Gerald Moore is Chief, Forestry, Wildlife and Fisheries Legislation Section, Legal Office FAO and legal officer responsible for the Fisheries Law Advisory Programme. The opinions expressed in this article are personal to the author and do not necessarily represent the official views of FAO.
Many developing coastal states, faced with the task of controlling foreign fishing operations within their new exclusive economic zones, are looking to new techniques to achieve cost effective compliance control. The present article reviews the development of three new concepts, namely harmonization of enforcement regimes, regional registers of foreign fishing vessels and flag state responsibility for compliance control, in light of recent practice in the South Pacific. The article sets the scene by describing the fisheries situation in the South Pacific and the competent regional fisheries body, the South Pacific Forum Fisheries Agency, before reviewing the concept of cost effective enforcement as applied in that region. It then gives an account of the regional movement for the harmonization of access regimes, the origins and functioning of the regional register of foreign fishing vessels and the development and application of the concept of flag state responsibility for compliance control with particular reference to the recent regional fisheries treaty with the USA. The article concludes with a discussion of the applicability of the South Pacific approach to other regions of the world. While the South Pacific is in many ways unique, there is little reason why the basic concepts of cost effective enforcement worked out in the South Pacific should not be applicable elsewhere.
Jean Carroz lived his work as he lived his music. I consider myself fortunate to have shared some part of both these worlds, as second fiddle to his Indian summer Beethoven and as trepid co-explorer in the uncharted waters of fisheries after the advent of the new regime of the oceans. In both activities Jean was always confiding and supportive, pushing for the excellent but at the end surprisingly self-effacing.
Our musical outpourings never reached Carnegie Hall. But Jean did have the satisfaction of piloting the FAO World Conference on Fisheries Management and Development, thereby doing much to fill in the charts - the reefs, the shoals and the deep waters of the new ocean regime. One of the issues in the preparatory work of the Conference was the control of foreign fishing. A Technical Consultation was organized on the whole question of access to living resources of the exclusive economic zone, which came up with a number of ideas, many of which were eventually reflected in the Strategy adopted by the World Conference. The present article deals with one of these ideas, the concept of using the law to achieve enforcement without force.
The extension of fisheries jurisdiction under the now well-accepted concept of the exclusive economic zone induced considerable expectations on the part of developing coastal states. It induced hopes of better management by putting an end to the open access character of fisheries under international law. It also encouraged visions of increased access by developing coastal states to the riches of the oceans and a more equitable division of the spoils of marine fisheries. At the end of the first decade of extended fisheries jurisdiction, many of these expectations have yet to be fulfilled, at least for developing coastal states.1 Developing a national fishing fleet capable of harvesting the fishery resources of the exclusive economic zone is a costly and lengthy exercise. It is particularly so for fisheries requiring relatively sophisticated catching techniques, such as tuna purse seining, or presenting other difficulties in catching or marketing. For this reason, while the development of national harvesting capacity remains the primary goal, foreign fishing has continued to be an important part of the fisheries scene in some regions bordered by developing states, such as the South Pacific, the southwest and southeast Atlantic and, though to a decreasing extent, the eastern central Atlantic. For many countries, licensing of existing foreign fishing operations is also seen as the first step in establishing effective control over the resources newly under coastal state jurisdiction; an interim step from which coastal states may draw benefits in the form of information on the resources and financial rewards.
1 See SAETERSDAL, G. 200-mile zones: Have the expectations been fulfilled? Paper presented to the European Workshop on the Regulation of Fisheries: Legal, Economic and Social Aspects. Tromsö, 2-4 June 1986.
For the most part, the level of fees charged for foreign fishing operations has increased significantly over the last decade.2 Net benefits to the coastal state, however, have not always kept pace with this increase, in view of the substantial costs involved in policing fishing operations in extended zones of jurisdiction. Surveillance and physical enforcement costs, indeed, can easily outstrip the financial benefits derived from licensing. The annual operation costs alone of a single patrol boat, for example, can easily exceed $1 000 000. Faced with this problem, many developing coastal states have been searching for new techniques of ensuring compliance with their national laws by foreign vessels - techniques that do not depend upon costly means of physical enforcement. The importance of this search was underlined at the recent FAO World Conference on Fisheries Management and Development, which called for the design and establishment of "practical mechanisms of compliance control in exclusive economic zones at the national, bilateral and regional levels, that reduce the need for costly enforcement and do not hamper fishing activities more than necessary".3 The Conference foresaw that observer programmes and regional registers of foreign fishing vessels could be possible mechanisms. Since then, considerable progress has been made in the development of new non-physical means of compliance control.
