TOOLS TO ADDRESS IUU FISHING: THE CURRENT LEGAL SITUATION (William Edeson)

William Edeson
Senior Legal Officer
Legal Office
FAO, Rome, Italy

Edeson, W.
Tools to Address IUU Fishing: The Current Legal Situation.
Document AUS:IUU/2000/8. 2000. 13 p.

ABSTRACT
This paper reviews the purpose and scope of the initiative concerning IUU fishing, pointing out that the terms do not appear to have been selected to reflect a precise legal use, rather, to provide a framework for determining priorities for addressing the problem. The paper then reviews the basic legal tools available to address IUU fishing in internal waters, including the power of the port State, archipelagic waters, territorial waters, the EEZ, the high seas, the potential for jurisdiction based on nationality, the role and power of the flag State, including the general provisions found in the 1982 UN Convention, and the changes introduced by the 1995 UN Fish Stocks Agreement and the FAO Compliance Agreement.

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 Co-operation 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 of any of its Members.

EXECUTIVE SUMMARY

The paper considers first the mandate and purpose of the IUU fishing initiative, in order to determine what its scope is, and to determine whether it is necessary to define these terms. The inherent ambiguities in these terms are considered, and it is concluded that they were not intended to be understood restrictively. The principal objective is to identify measures that can be undertaken to combat IUU fishing. Thus the first task should be identifying the priorities to be addressed before dealing with any precise definition of the terms.

The paper then considers the possible framework role of the Code of Conduct for Responsible Fisheries in relation to any international plan of Action (IPOA) which might emerge to address IUU fishing. It is pointed out that if the IPOA is placed in the context of the Code, it would enable it to be applied in that context, including the Code’s interpretative clauses concerning consistency with international instruments such as the UN Convention on the Law of the Sea.

The paper then reviews the powers available to address problems of IUU fishing. It looks at the powers of the coastal state in its internal waters, pointing out that a state has considerable powers which can be utilized here, including as a port State with respect to the fishing vessels of other States. This aspect is considered in much more detail in AUS:IUU/2000/15. The paper then briefly reviews the powers available to the coastal State in its archipelagic waters, the territorial sea, and in the EEZ. The point is made that so far as IUU fishing is concerned in such areas, the problem is not the absence of regulation as such, but the effective implementation of existing regimes. Some proposals are put forward however for the improvement of national laws operating in the EEZ.

The paper reviews the limited powers available to States on the high seas other than in respect of their own flag vessels and the important changes introduced by the UN Fish Stocks Agreement and the FAO Compliance Agreement. The paper also considers the possibility of utilizing jurisdiction based on nationality as an alternative to flag state jurisdiction in certain limited situations. The paper concludes with a review of the flag State responsibility provisions under the UN Fish Stocks Agreement and the Compliance Agreement. It urges their speedy entry into force and implementation into national law.

SUGGESTIONS FOR THE IPOA TEXT

The IPOA could usefully recommend that the provisions of the FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement should be brought into force as quickly as possible. It could also indicate the areas of greatest need in the effective implementation of the Agreements. This might include elaborating on how effective control might be achieved by a State over fishing vessels flying its flag, as well as perhaps elaborating on practical criteria for establishing a genuine link with respect to such fishing vessels.

Where appropriate, associate elements of the IPOA with the Code of Conduct for Responsible Fisheries, so that the interpretative clauses of the Code concerning consistency with the 1982 UN Convention, the FAO Compliance Agreement, and the 1995 UN Fish Stocks Agreement would apply automatically to the IPOA.

The IPOA could call for an enhancement of port State control through the development of an international agreement or arrangement on its use. It could also call on States to enact relevant and effective domestic legislation to give effect to port State control obligations.

The IPOA could seek to improve the legal basis for combating IUU fishing within the EEZs of coastal States by including new or updated provisions concerning:

the use as admissible evidence in judicial proceedings of evidence that is based on electronic information (such as VMS, transponders, etc);
the possible introduction, subject to any constitutional limitations or legislative drafting practices, of a system of civil penalties, which enable actions to be taken in respect of illegal fishing that do not require the full rigour of a criminal trial, and may involve the use of a lesser burden of proof. The basic objective is to allow for speedy treatment of offences, though with some built in safeguards;
greater restrictions on fishing vessels in the supposed right of the freedom of navigation though EEZ’s, for example, in the form of reporting requirements, or even limited controls over which parts of an EEZ they can pass through. If the flag State of the vessel agreed to certain restrictions on the movement of its vessels through the EEZ’s of other States, this might help in improving monitoring control and surveillance; and
increased flag State control along the lines of the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America, and the introduction of US Lacey Act type clauses into national legislation.

With respect to high seas fisheries, the IPOA could provide for:

consideration of the possibility of the exercise by a coastal State of jurisdiction on the high seas over a foreign vessel which has a “constructive presence” in the State’s EEZ, for example as a “mother ship” whose dependent vessels are engaged in fishing within the EEZ;
a general right of visit to fishing vessels on the high seas, i.e. going beyond the limitations in the 1995 UN Fish Stocks Agreement which (in Article 21.1) is confined to an area of high seas covered by a subregional or regional fisheries organization. or arrangement, and to straddling fish stocks and highly migratory fish stocks. This would have to depend on some form of agreement or arrangement with the flag State and would need careful drafting, drawing on the safeguards included in the 1982 UN Convention and in the 1995 UN Fish Stocks Agreement regarding enforcement action and rights of visit; and
the preparation of a supplementary agreement to the FAO Compliance Agreement which could provide for the exchange of information about persistent offenders, preferably secured by means of an agreement that would enable such information to be linked to the database FAO is maintaining in respect of the FAO Compliance Agreement.

