until 4 December 1996, at which time it was signed by 59 States and entities. The requirements for entry into force of the Agreement were met on 11 November 2001 when the Minister of Foreign Affairs of Malta deposited the thirtieth instrument of accession. The Agreement entered into force on 11 December 2001.

The UN Fish Stocks Agreement elaborates the provisions of the 1982 Convention, and is applied in the context of and consistently with the Convention.^[109] Its objective is “to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of this Convention”.^[110]

The UN Fish Stocks Agreement provides a comprehensive framework for cooperation in the conservation and management of those fish stocks. It addresses conservation and management of straddling fish stocks and highly migratory fish stocks,^[111] sets out mechanisms for international cooperation,^[112] provides for non-members and non-participants in regional fisheries organizations or arrangements,^[113] specifies the duties of the flag State^[114] and provides for compliance and enforcement.^[115] Requirements of Developing States^[116] and dispute settlement^[117] are additional important matters falling within its framework.

The UN Fish Stocks Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, with certain exceptions - application of the precautionary approach, compatibility of conservation and management measures and application by the coastal State of the general principles for conservation and management.^[118]

The UN Fish Stocks Agreement imposes more stringent duties on flag States than does the 1982 Convention or the FAO Compliance Agreement by requiring that their vessels that fish on the high seas comply with subregional and regional conservation and management measures, in addition to the requirement that vessels do not engage in any activity which undermines the effectiveness of these measures.^[119]

States are not permitted to authorize the use of their flag by vessels fishing on the high seas unless they are able to effectively exercise responsibility over such vessels for the purpose of the 1982 Convention and the UN Fish Stocks Agreement.^[120]

States must take several measures in respect of vessels flying its flag^[121] including:

• control of such vessels by means of fishing licences, authorizations or permits;

• establishment of regulations to - apply terms and conditions to such licences, authorizations or permits; prohibit fishing without an authorization on the high seas and within areas under the national jurisdiction of other States; require vessels fishing on the high seas to carry licence, etc at all times and produce it on demand for inspection; and to ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States;

• establishment of a national record of fishing vessels authorized to fish on the high seas;

• marking of fishing vessels and gear for identification;

• recording and timely reporting of vessel position and relevant fisheries data;

• catch verification through observer programmes, inspection schemes, supervision of transhipment and monitoring of landed catches and market statistics; and the monitoring, controlling and surveillance of such vessels.

• regulation of transshipment on the high seas to ensure effectiveness of conservation and management measures is not undermined; and

• regulation of fishing activity to ensure compliance with subregional, regional or global measures.

Where a subregionally, regionally or globally agreed system of MCS is in effect, flag States must ensure that the measures they impose are compatible with that system.^[122]

A flag State must also ensure compliance by its vessels with regional conservation and management measures.^[123] To enforce such measures, flag States may investigate any alleged violations, and if sufficient evidence is available, institute proceedings against the offending vessel.^[124] Non-compliant vessels are prohibited from fishing on the high seas until any relevant sanctions have been complied with.^[125]

There is an obligation on the flag State to carry out all investigations and judicial proceedings expeditiously and to ensure that sanctions are severe enough to secure compliance and discourage violations. Sanctions may deprive offenders of the benefits of their illegal activities and refuse, withdraw or suspend authorizations of masters and officers on such vessels.^[126]

Similar to the FAO Compliance Agreement, the UN Fish Stocks Agreement encourages States to cooperate to ensure compliance with and enforcement of conservation and management measures.^[127] Cooperation may be direct or through relevant subregional or regional fisheries management organizations or arrangements. Information on any investigations shall be provided to all States having an interest in, or affected by, the alleged violation.

Subregional and regional cooperation in enforcement is spelled out in impressive detail, including procedures for boarding and inspection.^[128] While most of these procedures are directed towards action taken - or authorized - by flag States, the situation is also contemplated where action is taken by States other than the flag State in respect of vessels having engaged in activities contrary to subregional or regional conservation and management measures.^[129] Such action is to be proportionate to the seriousness of the violation.