2 See MOORE. G. 1985. Coastal State Requirements for Foreign Fishing. FAO Legislative Study, No. 21, Rev. 2.
3 Strategy for Fisheries Management and Development, para. III 14(xix); Report of the FAO World Conference on Fisheries Management and Development, Rome 1984, p. 20.
The present article will review three key techniques now being developed, namely, harmonization of enforcement regimes, regional registers of foreign fishing vessels and flag state responsibility for compliance control, in the light of recent practice in the South Pacific. It will then assess the relevance of these techniques for other areas of high foreign fishing concentration. But, first, a brief description of the fisheries of the South Pacific, the regional agency responsible for fisheries in the area - the South Pacific Forum Fisheries Agency - and the way in which the South Pacific island states view the issue of achieving cost-effective enforcement over foreign fishing operations.
THE FORUM FISHERIES AGENCY AND THE FISHERIES OF THE SOUTH PACIFIC
The South Pacific Forum Fisheries Agency (FFA) was established by international convention in July 1979. Its membership was originally limited to member countries of the South Pacific Forum, but has now been extended to include the Federated States of Micronesia and Palau.4 Membership does not include any of the major distant-water fishing nations currently operating in the region. The objectives of the FFA, as set out in its constitutive Convention, include the harmonization of the fishery management policies of member countries, facilitation of cooperation in surveillance and enforcement, and relations with third countries and arranging for reciprocal access by member countries to their respective 200-mile zones. Fisheries in the FFA area are dominated by tuna, with an overwhelming share of the catch still taken by distant-water fishing fleets, using long line, pole and line and, increasingly, purse seine methods of fishing. While the coastal countries are developing their own national fishing capacity, it will necessarily be some time before that capacity can be built up sufficiently to displace the foreign fishing operations. No biologically-based management measures have yet been taken on a region-wide basis, with the exception of the conservation measures for southern bluefin tuna adopted by Australia, Japan and New Zealand. Some countries have acted individually to limit effort and catches, and access agreements, both bilateral and regional, place limits on the total fishing effort allowed. No catch quotas or minimum species size limitations have been adopted.
4 The present membership of FFA is Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu and Western Samoa.
Fish is an important natural resource for all of the South Pacific island states: for many of them fisheries is the most important economic activity and revenue-earner. In Kiribati, for example, revenue from foreign access agreements in 1984-5 accounted for about eight percent of the Kiribati gross national product and over 13 percent of total government revenue. Despite their central economic importance to the countries, the actual level of revenue is not high in absolute terms. The gross revenue derived by Kiribati from access agreements in 1984, for example, was only US$2 000 000. Because of the vast area of ocean falling within Kiribati's exclusive economic zone, and the paucity of its financial and manpower resources, it would be economically impossible for Kiribati to exert effective control over its entire exclusive economic zone using physical means of enforcement. Given this basic situation, it is small wonder that the South Pacific island states have been seeking non-physical means of enforcing their new fisheries jurisdiction.
In approaching the problem, the South Pacific island states have relied heavily on regional cooperation. Individually, the small island states may have little bargaining or compliance control powers with respect to the major distant water fishing nations. Working together with a strong political commitment to regional solidarity, the island states have demonstrated substantial power in both bargaining and compliance control.
THE SOUTH PACIFIC CONCEPT OF COST-EFFECTIVE ENFORCEMENT
Fisheries enforcement, in the South Pacific as elsewhere, has two essential components. The first is the acquisition and collation of information about fishing activities. The second is the inducement, on the basis of the information acquired, of compliance by fishing vessel operators with desired modes of conduct. Economic efficiency depends on how the enforcement system is designed, what types of information are sought, in what form, how the information is collated and the means by which compliant conduct is induced.
