APPENDIX E: FLAG STATE RESPONSIBILITY AND THE CONTRIBUTION OF RECENT INTERNATIONAL INSTRUMENTS IN PREVENTING, DETERRING AND ELIMINATING IUU FISHING

Annick Van Houtte^[32]

SETTING THE SCENE

States have, over the last twenty years, given greater weight to the concept of flag State responsibility for compliance control over fishing vessels.

The terminology "IUU-fishing" was initiated in the context of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in light of some major problems it was facing. IUU catches in the Commission's area were exceeding reported fishing "by a factor several times over and... more than half the vessels presumed to engage in IUU fishing fly the flags of CCAMLR Member States"^[33] The Rome Declaration on the Code of Conduct for Responsible Fisheries which was adopted by the 1999 FAO Ministerial Meeting on Fisheries expressed concern at the growing amount of IUU fishing activities being carried out, including by vessels flying "flags of convenience". Problems caused by IUU fishing activities, including fishing by vessels flying "flags of convenience" and the consequent undermining of conservation and management measures in fisheries, were further dealt with in various fora including the United Nations (UN), the Food and Agriculture Organization of the United Nations (FAO) and the International Maritime Organization (IMO).

The terms "illegal fishing", "unreported fishing" and "unregulated fishing" are defined in paragraph 3 of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing (IPOA-IUU), and appear in Appendix E.1. However it should be noted that the text of the IPOA always refers to IUU fishing without necessarily distinguishing between its various components. Hence the scope is very broad and reflects the nature of the problem in the area of fisheries.^[34] The definition embraces, generally speaking: fishing activities which contravene or undermine conservation and management measures in any marine area, the failure to fully and accurately meet fishery and fishing vessel data collection and reporting requirements, the absence of effective exercise of the required jurisdiction or control over vessels and nationals.

The issue of "flags of convenience" is not new. The expressions "flag of convenience" or "open registry" States often refer to States that permit foreign vessel owners having no real connection with those States to register their vessels under the flags of those States. Low fees, tax exemptions, lower crew costs and financial savings for not having to comply with international safety standards have made registration in these States attractive. Open registry States may lack the will or capacity to exercise effective jurisdiction in matters of vessel safety, pollution control and, last but not least, fisheries control. It is convenient to note that the matter of a link between those States and the vessels is of less importance than the matter of the willingness of those States to exercise effective control and jurisdiction over vessels after having granted registration.

Article 91 of the 1982 UN Convention accords each State exclusive jurisdiction over the granting of its nationality to ships. These matters are regulated by a State in its domestic law.^[35] The same Article states that "There must exist a genuine link between the State and the ship." The issue of the "genuine" link has a long history; it arose prior to the Geneva Convention on the High Seas, 1958 and is still causing problems today. A State grants nationality to a vessel usually by means of registration and by authorising a vessel to fly its flag.^[36] A vessel flying two or more flags is regarded as having no nationality.^[37]

The acquisition by a vessel of the nationality of a State generates legal rights and obligations for both the vessel and the flag State. A vessel derives its rights and obligations from the State whose flag it flies and whose nationality it accordingly bears. Under the 1982 UN Convention, this allows such a vessel to benefit from freedom of navigation.^[38] It also confers on the State of nationality (and exceptionally to other States) responsibility for effectively exercising jurisdiction and control over the vessel in administrative, technical and social matters.^[39] In other words, the nationality of a vessel indicates which State is to exercise flag State jurisdiction. Finally, the nationality creates a regime of flag State responsibility in international law in relation to its obligations vis-à-vis other States.

This paper does not intend to deal with freedom of navigation. Rather it intends, as the title suggests, to look into how recent international fisheries instruments have addressed IUU fishing with a particular focus on flag State responsibility. A number of States, while accepting the rights linked to the granting of nationality, have not accepted their correlative obligations of performance. In the context of high seas fisheries, a number of States have shown themselves to be either unwilling or unable to exercise their flag State jurisdiction in a manner consistent with Article 117 of the 1982 UN Convention, which provides that all States have the duty to take, or to co-operate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.

