David J. Doulman
Senior Fishery Liaison Officer
Fishery Policy and Planning Division
Fisheries Department
FAO, Rome, Italy
Doulman, D.J. Illegal, Unreported and Unregulated Fishing: Mandate for an International Plan of Action. Document AUS:IUU/2000/4. 2000. 16p.
ABSTRACT This paper traces international developments that have led to a decision
to conclude an international plan of action to combat illegal, unreported
and unregulated (IUU) fishing. The review focuses on calls made by the
Food and Agriculture Organization of the United Nations, the United Nations
Commission on Sustainable Development, the United Nations General Assembly
as well as other international fora, to address IUU fishing in a substantive
and timely manner. In addition, since IUU fishing is new fishery terminology,
even though the concept is not new, brief discussion on the origin of
the terminology is presented. The paper concludes that long-term sustainable
fisheries, as envisaged in Agenda 21 and subsequent international fishery
instruments, require a high degree of international cooperation to deter
and to prevent actions that adversely impact the productive capacity of
fish stocks. IUU fishing is one of the actions that must be curbed if
current and future sustainable opportunities are to be realized. |
PREPARATION OF THIS REPORT
This paper has been prepared as one in a series of specialist background papers for the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000. It is expected that this series of papers and the expert consultation will contribute to the elaboration of an international plan of action (IPOA) to deal effectively with all forms of illegal, unreported and unregulated (IUU) fishing, the development of which is being undertaken in accordance with a decision of the 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries. The views expressed in this paper are those of the author and do not necessarily reflect the views of FAO or any of its Members.
EXECUTIVE SUMMARY
Illegal, unreported and unregulated (IUU) fishing has far-reaching consequences for the long-term sustainable management of capture fisheries. When IUU fishing goes unchecked, the system upon which fisheries management decisions are based becomes flawed. This situation leads to the non-achievement of management goals and the loss of short- and long-term social and economic opportunities. In the extreme, IUU fishing can lead to the collapse of a fishery or seriously affect efforts to rebuild fish stocks that have already been depleted.
IUU fishing occurs, or has the potential to occur, in all capture fisheries. The practice is problematic in inland fisheries as well as marine capture fisheries in zones of national jurisdiction and on the high seas. In industrial fisheries, the problems of IUU fishing are exacerbated by weak flag State control by some States.
The circumstances that lead to IUU fishing are complex but in some way or another, are usually interrelated and of an economic nature. A key consideration in addressing the IUU fishing problem is the need to achieve more effective flag State control. Other considerations that are likely to contribute to IUU fishing include the existence of excess fleet capacity, the payment of government subsidies (where they maintain or increase capacity), and ineffective monitoring, control and surveillance (MCS).
To address IUU fishing in a substantive manner, a number of mutually consistent measures should be implemented. In the first instance, the full and effective implementation of recently concluded international fishery instruments should be encouraged (viz. Code of Conduct for Responsible Fisheries, Compliance Agreement, UN Fish Stocks Agreement and the three international plans of action (IPOAs)). The implementation of these instruments will facilitate in different, but mutually reinforcing ways, greater national control and supervision over fishing vessels operations.
International concern about IUU fishing (previously known as unauthorized fishing in zones of national jurisdiction and on the high seas) has been apparent since the 1990s. A number of fora including the United Nations General Assembly (UNGA) have been addressing the issue on an ongoing basis. However, the Twenty-third Session of the Committee on Fisheries (COFI) in February 1999 considered IUU fishing in the context of FAO's Medium Term Prospects for Major Programmes, largely on the basis of the paper made available to the Committee by Australia. The paper urged FAO to develop an IPOA to combat IUU fishing. COFI expressed concern about the incidence of IUU fishing, including the activities of fishing vessels from open registers. The Committee proposed a suite of activities to address the issue and recommended that the International Maritime Organization (IMO) be appraised of the importance COFI ascribed to the need to combat IUU fishing.
Following COFI, an FAO Ministerial Meeting on Fisheries in March 1999, adopted a Declaration which expressed concern at the growing amount of IUU fishing. The Ministers declared that without prejudice to the rights and obligations of States under international law, an IPOA dealing with all form of IUU fishing, including fishing vessels from open registries should be developed. In June 1999 the FAO Council, in considering the Report of the Twenty-third Session of COFI, urged that a global approach be taken by FAO to the development of a strategy to address IUU fishing, Furthermore, Council proposed that this initiative be carried forward through the development of an IPOA within the framework of the Code of Conduct.
Other international fora have addressed, and are continuing to address, issues relating to IUU fishing. The Seventh Session of the UN Commission on Sustainable Development (CSD) in April 1999 considered the issue noting that FAO would give priority to develop an IPOA to deal effectively with any form of IUU fishing. The CSD underscored the importance of flag State and port State issues in combating IUU fishing. In doing so, the Commission invited IMO to develop, as a matter of urgency, measures in binding forms to ensure that ships of all flag State meet international rules and standards so as to give full and complete effect to the 1992 United Nations Convention of the Law of the Sea (Article 91) as well as other relevant conventions.
The IMO has, and will, consider IUU fishing in its various committees and sub-committees. To this end, FAO is cooperating with IMO in line with international calls, to secure concerted action to combat IUU fishing.
Regional fishery management organizations and arrangements and other international fora have, in regular and special sessions, considered IUU fishing and have initiated steps independently of the process to develop an IPOA to deal with the fishery problems posed by IUU fishing.