Traditional approaches toward gathering information on fishing operations have been primarily oriented to the activities of individual vessels while operating within the exclusive economic zone, and have thus been heavily dependent on physical inspection at sea. In the South Pacific, the approach has been somewhat different. Primary reliance has been placed on self-reporting by the vessels themselves,5 verified by information from a wide range of sources collated on a regional as well as a national basis. Verification is partly through periodic aerial surveillance at the regional or subregional as well as the national level, and partly through comparison with data on fleet landings collected from the major landing places both within and outside the region. Information is collated, in part, through the regional register, which is in effect a computer nexus of information on foreign fishing vessels operating in the region, their characteristics and catching potential, their historical catches and fishing areas. All this enables a far clearer and more accurate picture of fishing activity to be built up on a region-wide basis than would ever be possible on an individual coastal state zone basis. Allocation problems among individual coastal state zones are minimized by harmonization of licence fees and conditions and, ultimately, by the development of uniform regional licensing schemes.
5 Radio and telex reporting by the vessels themselves on entry and departure from zones with periodic position and catch reporting. Catch and effort information is obtained from logbooks maintained on a daily basis and forwarded to a regional data centre for processing at the end of each vessel trip.
To a large extent, the information collection and collation system described above is made possible by the way in which the access arrangements and embryonic management system have been designed. These are based on simple effort parameters, such as vessel numbers and size, rather than allowable catches or quotas. Access fees, though calculated in many cases on the basis of a percentage of the landed value of the catch, are expressed in terms of effort or catching potential rather than actual catch, thus reducing pressures on the information gathering and verification process. In simple terms, it is far easier and cheaper to monitor the number and size of vessels operating on the fishing grounds than to count the fish caught by an unlimited fleet. No minimum species sizes are in force for the major fisheries in the region, thus reducing information collection and verification needs.
It is in the area of compliance control, however, that the South Pacific island states have been most innovative. In traditional fisheries enforcement systems, the accent has always been on physical inspection and enforcement by surface craft - the so-called "cops and robbers" approach. While the island states do maintain surface enforcement capabilities, though of varying efficacy, the main emphasis has been on developing non-physical, and thus less costly, means of compliance control. In practical terms this has meant increased reliance on aerial surveillance to detect possible violations, followed for the most part by non-physical methods of ensuring that the offender submits voluntarily to the jurisdiction of the local courts. A number of these methods have been debated among the island states, including the possibilities of port state enforcement, long-arm jurisdiction procedures and joint extradition arrangements. Ultimately, however, the most effective methods have been found to be, (1) the threat of "blacklisting" on the regional register, and (2) putting pressure on the flag state to ensure that vessels flying its flag either submit to coastal state jurisdiction, or are punished through the flag state's own judicial system - the so-called concept of flag state responsibility for compliance control. Both of these innovative techniques will take up a considerable part of the remainder of this article. But first, given the basic importance of political commitment to regional cooperation in the area of fisheries control, it will be necessary to give some description of the process by which this political commitment was sought and obtained in the South Pacific.
REGIONAL HARMONIZATION OF ACCESS REGIMES - THE POLITICAL COMMITMENT
The FFA initiated its region-wide programme of cooperation in the harmonization of fisheries access regimes and surveillance and enforcement in 1981, through the adoption of a Regional Research and Development Programme (RRDP). The RRDP listed harmonization of fishery access regimes high among priority activities in the region. The first concrete development, however, came at a subregional level, through the adoption of the Nauru Agreement in 1982.6 Under the Agreement, and the Implementing Arrangement drawn up later in the year, the member countries agreed to coordinate generally their policies toward foreign fishing in their zones. More specifically, they agreed to adopt uniform terms and conditions of access, including uniform marking requirements, reporting and logbook requirements, observer provisions and flag state responsibility provisions.
6 Nauru Agreement concerning Cooperation in the Management of Fisheries of Common Interest, 1982.
The harmonization concept worked out at the subregional level by the Nauru Group was transposed to the broader regional level through the Workshop on the Harmonization and Coordination of Fisheries Regimes and Access Agreements. The Workshop, which was held in Suva in February 1982, was organized by the FFA and the FAO Fisheries Law Advisory Programme under the FAO EEZ Programme funded by Norway. The Workshop adopted a series of wide-reaching recommendations on harmonization of access regimes and the control of foreign fishing operations that set the scene for future developments in the region over the following five years.7
7 Report of the FFA Workshop on the Harmonization and Coordination of Fisheries Regimes and Access Agreements, convened at South Pacific Bureau for Economic Cooperation (SPEC) Headquarters in Suva, Fiji, 22 February-5 March 1982.
The recommendations were refined by the Forum Fisheries Committee in the spring and endorsed by the Forum prime ministers at their August 1982 meeting in Rarotonga, thus providing the region-wide political commitment so vital to the eventual success of the harmonization movement.
