5. NATIONAL LAWS

It is proposed now to give a brief overview of different situations which might arise under national law and which might cause confusion as to who should report data. (It needs to be said at the outset here that there is no problem about who should report data concerning fishing on the high seas as that will for all practical purposes be the flag State only).

First, what might be called a straight forward licensing regime, where the coastal State issues licenses to its own vessels in its own EEZ. In such a situation, there could be little doubt that responsibility should fall on to the coastal State to collect and to exchange relevant data.

Second, where the coastal State issues licenses or permits for foreign vessels to fish in its EEZ (or for that matter, its territorial sea and internal waters). There are two situations which need to be considered here. First, where the coastal State has granted the license directly to a foreign vessel, second, where it has granted the authority to fish under a bilateral access agreement.

In the first case, the provision of data would presumably be a condition of the license, in the second, it would presumably be a provision of the access agreement in which the flag State has agreed to ensure that its vessels collect such information.

In both of these situations, the present approach would appear to be that the flag State will be responsible for the provision of such data even though the fishing itself is being conducted entirely within the EEZ of the coastal state authorizing the fishing. However the point should be made that there is nothing that mandates that solution, for in the EEZ, as we have seen, there is no particular obligation imposed by the 1982 UN Convention to achieve that result.

Thus the selection of the flag State is based on the assumption that it is best placed to provide that data. From the point of view of nationality of the catch, however, in both of these situations, if the fish were to have any “nationality”, it would be that of the coastal State.

Under the UN Fish Stocks Agreement, the situation is different inasmuch as the flag State has particular reporting responsibilities imposed on it wherever it has been fishing for the stocks to which the Agreement applies. However, the coastal State also has responsibilities in respect of its vessels, though worded somewhat less stringency.

Similar to the access agreement situation is where the fish is obtained under a joint venture or a charter arrangement. In the case of the joint venture, the range of possibilities is in theory very wide. They could involve at one extreme a very small coastal State interest in the venture, e.g. as low as 10% of the total venture, where the coastal State partner has provided nothing more than the access to the local resource, though with the fishing being done by the foreign partner. Depending on the local law of the coastal State in question, it may be difficult to distinguish between such a vessel and a foreign flag vessel. Some countries also have a category of “locally based foreign fishing vessels”, where the foreign vessel obtains certain benefits because of its commitment to the coastal State, e.g. because it lands all or most of its catch in a port in the coastal State.

Similar situations can arise under charter arrangements, where a chartered vessel is, though flagged in another country, fishing as a local fishing vessel in terms of the authorization it has received. This is possible under the laws of quite a few countries, though the particular solutions adopted will vary considerably.

In fact, the range of possibilities is quite wide here when you allow for the fact that there are different arrangements that can be made according to the type of legal system we are dealing with (e.g. common law, civil law, socialist legal systems, economies in transition, etc). However, this theoretical range of possibilities should not be overstated, as most arrangements tend to fall into a number of fairly easily predictable types. The point which has to be made however, is that if you start to become too closely involved in the details and possible permutations of national law, then the range of possibilities makes it unlikely that a solution will be found which is clear cut for all purposes.

Thus by focussing on e.g. the flag State, even when the vessel is fishing in the internal waters, territorial waters or EEZ, it provides a clear cut solution to the provision of data that avoids getting into the niceties of different national laws, and how a vessel is authorized to fish in the EEZ. It also provides a workable solution where the fishing takes place across national zones, not only with the straddling fish stocks and highly migratory fish stocks covered by the UN Fish Stocks Agreement, but also in respect of shared stocks between two EEZ’s.⁸

⁸ See Article 63 (1) on the 1982 UN Convention.

At the seventeenth session of CWP, a paper was presented which identified the following problem areas.

FAO has recently reviewed some specific situations in which difficulties in assigning a nationality existed and led to misreporting and double counting. This is the case of New Zealand, Namibia, Peru, and probably Argentina, for which statistics of catches taken under joint-venture or concession agreements between these countries and a number of countries, including Japan, Rep. of Korea, Taiwan, etc., were over-reported.

In the case of New Zealand, the problem had first been emphasized a few years ago by anomalies in the food balance sheets constructed by FAO to estimate fish consumption. As of 1 April 1978, when the New Zealand 200 mile EEZ was declared, a number of joint-venture agreements were approved and these arrangements continue until 1 April 1983, when a “deepwater trawl policy” was introduced, allocating quotas to New Zealand-owned companies. These companies were permitted to catch their quotas using foreign chartered vessels and/or their own trawlers. Squid jigging and purse seining charter agreements continued as previously. In accordance with generally recommended practice, also accepted by FAO, these quantities caught by foreign fishing boats under charter arrangements have been recorded by the local authorities as New Zealand production. Some of the catches taken by these foreign vessels are landed in countries other than New Zealand, and these quantities are treated in the New Zealand statistics as exports. Unfortunately, these same catches are, in many cases, also reported as national catches (instead of national imports) in order to avoid import duties, by the flag States of the foreign fishing vessels operating in the New Zealand waters under joint-venture agreement. This, of course, has the effect of greatly inflating the reported catch figures in the Southwest Pacific (Area 81). This problem was solved, in agreement with the New Zealand fishery authorities, who provided FAO with data on catches by vessels from other countries fishing in New Zealand waters under charter or licence agreements, broken down by country, species, and quantity landed in New Zealand and outside New Zealand.

A similar situation pertained in Namibia, where the fisheries management authorities allocate catch quotas to Namibian companies, which often enter into joint-ventures with foreign companies which provided the vessels. There was some double reporting of catches (which are all landed in Namibia) which was subsequently resolved by asking Namibia to separate catches by flag of vessel.

In the case of Peru, the quantities over-reported referred exclusively to the Giant Squid (Dosidicus gigas). In April 1994 a Reorganization Plan for the rational and sustained exploitation of Giant Squid was approved. This plan seeks to maximise economic benefits resulting from the harvesting of this resource, by using its high availability to cover the sector’s requirements of research reorganization, planning and development. As a result of these measures, the Ministry of Fisheries has so far received money from fishing concessions, awarded through public tenders, issued to foreign flag vessels using special tackle for the harvesting of this species. These large quantities (60,998 Mt. in 1991, 93,852 in 1992, 132,586 in 1993 and 167,132 in 1994) misreported by the Peruvian fishery authorities under the Peruvian catch, were removed because they were already included under the catch of foreign flag vessels, in particular Korean, Japanese and Taiwanese vessels.

With regard to the Argentinian catch data, it will be necessary to investigate if the quantity (or part) produced by Asian jigger boats (about 100,000 m.t.) under a charter regime, is also recorded in the statistics of the chartered flags of Japan, Taiwan and Rep. of Korea, fishing respectively with 44, 13 and 11 jigger vessels.