FLAG STATE RESPONSIBILITY IN THE FISHERIES CONTEXT

The concept of flag State responsibility in the fisheries context has its origins in various bilateral agreements regarding the granting of licences to fish (fisheries access) within coastal States' exclusive economic zones (EEZs) that were concluded in the late 1970s and throughout the 1980s between coastal States (often developing States) on the one hand and major fishing nations on the other hand. Flag States were under the obligation to ensure that vessels flying their flags would act in accordance with the terms of the agreement (pacta sunt servanda). The concept appeared for the first time in a regional fisheries access agreement in 1987: the Treaty on Fisheries between Governments of certain Pacific Island States and the Government of the United States of America.^[40] Article 4 formulates the basic concept of flag State responsibility and was followed by a set of provisions giving effect to such flag State responsibility. These provisions referred, inter alia, to procedures that the flag State - in this case the United States of America - must follow for investigating offences against the Treaty and the laws of the Pacific Island States, including the imposition of penalties and ensuring payment of fines collected from violators through its domestic procedures to Pacific Island States. The concept of flag State responsibility remained limited to fisheries that were conducted within the scope of the agreement to which the flag State is a party and to "zones under sovereign rights" of coastal States and the parties to the Treaty. The 1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific region ensured the concept of flag State responsibility in fisheries access agreements. It required the parties to "ensure that foreign fishing agreements with flag States require the flag State to take responsibility for the compliance by its flag vessels with the terms of any agreement and applicable laws".^[41]

Agenda 21, Chapter 17, took the concept of flag State responsibility in the fisheries context further: it included responsibility on the high seas, independently of a specific agreement to which a flag State is party and in the context of the sustainable use of fisheries resources. This "extension" to the high seas found its legal basis in the 1982 UN Convention, especially Article 94 ("Duties of the Flag State") and Articles 116-120 (Part VII, section 2, "Conservation and management of living resources of the high seas"). Agenda 21, Chapter 17 reflected widespread concern that the provisions of the 1982 UN Convention on high seas fishing were in need of strengthening. The concept was further developed in a global context under the 1993 FAO Compliance Agreement^[42] where the flag State is required to undertake those steps necessary in order to ensure that fishing vessels operating under its flag do not engage in activities that undermine the effectiveness of international conservation and management measures.^[43] In many respects, the UN Fish Stocks Agreement under the title "Duties of the Flag State" maintains the basic concept developed in the FAO Compliance Agreement. The former outlines specific obligations to which a flag State must agree and implement before its nationals are permitted to fish on the high seas and in areas managed by regional fisheries bodies. The FAO Compliance Agreement and the UN Fish Stocks Agreement are supplemented by the FAO Code of Conduct for Responsible Fisheries, which is a voluntary Code adopted by the FAO Conference in Resolution 4 of 1995.

Finally, other efforts taken to address the growing concern of IUU fishing activities since 1999 have bolstered the importance of the concept of flag State responsibility. General Assembly Resolution 54/32 called on States not to permit vessels flying their flags to engage in fishing on the high seas without having effective control over their activities and to take specific measures to control fishing vessels flying their flags. It also called upon IMO, in cooperation with FAO, regional fishery bodies and arrangements and other relevant organisations, in consultation with States and entities, to define the concept of the genuine link between the fishing vessel and the State in order to assist in the implementation of the UN Fish Stocks Agreement.

IMO's Marine Environment Protection Committee (MEPC), at its 44th session in March 2000, and Maritime Safety Committee (MSC), at its 72nd session in May 2000, considered providing assistance to FAO in dealing with IUU fishing in respect of the safety of, and prevention of marine pollution from, fishing vessels and other related issues, as requested by the UN General Assembly and the Commission on Sustainable Development (CSD). Both Committees agreed to the establishment of a Joint FAO/IMO ad hoc Working Group (JWG) on IUU Fishing and Related Matters. A relevant new item on "Illegal, unregulated and unreported (IUU) fishing and related matters" was included in the agenda and work programme of IMO's Sub-Committee on Flag State Implementation (FSI). It is worth noting that most fishing vessels are not covered by IMO conventions for a number of reasons: many IMO instruments specifically exclude fishing vessels; the vessels are below the size limits of the instruments; or the flag States are not Party to the relevant instruments.

The World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa, 2-4 September 2002, reflects and strengthens the concepts found in the 1992 Rio Declaration of Principles and reaffirms the commitment to sustainable development. Under the Johannesburg Plan of Implementation,^[44] oceans and fisheries are considered primarily under the general chapeau of "Chapter IV on the Management of the Natural Resource Base". The putting into effect of the IPOA on IUU by 2004 and the IPOA for the Management of Fishing Capacity by 2005 is particularly urged. A number of special issues are addressed, including the need for the development of effective monitoring, reporting and enforcement, for control of fishing vessels, "including by flag States".

Finally, the oil tanker accidents, most notably those involving the Erika in December 1999 and the Prestige in November 2002 have highlighted the need to thoroughly investigate the problems caused by inadequate, or even non-existent, flag State implementation and enforcement of their international legal obligations. The Secretary General decided recently that it was time to address in a comprehensive and coordinated manner among different international organizations within and outside the UN the issues of ship registration, the lack of a "genuine link" between a vessel and the State of registration, and the lack of adequate implementation and enforcement by certain flag States. A special inter-agency task force was convened to this effect in May 2003 to produce recommendations for future action.