The Suva Workshop recommendations focused on four main types of action. The first concerned the establishment and functioning of the regional register of foreign fishing vessels to be maintained by the Forum Fisheries Agency. The second concerned the adoption by FFA member countries of a number of so-called harmonized minimum standards for foreign fishing vessel access. These included uniform vessel marking, based on the International Radio Call Sign, reporting requirements on zone entry and departure and periodic radioed position and catch reports, maintenance of standard regional tuna catch and effort log sheets, placement of observers, standard stowage of gear requirements for unlicensed foreign vessels transiting zones and standard provisions on flag state responsibility for compliance control to be included in future access agreements. The third category of action looked to establishing the basis for future regional cooperation in surveillance and enforcement, and included such measures as formulating and adopting uniform boarding procedures, the sharing of information on illegal fishing activity, investigation of the possibilities for reciprocal enforcement of member countries' fisheries laws and techniques for acquiring jurisdiction over fugitive vessels, and an examination of the feasibility of collecting landing catch data for distant water fleets operating in the region. The fourth and final category of action concerned the identification of common-interest fisheries, agreements on methods of calculating access fee payments and on minimum uniform access fee levels, and a recommendation that member countries involved in such common interest fisheries should get together to negotiate joint licensing arrangements with the foreign fishing fleets.
The stream of recommendations made by the Suva Workshop and endorsed by the Forum, in fact, amounted to a somewhat ambitious plan for future development of regional cooperation in fisheries in the FFA area. Today, some five years after the workshop, virtually all of the recommendations have been implemented. The regional register has been established and is functioning successfully.8 The harmonized minimum standards of access have all been implemented, either in access agreements or in national legislation, or in both. A good deal has also been achieved in the establishment of a basis for future regional cooperation in surveillance and enforcement. A project has been set up concentrating on regional aspects of surveillance and enforcement, with special emphasis on training. Data is now being acquired on catch landings from distant-water fishing fleets as a matter of routine and studies have been carried out on the feasibility of reciprocal enforcement arrangements, long-arm jurisdiction and flag state responsibility for compliance control. The results of these studies, together with an institutionalized system for collecting data on catch landings from the US purse-seine fleet, have been incorporated to a significant extent in the new multilateral fisheries treaty with the United States of America.9
8 The operation of the regional register is described in more detail later in this paper.
9 Treaty Between the Governments of Certain Pacific Island States and the United States of America, 1987. The Treaty, which was signed on 2 April 1987, provides for payments amounting to US$60 million over a period of five years in return for access by US purse seiners. The text of the Treaty is published in International Legal Materials, Vol. XXVI, No. 4, July 1987, pp. 1053-1090.
Now that the recommendations have, for the most part, been implemented, how successful have those actions been in practice? Such a question would perhaps normally be difficult to answer with any objectivity. In the particular case of the South Pacific, however, there can be little doubt as to the efficacy of the regional approach. The regional register has already proved its worth as a regional nexus of information on foreign fishing activities and a powerful deterrent to illegal fishing. The value of regional negotiation of access agreements and joint licensing schemes can be objectively assessed by the increase in fee levels from five percent of landed value under existing bilateral arrangements, to over ten percent of landed value provided for under the new multilateral treaty with the United States.
THE REGIONAL REGISTER OF FOREIGN FISHING VESSELS
In May 1983, a notice appeared in the Australian AFZ Bulletin, a quarterly publication of the Department of Primary Industry dealing with foreign fishing developments in the Australian 200-mile exclusive fishing zone. The notice announced that, in accordance with the decision of the South Pacific Forum in August 1982 and as from 1 September 1983, no member of the Forum Fisheries Agency would license a foreign vessel to fish for tuna in their fishing zone unless it was listed in good standing on the regional register maintained by the Forum Fisheries Agency. Terse as it was, the announcement heralded an event of considerable significance for fisheries and a substantial achievement for regional cooperation. The register is now a centrepiece for cooperative enforcement in the South Pacific and a source of invaluable information on actual and potential fishing effort in the region for both the Forum Fisheries Agency and member states faced with foreign fishing licensing decisions.
