V. CONCLUSION

The United Nations Open-Ended Consultative Process on developments in ocean affairs concluded in its April, 2002 discussion on IUU fishing that: ^[308]

despite a decade of progress in establishing instruments and programmes related to oceans, the international community continues to confront urgent and serious challenges and sustainable fisheries is a further action for priority action, owing to the fact that approximately 75 per cent of the world’s fisheries are either fully exploited or over-exploited.

The progress in establishing instruments and programmes related to oceans in the post-UNCED era is considerable. These instruments have progressively agreed on a tighter weave relating to the duties and responsibilities of the flag State in respect of its fishing vessels. An important objective of these instruments in this regard, reinforced by recent jurisprudence of the ITLOS, is to secure more effective implementation of the duties of the flag State.

Considering the rising number of fishing vessels on open registers, and States that operate open registers, the real issue is whether the instruments available provide an adequate framework for flag State control, what are the consequences of open registry States that fail to exercise their duties and what more can be done to avoid unwanted consequences?

The 1982 Convention, incorporating much of the 1958 High Seas Convention, consolidated the rights and duties of the flag State. The subsequent instruments elaborating on these rights and duties address the issues in an interdependent manner, but with differing emphasis and requirements.

• The FAO Compliance Agreement was the first instrument to directly address the problem of vessels reflagging, and to require that vessels of flag States not engage in activities undermining international conservation and management measures.

• The UN Fish Stocks Agreement went further in requiring flag States to ensure compliance by its vessels with subregional and regional conservation and management measures for straddling and highly migratory fish stocks, and contains elaborate provisions regarding authorization, information and monitoring, control and surveillance.

• The FAO Code of Conduct provides standards of conduct as well as technical guidelines and applies to all States and entities and fishers.

• The FAO IPOA-IUU most directly addresses IUU fishing and the problem of FOCs, especially in the context of RFMOs.

In addition, the 1986 Convention on the Registration of Ships, while not applicable to fishing vessels, provides valuable precedent for future guidelines relating to the implementation of existing instruments.

While these instruments provide the legal mechanism to achieve effective flag State control, a central issue is whether their implementation by some States provides an impetus for vessels to operate under open registers; do the legal and practical realms converge, or are they separate?

In the legal realm, the adoption of international instruments by flag States in itself does not appear to be the primary motivating force behind the use of open registers by fishing fleets. In addition, in many cases the actions of open registry States do not appear to be directly related to adoption or implementation of international instruments, or participation in the work of RFMOs.

A more likely rationale underlying the choice of registers - open, or not - is the implementation of the international instruments, including through trade sanctions and other measures adopted by RFMOs and their member States. It is clear that the international instruments provide a comprehensive foundation for the exercise of flag State responsibilities by the international community, including open registry States. They way ahead may depend on identifying how to encourage effective implementation of those responsibilities.

Ratification or adoption of the international instruments and implementation in national law would be an obvious first step. In addition, initiatives being taken by open registry States, RFMOs and non-flag States serve as useful precedent on a practical level. Some open registry States are requiring compliance by their vessels with the international instruments and international conservation and management measures. Their actions include:

• implementing requirements of international instruments in national legislation;

• establishing an application process which requires an authorization to fish;

• deregistration of vessels for non-compliance;

• implementation of fines or other sanctions for non-compliance; and

• membership or participation in RFMOs.

RFMOs are taking significant steps involving communications with non-member open registry States including to cooperate and participate in the organization. They are implementing strategies through their members to secure compliance with international conservation and management measures. Some successful strategies noted above in Part IV involve port access, trade-related measures, fines and deregistration.

Action taken by non-flag States to discourage unregulated activities of open registry vessels can include:

• restricting the fishing companies registered within their jurisdiction from owning and operating open register fishing vessels;

• conducting rigorous inspections of open register vessels when landing their catch or resupplying; and

• imposing trade or other sanctions if they are the ultimate destination of fish caught by the open register fleets.

It is evident that the overriding benefits of open registers - and therefore the rationale for their establishment and use - are largely economic for the open registry States and the fishing vessel owners. However, as noted in section III.1, the economic benefits for the open registry States to include fishing vessels on their registers appears to be limited, while the incentive that some open registers provide for IUU fishing is great. This situation could provide an impetus for serious efforts to control the registers in respect of fishing vessels. Such efforts could be made by FAO-IMO collaboration, in accordance with the FAO IPOA-IUU,^[309] and might include:

• further study on whether measures that have been used to improve the management of open registers for commercial shipping could be adapted to fishing vessels;

• additional measures that States should take to deter business between their insurers, bankers, service suppliers, etc. and vessels identified as engaged in IUU fishing, as provided in the FAO IPOA-IUU.^[310]

• consideration of extending to fishing vessels, for compliance purposes, an IMO initiative that would require a “continuous synopsis” record to be carried on board vessels for safety purposes - the record would show the complete history of the owners and flags of the vessel, but the issue of requiring such private sector information to be publicly available may arise.

In addition, guidelines for fishing vessel registration and compliance mechanisms could be developed by FAO under the Code of Conduct, in collaboration with IMO and other agencies. Relevant provisions of the 1986 Convention on the Registration of Ships could provide precedent for such guidelines, as well as successful policy, administrative and legal practice of States and RFMOs.

Collaboration could take into account the genuine link requirement (that States ensure that they can exercise their responsibilities effectively before registering a fishing vessel, and authorizing it to fish), and tools developed to date such as an effective information and data base, application process, fishing authorization process and cost-effective monitoring, control and surveillance strategies. Significant fines and other penalties such as deregistration could be reviewed.

The implementation of flag State responsibilities in the international instruments represents “work in progress”, including for open registry States in respect of their fishing fleets. Positive steps to elaborate and implement existing provisions could assist in meeting the urgent challenges in achieving sustainable fisheries.