The 1982 UN Convention

The effective exercise of flag State jurisdiction is dealt with by Article 94 of the 1982 UN Convention. The legal link of nationality which exists between a State and a vessel flying its flag generates obligations for the flag State. "Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag."

Every State needs to address a number of matters described in Article 94 of the 1982 UN Convention. These duties in administrative, technical and social matters do not relate specifically to fisheries but have over the past decade been extended to fisheries matters allowing as such for the development of "new" powers of "police" on high seas through recent international developments. Article 94(2) of the 1982 UN Convention requires a flag State to maintain a register of ships flying its flag. Such register must contain elements and information facilitating the identification of a ship flying its flag. It further requires a flag State to assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.^[45] Moreover a flag State must take all necessary measures to ensure safety at sea in conformity with generally accepted international regulations, procedures and practices. To fulfil its mandate a flag State may be assisted by other States either based on a report of the latter^[46] or upon request^[47].

It is worth reporting here the conclusions of the International Tribunal of the Law of the Sea (ITLOS) with respect to Articles 91 and 94 of the 1982 UN Convention in the "MV Saiga" No 2 case:

"...the purpose of the provisions of the Convention 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." (paragraph 83)

The provisions of Article 94 of the 1982 UN Convention evidence that fishery matters were not really a concern for States when that Convention was being drafted. As we will see in the following sections, the FAO Compliance Agreement and the UN Fish Stocks Agreement have further elaborated Article 94. More specifically with respect to fisheries, the jurisdiction and responsibility of a flag State varies according to whether a vessel flying its flag is:

· in an area under the jurisdiction of the flag State;

· on the high seas; or

· in an area under the jurisdiction of a State other than the flag State, including a port.

In the first case, the flag State will have exclusive jurisdiction over the fishing vessel and the responsibility to control its fishing activities. In the second case, the flag State traditionally has exclusive responsibility for controlling the fishing activities of the vessel. However, with the adoption of a number of international fisheries instruments including the UN Fish Stocks Agreement, States other than the flag State have certain rights with respect to fishing vessels on the high seas. The flag State continues to have responsibilities with respect to fishing activities when its fishing vessel is fishing in the waters under jurisdiction of a State other than a flag State, including the responsibility to ensure that the vessel does not undertake unauthorized fishing.

Under Article 117 of the 1982 UN Convention, all States are required to take measures for their nationals as may be necessary for the conservation of living resources on the high seas. The 1982 UN Convention is silent on the types of measures that a flag State is to adopt for its fishing vessels which are undertaking fishing activities on the high seas. Reference is only made to the need to take into consideration the interdependency of the stock and the obligation to take measures to apply the principle of maximum sustainable yield (MSY) for the purposes of restoring or maintaining fish stocks.

The FAO Compliance Agreement and flag State responsibility

The 1993 FAO Compliance Agreement was adopted by the Conference of the Food and Agriculture Organization in November 1993 and entered into force on 24 April 2003, upon receipt of the twenty-fifth instrument of acceptance. It forms an integral part of the Code of Conduct. In line with Article 117 of the 1982 UN Convention, the Agreement is based on the recognition that all States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.

The Agreement attempts to prevent re-flagging of vessels to avoid being bound by high seas conservation and management measures adopted by regional fisheries organizations. Its general objective, as the title suggests, is "to promote compliance" with agreed fishery conservation rules. The primary focus of the FAO Compliance Agreement is flag State responsibility in the authorization to fish on the high seas as well as increased transparency through exchange of information.^[48]

Article III is the most important clause in the Agreement, for it sets out the responsibility of the flag State in respect of fishing vessels operating on the high seas^[49] and elaborates a number of obligations for parties whose fishing vessels operate on the high seas. These fundamental obligations are very relevant in the context of IUU fishing activities.

In essence, the Article places first an obligation on the flag State, whether or not a member of a RFMO that has adopted international conservation and management measures, to take "such measures as may be necessary 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. ^[50]. Second, it continues: "In particular, no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization"^[51]. Thirdly, no Party to the Agreement shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities in respect of the vessel.^[52]

Further duties are imposed to give content to these basic obligations, including provisions concerning: non- authorization of a vessel still under a suspension procedure,^[53] the requirement that vessels be marked so as to be readily identified in accordance with generally accepted standards, such as the FAO vessel marking scheme,^[54] the requirement of information on the operations of a vessel,^[55] and the imposition of sanctions of sufficient gravity as to be effective in securing compliance with requirements of the Agreement.^[56]

Another pillar of the Agreement is laid down in those provisions ensuring the appropriate flow of information on activities of the high seas fishing vessels. These are Articles IV and VI. Under Article IV, flag States are required to maintain a record of fishing vessels which have been duly authorized for fishing on the high seas and to take such measures as are necessary to ensure that all such vessels are entered on that record. On the other hand, pursuant to Article VI, such information has to be made available to FAO on a real time basis by the flag State. In turn, FAO shall circulate periodically the information provided to all Parties, and, on request, individually to any Party.