The regional register had its conceptual origins in the discussions at the Eleventh Session of the FAO Committee on Fisheries in 1977. During the discussions on the Director-General's Comprehensive Programme of Assistance to Developing Coastal States on the Management and Development of Fisheries in Exclusive Economic Zones (the FAO EEZ Programme), a number of countries proposed the establishment of a global register of foreign fishing vessels and the blacklisting of vessels which were persistent violators of coastal state jurisdiction. The meeting noted the difficulties of establishing such a register at the global level, particularly within an organization such as FAO, but foresaw more potential for the establishment of registers at the regional level.
It was not until 1981, however, that more concrete expression was given to the concept. A draft arrangement, implementing the Nauru Agreement formulated during that year, provided for the establishment of a regional register of foreign fishing vessels and an understanding among the member states of the Nauru Group that individual vessels would not be licensed unless they were listed in good-standing on the register. The regional register envisaged under the Nauru Agreement never, in fact, saw the light of day in its subregional form. And, indeed, the Nauru Group itself, though still technically in existence and still meeting at least once a year, has in practice been largely superseded by the region-wide cooperation established within the framework of the South Pacific Forum Fisheries Agency.
The actual origin of the South Pacific Regional Register was a recommendation of the Suva Workshop on the Harmonization and Coordination of Fisheries Regimes and Access Agreements in February 1982. The recommendation called for the establishment of a regional register of foreign fishing vessels to be maintained by the Forum Fisheries Agency: only vessels which were accorded good standing status on the register should be granted fishing licences in the region. Detailed arrangements were to be agreed upon by the member countries at a later date.10 The recommendation was endorsed by the Forum prime ministers in August 1982 and the register came formally into operation on 1 September 1983. At the outset, the regional register concept met with some reluctance on the part of the distant-water fishing nations, when put forward by individual coastal states during access negotiations. This opposition was overcome by coordinated action among the Forum member countries to include the requirement in national legislation or administrative directives. Any hostility has also been largely dispelled by the conservative way in which the register has been used and the safeguards to ensure that the ultimate sanction of loss of good standing is adopted only after full and fair consideration of the case.
10 Report of the FFA Workshop on the Harmonization and Coordination of Fisheries Regimes and Access Agreements, convened at SPEC Headquarters in Suva, Fiji, 22 February-5 March 1982.
To date, the regional register, which is maintained at the headquarters of the Forum Fisheries Agency in Honiara, Solomon Islands, lists well over 1 600 vessels, comprising all gear types. Japanese vessels account for approximately 74 percent of the total. The register is, in fact, a computer listing of information about vessels fishing or intending to fish in the area served by the Forum Fisheries Agency. The information includes details of the vessel, vessel marking, its ownership and vessel and fishing masters, its operational base, its gear and equipment, including freezing and storage capacity, bait storage capacity and fuel capacity, and fishing or other activities carried out by the vessel. The register thus serves as an invaluable data bank which can be used for the purpose of economic research on the fishing fleets operating in the region, as well as a source of information for national fisheries administrators faced with licensing decisions for individual vessels.
Applications for listing on the regional register can be made directly to the Forum Fisheries Agency or indirectly through one of its member countries. Once the application is accepted, good-standing status is automatically accorded to the vessel. No fees are charged for application or registration.
Good standing may be withdrawn basically in two situations: first, where the owner or master of a foreign fishing vessel has been convicted of a serious offence under the fisheries laws of a member country and fails to comply with the judgement entered against him and, second, where there is a prima facie case of a serious offence against the fishery laws and the offender has not submitted to the jurisdiction of the member country concerned. The procedures for withdrawing good standing have been designed to safeguard foreign fishing vessels against unfair or precipitous action by any coastal state. Any member country may request withdrawal of good standing. However, prior to making any such request, the country concerned must have fully investigated the incident and made every effort to obtain an explanation from the vessel operator. The request, which is to be supported by evidence of the alleged violation and the response of the vessel operator, is to be submitted to the Director of the Forum Fisheries Agency. The request and the supporting documentation are then circulated to member countries and the vessel operator notified that such a request has been made. Good standing can only be withdrawn if the request is approved by at least ten out of the sixteen countries participating in the regional register scheme and no dissent or objection is expressed by any participating country. Good standing is automatically reinstated upon payment of the judgement debt, submission to the jurisdiction of the coastal country's courts or satisfaction of other outstanding requests.