To permit maximum flexibility in application, an IPOA to combat IUU fishing will need to take account of the characteristics of different fisheries including fleet mobility and stock distributions. The scope of the IPOA should therefore be broad and comprehensive so that, as appropriate, it can be applied regionally, sub-regionally and nationally. Without prejudice to the right and obligations of States under international law, the IPOA should seek to combat and prevent IUU fishing, irrespective to what occurs.
SUGGESTIONS FOR THE IPOA TEXT
Introduction
This international plan of action (IPOA) is concluded within the framework of the Code of Conduct for Responsible Fisheries. The Code seeks to secure long-term sustainable fisheries. Illegal, unreported and unregulated (IUU) fishing is fundamentally opposed to the goals and principles of the Code. This is because IUU fishing undermines efforts to conserve and manage fish stocks.
When confronted with IUU fishing, regional, sub-regional and national fishery management organizations and arrangements do not achieve management goals. This situation leads to the loss of both short- and long-term social and economical opportunities. in extreme cases, IUU Fishing can lead to the collapse of a fishery or seriously impair efforts to rebuild stocks that have already been depleted.
The incidence of unauthorized fishing in zones of national jurisdiction and on the high seas has been addressed in international for a, including the United Nations General Assembly, over the past decade. However, the Twenty-third Session of the Committee on Fisheries (COFI) in February 1999 considered the need to combat IUU fishing. COFI also requested that the issue of fishing vessels from open registers be assessed in terms of their contribution to IUU fishing. Subsequently, an FAO Ministerial Meeting on Fisheries in March 1999 requested that, without prejudice to the rights and obligations of States under international law, FAO proceed with the elaboration of an IPOA to deal effectively with all forms of IUU fishing including fishing vessels from open registers. In June 1999 the FAO Council, in its consideration of COFI's report, urged that a global approach be taken by FAO to develop a strategy to address the problem of IUU fishing. The Council also noted that this initiative should be carried forward through the development of an IPOA within the framework of the Code of Conduct for Responsible Fisheries.
IUU fishing was also addressed at the Seventh Session of the UN Commission on Sustainable Development (CSD) in April 1999. CSD noted that FAO would give priority to the development of an IPOA to deal effectively with any form of IUU fishing. The Commission's report highlighted the issue of flag State and port State responsibilities and the need for FAO and the International Maritime Organization (IMO) to cooperate on solving problems relating to IUU fishing. This cooperation between FAO and IMO has been initiated and is continuing.
Regional fishery management organizations and arrangements and other international fora, recognize the urgent need to address IUU fishing. Many of these organizations and arrangements are taking steps independently of the development of the IPOA to combat IUU fishing.
1. INTRODUCTION
1. Illegal, unreported and unregulated (IUU) fishing has far reaching consequences for the long-term, sustainable management of capture fisheries. This is because IUU fishing undermines management efforts either by national fishery authorities within exclusive economic zones (EEZs), and/or competent regional fishery management organizations.
2. When IUU fishing goes unchecked, the system upon which fisheries management decisions are based becomes fundamentally flawed[11]. This situation leads to the non-achievement of management goals, with the loss of both short- and long-term social and economic opportunities. In extreme cases, IUU fishing can lead to the collapse of a fishery or seriously affect efforts to re-build stocks that have already been depleted. It is primarily for this reason that the international community has identified IUU fishing as a priority fisheries issue that should be addressed in an effective and timely manner.
3. In marine capture fisheries IUU fishing occurs in both small-scale and industrial fisheries. Indeed, in zones of national jurisdiction, IUU fishing by small-scale fishers and by industrial vessels is common and, together with IUU fishing by foreign vessels in EEZs, accounts for the highest incidence of this type of fishing[12]. However, there is also substantial IUU fishing in high seas fisheries owing to a lack of effective management arrangements in many areas and weak flag State control by some flag States. In inland fisheries, IUU fishing is evident, especially in large lake fisheries, as well as in sports fisheries.
4. In addition to consequences for fisheries management, IUU fishing also has notable social and economic consequences when such fishing occurs within agreed fishery access arrangements. Very often fees for fisheries access are predicated on the volume and species of fish harvested. When IUU fishing occurs under these conditions, coastal States which license these foreign vessels, and which are usually developing countries and often small island developing States, are denied legitimate revenue from the exploitation of their EEZ fishery resources. Where IUU fishing occurs outside such agreements but within the EEZs of developing coastal States, it is possible that this fishing may deprive these countries of food and lost fishing opportunities for national fishers.
5. The circumstances that lead to IUU fishing are complex but usually inter-related. A key issue in addressing IUU fishing is the need to achieve more effective flag State control, as envisaged in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), in other international fishery instruments and in conventions establishing regional fishery management organizations. Where flag State control is weak or lacking, including when vessels are registered on open registries and there is no effective supervision of their operations, alternative means of deterring IUU fishing should be sought.
