Blaise Kuemlangan
Legal Office
FAO, Rome, Italy
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Kuemlangan, B. National Legislative Options to Combat IUU Fishing. Document AUS:IUU/2000/9. 2000. 16p.
ABSTRACT This paper reviews some current approaches to, and options for, improving
national legislation to combat IUU fishing in zones of national jurisdiction,
within the areas of competence of regional fisheries bodies, and on the
high seas. Particular regard is paid to selected innovative legislative
approaches and mechanisms, including those jointly developed and employed
in regions across the range of fisheries management measures, particularly
registration of vessels and fishing vessel licencing, vessels' standing
on registers, catch and vessel reporting, use of evidentiary provisions
and enforcement (use of civil and administrative/civil processes and penalties,
joint and reciprocal regional enforcement, and long-arm “Lacey Act”
provisions). The paper proposes that the identified approaches should
be considered and adopted by States and regional fishery bodies, as appropriate,
in adopting regulations to curb IUU fishing. |
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 of any of its Members.
EXECUTIVE SUMMARY
International initiatives for effective conservation and management and sustainable utilisation of living marine resources are given practical effect at the regional and national level. Enabling legislation is needed to give effect to such initiatives particularly those that can keep in check illegal, unreported and unregulated (IUU) fishing. Some interesting and innovative mechanisms and legislative approaches to combat IUU fishing in zones of national jurisdiction, within the areas of competence of regional fisheries bodies, and on the high seas are currently in use in regions such as the Pacific Islands, the Caribbean and West Africa across the range of fisheries management measures. Such mechanisms and approaches should be considered for adoption to address IUU fishing.
Effective Flag State control is normally achieved through the legislative requirement that no fishing shall take place without an authorisation to fish granted by the Flag State or coastal State. In order to enhance Flag State control, States should require that fishing authorisations could be issued only if vessels are registered or entered on fishing vessel records. Lack of control is evident in certain countries that do not require registration of fishing vessels or allow fishing to take place without satisfying registration requirements.
Registers have been established at the regional level. A well-known example of a regional register is the FFA Regional Register. The FFA regional register of foreign fishing vessels is a “compliance-without-force” requirement. It establishes “good standing” for the registered fishing vessel. The threat of loss of “good standing” or “blacklisting” for non compliance with conservation and management measures jeopardises the opportunity for the blacklisted vessel to fish as none of the parties maintaining the register will grant licences to it. In this respect, it is an incentive for the registered and licensed vessel to comply with established conservation and management measures.
Reporting requirements can enhance compliance and stock assessment and other purposes vital to fisheries conservation and management. Uniform or harmonised reporting requirements promote economic efficiency in fishing operations and improve the collection of data. Reporting by satellite-based vessel monitoring systems (VMS) should be encouraged. Where VMS is established, legislation should ensure that it can be implemented effectively, that confidentiality is protected and that information generated can be used for enforcement purposes.
Evidentiary provisions in many national legislative systems now enable use of information generated by modern technology such as VMS in judicial proceedings for enforcement of fisheries conservation and management measures, due to the level of their trustworthiness. Improved evidentiary provisions promote judicial economy as they allow for disputed matters only to be argued in judicial proceedings by allowing certain presumptions to be used, as well as the use of judicial notice to overcome technical rules of evidence, in particular the hearsay rule.
Civil and administrative processes and penalties for fisheries violations are in use in the US and certain FFA member countries. These procedures are alternatives to normal criminal proceedings for fisheries enforcement and may be judicious as they allow a reasonable/lower standard of evidence to be used in proceedings as well as the swift and economic settlement of violations, including negotiated settlements.
Joint and reciprocal regional surveillance and enforcement approaches such as those adopted in the FFA region should be encouraged. At the national level, legislation supporting regional agreements and arrangements should clearly specify responsibilities and rights relating to enforcement procedures, particularly boarding and inspection. In the light of the UN Fish Stocks Agreement requirement for Flag States to allow boarding and inspection of their vessels on the high seas by inspectors authorized by States other than the Flag State, national legislation should clearly specify the process of boarding and inspection and contain appropriate safeguards for the vessels in high seas areas that are subjected to such boarding and inspection.
Use of long-arm law enforcement provisions such as the “Lacey Act” provisions adopted in the FFA region can be an effective enforcement mechanism. This provision makes it unlawful for any person to import fish taken in contravention of the laws of another State. It enhances port State control by enabling non-physical enforcement action. It also has potential in ensuring enforcement of internally agreed conservation and management measures including those measures established by global, regional and sub-regional fisheries conservation and management bodies.
SUGGESTIONS FOR THE IPOA TEXT
Actions that are immediately feasible:
Review the regional or sub-regional fisheries regulatory framework or national fisheries legislative framework to ascertain whether they effectively curb IUU fishing and in particular:
Where it is considered that current national fisheries legislation is inadequate to combat IUU fishing, such legislation should be revised and legislative provisions should be directed at combatting IUU fishing including provisions relating to monitoring, control and surveillance (MCS) which should be kept under regular review. Such revision and review thereof should in general aim to enhance fisheries conservation and management and sustainable utilisation of living marine resources and take into account requirements contained in international fisheries instruments and as used in other jurisdictions to combat IUU fishing. In particular, it should be ensured that legislative provisions enhance coastal State control over fishing vessels authorised to fish in areas under national jurisdiction, or improve Flag State control over vessels fishing in the high seas, directly or through regional fisheries organisations or arrangements as appropriate, and enhance general Port State control. To this end, regulation or national legislation may require or include, as appropriate:
Actions that are feasible in the medium to long term timeframe:
1. INTRODUCTION
1. International instruments including International Plans of Action (IPOAs) prompt global action to achieve specified objectives. However, the majority of implementation actions for such international instruments occur at the national level. In order for international instruments to affect individuals and other subjects who would not otherwise be directly affected by international law, enabling legislation is needed. This would be particularly true in the case of illegal, unreported and unregulated (IUU) fishing considering that a large percentage of the world’s maritime areas are placed under the jurisdiction of coastal States under the maritime regimes established by the 1982 United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter referred to as the 1982 UN Convention). In so far as IPOAs and other soft law instruments are concerned, national legislation can translate what would otherwise be principles or guidelines or calls for voluntary action into legal requirements and mechanisms that attract sanctions for non compliance.