The IPOA could propose the development by all States of measures to combat IUU fishing based on the exercise of their powers of jurisdiction based on nationality, in particular by enacting laws which punish their nationals for taking part in IUU fishing operations, even if on board the vessels of other States.

1. INTRODUCTION

1. The purpose of this paper is to review briefly the mandate or scope of the IUU (Illegal, Unreported, and Unregulated) fishing initiative, and then to review briefly existing powers available to States that might be used in combating IUU fishing. It will also indicate broadly some possible areas for further consideration. It will also explain briefly how this initiative will fit into the Code of Conduct for Responsible Fisheries framework. It is not intended to be an exhaustive study of the powers available to States, whether as coastal States, flag States, or otherwise. Further, it is intended to provide the general legal background for other studies being undertaken for the Expert Consultation on IUU Fishing, to be held in Sydney, Australia, from 15 to 19 May, 2000.

2. THE SCOPE OF IUU

2. It will apparent from a review of the background documents set out comprehensively in the paper by D. Doulman on the IUU fishing initiative (Illegal, Unreported, and Unregulated Fishing: Mandate for an International Plan of Action; document AUS: IUU/2000/4) that the terms “illegal”, “unreported” and “unregulated” have not been employed with precision. Rather, they have been used to identify in a general way the nature of a continuing problem in the area of fisheries.

3. It is, however, possible to derive from the foregoing documents certain elements in IUU fishing: the need for increased flag State control over the activities of its fishing vessels, the need to define the “genuine link” in the context of flag State non-compliance by fishing vessels, the need to address fishing within areas under national jurisdiction as well as on the high seas, etc. Moreover, there are related issues, such as trade-related aspects of fishing, and the problem of fishing overcapacity that are, however, not specifically mentioned in these documents[110] but which might be seen to provide possible solutions (in the case of trade) or to be an underlying cause of IUU fishing (in the case of overcapacity).

4. It is not proposed here to attempt to define the component terms of “IUU” fishing. It is, however, useful at least to address at the outset certain inherent questions that the words prompt.

5. “Illegal” fishing is probably the best understood of these terms, provided that it is taken to cover not just fishing without an authorization, but also fishing contrary to the conditions of an otherwise valid authorization. The greater imprecision may, however, seem to exist with respect to “Unreported” and “Unregulated”.

6. Having regard to the history of the IUU fishing mandate and the experience of regional fisheries bodies, it is suggested that “unreported” should not be confined to literally nonreporting, but should also include misreported and under-reported fishing (either intentionally or otherwise). It is also suggested that the term should be interpreted broadly for at least two other reasons. First, it is apparent from both the UN Convention on the Law of the Sea[111] and more recently from the 1995 UN Fish Stocks Agreement that the collection of data is recognized to be of fundamental importance. A particularly strong statement on this can be found in Annex I of the 1995 UN Fish Stocks Agreement[112].

7. Second, it is apparent that the purpose of addressing “unreported” fishing in the context of IUU is to achieve a situation where all fishing activity and related operations are reported more effectively, primarily in order to achieve more reliable stock assessments and a better understanding of the implications for fisheries management. To restrict the scope of the IUU initiative to literally unreported fishing might result in stunting any recommendations that can be made, and would appear to be inconsistent with the purpose underlying the IUU mandate to address the matter further in the context of an International Plan of Action (IPOA).

8. Likewise, an appropriate understanding of “unregulated” would mean not only that there is no management regime applying to a particular fishery (e.g. on the high seas for a fishery not covered by any fisheries organization or arrangement), but it would also mean that while there is in place a management regime, much of the fishing activity is not effectively controlled (i.e. regulated). This could be said to include such situations with regard to fishing in areas under national jurisdiction, as well as on the high seas.

9. For example, it might be argued that, in the EEZ, there is no “unregulated” fishery in the sense that Part V of the 1982 UN Convention has provided a regime, and the great majority of coastal States have enacted laws and regulations governing their management. However, this would ignore the fact the United Nations General Assembly has already called for measures by the flag State to ensure that no vessel flying its flag shall fish in areas under the national jurisdiction of other States unless duly authorized to fish there, and that such fishing operations are carried out in accordance with the conditions under which it was authorized. This would suggest that the General Assembly did not view the term unregulated to be used in such a narrow sense. This is bolstered by the consideration that, in the case of the CCAMLR regime (in which context, the IUU fishing terminology evolved, and quite probably drew upon earlier General Assembly resolutions that had referred to the problems of unauthorized fishing), the area was “regulated”: the problem was both that the regulatory regime was not effectively applied by States parties to the regime, and was accentuated by the activities of vessels whose flag States were non-parties to CCAMLR.

10. One issue that is constantly referred to in these background documents is the lack of flag State control over the activities of vessels flying their flag on the high seas, and this is linked in many but not all instances to the problem of reflagging. To a large extent, this can be overcome by bringing into force the FAO Compliance Agreement, and the 1995 UN Fish Stocks Agreement. However, if these agreements, even though in force, are not widely and effectively implemented, the problems identified in the original IUU discussions will remain. Thus, it is necessary to consider the problem on at least two levels: first, the introduction of suitable regimes through the widespread adoption and entry into force of the two Agreements, and second, on the level of making the agreements effective in their operation.

11. It emerges from the examples given above concerning the EEZ and the call for more effective flag State control that the IUU fishing initiative is also intended to bring about a more effective use of existing powers.

12. It is suggested, therefore, that the starting point in any analysis of the scope of “IUU” should proceed from the broad approach taken in the documents that have led to formulation of the IUU initiative[113].