6. Other considerations contribute significantly to IUU fishing. These issues, which are often economically motivated, include the existence of excess fleet capacity, the payment of government subsidies (particularly where subsidies maintain or increase capacity), and ineffective fleet monitoring, control and surveillance (MCS). Unsustainable fishery practices with respect to the utilization of catch are likely to result from IUU fishing, and as a result the incidence of by-catch and discarding will be high. In this connexion the 1999 Report of the Secretary-General to the United Nations General Assembly (UNGA) considered issues contributing to IUU fishing. The report noted:
254. It is believed that the open access regime of high seas fisheries, the lack of flag State control over the activities of fishing vessels flying their flag on the high seas and the existence of an overcapacity in the fishing industry have played a significant role in the worsening of the IUU fishing phenomenon. Compounding such problems is the ability of a fishing vessel to reflag to a flag State of convenience with which it has often no real link, in order to escape internationally agreed conservation and management measures on the high seas which its own flag State would have otherwise enforced. However, it is recognized that, pursuant to article 91 of UNCLOS, every State is entitled to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Additionally, article 94 of UNCLOS specifies the administrative, technical and social matters in respect of which a flag State is required to exercise effective jurisdiction over vessels flying its flag.[13]
7. To address IUU fishing, and to find a lasting solution to deter this practice, a number of mutually consistent measures should be taken. In the first instance the full and effective implementation of recently concluded international fishery instruments should be promoted and encouraged. These instruments include the Code of Conduct for Responsible Fisheries[14], the Compliance Agreement[15], the UN Fish Stocks Agreement[16], and the International Plan of Actions (IPOAs) for reducing incidental catch of seabirds in longline fisheries, conservation and management of sharks and the management of fishing capacity. The implementation of these instruments will facilitate, in different but mutually re-enforcing ways, greater national control and supervision over fishing vessel operations. Through such measures some of the primary causes that contribute to IUU fishing will be addressed. The Code of Conduct and the IPOAs, although voluntary, embrace all fisheries while the Compliance Agreement and UN Fish Stocks Agreements, respectively, which upon entry into force will be binding instruments, are more restricted in application in terms of area (high seas) and stocks (straddling fish stocks and highly migratory fish stocks).
8. An IPOA to combat IUU fishing that creatively and realistically addresses the issue should assist in deterring such fishing. Given the characteristics of different fisheries, including in some cases the high mobility of fleets, and taking account of the distribution of stocks, the scope of the IPOA should be comprehensive. Indeed, it is envisaged that the IPOA should have the flexibility to be effectively applied at the global, regional, sub-regional and national levels, as appropriate. Without prejudice to the rights and obligations of States under international law, the IPOA and its application should seek to combat and prevent IUU fishing irrespective of where it occurs.
2. INTERNATIONAL CALLS FOR ACTION TO ADDRESS IUU FISHING
9. International concern about the impact of IUU fishing on fisheries management has preoccupied countries and regional fishery bodies for more than a decade. Both unilateral and collective action has been taken to deter such fishing operations, sometimes leading to the imposition of sanctions and bans (e.g. bans on port entry and on the import of certain species of fish that have been harvested outside agreed management arrangements). However, while these ad hoc measures might be effective in the short-run, longer-term, regional and global solutions are required to deal with the problems posed by IUU fishing.
10. The non-sustainable use of the worlds natural resources has been high on the international agenda over the past decade. With respect to fisheries, concern has focused largely on the adoption of initiatives and the implementation of measures that will facilitate rational and long-term utilization[17]. Since 1992 the major initiatives and actions that have been promoted by the international community have been the:
To some degree, the issue of IUU fishing (often by another name such as illegal or unauthorized fishing) has been of concern, and has been addressed, in each of these developments.
11. Apart from these initiatives since 1992, the UNGA has reviewed, on an annual basis since 1994, the question of unauthorized fishing. Moreover, at their respective meetings in 1999 and 2000, the FAO Committee on Fisheries (COFI), FAO Ministerial Meeting on Fisheries, the UN Commission on Sustainable Development (CSD), International Maritime Organization (IMO) and the UNGA have addressed aspects of IUU fishing and the problems associated with it as a specific issue.
2.1 United Nations General Assembly
12. The UNGA at its Forty-ninth Session in 1994 considered, for the first time, the issue of unauthorized fishing in zones of national jurisdiction and its impact on living marine resources of the worlds oceans and seas. This concern was reflected in resolution 49/116.[18] In subsequent years, the Assembly addressed the issue together with other international fishery concerns (large-scale pelagic driftnets, bycatch and discards and other developments). These issues formed the basis for resolutions 50/25 in 1995,[19] 51/36 in 1996,[20] 52/29 in 1997,[21] and 53/33 in 1998.[22]
13. In each of these resolutions, the UNGA, inter alia:
14. In each resolution cited above, the UNGA requested that the issue of unauthorized fishing be kept under review and that it be reconsidered at the following session of the Assembly. This action kept IUU fishing and its impact on the achievement of sustainable fisheries, as a priority issue on the international oceans and law of the sea agenda.
15. In 1999 the Secretary-Generals report noted, inter alia, that IUU fishing:[23]
16. Paragraphs 249 to 257 that address IUU fishing from the Secretary-Generals 1999 report to the General Assembly are in Appendix 1. These paragraphs provide background information to the IUU fishing issue and are based, to a large extent, on information provided by FAO to the UN Secretariat for the compilation of the Secretary-Generals report.[24]
17. UNGA resolution 54/32 adopted by the Assembly on 25 November 1999, and which addressed the implementation of the UN Fish Stocks Agreement and other issues, focussed significantly on IUU fishing, substantially reinforcing FAOs mandate to proceed with its work on IUU fishing. In the preambular paragraphs the resolution referred to previous resolutions regarding unauthorized fishing in zones of national jurisdiction and expressed concern at the impact of IUU fishing, noting that it seriously threatened the depletion of populations of certain fish species. It therefore urged States and entities to collaborate in efforts to address these types of fishing activities. Moreover, in the operative paragraphs the resolution the Assembly:
18. Resolution 54/32 requested the Secretary-General to report to the Fifty-sixth Session of the UNGA in 2000 on further developments relating to the implementation of the resolution.[25]
2.2 Food and Agriculture Organization of the United Nations
2.2.1 23rd Session of the Committee on Fisheries
19. The Twenty-third Session of COFI (Rome, 15-19 February 1999) considered IUU fishing within the context of the Medium-Term Prospects for Major Programme 2.3 (Fisheries), largely on the basis of a paper made available to the Committee by Australia.[26] The purpose of the paper was to urge FAO to develop an IPOA to combat IUU fishing. The paper noted that the IPOA should consist of practical management and enforcement options covering both fisheries production and trade. It was further noted that such a plan would assist coastal States and regional fishery management organizations to reduce or eliminate IUU fishing.