2. This paper reviews some current approaches to, and options for, improving national legislation to combat IUU fishing in zones of national jurisdiction, within the areas of competence of regional fisheries bodies, and on the high seas. Particular regard is paid to innovative legislative approaches and mechanisms in developing coastal States, including legislative approaches jointly developed and employed by coastal and fishing States in regions such as the Pacific Islands, the Caribbean and West Africa across the range of fisheries management measures. These include registration of vessels and fishing vessel licencing, catch and vessel position and activity reporting, vessels' standing on registers, evidentiary requirements and enforcement (use of civil and administrative processes and penalties, joint and reciprocal regional enforcement and use of the long-arm “Lacey Act” provisions). While the paper examines general State practice to identify legislative options that combat IUU fishing, special attention is drawn to the practice of Forum Fisheries Agency[139] (FFA) members, which have been particularly innovative in their approach to combat IUU fishing. Although many of their innovations were adopted on a voluntary basis and the goodwill of State members to implement them, ultimately, most if not all of them have been implemented through legislation.
3. The legislative approaches considered in this paper relate to a State’s ability to undertake certain activities to address IUU fishing in its capacity or in respect of its responsibility as port, flag or controlling/authorising State (State which authorises fishing).
2. REGISTRATION OR RECORDS OF FISHING VESSELS AND AUTHORISATION TO FISH
2.1 National registration and authorisations
4. A vessel is most commonly flagged, and control by the Flag State is asserted, through vessel registration under merchant shipping or similar legislation. It should be noted that while international legal instruments relating to registration of vessels including the Convention for the Safety of Life at Sea 1974 and the United Nations Convention on Conditions for Registration of Ships exempt fishing vessel from registration, many States require, through fisheries legislation, that fishing vessels are entered on a register or record.
5. In order to ensure effective control over fishing activities of vessels, it is vital that the requirement for registration of fishing vessels become a prerequisite for the authorisation (by licence or permit) to fish and that a fishing vessel may fish only under an authorisation to fish. There may be cases where a jurisdiction does not have such registration or authorisation as a precondition for fishing or that registration for purposes of fishing is misconstrued as the kind of registration required for merchant shipping that is administered by shipping authorities and therefore the fisheries agency fails to register fishing vessels. In respect of the high seas, there are few countries that require registration, record or authorisation for vessels fishing in such areas.
6. In Thailand for example, there is opportunity to create a system of registration for fishing vessels but this requirement is not used as it is seen as an overlapping mandate with or duplication of powers of the authority responsible for shipping. Consequently, the authority responsible for authorising fishing does not implement a fishing vessel register. Further, licences are issued for fishing gears under an open access regime rather than issuing a licence to a fishing vessel as the main unit of fishing effort. Thai boats fishing on the high seas are not subject to the jurisdiction of Thailand. Therefore, control over fishing effort in zones under national jurisdiction and the high seas through limits on the number of Thai fishing vessels for fishing is non existent[140]
7. In Tonga, registration of local fishing vessels is required to ensure compliance with national standards for safety-at-sea and to serve as a record of the level of fishing[141] capacity. However, legislation does not link fishing vessel registration with the authorisation to fish. In this situation, a licence to fish may still be issued to a vessel, which is not registered and defeats the purpose for which registration is required.
8. In view of the above potential scenarios, the IPOA on IUU fishing might: first, re-state the call for States to make national fisheries legislation that require vessels entitled to fly its flag or that base their operations out of the territory of the authorising State to be registered as a fishing vessel. Such registration should have particulars of the vessel which may include information on ownership, name and address of the owner, name and address of the operator, previous flag (if any), International Radio Call Sign (if any), when and where the vessel was built, type of vessel, type of fishing method or methods, length, moulded depth, beam, gross register tonnage, freezer type, freezer capacity and number and fish hold capacity. It is important to link the requirement for registration with the system of authorisation to fish so that fishing cannot be authorised without the vessel also satisfying registration requirements; and, second, all registered fishing vessels must be authorised to fish before undertaking any fishing activity and that records of such authorisations be kept. For the latter requirement, it should be remembered that “registration” for nationality purposes may be confused with registration of authorisations issued and therefore, emphasis should be placed on the requirement that a record for authorised fishing vessels be established.
9. The authorisation to fish should include terms and conditions which, inter alia, allow the government agency issuing the authorisation to undertake fisheries management and conservation activities including allowing a wide range of monitoring, control and surveillance (MCS) (including exchange of information with other States and competent international organisations) and to enforce fisheries laws and regulations which may also require compliance with internationally agreed conservation and management measures.