13. Against that background, there will then be a need to focus attention, in the proposed IPOA, on those elements of IUU fishing which States, regional fisheries bodies and others have identified as priority tasks of particular concern. The resolutions and decisions of COFI, FAO Council, the General Assembly, and the approaches of the regional fisheries bodies will provide a starting point in evaluating and considering such priorities. Put another way, we should focus less on a legally perfect definition of IUU at this stage, and more on identifying priorities and problems that still require solution[114].

3. THE CODE OF CONDUCT FOR RESPONSIBLE FISHERIES

14. It is intended that the proposed IPOA will be placed within the framework of the Code of Conduct for Responsible Fisheries. One of the objectives of the Code is “to serve as an instrument of reference to help States to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries and in the formulation and implementation of appropriate measures.” (Article 3 c), and to “provide guidance which may be used where appropriate in the formulation and implementation of international agreements and other legal instruments, both binding and voluntary” (Article 3d)

15. The Code of Conduct, it must be remembered, is a voluntary instrument, though one that was intended to be flexible in its application. It also contemplated the possibility of mandatory texts being associated with it, as happened in the case of the FAO Compliance Agreement. One advantage of associating any proposed IPOA with the Code of Conduct is that it will make it possible to have the interpretative clauses of the Code concerning consistency with the 1982 UN Convention, the FAO Compliance Agreement, and the 1995 UN Fish Stocks Agreement apply automatically to the resulting text.[115]

4. EXISTING POWERS OF THE COASTAL STATE

16. It is now proposed to consider briefly the existing powers available to combat IUU fishing, understanding it in its broader sense. Because it is understood that the problems of IUU fishing are not confined to the high seas, and also because one of the tools available to States could be more effective use of port State control, it is proposed to consider briefly first the powers of the coastal State in its internal waters, archipelagic waters, territorial sea and EEZ.

4.1 Internal Waters

17. With only minor exceptions regarding the continuation of a right of innocent passage in waters enclosed by straight baselines where there had previously existed such a right (Article 8 1982 UN Convention), a coastal State has full powers over events occurring within internal waters as they are under international law regarded as part of the land over which the coastal State has sovereignty. Internal waters consists of those waters landward of the baseline from which the territorial sea is measured. These include ports, and roadsteads[116] and for the purposes of this paper it is these parts of internal waters that we are concerned with.[117]

18. While the power of the coastal State in its ports and internal waters is in theory very wide, practical considerations have led the great majority of States to use their powers with respect to foreign vessels in their ports very cautiously[118]. Thus, a practice has developed whereby port States do not, as a matter of comity, exercise jurisdiction over events taking place on board a foreign vessel while in its ports. The basic reason, which is perhaps less relevant to fishing vessels, is that a State has an interest in allowing access to its ports for merchant vessels of other countries in order that their vessels will receive reciprocal treatment. Indeed, there exist bilateral and multilateral treaties which guarantee these rights. In the case of fishing vessels, however, there is most probably not the same level of interest in achieving this reciprocity.

19. The power of a State with respect to its internal waters was not dealt with in the 1982 UN Convention except to the extent that the provisions concerning internal waters were largely repeated from the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 (which implicitly confirmed the sovereignty of the coastal State with respect to its internal waters). On the other hand, the provisions concerning the marine environment (Part XII) include some important new provisions concerning port State controls.[119]

20. The power of the coastal State over vessels in its ports has been considered in the context of a number of recent international fisheries agreements, including the 1995 UN Fish Stocks Agreement, which imposes a duty on port States, on a non-discriminatory basis, to take measures in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. (Article 23) These are considered in more detail in the paper by T Lobach. (Measures to be Adopted by the Port State in Combating IUU Fishing, AUS:/IUU/2000/15)

21. Port State control may be one of the more potent tools available under IUU, especially if it is backed up by international agreement as to its use. This agreement might take the form of a binding treaty, or a memorandum of understanding, which may or not be binding, or a voluntary document such as an IPOA or a code of conduct.

22. However, it needs to be emphasized that, perhaps more important than these recent international fisheries agreements is the need for the port State to ensure that it has converted these and other powers into effective domestic legislation. If not, in many instances, the attempts to control such vessels will fail as a matter of national law as, for example, the detention of a ship will not be upheld by a court unless the local law is clear on this point, even where it is purporting to give effect to the initiatives outlined above.[120]

4.2 Archipelagic Waters

23. Archipelagic waters are also subject to the sovereignty of the coastal State. However, under Article 51 of the 1982 UN Convention, in these waters, the archipelagic State has to “respect existing agreements with other states, and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.”

4.3 The Territorial Sea

24. In the territorial sea, the coastal State has sovereignty, as with the internal waters. However, there is a major qualification to this power, namely that this sovereignty is subject to the right of innocent passage. The coastal State nonetheless has complete authority to control fishing activities in its territorial sea. Thus, Article 19 of the 1982 UN Convention, which in effect defines innocent passage, states that one of the non innocent activities in the territorial sea is to engage in “any fishing activities” (paragraph 2(i). Article 21(e) permits the coastal State to adopt certain laws and regulations relating to innocent passage in respect of inter alia “the prevention of infringement of the fisheries laws and regulations of the coastal State.” More importantly, the existence of a right of innocent passage, even for fishing vessels, imposes certain limitations on what can be done by the coastal State to such vessels where they are not engaged in fishing. Where a vessel has been fishing in the territorial sea without a valid authorization, it can be dealt with in accordance with the extensive powers of the coastal State.