So far, the ultimate sanction of withdrawal of good standing has only been requested on one occasion. The incident involved a US tuna purse seiner charged with illegal fishing in the waters of the Federated States of Micronesia. The prospect of losing good standing was sufficient to persuade the vessel operator to submit to the jurisdiction of the Micronesian courts and to pay an assessed fine of one million dollars.
The regional register is now an accepted part of the fisheries scene in the South Pacific. So far as is known, all foreign vessels fishing legally in the South Pacific are entered on the register, including the US and Soviet tuna fleets and a small number of flag-of-convenience vessels. Direct application to the FFA, as opposed to indirect applications through member countries, has still not been achieved for some of the Japanese vessels, but otherwise the register has now received general recognition on the part of the distant-water fishing nations. The requirement for registration has been specifically included in the new multilateral fisheries treaty with the United States. The register, new as it is, has already had a significant impact in buttressing, in a pacific way, the enforcement powers of the individual coastal states. Any future development of regional surveillance and enforcement activities will undoubtedly take the register as its centrepiece. At the national level the impact will also be felt in lessening the need for investment in costly surface enforcement craft, and in making more efficient use of those craft that are commissioned.
FLAG STATE RESPONSIBILITY FOR COMPLIANCE CONTROL
To varying degrees, governments have always been held responsible for the conduct of their vessels operating under bilateral access agreements. Indeed, such responsibility flows naturally from the basic principle of international law, pacta sunt servanda agreements must be respected. If a flag state enters into a binding agreement under which a coastal state grants rights of access in respect of a limited number of vessels from that flag state and subject to specified terms and conditions, then the flag state would have an obligation to take reasonable measures to ensure that only that limited number of vessels fish under the agreement, and that the terms and conditions of access are generally respected. The FAO World Conference on Fisheries Management and Development specifically addressed the issue in its Strategy for Fisheries Management and Development and adopted the following guideline:11
"(xvii) Where access is granted to foreign fishing vessels, the flag states themselves should take measures to ensure compliance with the terms of access agreements and with coastal state fisheries laws and regulations. Coastal states should consider including provisions to this effect in bilateral access agreements."
11 Report of the FAO World Conference on Fisheries Management and Development, Rome, 27 June-7 July 1984, p. 20.
The theoretical advantages to the coastal state in eliciting the assistance of the flag state in ensuring compliance with the terms of the agreement and with coastal state laws are evident. Active support from the flag state in bringing violators to task will not relieve coastal states of the onerous task of enforcing extended fisheries jurisdiction, but it will certainly reduce the physical and financial burden.
In practice, many access agreements have included general provisions requiring the flag state or other entity representing vessel owners to take measures to ensure compliance with the agreement. This is the case, for example, with all standard format access agreements with coastal states concluded by the European Commission. The inclusion of such a provision in all access agreements was one of the actions recommended by both the Nauru Group and the South Pacific Forum acting on the basis of the recommendations of the Suva Workshop.
The occasions when states have sought to go further than mere words and establish a system of flag state action to secure compliance by vessels flying their flag, however, have been more limited. One of the earliest examples followed the disputes over North Sea fisheries between the United Kingdom and Iceland. In that case, responsibility for ensuring compliance by the British fleets with the quota restrictions placed on the fleet fishing within the Icelandic zone, was placed squarely on the United Kingdom authorities. Physical inspection and enforcement was, in fact, carried out by British patrol vessels under the watchful eyes of the Icelandic enforcement vessels. A similar arrangement was in force between New Zealand and Japan before the declaration of an exclusive economic zone in 1977. Under this arrangement Japan undertook physical enforcement in respect of fisheries offences in the then three- to 12-mile exclusive fishery zone. A more recent example, not involving physical patrolling of coastal state waters, is provided by the new Spanish legislation which makes it an offence for Spanish flag vessels to contravene the terms of an access agreement.12
12 Act No. 53/1982 of 13 July 1982, published in Boletín Oficial del Estado (BOE), No. 181 of 3 July 1982. One case brought under the Act involved a Spanish flag vessel fishing illegally in Moroccan waters which fled Moroccan jurisdiction and was prosecuted by the Spanish authorities in the Canary Islands for the offence of endangering the normal performance of the Spanish-Moroccan access agreement. The master was fined 3.3 million pesetas and suspended from fishing activities for three months. On the effect of this law, see generally MESEGUER. J.L., 1986. Legal and administrative control of distant-water fleets in Spanish Law. In Flag State measures to ensure compliance with coastal state fisheries regulations. Fisheries Law Advisory Programme, Circular No. 6, Rome.