10. A situation that complicates or undermines Flag State control is the charter of foreign fishing vessels (registered or flagged elsewhere) by nationals of the authorising State. The question arises as to who will exercise jurisdiction over chartered vessels when they operate on the high seas. A partial solution is to categorise all such vessels as locally based foreign fishing vessels, which for the purpose of the governing legislation or regulations would be referred to as the authorising States’ vessels or vessels, controlled by the authorising State. The owners, charterers or operators of such vessels should agree as a pre-condition to issuance of licences or as a condition of their fishing operation, in legislation or entered on the licence, for the authorising State to enforce fisheries regulations against their vessels for activities conducted on the high seas. Enforcement action may include cancellation of the offending vessel’s licence. This approach was recently explored by New Zealand but it was considered that the overriding principle of international law which permits the Flag State only to exercise control and to board and inspect its vessels on the high seas as well as the real possibility that the vessel may not re-enter the authorising State’s port renders the requirement ineffective[142]. The only effective option considered by New Zealand, is to prohibit chartered vessels from fishing on the high seas[143]. Recent changes to international law, particularly in the Agreement for the Implementation of the Provisions 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 (UN Fish Stocks Agreement) allowing duly authorised officers of a regional or sub-regional fisheries management organisation or arrangement to carry out boarding and inspection of vessels flying the flag of a State party to the UN Fish Stocks Agreement[144] suggest that enforcement action in respect of chartered vessels may be best undertaken through such organisations or arrangements.
11. Legislation establishing authorising State control over its vessels fishing within EEZ and the high seas must require exchange of information on fishing (vessels’) activities with competent international organisations. It should be noted that pursuant to requirements under the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement), the UN Fish Stocks Agreement and the Code of Conduct for Responsible Fisheries (Code of Conduct), FAO has established a database for such information. National record systems for fishing vessels are an important source of information for such database.
12. There is an emerging trend in the privatisation of aspects of fisheries management concerning the collection and management (storing, analysis and exchange) of vessel data which may frustrate the sharing of information with international organisations[145]. It is prudent that States ensure that any privatisation of such aspects of fisheries management be done with a transfer to the private party of the obligation to share relevant information with international organisations pursuant to obligations under international fisheries instruments.
2.2 Regional Registers or Records
13. Registration or records of fishing vessels could be established at a regional level. In the FFA region, the members of FFA established a regional register for foreign fishing vessels that fish in any of the member countries’ EEZ. Such vessels must first register in the regional register before obtaining a licence to fish in any of the FFA members’ individual or combined EEZ. (Transform Aqorau in AUS:IUU 2000/18 discusses the background and operational aspects of the FFA Regional Register).[146]
14. The members of FFA have incorporated the need for registration on the regional register as a mandatory requirement in national legislation[147]. The threat of being blacklisted or struck off the regional vessel register is effective in deterring non compliance or, where non compliance has occurred, in encouraging swift remedial action by the operators of offending vessels.
15. The effectiveness of a regional register depends on strong regional cooperation and cohesion. The FFA register is effective in the FFA region as it is strengthened by the fact that most fishing vessels seeking authorisation to fish in the EEZ of one country would also like to be similarly authorised in a neighbouring country. A regional programme for harmonisation of legislation also enhances implementation of the regional register[148]. A request to blacklist a vessel can be made by any member of FFA. The incentive for compliance with the requirement to register the fishing vessel on the regional register in the FFA region is therefore apparent.
16. The IPOA on IUU fishing could encourage other regions to pursue their interests in establishing an FFA type regional register as a means to combat IUU fishing and in particular to reinforce the requirements of a regional register in national legislation.[149]
3. BASIC REPORTING REQUIREMENTS
17. The reporting requirements discussed in this paper are primarily reporting of information on fishing and fishing operations. These information are reported in real time or near real time (by very frequent means (e.g. VMS), daily or on a per trip basis) and which are available at the time of harvest. It does not cover aspects of reporting that relate to long term or comprehensive analysis (e.g. stock assessment) although the data available at the time of harvest may become relevant to such analysis later.[150]
3.1 Requirements for reporting by conventional means.
18. Legislative requirements for vessel activity reports are found in the authorisation regimes (provisions relating to licensing or permitting including access agreements) which are commonly set out in fisheries legislation. A typical provision on licensing will require that no fishing shall take place without a licence and that a licence shall be granted or that fishing shall be conducted only in accordance with or subject to the terms stated in the legislation or such licence. These terms and conditions commonly include the requirement to provide reports relating to catch and effort and positions and other activities of fishing vessels.
19. A reporting provision, whether stipulated in legislation or licence, may require that information relating to the position of and catch on board the vessel be provided as follows: (a) before departure from port for the purpose of beginning a fishing trip; (b) each designated day of the week while within the licensed fishing area or a closed area; (c) before entry into port for the purpose of unloading fish from any trip involving fishing in the licensing fishing area; and (d) at the time of entry into and of departure from waters which are, for any purpose, subject to the jurisdiction of that State or of a Regional Fisheries Body to which the Flag State is a party.[151]
20. The reports are commonly made on a prescribed form and contain the following information: date; call sign; port name; catch on board by species; position; zone entry and exit (including closed areas); port name and estimated time of entry into port (for Port entry reports).[152]
21. An examination of legislation of coastal States reveals that countries require reporting on entry and departure of EEZ or fishery zone. Many countries require periodic radio reports of position, catch and effort, usually on a weekly basis or daily basis. During periods of fishing, fishing vessels are now normally required to maintain daily logbooks of position, effort, catch and other relevant data such as reports of landing or transhipment of catches. These logbooks or records are turned in to coastal State authorities at the end of fishing operations or within a specified period after the end of such operations.[153]
22. In so far as logbooks and timely reporting of catch are concerned, there are clear regional disparities in State practice. What is notable however, is that in the South Pacific and particularly the members of FFA, their requirements are almost universal and uniform. In West Africa, countries are beginning to insist on such requirements. The Indian Ocean Region and the Americas fall somewhere in between.