25. From the point of view of national law, fishing in the territorial sea is often dealt with as part of the fisheries law applicable to the EEZ. From the point of view of IUU fishing, there will be little if any significant difference here, for what can be done in the territorial sea with respect to fishing is greater than in the case of the EEZ. For example, the restrictions imposed on the exercise of the sovereign rights of the coastal State with respect to the living marine resources in the EEZ do not apply.[121]

4.4 Exclusive Economic Zone (EEZ)

26. The sovereign rights, jurisdictional rights and duties of the coastal State in its EEZ are well known. Its power to enact laws and regulations is set out in Article 73, and is subject to certain controls. The International Tribunal for the Law of the Sea has had two occasions now to provide legal guidance on the nature of the powers of the coastal State, and the rights of other States in this zone. Its judgments are already playing an important part in resolving uncertainties as to its application, including the rich array of reasoning that is to be found in the separate opinions.[122]

27. For the purpose of the present paper, it is sufficient to quote only Article 73.1:

The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding and inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

28. A great number of countries have in fact enacted laws to control fishing in the EEZ. As a generalization, it can be said that the underlying cause of IUU fishing in the EEZ is not the result of inadequate laws, or for that matter, lack of authority under the 1982 UN Convention, but the inability of many countries to enforce those laws. Thus, the problem is primarily one of improved monitoring, control and surveillance, including the possible enhanced role for vessel monitoring systems, electronic logbooks and similar devices whether adopted at the national or international level.

29. That said, it is nonetheless possible to improve the laws applicable in the EEZ in some respects, though the situation will of course vary considerably from one country to another (and indeed from one legal system to another) as to what is needed to be done. It is suggested that attention might be given to including in such laws new or updated provisions concerning:

the use in judicial proceedings of evidence that is based on electronic information (such as VMS, transponders, etc) In some countries, such evidence is regarded as “hearsay” evidence, and is not admissible. On the other hand, there now exist several models for the admission of such information. (This may be mainly a problem for countries which have inherited the common law system)
the possible introduction, subject to any constitutional limitations or legislative drafting practices, of a system of civil penalties, which enable actions to be taken in respect of illegal fishing that do not require the full rigour of a criminal trial, and may involve the use of a lesser burden of proof (e.g. the civil standard on the balance of probabilities, as opposed to the criminal standard of beyond reasonable doubt). There are a number of different approaches that might be considered here, but the basic objective remains to allow for speedy treatment of offences, though with some built-in safeguards.
It may be possible for an IPOA to recommend greater restrictions on fishing vessels in the supposed right of the freedom of navigation though EEZ’s, for example, in the form of reporting requirements, or even limited controls over which parts of an EEZ they can pass through. Indeed, if the flag State of the vessel agreed to certain restrictions on the movement of its vessels through the EEZ’s of other States, this might help in improving monitoring, control and surveillance. However, it should be noted that this point could be controversial as some States have asserted certain controls over fishing vessels transiting their EEZ, based simply on the assumption that the sovereign rights of the coastal State extend to cover this kind of activity, while others might see it as an interference with the freedom of navigation in the EEZ.[123]
Consideration of increased flag State control along the lines of the Treaty on Fisheries between the Governments of Certain Pacific Island states and the government of the United states of America, and the introduction of US Lacey Act type clauses into national legislation.

30. These, and other points are elaborated upon in the paper by B Kuemlangan, “National Legislative Options to Combat IUU Fishing” (Document AUS: IUU/2000/9).

5. HIGH SEAS

31. The limited authority of States (other than the flag State) in general on the high seas are well known and need not be discussed in detail here. It is sufficient to mention that under the 1982 UN Convention, the following powers are allowed:

the right of visit on the high seas under article 110 which is provided to warships on the high seas where there are reasonable grounds for suspecting that a ship is engaged in piracy, the slave trade, unauthorized broadcasting (in accordance with Article 110), where the ship is without nationality, or where the vessel is flying a foreign flag or refusing to show its flag, when it is in reality the same nationality as the warship. Further, where the vessel sails under the flags of two or more States, using them according to convenience, it may be assimilated to a ship without nationality(Article 92.2), and consequently subject to the right of visit under Article 110;
the power of the coastal State to undertake hot pursuit under Article 111 in certain carefully defined circumstances.[124]

32. These powers do not extend as such to vessels engaged in fishing on the high seas, unless the flag State has agreed to such powers by treaty, or unless of course a particular fishing vessel comes within any of the above categories e.g. piracy, or where the vessel is without nationality. One possibility by which jurisdiction might be exercised by the coastal State on the high seas is where a vessel has a “constructive presence” in the EEZ, e.g. where it is a mother ship and its dependent vessels are engaged in supporting other vessels fishing within the EEZ.[125]

33. Thus, prior to the completion of the 1995 UN Fish Stocks Agreement, the opportunities for taking action on the high seas were very limited indeed.[126]

34. It is against this background that a major change was introduced by the 1995 UN Fish Stocks Agreement which, when in force, will enable action to be taken in respect of fishing vessels on the high seas in certain carefully defined circumstances. This Agreement will involve flag States in taking compliance and enforcement action with respect to conservation and management measures wherever the violations occur. (Article 19.1 a) There are also detailed provisions that will require regional and subregional organizations to establish enforcement measures. States are also required to cooperate either directly or through subregional or regional fisheries management organizations to ensure compliance with and enforcement of subregional and regional conservation measures, including a requirement that where a vessel on the high seas has also been engaged in unauthorized fishing within an area under the jurisdiction of the coastal State, the flag State of that vessel, at the request of the coastal State, is to immediately and fully investigate the matter.