In addition to describing the duties of flag States and compliance and enforcement, the UN Fish Stocks Agreement sets out requirements for States that are not members of an RFMO or regional fisheries management arrangement; this of course would include many open register States. They are not discharged from the obligation to cooperate in the conservation and management of the relevant fish stocks.^[130]

Non-members and non-participants are not to authorize its flag vessels to fish for stocks that are subject to conservation and management measures.^[131] Members are to request the non-members/participants whose vessels are fishing in the area to cooperate fully, in which case the latter may enjoy benefits.^[132] Members are to exchange information and take measures to deter activities of non-members which undermine the effectiveness of the measures.^[133] This has been successfully achieved in some RFMOs, as described in Part IV, below.

3.5 The 1995 FAO Code of Conduct

COFI at its Nineteenth Session in March 1991 called for the development of new concepts which would lead to responsible fisheries. Subsequently, the International Conference on Responsible Fishing, held in 1992 in Cancûn (Mexico) requested FAO to prepare an international Code of Conduct to address these concerns. The outcome of this Conference, particularly the Declaration of Cancûn, was an important contribution to UNCED, in particular Agenda 21. Subsequently, the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened, to which FAO provided important technical back-up.

Noting these and other important developments in world fisheries, the FAO Governing Bodies recommended the formulation of a global Code of Conduct for Responsible Fisheries which would be consistent with these instruments and, in a non-mandatory manner, establish principles and standards applicable to the conservation, management and development of all fisheries.

The Code was unanimously adopted on 31 October 1995 by the FAO Conference.^[134] It provides a framework for national and international efforts to promote responsible exploitation of aquatic living resources in harmony with the environment.^[135]

The Code is global in scope; it covers all fishing activity both within and beyond zones of national jurisdiction and, as such, is broader in scope than the UN Fish Stocks Agreement. It embraces a wide range of subjects leading to better conservation and management of fisheries including the gross overcapacity of the global fishing fleet, the inadequate control of vessels by flag States, the inadequate provision of fishery data to both flag States and coastal States, and trade restrictions intended to achieve environmental protection.

Although voluntary, the Code of Conduct applies to all States and entities and to all fishers. Since its adoption in 1995, it has influenced countries to modify their fisheries laws to facilitate the Code’s implementation.^[136]

The objectives of the Code are to establish principles and criteria for national and international legal and institutional arrangements and to provide standards of conduct for persons involved in the fishery sector. FAO is preparing technical guidelines to support the implementation of the Code.

Flag States have similar roles under the Code as they do under other international instruments. Flag States should ensure that fishing vessels entitled to fly their flag do not fish on the high seas or under the jurisdiction of other States unless they have obtained both a Certificate of Registry and an authorization to fish.^[137]

A framework for vessel MCS requirements is provided in the Code; flag States should maintain records of these fishing vessels, indicating details of the vessels, their ownership and the authorization to fish.^[138] Fishing vessels and their fishing gear should be marked in accordance with an internationally recognizable marking system^[139] and in accordance with national legislation.

The Code encourages States to accept the FAO Compliance Agreement and to adopt laws and regulations to implement it.^[140]

Flag States may enforce compliance by vessels flying their flag through national legislation and through the imposition of sanctions which may deprive offenders of the benefits accruing from their illegal activities and may result in the refusal, suspension or withdrawal of the authorization to fish.^[141]

The Code also urges flag States to ensure protection of its vessels and their crew through compliance with international accepted safety standards, or the adoption of appropriate safety requirements where vessels are not covered by such standards.^[142] It encourages access to insurance coverage by owners and charterers of fishing vessels sufficient to protect the crew and their interests, indemnify third parties and protect their own interests.^[143] Flag States should ensure that crew members are entitled to repatriation.^[144]

3.6 The FAO IPOA on IUU Fishing (FAO IPOA-IUU)

Adopted by the COFI at its Twenty-fourth Session in March 2001,^[145] the FAO IPOA-IUU is the most recent international instrument in response to the growing concern about the state of the world’s fish stocks. The FAO IPOA-IUU refers to the ineffectiveness of existing international instruments addressing IUU fishing due to lack of political will, priority, capacity and resources to ratify or accede to and implement them.^[146]

The FAO IPOA-IUU is a voluntary instrument elaborated within the framework of the FAO Code of Conduct.^[147] However, some of its provisions reflect obligations which many States have accepted as binding, either through global instruments, or in RFMOs.