23. Members of FFA may have had more success in ensuring standard or uniform reporting because such requirements are made under the auspices of regional agreements[154] and initiatives on fisheries cooperation, the existence of a multilateral fisheries access agreement, and support provided in the form of a regional programme for harmonisation in fisheries legislation.[155]
24. Much of the reporting requirements in legislation of the FFA members were initially targeted at foreign fishing vessels. To this end and in order to ensure a common regulatory regime applied to these vessels among other reasons, including ensuring an effective collective bargaining power for better economic returns from fisheries access agreements, the members of FFA established the Harmonised Minimum Terms and Conditions for Foreign Fishing Vessel Access (MTCs)[156]. While the MTCs do not bind the member States, members of FFA give them effect through national legislation. In this way, the MTCs become entrenched as legislative requirements and are not negotiable. (Only the legislative options relating to MTCs are discussed as a separate item in this paper. Aqorau in AUS:IUU/2000/18 discusses the background and operational aspects of MTCs). In respect of reporting, the MTCs require the maintenance and submission of catch logs in zones and on the high seas and for licenced vessels to report information relating to the position of, and catch on board the vessel at a specified day of the week, within reasonable time of entry into and departure from the zone of the licencing country and within a reasonable time of entry into a port of a licensing country.
25. An IPOA on IUU fishing should emphasise that States require reporting through legislation of information by fishing vessels pursuant to the 1982 UN Convention, the Compliance Agreement and the UN Fish Stocks Agreement and other international fisheries instruments in particular the Code of Conduct. The following checklists of types of information, drawn from the relevant provisions of the above mentioned instruments, international guidelines and State practice, should be the minimum on the type of information that may required but it is not an exhaustive list:
26. The need for harmonisation of reporting requirements in legislation is apparent from the FFA experience. Harmonisation or universality, in theory, makes it easier for fishing vessel operators to be familiar with reporting requirements.
27. The credibility of reporting requirements dictates that such requirements must be verified and enforced. In this respect a verification system should be established and failing to maintain an accurate record or failing to report the information required or the reporting of inaccurate information or false information should be an offence that attracts adequate penalties to deter the repeat of such inaccurate reporting or failure to report. Verification can be done by uniform application of routine inspection in port or by establishing observer programmes.
3.2 Reporting using vessel monitoring systems
28. Satellite-based vessel monitoring systems (VMS) is a recent development in fisheries monitoring control and surveillance (MCS). VMS ensures that fishing vessels provide reports in real time. Indeed VMS can be seen as a direct response to IUU fishing, in particular the “unreported” aspect due to problems associated with the use of radio reporting systems.[157]
29. At this time, VMS is focussed on position reporting although other VMS information namely, sighting reports, catch reports, notifications (EEZ entry/exit, port entry, etc.), position reports, and analyses, can also be generated by VMS. VMS is currently considered a complementary tool to conventional MCS. VMS is in use or in various stages of trial and implementation in many countries and by regional fishery bodies.[158]
30. The use of VMS has legal implications. It is therefore prudent that legal issues relating to VMS, particularly in facilitating VMS requirements in the national legal framework be dealt with to enable its successful implementation. The legal issues that have arisen in the process of implementation of VMS are: establishing the legal basis for use of VMS; requiring the installation of VMS components namely automatic location communicators (ALCs) (or vessel tracking units (VTUs)); protection of VMS components; ensuring confidentiality of VMS information; and, fisheries enforcement in courts using VMS information.
31. The international legal basis for the use for VMS is well documented.[159] The 1982 UN Convention, the UN Fish Stocks Agreement; and the Compliance agreement all support the use of VMS. The Code of Conduct also recommends the use of VMS in MCS. The use of VMS by certain countries may be further required by relevant multilateral or bilateral agreements relating to fisheries conservation and management and by national legislation. In this context, an early observation made from brief examination of jurisdictions or regional fisheries bodies already using or intending to use VMS is that the use of VMS must be required by law particularly in respect of installation of ALCs. The following are considered as necessary basic elements to be required by regional fishery bodies or in national jurisdiction, either as a condition of an authorisation to fish or in regulations, as appropriate, for the implementation of VMS:
32. The general perception on the use of VMS or any tracking device is that such devices are an intrusion on privacy. It is important, therefore, that law sanctions the use of VMS. In addition, the use of VMS may be more acceptable if it is shown that security and confidentiality of VMS information are assured under law.
33. It is also worthy of note that countries which incorporate the provisions for the implementation of VMS into national legislation or are bound by agreement made by a regional fisheries body, as opposed to countries who have not also facilitated implementation of VMS through legislation, have more success in ensuring that their fishing vessels install and keep operational at all times the ALCs.
4. EVIDENTIARY PROVISIONS
34. The paper AUS: IUU/2000/8 draws attention to the fact that “unregulated fishing” is, in most cases, a matter of the regulatory regime not being effectively applied. In addition to scarce resources for comprehensive MCS programmes, such ineffective application is exposed where the odd arrest and court appearance of an accused person for breach of fisheries laws ends with no convictions entered due to the inadequacy of the rules of evidence to allow the use of evidence generated by activities that use or need to be controlled by use of sophisticated equipment. (As noted by Edeson in AUS:IUU/2000/8, this may be a problem for States that have inherited the common law system. It may be added that this problem is more pronounced in such of those States as are developing States).