35. There are other provisions of this Agreement that are of considerable importance, but these will be elaborated upon in other papers. (For the role of regional fisheries bodies, see J Swan, “The Role of National Fisheries Administrations and Regional Fisheries Bodies in Adopting and Implementing Measures to Combat IUU Fishing” AUS: IUU/2000/10)

36. However, important and far reaching though this Agreement is, it must be noted that its scope is limited by the pacta tertiis rule, as stated in Article 34 of the Vienna Convention on the Law of Treaties, 1969. Thus, if a State chooses not to become a party to the Agreement, there is, in the present state of international law, not very much that can be done about that. The 1995 UN Fish Stocks Agreement did much to push the boundaries a long way here. Further, at this stage, it remains an open question whether the Agreement will generate norms of general international law, thereby reducing the impact of the pacta tertiis rule.

37. The principal points that can be addressed here from the point of view of the IPOA are to:

urge the widespread adoption of the 1995 UN Fish Stocks Agreement, along with the FAO Compliance Agreement;
explore whether the IPOA might seek to urge a general right of visit to fishing vessels on the high seas, i.e. going beyond the limitations in the 1995 UN Fish Stocks Agreement, which (in Article 21.1) is confined to an area of high seas covered by a subregional or regional fisheries organization. or arrangement, and to straddling fish stocks and highly migratory fish stocks. This would of course still have to depend on some form of agreement or arrangement with the flag State. Such a solution would need careful drafting, and would need to draw on the safeguards included in the 1982 UN Convention and in the 1995 UN Fish Stocks Agreement regarding enforcement action and rights of visit (e.g. article 110.3, 1982 UN Convention, and its equivalent in 1995 UN Fish Stocks Agreement);
consider the preparation of a supplementary agreement to the FAO Compliance Agreement which could provide for the exchange of information about persistent offenders. While this is undoubtedly better secured by means of an agreement that would enable such information to be linked to the database FAO is maintaining in respect of the FAO Compliance Agreement, there is nothing as a matter of international law to prevent flag States making such information available should they wish to do so. The only constraint that might exist is the national law of the flag State concerned, and whether it provided protection in respect of such information.

6. JURISDICTION BASED ON NATIONALITY

38. The 1982 UN Convention also permits States to draw on general international law[127]. As will be seen in the next section, the 1982 UN Convention gives exclusive jurisdiction over events on board a vessel on the high seas to the flag State[128]. One of the recognized bases of jurisdiction in international law, though not all states choose to exercise it, is jurisdiction based on nationality, at any rate, what is often referred to as the active nationality principle. There is nothing to prevent a State enacting a law which punishes its nationals for taking part in illegal fishing operations, even if on board other vessels. The main problem here is a practical one: how does the state effectively enforce such a law? Further there are evidentiary problems if the evidence concerns events on board a foreign vessel[129]. These issues are discussed further in the paper by T Lobach.

7. THE ROLE AND POWER OF THE FLAG STATE

39. UNCLOS III did not devote much attention to high seas fishing[130], and to a certain extent it merely transposed provisions from the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958, into the final text of the 1982 UN Convention, the main focus as regard fisheries being on the provisions concerning the living marine resources of the EEZ. The provisions of Part VII Section 2 (Conservation and Management of the Living Resources of the High Seas) of the 1982 UN Convention basically reasserted the right of States for their nationals to engage in fishing on the high seas subject to their treaty obligations and the rights and duties as well as the interests of coastal States.(Article 116). The section also puts onto States the duty to take or to cooperate with other States in taking, such measures for their nationals as may be necessary for the conservation of the living resources of the high seas (Article 117). States are also to cooperate with each other in the conservation and management of living resources of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, are to enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They are, as appropriate, to cooperate to establish subregional or regional fisheries organizations to this end. (Art 118). Article 119 deals with conservation measures with respect to high seas fishing[131].

40. One of the more basic propositions recognized by international law is the exclusive jurisdiction of the flag State over vessels flying its flag while they are on the high seas. This is set out in Article 92.1: “ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”

41. The UN Convention further States in article 91.1:

“Every State shall 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. Ships must have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.”

42. These provisions have a long history and can be traced back to before the Geneva Convention on the High Seas, 1958. However, in one respect, the 1958 Convention introduced an element that is still causing problems today, namely the addition of the requirement of a “genuine link”.

43. This phrase finds its origins in the Nottebohm case[132] where the International Court of Justice had to deal with the question whether a State could exercise diplomatic protection in respect of an individual whose connection with that State was limited in character. While acknowledging that a State could fix the rules relating to nationality, the court recognized that, for the right of diplomatic protection to be recognized, the legal bond of nationality had to accord with the individual's genuine connection with the State assuming to protect its citizens.

44. This was taken up by the International Law Commission in the draft articles it was preparing on the law of the sea, and eventually found its way via UNCLOS I into Article 5 of the Geneva Convention on the High Seas, 1958 and, following its consideration at UNCLOS III, subsequently into Article 91 of the 1982 UN Convention. It is interesting to note that the International Law Commission had originally proposed that criteria for establishing this link should be set out in the Convention and subject to recognition by other States, but this was not agreed to.

45. Article 94 of the UN Convention sets out the duties of the flag State. Paragraph 1 states:

“Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

46. This is followed by a lengthy list of matters which it needs to address in particular, though they do not relate specifically to any aspect of fishing as such.

47. These clauses have now been subject to judicial consideration by ITLOS. In the M/V “Saiga” No. 2 case, the Tribunal, in its majority opinion, said the following:

“63 Article 91 leaves to each State exclusive jurisdiction over the granting of its nationality to ships. In this respect, Article 91 codifies a well-established rule of general international law. Under this Article, it is for St Vincent to fix the conditions for the grant of nationality to ships. These matters are regulated by a State in its domestic law.”
“64 International law recognizes several modalities for the grant of nationality to different types of ships...
“65 Determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag State.”