The Agreement calls also for collective actions and amongst the matters referred to are the exchange of information, including evidentiary material, relating to activities of fishing vessels in order to assist the flag State in identifying those vessels flying its flag reported to have engaged in activities undermining the effectiveness of conservation and management measures.

The Agreement aims at preventing and combating in particular illegal and unregulated fisheries on the high seas. Flags States have to control and survey the activities of their fishing vessels on the high seas, have to consider on a case-by-case basis whether or not to grant an authorisation and, most importantly, they should not grant an authorisation unless they are able to deter and prevent their vessels from undermining international conservation measures. A principal benefit to a flag State will also come from the availability of reliable information regarding vessels authorized to fish on the high seas, which can lead to an increased ability to identify those vessels fishing without authorization on the high seas. This will be even more important in the context of global, regional or sub-regional fisheries organizations or arrangements and the sub-regional and regional on-going efforts to operate lists of IUU fishing vessels.

Notably, the criterion of a "genuine" link referred to in Article 91 of the 1982 UN Convention, in the high seas fishing context, is not given any definition. The "link" referred to in Article III(3) of the FAO Compliance Agreement is put in terms of the ability of a State to exercise effective control in respect of its vessels. The Agreement leaves it up to the Parties to determine what kind of link vessels ought to have to the flag State and then to set this out in legislation.

An attempt to prevent vessels to "hop and shop" for flags from other States is provided for in the Agreement in Article III (5), which obliges State parties not to authorize a fishing vessel previously registered in another State Party under specific circumstances.

The UN Fish Stocks Agreement and flag State responsibility

The 1995 UN Fish Stocks Agreement is intended, inter alia, to address high seas fishing and give practical effect to the provisions of Articles 63 and 64 of the 1982 UN Convention which deal with straddling stocks and highly migratory species. The Agreement was adopted in New York in December 1995 and entered into force in 2001.

In general, the UN Fish Stocks Agreement applies to straddling stocks and highly migratory species "beyond areas under national jurisdiction". So, except as specified, the UN Fish Stocks Agreement does not apply to non-straddling, non-highly migratory stocks and does not apply to any stocks within areas under national jurisdiction.

Articles 18, 19 and 20 refer to the duties of the flag State that are party to the Agreement with respect to their vessels fishing on the high seas, apparently not uniquely for straddling fish stocks and highly migratory fish stocks. The basic concept of flag State responsibility over vessels fishing on the high seas is maintained: Flag States are to ensure that the vessels flying their flags and fishing on the high seas, comply with sub-regional and regional conservation and management measures and do not undermine the effectiveness of those measures. Flag States are not to authorize their vessels to fish on the high seas unless they are sure that they are able to exercise their responsibilities in accordance with the 1995 UN Fish Stocks Agreement and the 1982 UN Convention. In this respect it is similar to the 1993 FAO Compliance Agreement, but the 1995 UN Fish Stocks Agreement makes this duty even more explicit. Article 18(3) describes measures to be taken by a State in respect of vessels flying its flag, including: control of its flag vessels on the high seas by means of fishing licences, authorizations or permits, in accordance with any applicable procedures agreed at the subregional, regional or global level; establishment of national regulations to apply terms and conditions to the licence, prohibit unlicensed fishing on the high seas, require vessels fishing on the high seas to carry the licence on board at all times and produce it on inspection, and ensure that its flag vessels do not conduct unauthorized fishing within areas under national jurisdiction of other States; a national record of fishing vessels authorised to fish on the high seas; requirements marking of fishing vessels and gear, for recording and timely reporting on vessel position, catch of target and non target species, fishing effort and other relevant data; requirements for monitoring, control and surveillance of vessels, their operations and related activities, and catch verification through inter alia market statistics and supervision of transhipment; and regulation of fishing activities to ensure compliance with regional and global measures).