35. Ineffective evidentiary provisions have been exposed with the frequent use of Global Positioning System (GPS) in navigation and fixing of vessel positions and in the use of VMS information which also uses GPS in ALCs. As infringement of fisheries laws in many countries are criminally prosecuted, the common question asked is whether GPS or VMS information is of a standard likely to satisfy most criminal courts. Consequently, what needs to be established is whether the level of trustworthiness and credibility of VMS information, in particular information relating to a vessel position, is of a sufficient standard that could lead to a conviction.[160]
36. However, the main problem with information from GPS or VMS is that such information may be inadmissible in criminal proceedings due to the rule against hearsay evidence (the hearsay rule). “Hearsay” is “an out of court statement offered to prove the truth of the matter asserted therein.” The hearsay rule is basically that hearsay evidence is not admissible in court. In this respect, it shall be noted that position reporting is automatic and independent of the vessel operator and that position reports generally provide for identification of the vessel, the date and time, the latitude and longitude, and the speed and course of the vessel at the time of the position fix.
37. The admissibility of GPS or VMS information may involve proof of: the physical location of a vessel at a certain time; and, the activities of the vessel (whether it was fishing) at the given position and time. In respect of the former, the problem caused by the hearsay rule could be overcome by exceptions[161] to the hearsay rule in particularly “judicial notice” (by which the courts accept facts without requiring further proof because they are “notoriously accurate”) or by the use of “rebuttable presumptions”.
38. In respect of “judicial notice”, it is important to note that the high level of accuracy of certain technological advances such as GPS, which is widely recognised, may be regarded as universally established by common notoriety. In respect of proof of activities of a vessel (e.g. illegal fishing), it is clear that at this stage of development, GPS or VMS information, which merely indicate probable activity of a vessel, fails to furnish evidence capable of being overcome by “judicial notice”. In spite of GPS accuracy, a vessel position, even though it may indicate a clear violation of the limits of fishing prohibited area, does not provide adequate information to determine the nature of the suspicious activity.
39. In the case of rebuttable presumption (a fact is assumed to be true unless the contrary is proved), it is noted that in many recent fisheries legislation in common law jurisdictions, particularly in the FFA region, it is stipulated that in any legal proceedings instituted under such legislation, where the place in which an event is alleged to have taken place is in issue, the place stated and copy of the relevant entry in an official record of an enforcement vessel or aircraft as being the place in which the event took place shall be presumed to be the place in which the event took place, unless the contrary is proved. Other examples of rebuttable presumptions are: that fish on board a vessel that commits an offence is deemed to have been caught in the commission of the offence; a document purporting to be an evidentiary certificate is such a certificate; an act or omission of the crew is deemed to be an act or omission of the operator; and, an entry or mark in or on any log book or chart required to be maintained is deemed to be an entry or mark made by the operator of the boat.
40. It must be stated as a caution however, that in the use of presumptions, the burden of proof (duty to provide proof) should not be unfairly placed on the accused in criminal proceedings in an adversarial justice system and where the accused is presumed innocent until proven guilty as a constitutionally guaranteed fundamental right.[162] The use of presumptions is best suited as prima facie evidence of the facts asserted. The primary value of presumptions is to highlight issues that may or may not be in dispute between the parties so that the court could focus on these issues with the objective of facilitating a swift trial. It remains the duty of the prosecution to ensure that it collects sufficient evidence and adequately prepares for trial to prove the guilt of the accused.
41. The IPOA on IUU Fishing might call on States to enhance evidentiary provisions in national fisheries or related legislation in order to ensure that information relating to vessel positions generated by GPS, VMS or any other equipment are usable in judicial proceedings. Such legislative provision may provide that: (1) the position fixing machine (GPS) which may be used in conjunction with ALCs that generate position information shall be judicially recognised as notoriously accurate; (2) information obtained by use of ALC is presumed, unless the contrary is proved, to come from the vessel so identified, is accurately relayed or transferred and given by the master, owner, operator or charterer of the fishing vessel; and, (3) evidentiary certificates may be issued by certain persons to certify their competency to read any print out or visual display, the date and time the VMS information was obtained or ascertained and the details thereof; the name and call sign of the vessel on which the ALC is or was located as known to him or her or as ascertained from any official register, record or other document; and a declaration that there appeared to be no malfunction in the ALC, its transmissions or other machines used in obtaining or ascertaining the information. Safeguards should be built into the law to ensure trustworthiness of such evidence including certification by persons through whom such evidence is tendered, to the effect that: the person who avers is competent to take a reading of the equipment in question; that the equipment is working; and, that the reading was done contemporaneously to the fact.
5. HARMONISED MINIMUM TERMS AND CONDITIONS FOR FOREIGN FISHING VESSEL ACCESS (MTCs)
42. The members of FFA first adopted MTCs in 1982. (See Aqorau AUS: IUU/2000/18 for the historical background and operational aspects of MTCs).[163]
43. The MTCs as amended in November 1997 contain the following requirements:
44. FFA members undertake to ensure that the access agreements negotiated with distant water fishing States or fisheries associations contain the above requirements. While the MTCs are not binding on the FFA members, many of them have incorporated the MTCs into legislation so that they are binding and are not negotiable.
45. The IPOA on IUU fishing could call on States, through regional fishery organisations or arrangements, as appropriate, to adopt MTCs. Alternatively, States may wish to individually set minimum terms and conditions for access similar to the MTCs adopted by the FFA members.
6. ENFORCEMENT
6.1 Administrative/civil processes and penalties in enforcement
46. One of FFA options in response to the difficulties in using evidence generated by GPS or VMS due to the hearsay rule and the high standard of proof in criminal cases is that countries adopt US civil and administrative processes and penalties for dealing with fisheries offences. This approach presents the advantages of permitting hearings, which do not necessarily follow strict rules of evidence, expedited proceedings and lower standard of proof.
