16. FAO Consultant, Ms Judith Swan, made a presentation entitled "Fishing vessels operating under open registries and the exercise of flag State responsibilities: Information and options". Her paper is attached as Appendix F. The purpose of the paper was to review activities relating to the fishing fleets of countries with open registries and, in particular, those activities that result from countries not exercising effective flag State control over those fleets. This review was based on information available in the public domain and communications with officials in States, RFMOs and international organizations and agencies. The paper noted that the number of fishing vessels operating under open registries was increasing. A related concern was to secure the effective control of fishing vessels by the flag State. This concern was evidenced by a range of post-United Nations Conference on Environment and Development (UNCED) international instruments that progressively include clearer and more thorough duties of the flag State.
17. The current interpretation of the provision of the 1982 UN Convention on the need for a "genuine link" between a ship and its flag State, as set out in international jurisprudence, was to secure more effective implementation of the duties of the flag State. An aim of the paper was to report on how and where this is being achieved. Flag State responsibilities in relation to fishing vessels were reviewed as they appear in the recent international instruments: the 1982 UN Convention, the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993 FAO Compliance Agreement), the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1992 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish Stocks Agreement), the 1995 FAO Code of Conduct for Responsible Fisheries and the 2001 FAO IPOA-IUU Fishing.
18. The paper discussed the rationale for maintaining or using open registries from the point of view of the open registry State, the ship owner and the fishing vessel owner. National policy, legislation and administrative arrangements for open registries were explained. The varying degrees of control and compliance implemented by the flag State were noted, and the effect of these on fishing fleets flying its flag was observed.
19. The paper also contained many useful details about open registry procedures, including national contacts, administration, application information and procedures. Measures taken by some open registry States to improve the application process and deregister, fine or otherwise deal with offending vessels were reported. Actions taken by RFMOs to implement flag State compliance were detailed, noting some compelling successes. Many offenders were open registry ships, and their nationality was noted where information is available.
20. Following the presentation by Ms Swan, the discussion focused primarily on the fishing vessels registration procedures and some related initiatives taken at national level and within RFMOs.
21. The Consultation noted that national procedures may subject registration to various requirements, inter alia, the requirement to provide a certificate of deletion from a previous registry. Some Experts were of the opinion that for a certificate to serve its purpose of preventing and eliminating re-flagging practices it should include reasons for de-registration and other pertinent information.
22. A number of Experts drew the attention of the Consultation to the problems related to the chartering of fishing vessels, the various chartering arrangements in place and the potential consequences thereof with respect to flag State responsibility. It was pointed out that chartering arrangements, unless they are carefully monitored and controlled, can lead to IUU fishing. Some Experts reported that in some countries, chartered vessels took on the nationality of the nationals who chartered the vessel for the duration of the charter agreement.
23. The use of the term "flag of convenience" was considered by the Consultation to be inappropriate because of its lack of accuracy and negative connotations. The use of the term "flag of non-compliance", as stated in a resolution of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), was noted as a possible alternative term.
24. The Consultation was advised that small island developing States and other developing coastal countries were among those that suffer the most from the adverse effects of IUU fishing. They often lacked the resources and infrastructure to monitor and exercise effective jurisdiction. Support and technical assistance were required to improve their capacities. The Chair took the opportunity to refer to the Trust Fund which is being established under the auspices of the United Nations with a view to assist developing countries in meeting their responsibilities in implementing the 1995 UN Fish Stocks Agreement. Some Experts suggested that a possible activity under this Trust Fund could be support for the establishment of a national vessel monitoring system for the purposes of improving MCS capacities.
25. Discussions revealed the existence of various State practices and rules pertaining to fishing vessel registration. Some States make reasonable efforts to enquire about the history of a fishing vessel; other States have adopted a policy not to register foreign-owned fishing vessels or to require the creation of a local company. Some Experts considered it difficult to seek information from vessel owners on previous changes in registration. However, other Experts observed that the lists of vessels regarded as being IUU fishing vessels established by RFMOs constituted useful sources of information. The Consultation noted that, in most States, should a pattern or evidence of "flag hopping" or IUU fishing emerge, registration was likely to be refused. Reference by some Experts was also made to the positive role of the FAO High Seas Vessels Authorization Record (HSVAR) that has been established under the 1993 FAO Compliance Agreement. The HSVAR could provide a potential source of information for registries. For this reason, it was suggested that the HSVAR might be broadened on a voluntary basis to allow for inputs from countries that are not yet Party to the Agreement. In this context, it was also mentioned that ICCAT had adopted the concept of listing specific IUU fishing countries by agreeing on a measure identifying countries whose vessels had been fishing for tuna and tuna-like species in a manner that diminished the effectiveness of ICCAT conservation and management measures. While appraising this initiative, the Consultation noted that it would be important for the system to operate in an equitable manner.
26. Another element discussed by the Consultation concerned the effectiveness of de-registration as a sanction for IUU fishing. Some Experts were of the view that de-registration should remain an option of last resort. This was because of the inherent risk of losing track of a fishing vessel once it had been deleted from a register. Some Experts considered this practice as simply transferring the problem to another State.
27. The Consultation noted that many flag States appeared to be strengthening their control over fishing vessels by ensuring that there was a link between the process by which they registered fishing vessels and the process by which they granted authorization to fish.
28. Drawing on their experiences, some Experts believed that there was need to strengthen technical and administrative registration procedures and the capacities of States to ensure effective flag State control over fishing vessels. The Consultation also was of the view that there would be merit in reviewing measures to be taken to harmonize approaches towards responsible registration procedures.