Under Article 19, a flag State has an obligation to ensure compliance by vessels flying its flag with subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks. To this end, the flag State must enforce subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks irrespective of where violations occur. It must investigate any alleged violation of subregional or regional conservation and management measures and report promptly to the State alleging the violation and the relevant subregional or regional organization or arrangement on the progress and outcome of the investigation. If there is sufficient evidence of an alleged violation, the case must be referred to its authorities with a view to instituting proceedings. Where appropriate, the flag State must detain the vessel concerned. The flag State must ensure that, where it has been established, in accordance with its laws, that a vessel has been involved in the commission of a serious violation of aforesaid measures, the vessel does not engage in fishing operations on the high seas until such time as there has been compliance with all outstanding sanctions imposed by the flag State in respect of the violation.

Sanctions applicable in respect of violations must be adequate in severity to be effective in securing compliance and discouraging violations wherever they occur, and are to deprive offenders from the benefits accruing from their illegal activities.^[57] The UN Fish Stocks Agreement provides for cooperation in enforcement in Article 20, and a flag State is required to investigate its vessel on the high seas, at the request of a coastal State, where there are reasonable grounds for believing that its vessel has been engaged in unauthorized fishing in an area within the national jurisdiction of the coastal State.^[58]

Collection and sharing of data and scientific information also receives attention under the UN Fish Stocks Agreement. It expands the basic obligation laid downs in articles 61(5) and 119(2) of the 1982 UN Convention. The Agreement lays down the basic principle that coastal States and States fishing on the high seas shall "collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species, fishing effort,...as well as information from national and international research programmes". In doing so, they ought to follow the "standard requirements" as set out in Annex 1 of the Agreement.

The UN Fish Stocks Agreement reaffirms and builds on the basic principles in the Compliance Agreement. Both agreements have developed in the context of the 1982 UN Convention, in particular Article 117 and Articles 63(2) and 64. Their objectives differ but are fully consistent and complementary. It calls for an enhancement of flag State responsibility and the exercise of jurisdiction and control, inter alia through regional collaboration in enforcement. It is difficult to establish which one is wider in scope since the former applies "unless otherwise provided" to the conservation and management of straddling fish stocks and highly migratory fish stocks "beyond areas of national jurisdiction". Unlike the FAO Compliance Agreement, which applies to the high seas in general, it does not contain a definition of "fishing vessels" nor does it provide for exemptions from flag State responsibilities. There is an interesting interrelationship between these two binding instruments. For example, Article 8(4) of the UN Fish Stocks Agreement is an elaboration of Article III of the FAO Compliance Agreement which merely requires that parties ensure that their vessels do not engage in any activity that undermines the effectiveness of international conservation and management measures. In other words, membership - or at least agreeing to play by the same rules is condition sine qua non for access to a fishery.^[59] Likewise Article 17(4) the UN Fish Stock Agreement builds on Article V of the FAO Compliance Agreement which calls for cooperation and the exchange of information in order to assist the flag State in identifying vessels flying its flag that are reported to have engaged in activities undermining international conservation and management measures. Notably, in both agreements there is a parallel strengthening of the role of coastal and port States in securing compliance of vessels with international rules. The focus is not exclusively on the flag State.

Between these two binding Agreements there are also differences between provisions relating to sanctions. Sanctions for serious offences under Article III(8) of the FAO Compliance Agreement with respect to fishing vessels (of a Party) which act in contravention of the Agreement encompass "refusal, suspension or withdrawal of the authorization to fish on the high seas". Article 19(2) of the UN Fish Stocks Agreement states that offenders [must] be deprived of the benefits accruing from their illegal activities" and that measures applicable to masters and other officers of fishing vessels are to include provisions which may permit refusal, withdrawal or suspension of authorisations to serve as masters or officers on such vessels.

Provisions concerning compliance and enforcement in the UN Fish Stocks Agreement raise many "new" points. Of particular interest is Article 21 on "Sub-regional and regional co-operation in enforcement". It relates to the boarding and inspection powers of States Party to the Agreement of vessels flying the flags of other States Party in any high seas area covered by a sub-regional or regional fisheries management organization or arrangement of which the boarding State is a member. It should be noted that fishing vessels flying the flag of States that are not party to the Agreement could expect to face difficulties if they do not comply with the regional or sub-regional conservation measures of a regional fisheries management organisation or arrangement.^[60]

The UN Fish Stocks Agreement provides a legal basis for preventing, deterring and eliminating IUU fishing in areas beyond areas of national jurisdiction and in respect of those fishing vessels fishing for straddling fish stocks and highly migratory fish stocks. It establishes the legal conditions for a right of boarding and inspection of fishing vessels of States Parties in an area of high seas covered by a subregional or regional fisheries organization and fishing for straddling fish stocks and highly migratory fish stocks. The Agreement promotes enhancement of effective control and jurisdiction over vessels and the contents of the "genuine" link is, like the FAO Compliance Agreement by reference to the effective exercise of flag State responsibilities.