47. Another attractive aspect of using civil and administrative processes for fisheries law violations is that it allows for a negotiated settlement. This entails the ability of the fisheries agency or the appropriate government authority to: notify the offender of the breach committed; present a summary of its case with an indication of penalties (usually fines); and, request the offender to show cause. If the offender considers that there is indeed a breach committed, the fisheries agency may then negotiate with the offender on the penalty to be paid. While there may be little or no negotiation on the fine, bargaining can be done on the number of breaches that can be substantiated by the fisheries agency. Bonds may be lodged so that a vessel is released to continue fishing.
6.1.1 The scheme for the use of civil penalties for fisheries law violations
48. Based on the legal framework for administrative action in the US, the first necessary element is the legal basis for the executive to exercise legislative and judicial powers. The Administrative Procedures Act (APA)[165] sets out the basic Congressional intent for such exercise of powers.
49. The second element is that the act or omission, which is considered a violation of a fisheries law, must be clearly specified. Connected to this is the need to clearly distinguish, in the relevant legislation, between the criminal offence and the civil penalty. The relevant legislation in the US is the Fisheries Conservation and Management Act.
50. In addition to the use of different provisions to create the two types of liability (one criminal and the other civil) the relevant provisions in the Fisheries Conservation and Management Act are carefully drafted so that the usual terms used in a provision that creates an offence (criminal liability) are avoided. Section 1857 is an example of careful legal drafting that avoids making a breach of a law solely criminal or solely civil. The relevant part of Section 1857 states as follows:
It is unlawful -(emphasis added)(1) for any person -.......(A) to violate any provision of this Act or any regulation or permit issued pursuant to this Act;(B) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this Act;
.......
.......”
Section 1859 creates criminal liability and provides as follows:
(a) Offences. A person is guilty of an offence if he commits any act prohibited by-(emphasis added)(1) Section 307(1)(D), (E), (F), or (H) [16 USCS ss. 1857(1) (D), (E), (F) or (H)]; or(2) section 307 (2)[16 USCS ss 1857(2)].”
The provision that creates civil liability and enables the use of administrative penalties is Section 1858.
“Section 1858 Civil Penalties(emphasis added)(a) Assessment of Penalty. Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code [5 USCS ss 554], to have committed an act prohibited by section 307 [16 USCS ss 1857] shall be liable to the United States for a civil penalty. The amount of the penalty shall not exceed $25,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of the civil penalty shall be assessed by the secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offences, ability to pay, and such other matters as justice may require.”
51. It shall be noted that the use of the words “it is unlawful” and “to violate” in the prohibition section (Section 1857) provides the choice to invoke a civil or criminal process for enforcement. In complementing Section 1857, Section 1858, on one hand, uses the words, “shall be liable to the United States” (creating the basis for use of civil penalties) while Section 1859, on the other hand, uses “is guilty of an offence” (which establishes criminal liability).
52. The process for use of civil penalties is established. It includes issuance of notice by the designated authority to the person alleged to have committed a violation after detailed investigation is conducted and there is enough evidence to support the finding that the violator committed a prohibited act.
53. There must be provision for hearing. All interested parties must be given an opportunity to be heard including the opportunity for the submission and consideration of facts and arguments or offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and public interest permit it. Where the parties are unable to determine a controversy by consent, hearing and the decision on notice will ensue.
54. Settlement and other alternative dispute resolution are encouraged. The fact that the resulting liability is civil enables the parties to settle just like the parties would in litigation in civil suits. This can be compared to a criminal proceeding in some common law jurisdictions where the only form of settlement allowed is plea bargaining.
55. It shall be noted that the majority of the fisheries cases using APA procedures to impose civil penalties are settled.[166]
6.1.2 Use of Civil penalties outside the US
56. Marshall Islands has a simplified procedure for the use of civil penalties. Such procedures apply to violations by foreign vessels only. The provisions relating to a contravention for which a civil penalty may be imposed reflect the ability for any breach to have a criminal or civil liability. Civil penalties that are imposed shall not exceed $1,000,000. Fishing vessels used in any contravention of the fisheries law and fish taken in the course of such contravention may be forfeited in accordance with a civil proceeding.[167]
57. In New Zealand, section 113z of the Fisheries Act 1996 provides for the use of administrative penalties for offences that have a penalty of a fine not exceeding $250,000 and where no information or charge is laid in respect of an alleged offence. However the use of the administrative penalties applies only in respect of minor offences and where it would be appropriate to impose an administrative penalty in the light of previous conduct of the vessel and the accused person. The procedures involves: the issuance of notice of violation which includes the date and time of the alleged violation, summary of facts and information on the sections on administrative penalties; and, the admission of offences and submissions by the person to whom notice is served. The maximum penalty that can be imposed is one third of the maximum monetary penalty to which the person may be liable if the person was convicted of the offence in court.[168]
58. Papua New Guinea has a more complex administrative enforcement proceeding that involves: the establishment of a Summary Administrative Panel; issuance of notice; right of the person to whom notice is served to opt for court proceedings; authorisation from the Public Prosecutor to allow a violation to be dealt with by summary administrative proceedings and notice of final settlement under summary administrative proceedings to a court of competent jurisdiction.[169]
6.1.3 Compounding of Offences
59. While only a few countries have adopted the US administrative proceedings approach, many States in the Indian Ocean, Caribbean and South Pacific regions have adopted the compounding of offences process in order to deal swiftly with fisheries offences. The main component in compounding of offences is that the person in whom powers to compound offences is vested (usually the Minister responsible for fisheries or the chief executive officer in the fisheries administration (Director or Secretary)) decides to accept sums of money (usually not more than the maximum of fines allowed) from the offender if it is believed that an offence has been committed. Other requirements in more recent legislation are that offences may be compounded only with the consent of the person found by the Minister or Director to have committed the offence and that notifications of the compounding of an offence may be made to the appropriate courts. The Minister or Director may also be empowered to release any article seized in relation to the offence if he compounds such offence.