20. COFI expressed its concern about information presented concerning IUU fishing, including fishing vessels flying flags of convenience. The report of the Session stated:[27]
72. The Committee placed a high level of importance on the implementation of the Code of Conduct for Responsible Fisheries. The Committee was concerned about information presented indicating increases in illegal, unreported and unregulated fishing, including fishing vessels flying flags of convenience. The Committee urged, as a priority, those countries that had not yet ratified the Compliance Agreement to consider doing so as soon as possible. It was generally agreed that pending the entering into force of the Agreement, additional steps might need to be considered and that FAO should undertake work in this regard. Several delegations urged that FAO convene a meeting of experts to identify suitable measures, followed by a technical consultation that would report to the Twenty-fourth Session of the Committee. Before convening such a meeting, FAO should review the activities that had been undertaken by regional fishery management organizations to deal with these problems. It was emphasized that due account should be taken of the rights and obligations of States under international law.21. In accordance with the COFI directives, FAO immediately prepared a paper for IMO, and submitted it to the Marine Safety Committee for its Session in May 1999 (see section 2.4 below). In addition, FAO established contact by letter on 26 April 1999 with all FAO and non-FAO regional fishery organizations seeking information on the scope and extent of IUU fishing in their respective areas of competence. The information provided by these and other organizations forms the basis for document AUS:IUU/2000/6.The Committee took note that the issues related to reflagging of fishing vessels and ship registration would be one of the subjects to be discussed by the IMO Sub-Committee on Flag State Implementation. It was suggested that FAO inform IMO of the importance the Committee ascribed to the issue in time for the meeting in March 1999.
2.2.2 Ministerial Meeting on Fisheries
22. Shortly after the Twenty-third Session of COFI, the Rome Declaration on Responsible Fisheries was adopted by the FAO Ministerial Meeting on Fisheries (Rome, 10-11 March 1999). Inter alia, a preambular paragraph of the Declaration expressed concern at the growing amount of IUU fishing activities. To address IUU fishing, the Ministers and Ministers representatives declared in operative paragraph 12 j) that without prejudice to the rights and obligations of States under international law they:
j) Will develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying flags of convenience, as discussed in paragraph 33 of Annex G of the Report of the Consultation on the Management of Fishing Capacity, Shark Fisheries and Incidental Catch of Seabirds in Longline Fisheries, which met in Rome in October 1998, through coordinated efforts by States, FAO, regional fishery management bodies and other relevant international agencies such as the International Maritime Organization (IMO), as provided in Article IV of the Code of Conduct;[28]
2.2.3 116th Session of the Council
23. The FAO Council at its One Hundred and Sixteenth Session (Rome, 14-19 June 1999) considered the Report of the Twenty-third Session of COFI, which it endorsed, noting that FAO had a comparative advantage in fisheries. With respect to IUU fishing, the Report of the Session stated:[29]
30. The Council noted that illegal, unauthorized and unreported fishing (IUU), including fishing by vessels flying flags of convenience, undermined conservation and management measures in fisheries. The Council urged that a global approach be taken by FAO to develop a strategy to address the problem of IUU, noting that this initiative should be carried forward through the development of an IPOA within the framework of the Code of Conduct. The Council urged countries that had not yet accepted the Compliance Agreement to do so as soon as possible.2.3 7th Session of the United Nations Commission on Sustainable Development
24. The Seventh Session of the CSD (New York 19-30 April 1999) addressed the issue of IUU fishing. The Report of the Session notes:[30]
18. The Commission supports the Rome Declaration adopted by the Ministerial Meeting on Fisheries (10-11 March 1999) that FAO will give priority to its work to develop a global plan of action to deal effectively with any forms of IUU fishing. This should include dealing with the problem of those States which do not fulfil their responsibilities under international law as flag States with respect to their fishing vessels, and in particular those which do not exercise effectively their jurisdiction and control over their vessels which may operate in a manner that contravenes or undermines the relevant rules of international law and international conservation and management measures. It will also require coordinated efforts by States, FAO, regional fisheries management bodies and other relevant international agencies, such as IMO, as provided in Article V of the Code of Conduct for Responsible Fisheries. The Commission further encourages the International Maritime Organization (IMO) in cooperation with FAO and the UN Secretariat, to consider the implications in relation to fishing vessels of the work requested in paragraph 35(a), below.....