The FAO Code of Conduct for Responsible Fisheries

The FAO Code of Conduct was developed in response to a number of international calls for action against the increasing threat of overexploitation of fisheries resources caused by the rapid and often uncontrolled exploitation of the resources and development of the fishing industry. Among the main concerns was the increasing problem of unregulated fishing on the high seas, including by vessels flying "flags of convenience" or being registered in countries operating open registries. The Code of Conduct was developed in parallel with the UN Fish Stocks Agreement and was adopted by the FAO Conference on 31 October 1995. It is global in scope, applicable to all fisheries and is voluntary in nature. The Code deals with the issue of flag State duties and it urges, in its General Principles, States to exercise effective flag State control in order to ensure the proper application of the Code. This principle is further developed in Article 8 on "Fishing Operations" inter alia, which provides that flag States should ensure that no fishing vessels entitled to fly their flag fish on the high seas or in waters under the jurisdiction of other States "unless such vessels have been issued with a Certificate of Registry and have been authorized to fish by the competent authorities".^[61] Among other duties of the flag State are the maintenance of records of fishing vessels, marking requirements, requirements for the safety of fishing vessels and fishers and enforcement measures in case of contravention of applicable conservation and management measures. An indirect reference to the reflagging problem can also be found in Article 7.8.1, which provides that "without prejudice to relevant international agreements, States should encourage banks and financial institutions not to require, as a condition of a loan or mortgage, fishing vessels or fishing support vessels to be flagged in a jurisdiction other than that of the State of beneficial ownership where such a requirement would have the effect of increasing the likelihood of non-compliance with international conservation and management measures."

The Code, while reiterating the basic obligation of jurisdiction and control by flag States, touches upon elements which are likely to reinforce effective control. In this respect it elaborates mechanisms to pull other players into the game, including vessel owners, financial institutions, insurers, and crew.

International Plan of Action on Illegal, Unreported and Unregulated Fishing

On 2 March 2001, the Committee on Fisheries of FAO agreed on the IPOA-IUU. The instrument is voluntary in character, and not meant to give rise to any legally binding obligations. The IPOA-IUU was developed within the framework of the FAO Code of Conduct for Responsible Fisheries.^[62] The IPOA-IUU reaffirms basic provisions of the 1982 UN Convention, the 1993 FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement and the 1995 FAO Code of Conduct for Responsible Fisheries. It does go further though, and is more detailed with respect to certain actions, for example with respect to trade, port State control and controls over nationals. More importantly, the IPOA-IUU gives an impetus to all State responsibilities, as well as flag State responsibility. The IPOA-IUU reflects the need for increased flag State control over activities of its fishing vessels, within areas under national jurisdiction as well as on the high seas. As a priority task, the IPOA-IUU calls for more effective flag State control. Within the EEZ, this implies a more effective use of existing powers.

The basic objective of the IPOA-IUU is set out in PART III Objectives and Principles. It states:

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.^[63]

The IPOA-IUU is to be considered as a toolbox and as such it offers a variety of tools for a flag State to take up its responsibilities and control its fishing vessels. Flag State Responsibilities under the IPOA-IUU are covered in paragraphs 34-50. They are subdivided into 3 main headings: Fishing Vessel Registration; Record of Fishing Vessels; Authorization to Fish.

Fishing Vessel Registration

As seen above, in most cases, registration is a means to grant a nationality to a vessel. First, States should ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing.^[64] Prior to registering a fishing vessel, a flag State should ensure that it can "exercise its responsibility to ensure that the vessel does not engage in IUU fishing".^[65]

A particular focus is placed on the need for coordination and information sharing with a view to linking the registration of fishing vessels and the authorization to fish, whether the latter is being issued by the flag State to fish on the high seas or waters under this jurisdiction or by a coastal State.

This need for coordination is essential where different institutions are involved in the registration and fishing authorization process.

Record of Fishing Vessels

This part builds on the articles in the FAO Compliance Agreement relating to the record of fishing vessels entitled to fly the State's flag and the sharing of information.^[66] The IPOA-IUU states that each flag State's record of fishing vessels should include, for vessels authorized to fish on the high seas, the information set out under the FAO Compliance Agreement and additional information about the previous names of the vessel, particulars of the operators, beneficial owners, ownership history of the vessel and vessel dimensions. Where possible, a link is to be made between the ownership history of a vessel, and the history of non-compliance by that vessel at a national, regional or global level. Finally, with respect to fishing on the high seas, the record may also contain information relating to non authorized vessels.