48. On the basis of these provisions of the 1982 UN Convention, the Tribunal concluded that St Vincent had “discharged the initial burden of establishing that the “Saiga” had Vincentian nationality at the time it was arrested by Guinea.” (para 72). It was therefore up to Guinea to prove that the ship was unregistered in or did not have the nationality of St Vincent. On this the Tribunal said:

“The Tribunal considers that the burden has not been discharged and that it has not been established that the Saiga was not registered in or did not have the nationality of Saint Vincent and the Grenadines at the time of the arrest.” (para 72)

49. The Tribunal then turned to consider the question of the “genuine link”. Guinea had argued that it was not bound to recognize the Vincentian nationality of the “Saiga” in the absence of a genuine link between the vessel and St Vincent. It further argued a “State cannot fulfil its obligations as a flag State under the Convention with regard to a ship unless it exercises prescriptive and enforcement jurisdiction over the owner or, as the case may be, the operator of the ship. Guinea contends that, in the absence of such jurisdiction, there is no genuine link between the ship and Saint Vincent and the Grenadines and that, accordingly, it is not obliged to recognize the claims of Saint Vincent and the Grenadines in relation to the ship.” (paragraphs 75 and 76)

50. The Tribunal reviewed the history of the genuine link requirement: “The Tribunal, however, recalls that the International Law Commission, in article 29 of the draft articles on the law of the sea adopted by it in 1956, proposed the concept of a “genuine link” as a criterion not only for the attribution of nationality to a ship but also for the recognition by other States of such nationality.” It then referred to the Geneva Convention on the High Seas, 1958, Article 5, pointing out that “while the obligation regarding a genuine link was maintained in the 1958 Convention, the proposal that the existence of a genuine link should be the basis for the recognition of nationality was not adopted.” (Paragraph 80) It then drew attention to Articles 91 and 94 of the 1982 UN Convention, and concluded:

“...the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.” (paragraph 83)

51. The Tribunal referred also to the UN Convention on the Registration of Ships, 1986, (not yet in force)[133], and to the 1995 UN Fish Stocks Agreement and to the FAO Compliance Agreement. On the latter two, the Tribunal stated:

“These agreements, neither of which is in force, set out, inter alia, detailed obligations to be discharged by the flag States of fishing vessels but do not deal with the conditions to be satisfied for the registration of fishing vessels.” (paragraph 85)

52. The decision, on this aspect at any rate, confirms the view that focussing on the genuine link by itself will not resolve the problems of IUU fishing on the high seas.

53. Basically, the failure to set out criteria for the establishment of a genuine link combined with the growth of so called open registries has led to the situation where reflagging has come to be viewed as one of the major problems facing fishing on the high seas in view of the ease with which a fishing vessel can re-flag in order to avoid compliance with certain conservation and management measures. This concern has led to the formulation of the FAO Compliance agreement and to the provisions of the 1995 UN Fish Stocks Agreement which address this problem as regards fishing vessels, and which focus more attention on the duty of the flag State to exercise effective control over vessels flying its flag.

54. However, there is nothing in the foregoing discussion that would prevent States from giving practical effect to the genuine link requirement of Article 91 of the 1982 UN Convention, for example, by making the national registration of a fishing vessel conditional upon the vessel's full compliance with specific conservation and management requirements.

55. It is now proposed to turn to the provisions of the two Conventions referred to that directly address the question of flag State control over fishing vessels.

7.1 The Compliance Agreement and Flag State Control

56. First, the FAO Compliance Agreement. Article III on flag State responsibilities is the most important clause in the FAO Compliance Agreement, for it sets out the responsibility of the flag State. The clause is long and contains important qualifications, but in essence it places an obligation on the flag State to take “such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures.”[134] It continues: “In particular, no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization.”[135] Further duties are imposed to give content to these basic obligations, including provisions concerning: not granting an authorization unless the flag State is able to exercise effectively its responsibilities in respect of the vessel, non-authorization of a vessel still under suspension, the requirement that a vessel be marked so as to be readily identified in accordance with generally accepted standards, such as the FAO vessel marking scheme, the requirement of information on the operations of a vessel, and the imposition of sanctions of sufficient gravity as to be effective in securing compliance with requirements of the Agreement.

57. One aspect of the FAO Compliance Agreement needs to be highlighted. It provides for an exemption in respect of vessels under 24 metres in length (Article II.2), unless to do so “would undermine the object and purpose of [the] Agreement.” Further, in Article III 1.b), it is stated:

“In the event that a party has, pursuant to paragraph 2 of Article II, granted an exemption for fishing vessels of less than 24 metres in length entitled to fly its flag from the application of other provisions of [the] Agreement, such party shall nevertheless take effective measures in respect of any such fishing vessel that undermines the effectiveness of international conservation and management measures. These measures shall be such as to ensure that the fishing vessel ceases to engage in activities that undermine the effectiveness of the international conservation and management measures.”

58. This is important as it ensures that the fundamental obligation of the flag State to control vessels flying its flag is unaffected by any exemption granted.

7.2 UN Fish Stocks Agreement and Flag State Control

59. The provisions of the 1995 UN Fish Stocks Agreement are similar but there are some important differences, reflecting to a large extent the fact that the 1995 UN Fish Stocks Agreement was drafted both during and after the completion of the FAO Compliance Agreement, and was therefore able to build on what had already been achieved. For example, in Article 18.1, the obligation to control flag vessels is put more strongly:

“A State whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures.”