35. The Commission:
(a) Invites IMO to develop, as a matter of urgency, measures, in binding form, where the Members of IMO consider it appropriate, to ensure that ships of all flag States meet international rules and standards so as to give full and complete effect to UNCLOS, especially Article 91 (Nationality of ships), as well as provisions of other relevant conventions. In this context, the Commission emphasizes the importance of further development of effective port State control....[31]
2.4 International Maritime Organization
2.4.1 71st Session of the Maritime Safety Committee
25. In response to paragraph 73 of the COFI Session Report, FAO conveyed to the Seventy-first Session of the International Maritime Organizations (IMO) Maritime Safety Committee (MSC) (London, 19-28 May 1999) the results of COFI's deliberations with respect to the reflagging of fishing vessels and ship registration.[32] In doing so FAO reported that, on the basis of Lloyds Register of Ships, the Organization estimated that 5 percent of fishing vessels in the 100-150 GRT range were in open registers, increasing to 14 percent for fishing vessels over 4 000 GRT. It was further noted that the number of fishing vessels being registered under open registers has continued to increase despite the decrease in numbers of the total fleet. Much of the increase of fishing vessels in open registers can be accounted for by a proliferation of new countries offering open registration. FAO invited the Committee to note the concern of FAO regarding recent reported increases in IUU fishing, including fishing vessels flying flags of convenience and the adverse effects of such fishing on the international management and conservation measures of the living marine resources on the high seas.
26. The MSC considered the FAO paper and instructed the Secretariat to bring the comments made by the Committee to the attention of FAO.[33] IMO conveyed this information to FAO on 14 July 1999 and indicated that the comments should be taken into account in any new submission that FAO may wish to make on the subject.[34]
27. The report of the MSC Session notes that some countries had difficulty with the use of certain terminology (most notably the term flag of convenience) for which FAO had provided no definition nor had it provided a list of countries so classified.[35] Countries having difficulty with the FAO submission proposed that it be returned to FAO advising that the use of such terminology was divisive and should not be used in submissions for consideration by IMO. It was also pointed out that many of the issues raised by FAO were outside IMO's scope and the terms of reference of the MSC.
28. In the discussion relating to the FAO submission other countries stated that FAO had made the submission at the direction of the 126 Ministers (representing among others the Governments of all Members of the MSC that had participated in the debate) who had adopted the Rome Declaration on Responsible Fisheries (see section 2.2.4). It was further noted that FAO was seeking the assistance of IMO because the issues related to reflagging of fishing vessels and ship registration were, in the view of FAO Members, relevant to flag State implementation of IMO Conventions and Articles 91 and 94 of UNCLOS.[36]
2.4.2 8th Session of the Sub-Committee on Flag State Implementation
29. The issue of IUU fishing was raised at the Eighth Session of IMO's Sub-Committee on the Flag State Implementation (FSI-8) (London, 24-28 January 2000) under Agenda item 6 Implications arising when a vessel loses the right to fly the flag of a State. Two papers (FSI 8/6 and FSI 8/Inf.6) were jointly submitted by Australia, United States of America and Canada to the Sub-Committee, both with the title of The case of illegal, unreported and unregulated fishing[37]. In substance, these papers sought the Sub-Committees support for active cooperation between IMO and FAO to address relevant aspects of IUU fishing, particularly the question of flag State compliance with international obligations, as called for by UNGA, FAOs Governing Bodies and CSD. In addition, FAO provided an information paper (FSI 8/Inf.5) entitled Illegal, unreported and unregulated fishing: The FAO Compliance Agreement, Code of Conduct and Rome Declaration. The purpose of this paper was to provide this information to the Sub-committee, noting that the Compliance Agreement and the Code of Conduct were both relevant to combating IUU fishing.
30. The Flag State Implementation Sub-Committee, realizing that IMO, and in particular the FSI Sub-Committee, could provide assistance to FAO on this matter, but recognizing the need for a policy decision on the issue, agreed to refer the matter to the Marine Environment Protection Committee (MEPC) and the Maritime Safety Committee (MSC) for further guidance on how the issues involved could be incorporated in the Sub-Committees work programme. The Sub-Committee further recommended that these two Committees consider the formation of a joint FAO/IMO ad hoc Working Group and invited FAO to submit a relevant document, including draft terms of reference for such a joint group, to MSC 72 at its May 2000 session for consideration. The IMO Secretariat also advised that in March 2000, MEPC 44 will consider document MEPC 43/9/3 concerning the outcome of CSD's deliberations relating to the work of MEPC together with the Sub-Committees report. The Sub-Committee also urged its Members to consider acceding to the 1993 Torremolinos Protocol for the Safety of Fishing Vessels and the 1995 International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F Convention) as soon as possible.[38]
2.4.3 44th Session of the Marine Environment Protection Committee
31. The Forty-fourth Session of the MEPC (London, 6-15 March 2000) considered IUU fishing on the basis of the Report of FSI-8. The Committee endorsed the recommendations of the Sub-Committee, noting that the Seventy-second Session of MSC would consider the terms of reference for the proposed joint FAO/IMO ad hoc working group on IUU fishing and related matters.
2.4.4 72nd Session of the Maritime Safety Committee
32. The Seventy-second Session of MSC will meet in London, 17-26 May 2000. The Committee will also consider the Report of FSI-8. In addition, FAO, in consultation with Australia, Canada and USA, has submitted a paper on IUU fishing which includes the terms of reference for the proposed ad hoc FAO/IMO working group. The paper discusses the background issues to IUU fishing and the call for the elaboration of an IPOA to combat the practice. In addition, the implications of IUU fishing for maritime safety and maritime fraud issues, and the protection of the marine environment are addressed. Factors concerning cooperation between FAO and IMO are also considered. The paper requests MSC to take a decision regarding the establishment of the ad hoc working group and to include IUU fishing and related matters within the competence of IMO in the work programme of FSI.