Authorization to Fish

As pointed out in the FAO Technical Guidelines for Responsible Fisheries on the implementation of the IPOA-IUU, the IPOA-IUU reaffirms the responsibility of, and calls upon, flag States to require their vessels to obtain express authorization before fishing in any marine area. In paragraphs 46 and 47, the IPOA suggests a broad range of information, terms and conditions to be set out in an authorization, from such standard items as the name of the vessel, the species, the gear authorized, the duration, to more "modern" terms and conditions, relating to vessel monitoring systems, catch reporting, transhipment reporting and those generated under arrangements applicable to the flag State.

Attention is also drawn to concerns relating to misreporting or underreporting by support and transport vessels. The IPOA-IUU urges flag States to ensure that support and transport vessels flying their flag do not support IUU fishing and to monitor and control transhipment activities involving their vessels by requiring prior authorization to tranship and reporting.

Flag State responsibility is not only dealt with under the heading "Flag State Responsibilities" in the IPOA-IUU. The primary responsibility of the flag State in preventing, deterring and eliminating IUU fishing is complemented by encouragement among non-flag States, whether coastal or port States, to coordinate their activities and cooperate directly or through relevant regional fisheries management organisations in a range of specified areas.^[67] Moreover, to ensure that "nationals" do not support or engage in IUU fishing, the IPOA-IUU calls also for State enforcement actions to be taken vis-à-vis "nationals" who may be subject to its jurisdiction including on grounds of their nationality^[68] and for States to discourage their nationals from flagging fishing vessels under the jurisdiction of a State that does not meet its flag State responsibilities.^[69] Interestingly the Plan does not provide any guidance with respect to the term "nationals".

Implementation of the instruments: Some developments that may enhance the primary responsibility of flag States

The FAO Compliance Agreement and the UN Fish Stocks Agreement are now in force and parties to these Agreements are bound by their provisions to implement them at national, sub-regional, regional and international level. While there are similarities between the international instruments discussed above, there are also differences. These are likely to have a bearing on the development of concepts developed in these instruments, including the concept of flag State responsibility. Inconsistencies in interpretation and practice could well arise. Important differences lay in the scope, the primary objectives, as well as the Articles of the 1982 UN Convention against which these instruments have been developed. The international instruments also address different parties. The binding instruments are directed at States in particular, whereas the Code of Conduct (while addressing "States") concerns all participants in the fisheries sector, both public and private, and at all levels, national (local and central), regional and global level. While the 1982 UN Convention is now widely accepted, few States are party to the other agreements. There is not yet universal participation.

The Table in Appendix E.2 shows that there are currently 143 parties to the 1982 UN Convention^[70], 36 to the UN Fish Stocks Agreement and 27 to the FAO Compliance Agreement. Not all countries that have ratified the UN Fish Stocks Agreement have acceded to the FAO Compliance Agreement and vice versa.^[71] The fact that countries have undertaken different legal obligations implies that there exists a potential for conflicts between parties and non-parties, members and non-members of regional fisheries organizations as well as different arrangements. However the above illustration of the inter-relationship between the recently adopted binding agreements evidences clearly that to achieve optimum enforcement States will need to become party to both agreements.

A number of countries have developed and passed national legislation to implement flag State responsibilities with respect to fishing vessels fishing on the high seas. In the "Guide to Implementing the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement" prepared by William Edeson, David Freestone and Ely Gudmundsdottir^[72], national legislation from a number of countries was analyzed. They included: Canada, Norway, Iceland, the Republic of South Africa, the United States, Australia, and New Zealand. Further additions to this list are: EU^[73], Namibia and Spain. A review of national fisheries legislation is underway in a number of countries inter alia to implement relevant international fisheries instruments. To list a few: Barbados, Malaysia, Maldives, Seychelles, St. Lucia, and Tonga. National legislative provisions provide for the framework to authorize high seas fishing, describing where, when and how to apply, what fees, and other conditions imposed on the granting of authorizations. The extent of detail and the approaches differ from one country to another in light of, inter alia, the legal system, the cultural, political and socio-economic environment. States in their national law make attempts to identify those vessels that are subject to flag State control in order for the flag State to exercise effectively its duties. Furthermore, to exercise their duties effectively, national legislation has been developed to both criminalize the activities of its fishing vessels engaging in IUU and undermining international conservation and management measures and provide penalties for violation. A link is often made between registration of fishing vessels and issuance of high seas fishing licenses. Furthermore, international cooperation in enforcement, sub-regional and regional cooperation in enforcement and basic procedures for boarding and inspections receive detailed legislative attention and create a lot of challenges for legislators. Some States have also provided for jurisdiction over nationals.