It also serves as a checklist for flag States; a comprehensive “toolbox” providing the options for dealing with IUU fishing for a range of situations. In turn, it is anticipated that this checklist should be useful as part of the biennial reporting process by States and RFMOs required by the FAO IPOA-IUU.^[148] For example, States and RFMOs may report whether and how they have successfully implemented certain items on the checklist, and why they may have decided that other items, or “tool”, were not appropriate.

The Code applies to the interpretation and application of the FAO IPOA-IUU and its relationship with other international instruments.^[149] The FAO IPOA-IUU responds to fisheries specific issues and nothing in it prejudices the positions of States in other fora.

COFI was concerned^[150] about information presented indicating increases in IUU fishing, including fishing vessels flying “flags of convenience”. Shortly afterwards, an FAO Ministerial Meeting on Fisheries in March 1999 declared that, without prejudice to the rights and obligations of States under international law, FAO “will develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying “flags of convenience” through coordinated efforts by States, FAO, relevant regional fisheries management bodies and other relevant international agencies such as the International Maritime Organization (IMO), as provided in Article IV of the Code of Conduct. and thus the need for flag States to exercise responsibilities over their fishing fleets.^[151]

The objective of the IPOA is to prevent, deter and eliminate IUU fishing by providing all States with comprehensive, effective and transparent measures by which to act, including through appropriate regional fisheries management organizations established in accordance with international law.^[152]

Implementation measures to prevent, deter and eliminate IUU fishing are provided in Part IV of the FAO IPOA-IUU, including internationally agreed market-related measures, research and the role of the regional fisheries management organizations. Responsibilities are addressed to all States: flag, coastal and port States. It is significant that the FAO IPOA-IUU also provides a checklist or “toolbox” for coastal and port States of actions, within their respective jurisdictions, that would allow them to impose an obligation on the flag State. Together with requirements relating to State control over nationals,^[153] this checklist opens the way for indirect checks on the flag State by other States, and could be useful in the biennial reporting process. ^[154]

Flag State responsibilities comprise a significant portion of the whole FAO IPOA-IUU^[155] and are divided into the following subheadings, described below in section 3.6.1:

• Fishing Vessel Registration;^[156]

• Record of Fishing Vessels;^[157]

• Authorization to Fish.^[158]

3.6.1 Fishing Vessel Registration

Fishing vessel registration is important, because it is the first step in preventing the flagging of vessels with a history of non-compliance. It also enables flag States to monitor their vessels, should they opt to do so. The overall objective of requirements for fishing vessel registration is that States ensure that fishing vessels flying their flag do not engage in - or support - IUU fishing. To achieve this, a flag State must ensure before it registers a fishing vessel, that it can exercise its responsibilities respecting vessels entitled to fly its flag.^[159]

Consistent with the FAO Compliance Agreement,^[160] flag States are to avoid flagging vessels with a history of non-compliance.^[161] The IPOA goes further than the FAO Compliance Agreement, however, by encouraging all States involved in a chartering arrangement, including flag States and all other States that accept such an arrangement, to take measures to ensure that chartered vessels do not engage in IUU fishing.^[162]

Reflagging and “flag-hopping” are serious problems. Flag hopping is the practice of repeated and rapid changes of a vessel’s flag for the purposes of circumventing conservation and management measures or provisions adopted at a national, regional or global level or of facilitating non-compliance with such measures or provisions.^[163] Reflagging and flag-hopping allow shipowners to shop around for a flag State which is unable or unwilling to assume responsibility for the vessels it flags and thereby allowing vessels to avoid compliance with conservation and management measures.^[164]

The FAO IPOA-IUU encourages States to deter vessels from reflagging and flag-hopping for the purposes of circumventing or non-compliance with conservation and management measures or provisions.^[165] Further, actions and standards flag States adopt should be uniform to avoid creating incentives for vessel owners to reflag their vessels to other States.^[166]

Where the functions of registration of a vessel and issuing an authorization to fish are separate, problems may occur in the ability of the State to monitor the activities of its fishing vessels. It may be easier for a vessel to engage in IUU fishing and more difficult for a State to monitor such activities where a vessel can register without providing evidence of a fishing authorization.