2.5 Other International Fora
2.5.1 Asia-Pacific Economic Cooperation Fisheries Working Group
33. At the request of the Asia-Pacific Economic Cooperation (APEC) Fisheries Working Group (FWG), FAO provided a paper concerning IUU fishing for an Ad hoc Workshop of the FWG on Fisheries Management (Kesen-numa, Japan, 13-15 July 1999).[39] The Workshop report notes, with respect to the IUU fishing agenda item, that it was agreed, inter alia, that further consultation among Member Economies would be required on this subject. In addition, a list of topics was proposed for consideration by the 2000 follow-up meetings planned by Australia and FAO. These topics included landing and port call prohibitions, international inspection schemes, input and output controls (for fisheries management), trade measures, eco-labelling, administration of fishing vessel registries, improved vessel monitoring systems, information exchange on ratification of the Compliance Agreement and study on the provisions of IMO regarding the regulation of flag of convenience vessels. It was envisaged by the Workshop that these topics would be subject areas to be addressed within the IPOA that would be subsequently elaborated.
34. In response to discussion on the IUU fishing agenda item, the Workshop adopted a resolution in which APEC Economies were urged to participate fully in efforts to deal effectively with all forms of IUU fishing, including fishing vessels flying flags of convenience.[40] At the meeting Japan provided a list of flag of convenience tuna longline vessels that were operating in 1999. The Workshop also adopted a resolution on this item.
2.5.2 International Conference on Monitoring, Control and Surveillance (MCS), Santiago, Chile
35. The Government of Chile, in cooperation with FAO, convened an international conference in January 2000 in Santiago, Chile, to consider three fishery issues. These issues were application of the MCS within the framework of the Code of Conduct for Responsible Fisheries, an international certification scheme for trade in fish and fisheries products taken in international waters and IUU fishing on the high seas or in areas where there are no regional management mechanisms. The Conference adopted the Responsible Fishing Declaration, Santiago 2000. The section of the Declaration relating to IUU fishing is in Appendix 2.
2.5.3 Regional Fishery Bodies
36. A number of regional fishery bodies have addressed issues relating to IUU fishing at their annual or subsidiary sessions. These bodies have included the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), the Indian Ocean Tuna Commission (IOTC), the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Northwest Atlantic Fisheries Organization (NAFO) and the North-east Atlantic Fisheries Commission (NEAFC). Other fishery bodies are in the process of addressing the issue. Details relating to activities by these bodies with respect to IUU fishing are addressed in the global review of IUU fishing in document AUS:IUU/2000/6.
3. EVOLUTION OF IUU FISHING TERMINOLOGY
37. IUU fishing is new terminology in the fisheries literature. It traces its origins to recent discussions at Sessions of CCAMLR where it evolved from discussions concerning illegal and/or non CCAMLR-compliant fishing activities by Parties (illegal and unreported) and non-Parties (illegal and unregulated) in the Convention area.
38. The first formal mention of IUU fishing on a CCAMLR meeting agenda was in 1997 when it appeared as Agenda item 1, Illegal, Unregulated and Unreported Fishing in the Convention Area, at the Seventh Session of the Standing Committee on Observation and Inspection (SCOI) (28-31 October 1997).[41] This item also appeared as Agenda item 5, Illegal, Unreported and Unregulated Fishing in the Convention Area, at the Sixteenth Session of the Commission (27 October - 7 November 1997).[42]
39. In discussion of the issue, the Commissions Sixteenth Sessions Report noted, inter alia, that overfishing, illegal, unregulated and unreported constituted a most serious challenge to the reputation and credibility of CCAMLR as an intergovernmental organization for rational management of living marine resources on a sustainable basis. Moreover, the report further noted that IUU catches in the Commissions area exceeded reported fishing by a factor several times over and that more than half of the vessels presumed to engage in IUU fishing fly the flags of CCAMLR Member States.[43]
40. Since 1997 the term IUU fishing has been used regularly at CCAMLR meetings, and it has subsequently been diffused into international fisheries discussions. In 1999, the terminology found its way in meeting reports of FAO, IMO, CSD and regional fishery bodies. Furthermore, as noted above, IUU fishing was addressed at length in the 1999 Secretary-Generals Report to the UNGA on Oceans and the Law of the Sea. Resolution 54/32 of the Assembly included references to combat IUU fishing. These reports and references to IUU fishing have clearly placed the issue on the international fisheries agenda.
4. CONCLUSION
41. The consequences of IUU fishing are apparent in world fisheries and already there have been strong national, regional and international calls to address the issue as a matter of priority. To this end it was agreed at a 1999 FAO meeting of fisheries ministers that an IPOA should be elaborated. Support for this initiative has come from the CSD and subsequently, the UNGA. The purpose of the IPOA will be to combat IUU fishing so that efforts by national and regional authorities to manage fisheries will not be undermined. The entry into force of the Compliance Agreement and the UN Fish Stocks Agreement, together with the implementation of the Code of Conduct for Responsible Fisheries and the IPOAs on incidental catches, conservation and management of sharks and the management of fishing capacity, will strengthen the IPOA on IUU fishing through the links that will be established with these instruments.
42. If international efforts to combat IUU fishing are successful, there are good prospects that further progress will be made in moving towards long-term sustainable fisheries. On the other hand, the failure to achieve a comprehensive, realistic and implementable IPOA to combat IUU fishing will accelerate degradation of important and valuable fisheries. Moreover, and significantly, continued IUU fishing will stifle attempts to re-build fish stocks where stocks have already been overfished.