60. It should be noted that few States have used the compounding of offences provisions in their fisheries legislation. An IPOA on IUU fishing could call for adoption in national legislation of compounding of offence provisions or the effective use of existing provisions. A caveat is necessary for any decision to opt for the use of compounding of offences. As noted in respect of the use of administrative penalties, the process of compounding of offences involves an exercise of judicial powers. Therefore, constitutional and administrative law implications for such options need to be comprehensively examined before using the compounding of offences as an option in enforcement.
6.2 Joint enforcement agreements
61. Another FFA initiative to address illegal fishing is the development of a framework agreement for joint and reciprocal enforcement. This agreement, the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (Niue Treaty) allows parties to share their assets in fisheries surveillance and law enforcement activities including boarding and inspection and seizure of vessels. The nature and scope of the cooperation on surveillance and enforcement shall be stipulated in subsidiary agreements and supported by the laws and regulations of the participating States to such agreements (See AUS:2000/18 for a detailed background and operational account of the Niue Treaty).
62. Joint or shared enforcement activities may entail the use by one government of another participating government’s vessels in carrying out surveillance and enforcement, cross-authorisation of enforcement officers to undertake enforcement action within zones under the national jurisdiction of another participating government and established procedures for boarding and inspection and seizures.
63. Aqorau provides an account of the development of the Niue Treaty and identifies legal difficulties relating to its implementation.[170] These difficulties and the recent developments in international treaty making that allows boarding and inspection of vessels by non flag States point to the need for implementation of joint and reciprocal enforcement schemes through regional organisations and arrangements particularly in respect of foreign vessels on the high seas. Regardless of whether such cooporation in enforcement is undertaken through fishery organisation or arrangements or under direct cooperation between States, the perceived legal and practical difficulties require legislative support for such cooperation which clearly sets out the rights, responsibilities and procedures for enforcement. For example the New Zealand Fisheries Act 1996 anticipates enforcement of international conservation and management measures adopted by a global, regional or sub-regional fisheries organisation or arrangement pursuant to the UN Fish Stocks Agreement by enabling boarding and inspection of vessels on the high seas. The relevant provisions inter alia provide for designation of inspectors, the powers of inspectors to conduct boarding and inspection, and the responsibilities of such inspectors in carrying out boarding and inspection.[171]
64. The IPOA on IUU fishing should urge governments to adopt legislation in support of cooperation in surveillance and enforcement by global, regional or sub-regional fisheries organisations or arrangements and in particular to adopt legislative provisions that support boarding and inspection on the high seas.
6.3 Long-arm approach to enforcement: The “Lacey Act” provision
65. Another mechanism for fisheries law enforcement which has been considered and adopted by some of the member countries of FFA, is an offence creating provision that can be introduced in national fisheries legislation commonly referred to as the “Lacey Clause”. The provision basically makes it unlawful to import fish that has been taken contrary to the laws of another country. The provision derives its name from its origin, the Lacey Act of the US. This mechanism should, if given a wider application, buttress cooperation in enforcement to stem illegal fishing operations in the region. Outside the US only three countries namely Papua New Guinea, Solomon Islands and Nauru, have adopted this so called “long arm” mechanism in enforcement.
6.3.1 Brief Background
66. The Lacey Act[172] was originally passed to outlaw interstate traffic in birds and other animals illegally killed in their State of origin. There have been several amendments to the original Act. These amendments to the Lacey Act combine the Lacey Act and Black Bass Act into a single comprehensive statute to provide more effective enforcement of State, Federal, Indian tribal, and foreign conservation laws protecting fish, wildlife, and rare plants and strengthen Federal laws and improve Federal assistance to States and foreign governments in enforcement of fish and wildlife laws.[173] The amendments also strengthen the Lacey Act by, inter alia: (1) expending underlying violations so that they are not, under certain provisions of the Lacey Act, restricted to acts or attempted acts of taking or possession but also transportation or sale of wildlife contrary to State or foreign law, (2) explicitly defining the sale of wild life to include the provision or purchase of guiding or outfitting services for the illegal acquisition of wildlife, (3) expending the underlying violations to include the intended violation rather than just actual violations, and (4) requiring a felony violation to be committed only with the prerequisite knowledge of the import or export of fish, wild life or plants or the sale of fish, wildlife or plants with a market value greater than US$ 350.[174]
67. The relevant provision of the Lacey Act makes it unlawful[175] for any person to: import, export, transport, sell, receive, acquire, possess, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Indian tribal law, treaty, or regulation (referred to as underlying laws); import of live wild animals and birds to occur under inhumane and unhealthful conditions; make or submit any false record, account, or identification of any fish, wildlife, or plant which has been, or is intended to be imported, exported, sold, purchased, or received from any foreign country; or transported in interstate or foreign commerce.[176] Federal agents are authorised to seize any wildlife which they have reasonable grounds to believe was taken, possessed, transported, or imported in violation of any provisions of the underlying laws.