Regional developments have also taken place to implement the different international fisheries instruments. Among the most recent measures taken over the last five years the following could be mentioned: catch documentation schemes; use of VMS for fishing vessels fishing for commercial value species; exchange of information on IUU fishing vessels or flying a so called flag of convenience; boarding and inspection schemes; exchange of information among the parties of a regional fisheries management organization on fishing vessels authorized to fish on the high seas; regional vessel registries; and schemes to promote compliance by non-parties.^[74] The regional and subregional initiatives are taken throughout the world and reflect the collaborative effort towards preventing, deterring and eliminating IUU fishing, a global problem.

CONCLUSION

While the illegal, unreported and unregulated fishing activities still continue, international law seems to be increasing the responsibility of flag States. The instruments referred to in this paper provide the framework for future actions concerning fisheries inter alia under jurisdiction and control of flag States especially in the area of high seas fishing. The 1982 UN Convention is not conclusive, in particular in the context of high seas fisheries. But it should be reiterated here that all matters not regulated by this Convention continue to be governed by the rules and principles of general international law. The FAO Compliance Agreement, the UN Fish Stocks Agreement and the Code of Conduct for Responsible Fisheries were negotiated over a broadly similar time frame and many negotiators were the same. This resulted in a high level of consistency between the three instruments with respect to the concept of flag State responsibilities, and also in the progress with respect to the contents of this concept and in the introduction of some "novel" provisions. The non-binding nature of the Code of Conduct and the IPOA-IUU allowed going sometimes beyond the letter of the 1982 UN Convention (based on a consensus of the international community) and making additional steps forward to combat undesirable behaviour of fishing vessels towards more adequate global, regional, subregional and national adequate fisheries management. The extent to which the international voluntary instruments will allow for a more progressive interpretation of the concept of flag State responsibility as provided in binding international instruments is unknown.

It may be asked whether the implementation of the voluntary international instruments such as the IPOA-IUU will be more successful than the binding agreements. The implementation and compliance of an international instrument is not always a matter of a binding or not binding instrument, or of accession or ratification. It may be a simple matter of concerns or of different interpretation of concepts. However, if these instruments are not widely implemented, the problems identified at the root of IUU fishing will remain. For implementation and compliance to occur, States must choose to implement and comply.

The link between a vessel and a flag State remains a primary link. The international instruments referred to in this paper appear to sidestep the issue of genuine link. Instead the concept of flag State responsibility including in particular the obligation of effective control by a flag State over fishing vessels flying its flag is underscored. In other words, States could register vessels even if the "genuine" link between the State and the vessel was doubtful (i.e. absence of a genuine link), but if they did they then are under the obligation to exercise effective control. Effective control by a flag State implies in turn inter alia a flag State's ability to ensure its vessels do not undermine international conservation and management measures and to take enforcement measures against those that do so. This development is not surprising. Indeed since the attempts to give meaning to the notion of "genuine" link have not been successful, the focus has evolved on the obligation of States that register a fishing vessel and grant nationality to a fishing vessel to exercise effective control over such vessel.

International Law must evolve to accommodate changing legal and practical realities but all States must participate in combating IUU fishing and undertake their obligations in good faith which they have agreed to namely in the course of the global negotiations of relevant international fisheries instruments. Finally, because it is unknown how international law evolves, States should also bear in mind the potential impact of Article 300 of the 1982 UN Convention, requiring States Parties to fulfil in good faith the obligations assumed under the Convention and exercise the rights, jurisdictions and freedoms recognized in the Convention in a manner which would not constitute an abuse of right.

APPENDIX E.1

IPOA-IUU

Paragraph 3

In this document:

3.1 Illegal fishing refers to activities:

3.1.1 conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

3.1.2 conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or

3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.

3.2 Unreported fishing refers to fishing activities:

3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

3.2.2 undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.

3.3 Unregulated fishing refers to fishing activities:

3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or

3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.

3.4 Notwithstanding paragraph 3.3, certain unregulated fishing may take place in a manner which is not in violation of applicable international law, and may not require the application of measures envisaged under the International Plan of Action (IPOA).

APPENDIX E.2

STATUS OF SIGNATURES, RATIFICATIONS, ACCESSIONS TO INTERNATIONAL FISHERIES INSTRUMENTS*

* For further details, please consult

http://www.un.org/depts/los/convention_agreements/convention_declarations.htm

http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm

http://www.fao.org/legal/treaties/012s-e.htm

** Information as provided to FAO for the biennial report to the Committee on Fisheries on progress towards implementation of the Code of Conduct for Responsible Fisheries.