43. The long-term sustainable use of fisheries, as envisaged in Agenda 21 and subsequent international fishery instruments, requires a high degree of international cooperation and agreement to deter and prevent actions that will adversely impact the productive capacity of fish stocks. IUU fishing is one of the actions that must be combated if sustainable opportunities, and the social and economic benefits that accompany such opportunities, are not to be lost for current, and possibly, future generations.
Appendix 1
EXTRACT FROM THE 1999 REPORT OF THE SECRETARY-GENERAL TO THE UNITED NATIONS GENERAL ASSEMBLY ON OCEANS AND THE LAW OF THE SEA.
A. Conservation and management of living marine resources
1. Marine fisheries
(a) World review of marine fisheries
249. In addition to the issues of overfishing and by-catch, which were the subjects of previous reports of the Secretary-General (see A/52/487, para. 191; A/53/456, paras. 261-264), the prevalence of illegal, unregulated and unreported (IUU) fishing on the high seas, in contravention of conservation and management measures adopted by subregional and regional fisheries management organizations and arrangements, is considered to be one of the most severe problems currently affecting world fisheries. IUU fishing is often undertaken by fishing vessels of States or entities that are not members of fisheries organizations or arrangements and do not consider themselves bound by the restrictions imposed by those management organizations and arrangements. IUU fishing is also undertaken by vessels that were formerly registered in a State member of regional fisheries organizations or arrangements but were subsequently registered in a non-member State (reflagging to a flag of convenience) to avoid compliance with conservation and management measures. Such a situation has far-reaching consequences for the long-term, sustainable management of fisheries, as it is likely to lead to the non-achievement of management goals for the organizations and arrangements concerned, with implications for both short-term and long-term benefits, and may in extreme cases lead to a fishery collapse or seriously affect efforts to rebuild stocks.[44] IUU fishing also raises some fundamental issues associated with well-established norms and principles of international law relating to the qualified freedom of high seas fishing, a flag States exclusive jurisdiction over vessels flying its flag on the high seas, rules regarding treaties and third States, and the duty to cooperate for the conservation and management of living marine resources of the high seas.
250. The IUU fishing phenomenon has been reported in various regions under the purview of subregional and regional fisheries management organizations or arrangements.[45] It has been noted in this regard that well over 100 000 t of illegal catch of Patagonian toothfish had been harvested in 1996 in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Convention area, compared to an allowable catch of approximately 13 000 t (see A/53/456, para. 288) and that around 42 000 t of toothfish were traded in 1997-1998, or some 45 percent more than the legal catch level for that period.[46] The International Commission for the Conservation of Atlantic Tunas (ICCAT) has also recognized that in 1998 a large number of large-scale longline vessels were catching species managed by ICCAT in the Convention area without reporting their catches to the Commission or respecting the ICCAT conservation and management measures.[47] Similarly, the General Fisheries Commission for the Mediterranean (GFCM) has also indicated that activities of vessels fishing under the flag of convenience in the Mediterranean region compelled it to develop a control scheme to address this issue.[48] In addition, States parties to the North Pacific Anadromous Fish Commission (NPAFC) have also reported that IUU high seas fishing for salmon by States non-parties with the use of driftnets was taking place in the NPFAC Convention area.[49] Furthermore, both the Indian Ocean Tuna Commission (IOTC) and the Commission for Conservation of Southern Bluefin Tuna (CCSBT) have expressed concern over activities of flag-of-convenience vessels and vessels flying the flag of non-member States in areas under their respective competence. On the basis of data from Lloyds Register of Shipping, FAO has estimated that 5 percent of fishing vessels in the gross registered tonnage range of 100 GRT-150 GRT were in open registers, increasing to 14 percent for fishing vessels over 4,000 GRT.[50] Moreover, a compilation of flag-of-convenience longline vessels targeting tuna provided by the Fisheries Agency of Japan in 1998 put the number of these vessels at 238.[51]
251. Similarly, IUU fishing activities have been reported in zones under the national jurisdiction of coastal States, particularly developing coastal States, in violation of their sovereign rights to conserve and manage the living marine resources in those areas in accordance with articles 56, 61 and 62 of UNCLOS. These activities are believed to have adverse effects on the sustainable development and conservation of the fishery resources, economies and food security of those countries. The seriousness of the situation compelled the United Nations General Assembly in 1994 to adopt resolution 49/116 of 19 December, in which it called upon States to take measures to ensure that no fishing vessels entitled to fly their national flag fished in zones under the national jurisdiction of other States, unless duly authorized by the competent authorities of the coastal State or coastal States concerned, and that such fishing operations be conducted in accordance with the conditions set out in the authorization.