States are encouraged to consider conducting these functions in a manner which ensures each gives appropriate consideration to the other. Flag States should ensure appropriate links between the operation of their vessel registers and the record those States keep of their fishing vessels. Where such functions are not undertaken by one agency, States should ensure sufficient cooperation and information sharing between the agencies responsible for those functions.^[167]

The FAO IPOA-IUU also encourages a State to consider making its decision to register a fishing vessel conditional upon its being prepared to provide to the vessel an authorization to fish in waters under its jurisdiction, or on the high seas, or conditional upon an authorization to fish being issued by a coastal State to the vessel when it is under the control of that flag State.^[168]

3.6.2 Record of Fishing Vessels

Consistent with the FAO Compliance Agreement and the FAO Code of Conduct, the IPOA encourages record keeping, and provides a suite of essential information which should be kept. Standard information required includes name of the vessel, registration number, previous names and port of registry, previous flag, International Radio Call Sign, name and address of owner(s), where and when built, type of vessel, name and address of the operator(s), type of fishing method(s), dimensions of the vessel, renames, addresses and nationalities of the natural or legal persons in whose name the vessel is registered, who is responsible for managing the operations of the vessel, and who is the beneficial owner(s). ^[169]

In addition to this information, and in promoting the objectives of preventing vessels from reflagging, the FAO IPOA-IUU also requires the name and ownership history of the vessel, including the history of non-compliance and a picture of the vessel.^[170] This information will assist a flag State in monitoring vessels entitled to fly its flag and may make it more difficult for vessels with a history of non-compliance from re-flagging.

3.6.3 Authorization to Fish

As required under the UN Fish Stocks Agreement and the FAO Compliance Agreement, and in line with the FAO Code of Conduct, the FAO IPOA-IUU requires that States ensure no vessel be allowed to fish without an authorization.^[171] Vessels that are entitled to fish outside waters under the sovereignty or jurisdiction of the flag State need an authorization from the flag State and where a coastal State issues an authorization to fish, it should ensure that no fishing in its waters occurs without an authorization to fish issued to that vessel by the flag State.^[172]

These provisions provide a “checks and balance system” where the coastal State and the flag State both are charged with the responsibility of ensuring vessels fishing under their jurisdiction obtain the appropriate authorizations to fish. The authorization, which should include specified information such as vessel name, area for fishing, species to be fished and gear to be used, may be required to be carried on board.^[173]

Flag States or coastal States may impose conditions on the authorization to fish including the requirement for vessel monitoring systems, catch and transshipment reporting conditions, observer coverage, maintenance of fishing and related log books, navigational equipment, compliance with applicable international conventions and national laws and regulations, and unique marking and identification of vessel and gear.^[174]

This provision bolsters the flag State’s ability to more closely monitor the activities of vessels which fly its flag.

Flag States should ensure that their fishing, transport and support vessels do not support or engage in IUU fishing. To this end, flag States should ensure that none of their vessels re-supply fishing vessels engaged in such activities or transship fish to or from these vessels, except where appropriate for humanitarian purposes including the safety of crew members.^[175]

Flag States should also ensure that all of their fishing, transport and support vessels involved in transshipment at sea have a prior authorization to do so issued by the flag State. Flag States should report to the national fisheries administration or other designated institution and make aggregated information from catch and transshipment available to relevant regional and international organizations, including FAO, taking into account confidentiality requirements.^[176]

4. Summary

The international initiatives surrounding flag State responsibility over fishing vessels build upon and reinforce one another. The rights and responsibilities of flag States, codified half a century ago in the 1958 Geneva Convention on the High Seas, have progressively become more detailed with subsequent instruments, binding and voluntary. They have shifted from a focus on the rights of the flag States, to a multitude of duties and responsibilities, including administrative duties, enforcement obligations, duties to cooperate and ensure compliance, and duty to comply with management measures of RFMOs.

The global and repeated recognition of the significance of these duties and responsibilities is encouraging, but more can still be achieved through broader acceptance and implementation. The number of fishing vessels on open registers continues to grow, and while some positive steps have been taken to implement flag State responsibilities in respect of some open register vessels that do not comply with conservation and management measures, further action is needed to strengthen compliance by many other vessels.