60. It will be noted here that there is a primary obligation to ensure that such vessels “comply” with such measures as well as the obligation to ensure that the vessels do not “undermine” them. Another important addition in the 1995 UN Fish Stocks Agreement is found in Article 18 3. (b) (iv), which states that the measures to be taken by the flag State shall include measures to: “ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States”[136]. In several other respects, the language of the UN Agreement is tighter on the question of flag State control, for example with respect to the matters which it should include in regulations to control the activities of its flag vessels on the high seas. On the other hand, whereas the 1995 UN Fish Stocks Agreement requires the flag State to enact regulations prohibiting fishing by vessels on the high seas that are not licensed, the FAO Compliance Agreement states it as a direct obligation[137]. However, in practical terms, both sets of obligations will depend on specific action by the relevant State to give them legislative effect, unless of course, there already exist provisions to achieve these results, or if the Agreements are in some way or another self-executing according to the national law of the flag State concerned. The 1995 UN Fish Stocks Agreement also adds to the requirement of using generally accepted standards for vessel marking (such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels the need to mark gear also[138]. The latter is not referred to in the FAO Compliance Agreement.

61. Finally, it may be noted that whereas in the FAO Compliance Agreement, a State is not to authorize a vessel to fish on the high seas “unless it is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel”, the 1995 UN Fish Stocks Agreement puts the point more directly: “States shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such fishing vessels under the Convention and this Agreement”.³⁰

62. The IPOA could usefully recommend that the provisions of the FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement should be brought into force as quickly as possible. It could also indicate the areas of greatest need in the effective implementation of the Agreements. This might include elaborating on how effective control might be achieved, as well as perhaps elaborating on criteria for determining the presence of a genuine link with respect to fishing vessels.