252. In addition, IUU fishing may have exacerbated the problem of discards and by-catch, including incidental catch of seabirds during fishing operations, in view of the fact that vessels involved in this type of activity would likely use unsustainable fishing practices and non-selective fishing gear, thus causing more serious adverse impacts on non-target species and on marine biodiversity than legally operated fishing vessels. It has been reported that in 1998, IUU fishing vessels were responsible for killing between 50,000 and 89,000 seabirds in the CCAMLR Convention area, compared with 1,562 killings attributed to legally conducted fishing activities.[52] It has been also reported that deliberate loss of gear by unregulated fishery in order to evade sighting or inspection has contributed to an increased mortality of fish stocks, seabirds and marine mammal populations.[53]
253. In fact, IUU fishing - consisting of fishing operations conducted outside agreed conservation and management as well as data collection schemes - in failing to provide vital data to fisheries management organizations, may undermine the data quality achieved by members of regional fisheries organizations and arrangements which enables an estimation of key fisheries parameters such as discards and non-target species mortality.[54] Moreover, in such unregulated fishery, where immediate economic returns are far more important than concerns for long-term food security and sustainable use, fishers would frequently discard unwanted components of their catch if they considered that their expected net price, i.e., the real price less the landing costs, would be negative, and if the resultant costs incurred in landing would be greater than those incurred by discarding.[55]
254. It is believed that the open access regime of high seas fisheries,[56] the lack of flag State control over the activities of fishing vessels flying their flag on the high seas and the existence of an overcapacity in the fishing industry have played a significant role in the worsening of the IUU fishing phenomenon. Compounding such problems is the ability of a fishing vessel to reflag to a flag State of convenience with which it has often no real link, in order to escape internationally agreed conservation and management measures on the high seas which its own flag State would have otherwise enforced. However, it is recognized that, pursuant to article 91 of UNCLOS, every State is entitled to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Additionally, article 94 of UNCLOS specifies the administrative, technical and social matters in respect of which a flag State is required to exercise effective jurisdiction over vessels flying its flag.
255. While UNCLOS provides that a genuine link must exist between a State and a ship, flying its flag, the International Tribunal for the Law of the Sea has however pointed out that there is nothing in article 94 to permit a State which discovers evidence indicating the absence of proper jurisdiction and control by a flag State over a ship to refuse to recognize the right of such a ship to fly the flag of that State (M/V Saiga (No. 2) Case, Saint Vincent and the Grenadines v. Guinea, 1999, para. 82). The Tribunal stressed that 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 (ibid., para. 83). In this connection, UNCLOS specifies that where a State has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised, its only recourse is to report the facts to the flag State, which is then obliged to investigate the matter and, if appropriate, take any action necessary to remedy the situation.[57]
256. In view of the seriousness of the IUU fishing problem, with its potential adverse effects on recently launched measures to control overcapacity and overfishing (see para. 258), several initiatives have been taken at the international level to confront these fishing activities. First, the FAO Committee on Fisheries (COFI), at its twenty-third session, held in Rome from 15 to19 February 1999, made an urgent appeal to those States which had not yet ratified the Compliance Agreement (see para. 98) to consider doing so as soon as possible and, pending the entry into force of the Agreement, suggested that additional steps might need to be considered by FAO to address the issue of IUU fishing.[58] In this respect, it was suggested that cooperation between regional bodies against vessels carrying flags of convenience would be a positive step, including through the compilation of lists of vessels flying flags of convenience in areas under their competence.[59] Secondly, COFI noted that issues related to reflagging and ship registration would be one of the subjects to be discussed at the next meeting of the IMO Subcommittee on Flag State Implementation and decided to stress to the Subcommittee the importance it attached to those issues.[60] Thirdly, the FAO Ministerial Meeting on Fisheries (Rome, 10-11 March 1999) decided to incorporate in its Declaration on the Implementation of the Code of Conduct for Responsible Fisheries a clear statement of resolve for the international community to develop a global plan of action to deal effectively with all forms of IUU fishing, including fishing vessels flying flags of convenience.[61] Fourthly, the FAO Council, which met for its one-hundred-and-sixteenth session in Rome from 14 to 19 June 1999, also urged FAO to adopt a global approach to develop a strategy to address the problem of IUU fishing through the development of an international plan of action within the framework of the Code of Conduct.[62]
257. The Commission on Sustainable Development (CSD), at its seventh session in New York (19-30 April 1999) (see CSD decision 7/1, para. 18), expressed its support of the Rome Declaration adopted by the FAO Ministerial Meeting under which FAO would give priority to the task of developing a global plan of action to deal effectively with IUU fishing. The Commission pointed out that such a plan should also deal with the problem of those States which did not fulfil their responsibilities under international law as flag States with respect to their fishing vessels, and in particular those which did not exercise effectively their jurisdiction and control over their vessels which might operate in a manner that contravened or undermined the relevant rules of international law and international conservation and management measures. CSD was convinced that any solution to the problem of IUU fishing would require coordinated efforts by States, FAO, regional fisheries management bodies and other relevant international agencies.[63] It therefore encouraged IMO, in cooperation with FAO and the United Nations Secretariat, to consider the implications in relation to fishing vessels of the need to develop, as a matter of urgency, binding measures, to ensure that ships of all flag States meet international rules and standards so as to give full and complete effect to UNCLOS, especially article 91 (Nationality of ships), as well as provisions of other relevant conventions.[64] CSD has also advocated the development of an effective regime for port State control (see also para. 183).
Appendix 2
EXTRACT FROM THE RESPONSIBLE FISHING DECLARATION
SANTIAGO 2000[65]
ILLEGAL, UNREGULATED AND UNREPORTED FISHING
The Conference affirms that the FAO is the international forum with the membership, the expertise and the mandate to coordinate [and] spell out efforts to achieve sustainable fisheries and also recognizes FAO coordination with International Maritime Organization [IMO], World Trade Organization [WTO] [and the] Commission on Sustainable Development [CSD] on the issue.
The Conference recommends urgent action designed to solve the problem of illegal, unregulated and unreported fishing, and urges all States to support and take part in the FAO initiative on this subject.
The Conference further affirms that flag States must carry out their duties with respect to fishing vessels flying their flags, in particular:
(1) take measures to ensure that these vessels [do] not undermine the effectiveness of international conservation and management regimes;The Conference urges States:(2) not allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been properly authorized by the flag State;
(3) not authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the State is satisfied that it is able to exercise effectively its control over that vessel.