No agreement or legislation, however, has yet taken the concept as far as the recently-concluded multilateral fisheries treaty with the United States.13 This agreement spells out for the first time, not only the basic concept of the flag state responsibility, but also detailed procedures for implementing that responsibility. Under the Treaty the United States Government undertakes to enforce the provisions of the treaty and of licences, and specifically obligates itself to take the necessary steps to ensure that nationals and fishing vessels of the United States refrain from fishing in the agreement area, including areas closed to fishing, except as duly authorized. Moreover, the US Government has a duty to assist, on request, in the investigation of an alleged breach of the treaty and to communicate the results of the investigation to the requesting party. It has a duty to take measures to facilitate service of legal process arising out of the activities of its fishing vessels, thus helping to solve one of the problems of long-arm jurisdiction identified by the FFA island states, at least so far as civil suits or penalties are concerned. It also has a duty to take all measures to facilitate prompt and full adjudication of any claim made under the treaty and prompt and full satisfaction of any judgement entered.
13 Treaty between the Governments of Certain Pacific Island States and the United States of America, 1987.
The above measures, it is true, go little further than equivalent provisions in other access agreements, although they are specified in more detail. What is entirely new, however, is the detailing of procedures for the investigation by the US Government itself of offences against the Treaty and Pacific Island countries' laws, for the imposition of penalties and for the payment to the Pacific Island states of the amounts of fines, penalties or forfeitures actually collected. Under these procedures, the United States Government would be required, at the request of a Pacific Island party, to investigate fully any alleged violation involving a US vessel and to report back within two months. Where the report indicates that the vessel was fishing without a licence or in a closed area, or has committed one of the other serious offences listed in the body of the Treaty, the US Government would be required to take all necessary measures to ensure that the vessel leaves the area immediately and does not return except to submit to the jurisdiction of the party or after action has been taken against the vessel by the US to the satisfaction of the Pacific Island party concerned. Where the report shows a probable infringement of the Treaty or applicable national laws, whether or not that infringement is categorized as serious or less than serious under the Treaty, the US Government would be obliged to take all necessary measures to ensure that either the vessel submits to the jurisdiction of the Pacific Island party concerned, or that the vessel is penalized under US law. Penalties are to be set at the same level as for like violations by foreign fishing vessels operating in the US exclusive economic zone. In case the Pacific Island party is itself intending to take action against the vessel, the Treaty includes a provision requiring the US Government to notify its intention to commence legal proceedings to the coastal state. The coastal state then has 30 days to object to such commencement of proceedings. Once a judgement is entered against the offending vessel, the US Government would be required to pay over to the Treaty Administrator, on behalf of the Pacific Island party concerned presumably, a sum of money equivalent to the total value of any forfeiture, fine, penalty or other amount collected by the US Government as a result of its judicial or administrative sanctions. In a real sense, then, the US Government and the US administrative and judicial machinery would be acting as agents for the Pacific Island coastal states in the area of fisheries compliance control.14 This is certainly a far-reaching innovation and a model that must hold considerable attraction for the Pacific Island states in their dealings with other distant - water fishing nations and, indeed, for coastal states in other regions of the world.
14 Some of the flag state compliance control provisions of the Treaty could presumably be implemented in US law directly through the Lacey Act, the US enactment that makes it an offence to traffic in fish taken in violation of foreign laws. Other provisions, including the levels of fines to be levied in line with similar violations of US fishing laws and, perhaps, the payment of the amount of fines to the Pacific Island parties, would appear to require specific legislative authorization. The Treaty itself requires the parties to adopt the necessary laws to give effect to the treaty provisions and to inform other parties of those laws (Article 5.5).