[110] An ad hoc Workshop held at the request of the Asia-Pacific Economic Cooperation (APEC) Fisheries Working Group (FWG), (Kesen-numa, Japan, 13-15 July 1999) noted, 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, inputs 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 open registry vessels. It was envisaged by the Workshop that these topics would be subject areas to be addressed within the IPOA that would subsequently be elaborated.
[111] Hereafter referred to as the 1982 UN Convention. Likewise, the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas will be referred to as the FAO Compliance Agreement, and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks will be referred to as the 1995 UN Fish Stocks Agreement. References to the UN Conferences on the Law of the Sea will be UNCLOS I, II, and III.
[112] Note the chapeau to Article 1 of Annex I of the UN Fish Stocks Agreement: "The timely collection, compilation and analysis of data are fundamental to the effective conservation and management of straddling fish stocks and highly migratory fish stocks." See further, Edeson, "Legal Aspects of the Collection of Fisheries Data" FAO Fisheries Circular no 953, Rome December 1999.
[113] It might be added that when the Ministerial meeting addressed the matter, it referred to the need to address "all forms of" IUU. Further, the placing of the initiative on IUU within the context of the Code of Conduct for Responsible Fisheries lends support to a broad interpretation being given to the scope of the initiative.
[114] In the Code of Conduct for Responsible Fisheries, definitions were to a very large extent avoided and specific provisions were absorbed into individual articles as required. The only time a definition was used was in Article 1.4: " In this Code, the reference to States includes the European Community in matters within its competence, and the term fisheries applies equally to capture fisheries and aquaculture."
[115] A further advantage lies in the fact that the preamble to the 1995 UN Fish Stocks Agreement, there is a reference to States Parties "committing themselves to responsible fisheries", while in Article 61(3), there is a reference to "generally recommended international minimum standards" in relation to conservation measures., which might include the Code of Conduct. For a discussion of this issue from the point of view whether ITLOS could exercise jurisdiction, see Wolfrum, "The Role of the International Tribunal for the Law of the Sea", especially at p.6. Paper presented to the Conference co-hosted by the Center for Oceans Law and Policy, University of Virginia Law School, and FAO, March 16-17 2000, FAO Rome.
[116] Internal waters also include waters of bays within a closing line not exceeding 24 miles, and areas enclosed by straight baselines along deeply indented and island fringed coasts. See Articles 3 to 16 of the 1982 UN Convention. Internal waters can also include so called "historic bays", but these are not dealt with in the 1982 UN Convention, nor in the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958.
[117] UN Fish Stocks Agreement in Article 23.2 refers to "ports and offshore terminals", the latter not being the terminology used in the 1982 UN Convention.
[118] See further D. Anderson "Port States and Environmental Protection", in Boyle and Freestone (eds.) International Law and Sustainable Development p 325. A.V. Lowe, "The Right of Entry into Maritime Ports in International Law", 14 San Diego Law Review 597 (1977)
[119] The impression has been created that the port State can only exercise certain powers if so authorized by international law, also by the argument (discussed in Anderson, op cit.) that the 1982 UN Convention did not authorize action by the port State for fishing vessels in the way it did in respect of marine pollution in Article 218. Thus, the argument, runs, the port State can only undertake such measures as have been internationally agreed. While it is obviously preferable that States should act in that way, such a conclusion has no support in the text of the UN Convention, and it would involve the assumption that the powers of a State with respect to foreign fishing vessels in its ports were substantially diminished by the adoption of the 1982 UN Convention even though there is not a specific provision to that effect in the Convention. It is suggested that the better argument would appear to be that the powers of the State with respect to its ports (at least as regards fishing vessels) remained unchanged from what existed in general international law, and supported by the language of the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958. The travaux preparatoires leading up to UNCLOS I including ILC proposals probably also support this. UNCLOS II, which was principally concerned with the width of the territorial sea, did not address this matter, except very marginally. At UNCLOS III, the powers of the coastal State in its internal waters were not reconsidered except to the extent necessary in dealing with international straits and archipelagic waters. Compare the first fourteen articles of the 1958 Convention on the Territorial Sea and the Contiguous Zone, dealing with internal waters (bays, straight baselines, harbours, roadsteads, low tide elevations, etc) with their counterparts in the first sixteen articles in the 1982 UN Convention and the very minor changes introduced.
[120] A law permitting the detention of vessels is likely to be viewed by national courts as similar to a penal provision and courts usually construe such powers narrowly. Further, such a law is apt to be interpreted in the light of the prevailing international law. See for example, the recent decision of Sellers v. Maritime Safety Inspector, New Zealand Court of Appeal, 1998. Discussed (1999) 14 International Journal of Marine and Coastal Law, p 435, note by J Scott Davidson. This case illustrates how important it is to ensure that the international objective is effectively transformed into national law by a very clear statement to that effect.
[121] For example the restrictions in Article 73, and the provisions governing access in Article 62.
[122] See "Saiga" No 2, (St Vincent and the Grenadines) Judgment 1 July, 1999; "Camouco" case (Panama v. France), Judgment, 7 February 2000. In "Saiga" No 2, there was some discussion of the nature of the coastal State's authority over the EEZ. While the tribunal did not answer the question fully, it did rule that a customs law of Guinea could not be extended to the EEZ. In "Camouco", Article 73.2 was under consideration, though some of the separate opinions covered wider issues concerning the EEZ.
[123] In the "Camouco " case, part of the French Law Article 2 of law No 66-400 of 18 June 1966, as amended stated (as translated in the Judgment of the Tribunal): Any vessel entering the exclusive economic zone of the French Southern and Antarctic Territories shall be obliged to give notification of its presence and to declare the tonnage of fish held on board to the chief district administrator of the nearest archipelago." The validity of this requirement was not directly in issue in this case, which turned on the effect of Article 73.2: "Arrested vessels and their crews shall be immediately released upon the posting of reasonable bond or other security."
[124] ITLOS has provided some illumination of the application of Article 111. See the M/V "Saiga" No.2 Case paragraphs 139 to 159.
[125] For a useful discussion on this, and more generally, the problems of enforcement on the high seas, see Commander Warner, " Jurisdictional Issues for Navies Involved in Enforcing Multilateral Regimes beyond National Jurisdiction" (1999) 14 International Journal of Marine and Coastal Law, 321. For a full analysis of the provisions of the UN Fish Stocks Agreement, and their history, see M Hayashi, "Enforcement by non-flag States on the High Seas under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks" Vol. IX Georgetown International Environmental Law Review, p.1 (1996). For a recent example of law dealing with constructive presence, see the Australian Fisheries Legislation Amendment Act 1999, section 101B
[126] There were however developments taking place which presaged greater powers for States other than the flag State. See further Hayashi op.cit. and Warner op cit.
[127] Note the final preambular paragraph to the 1982 UN Convention: "Affirming that matters not regulated by this Convention continue to be governed by rules and principles of international law,"
[128] Article 92, 1982 UN Convention
[129] Note that the language in Articles 116, 117, 118, and 119.3 of the 1982 UN Convention is in terms of a national, or about a "fisherman". If one looks at the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, it is apparent that the term "nationals" is defined in Article 14 to retain the traditional meaning: "in articles 1,3,4,5,6, and 8, the terms "nationals" means fishing boats or craft of any size having the nationality of the State concerned, according to the law of that State, irrespective of the nationality of the members of their crews". However, this definition is dropped from the 1982 UN Convention. This has not so far been interpreted as giving rise to an exception to the exclusive jurisdiction of the flag State over a vessels on the high seas. Jurisdiction based on nationality has been discussed in the CCAMLR context. Further, the Australian Antarctic Marine Living Resources Conservation Act, 1981 applies to the activities of any Australian national or Australian vessel anywhere in the CCAMLR area. For a discussion of Norwegian practice, see AUS:IUU/2000/15
[130] Leaving aside of course the special regimes concerning straddling fish stocks, (Article 63.2), highly migratory species (Article 64), Anadromous stocks (Article 66), and Catadromous species (Article 67), which were dealt with in the context of the EEZ, and sedentary species, which were dealt with in the context of the continental shelf.
[131] For a discussion of these provisions from the point of view of their applicability before ITLOS, see Wolfrum, op cit p.9
[132] ICJ Rep 1955, p.4
[133] It should be mentioned here that the UN Convention on the Registration of Ships does not apply to fishing vessels. The definition of ships to which the Convention applies states: "any self-propelled sea-going vessel used in international seaborne trade for transport of goods, passengers, or both". It also imposes minimum size of 500 GRT which would in any event exclude many fishing vessels.
[134] Article III 1. (a).
[135] Article III.2.
[136] Note also Article 19 1 (a) where in ensuring compliance by vessels flying its flag with subregional and regional conservation and management measures, the flag State is required to "enforce such measures irrespective of where violations occur", and Article 20.6, which States: "Where there are reasonable grounds for believing that a vessel on the high seas has been engaged in unauthorized fishing within an area under the jurisdiction of the coastal State, the flag State of that vessel, at the request of the coastal State concerned, shall immediately and fully investigate the matter. The flag State shall cooperate with the coastal State in taking appropriate enforcement action in such cases and may authorize the relevant authorities of the coastal State to board and inspect the vessel on the high seas. This paragraph is without prejudice to Article 111 of the Convention."
[137] Article III.3: "No Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization."
[138] Article 18 3 (d)