THE APPLICABILITY OF THE SOUTH PACIFIC APPROACH TO OTHER REGIONS
Given that the South Pacific experience has undoubtedly been successful from the point of view of the Pacific Island states, the question remains as to the transferability of the South Pacific experience to other regions of the world. The South Pacific region, or at least that area of the South Pacific served by the FFA, is unique. It is a region dominated by a single high-value species group, tuna. It is fished primarily by a few wide-ranging foreign fleets; there being as yet little domestic coastal state fishing capacity. It is also an area of closely-knit coastal states with relatively homogeneous political systems, traditions and state of development and a strong political commitment to regional cooperation. Many of these characteristics are not shared by other regions of the world. Despite this fact, the harmonization movement developed in the South Pacific and its centrepiece, the regional register, have attracted considerable attention and are being emulated in other regions of the world, notably the Caribbean,15 the southwest Indian Ocean16 and northwest Africa.17
15 In the Caribbean, a series of three workshops organized by FAO's Fisheries Law Advisory Programme, under the aegis of the Organization of Eastern Caribbean States (OECS), has led to the adoption of harmonized fisheries laws in each of the OECS member countries. The issues on which the laws have been harmonized include national fisheries and shared stock management as well as foreign fishing. The concept of a regional register of foreign fishing vessels has been included in the harmonized fisheries laws enacted by the member countries of OECS. A workshop is to be held later in 1987 to consider the mechanics of establishing the register. See Report of the OECS/FAO Workshop on the Harmonization of Fisheries Legislation, Castries, St. Lucia, 28 April - 3 May 1983, p. 20, plus annexes, (restricted distribution) FAO document FL/WECAF/83/7; Report of the OECS/FAO Workshop on the Harmonization and Coordination of Fishery Regimes, Regulations and Access Agreements in the Lesser Antilles Region, St. John's, Antigua and Barbuda, 26 September - 1 October 1983, p. 10, plus annexes, (restricted distribution) FAO document FL/WECAF/83/8; Report of the OECS/FAO Workshop on the Harmonization and Coordination of Fishery Regimes, Castries, St. Lucia, 30 July - 4 August 1984, p. 14, plus annexes, (restricted distribution) FAO document FL/WECAF/84/9. The movement has also led to increased cooperation amongst the OECS countries on fisheries matters, and to the establishment of an OECS fisheries desk.
16 In the southwest Indian Ocean, the concept of harmonization of fishery access regimes was picked up by coastal states at a workshop organized by the FAO Fisheries Law Advisory Programme in 1984. The workshop recommended that minimum terms and conditions for access be harmonized within the region, that information on foreign fishing, including vessel reports on catch and position, be shared among coastal countries, that standardized marking requirements be adopted for foreign fishing vessels, and that countries cooperate in establishing a regional register of foreign fishing vessels for the southwest Indian Ocean. (See report of the Workshop on Licensing and Control of Foreign Fishing, Mahe, Seychelles, 21-26 May 1984, FAO document IOFC:DM/SW/84/4, September 1984). To date, little action has been taken in practice to implement these recommendations.
17 The concepts generated in the South Pacific are attracting the attention of the new Subregional Commission on Fisheries, grouping the republics of Cape Verde, Mauritania, Senegal, the Gambia and Guinea-Bissau, which has commissioned a review of regional cooperation in fisheries surveillance and enforcement, including, in particular, the South Pacific experience and the operation of the regional register.
Indeed, while it is unlikely that any other region in the world is as well-suited to harmonization, there is little reason why the basic concepts of cost-effective enforcement which have been worked out in the South Pacific should not be applicable elsewhere. Of almost universal applicability, at least for developing coastal states, is the principle of designing access and management arrangements so as to facilitate enforcement. The increasing reliance on controls and fee levies based on effort rather than catch quotas is but one manifestation. Also clearly relevant is the concept of pooling information on foreign fishing operations throughout a region or subregion and the idea of the regional register, both as a tool for collecting and collating information and as a compliance control mechanism. There is little doubt that other mechanisms for ensuring non-physical enforcement, such as the practical application of the concept of flag state responsibility for compliance control, are also likely to take root in other parts of the world.
With the extension of coastal state jurisdiction to 200 miles under the Law of the Sea, many developing coastal states, most particularly island states, are faced with considerable problems in policing the new zones. For many, if not most, of these states, policing through the normal methods of aerial and surface patrol craft would entail expenditures considerably in excess of the revenue and other benefits expected from the extension of fisheries jurisdiction. Recent developments in the use of new techniques not based on physical enforcement offer prospects for lightening the burden of developing coastal states. Most of these techniques and developments derive from regional cooperation in the control of foreign fishing operations and have been pioneered in the South Pacific under the aegis of the South Pacific Forum Fisheries Agency. Not all of the experience built up in the South Pacific may be directly applicable in other regions of the world. Certainly some lessons can be drawn from that experience, however, and from the new techniques developed, particularly in areas where the political commitment for such regional cooperation already exists.