6.3.2 Dealing with a Lacey Act contravention
68. With the exception of the marking offences, none of the offences under the Act stand on their own. There must first be a violation of an underlying Federal, State, foreign, or Indian Tribal law, treaty, or regulation relating to fish, wildlife, or rare plants.
69. Both criminal and civil penalties can be assessed, depending upon the nature and type of the violation. A civil penalty can be as much as $10,000 if there is evidence that the violator should have known that the fish, wildlife, or plants were taken, possessed, transported, or sold in violation of any underlying law.
70. Vehicles, aircraft, vessels, or other equipment used during the commission of the crime may be forfeited to the government in cases involving felony convictions. Any fish, wildlife, or plants involved in violations of the Act are also subject to forfeiture.
71. The Lacey Act has become a vital tool in efforts to control smuggling and trade in illegally taken fish and wildlife. In particular, the Lacey Act is useful in enabling the Federal government to aid other governments in enforcing their own conservation laws.[177]
6.3.3 Overview of the use of the “Lacey Act provision” outside the US
72. Under an understanding between the United States and FFA members called the Agreed Minute on Cooperation on Surveillance and Enforcement (the Agreed Minute), the parties agree to exchange fisheries information including information on violations, exchange personnel and develop vessel monitoring system to generally enhance surveillance and enforcement. Cooperation under the auspices of the Agreed Minute has enabled the US to frequently use the Lacey Act to prosecute vessels importing fish taken contrary to the laws of the FFA member States and to provide assistance to FFA members to develop their own Lacey Act provisions.
73. The suggestion for use of the Lacey Act provision first arose in an FFA regional legal consultation in October 1993 where it was agreed that the FFA Secretariat examine the potential for use of a Lacey clause in enforcement by FFA members. Papua New Guinea first incorporated a Lacey Act provision in the Fisheries Act of 1994 followed by Nauru in 1997 and Solomon Islands in 1998 following further discussion on the Lacey Act provision and potential for its use under the auspices of assistance provided under the Agreed Minute.
74. A typical Lacey Act provision may be drafted as follows:
(1) Subject to subsection (3), a person who, in (insert name of country) or in fisheries waters -(a) on his own account, or as partner, agent or employee of another person, lands, imports, exports, transports, sells, receives, acquires or purchases; or(2) This section does not apply to fish taken on the high seas contrary to the laws of another State where (insert name of country) does not recognise the right of that State to make laws in respect of those fish.(b) causes or permits a person acting on his behalf, or uses a fishing vessel, to land, import, export, transport, sell, receive, acquire or purchase, any fish taken, possessed, transported or sold contrary to the law of another State shall be guilty of an offence and shall be liable to a fine not exceeding (insert monetary value).
(3) Where there is an agreement with another State relating to an offence referred to in subsection (1) (b), the penalty provided by subsection (1), or any portion of it according to the terms of the agreement, shall, after all the costs and expenses have been deducted, be remitted to that State according to the terms of the agreement.[178]
75. A common example of violation of the laws of another State is the taking of fish without a licence where such licence is required by that State’s fisheries legislation.
76. So far, only one prosecution of an offence committed against a Lacey Act provision has been conducted in Papua New Guinea where the master of a fishing vessel with a Papua New Guinea fishing licence was convicted and penalised for catching fish in Solomon Island waters without a Solomon Islands fishing licence and then bringing the catch into Papua New Guinea waters. Some issues that arose from that prosecution and which are worth noting are: (1) the need to prove foreign law and in this respect, the need for expert an witness on or the availability of certified copies of the foreign law in question; (2) the need for broad interpretation of terms such as “imports” and “exports” so as to include the casual import or export of a shipment of fish even if it is not for commercial import or export purposes; and, (3) that the offence committed under the Lacey Act provision is not an enforcement of the other State’s laws but the enforcement of the law of the country that has the Lacey Act provision.
77. It is too early to gauge the success of the use of Lacey Act provisions. Nevertheless, the Lacey Act provision has the potential for application in the instance where the fish imported into a country is taken in violation of internationally agreed conservation and measures applicable on the high seas and as reflected in regional regulations. It enhances control over chartered vessels when they are fishing on the high seas and Port State control (routine checks of fishing vessels including examination of log books could reveal illegal activity in other States’ waters). In addition, there is the potential for reciprocity in the application of the Lacey Act provision where such provision exists in the law of neighbouring States or through bilateral agreements as envisaged by the provision relating to remittance of penalties. Extensive adoption of the Lacey Act provision could also become a direct deterrence for illegal fishing wherever it occurs.
78. Despite the fairly recent use of the Lacey Act provision, the IPOA on IUU fishing might prompt States to examine the viability of Lacey Act provisions and adopt them in national fisheries legislation as a measure to curb such activities.
7. CONCLUSION
79. The trend in recent international cooperation on fisheries management is to consider the adoption of non legally binding instruments to guide States in establishing fisheries conservation and management measures. The Code of Conduct and recent IPOAs adopted under the auspices of FAO are testimony to this trend. However, by the very nature of the subjects that the IPOA on IUU fishing proposes to deal with, international instruments such as IPOAs are in and of themselves inadequate. Adoption of regulation at the regional and national levels that create enforceable rights and responsibilities to give effect to IPOAs is inevitable. To this end, States, in particular developing States, will need to examine legislative options that could best contribute to efforts to curb IUU fishing and adopt them to implement the IPOA relating to IUU Fishing.
80. It should be remembered that the legislative options to combat IUU fishing pertain to only one aspect of fisheries management and the legislative framework that supports such management. In this regard, the legislative options to combat IUU fishing should be reviewed in the context of the whole national fisheries legislative framework to ensure that they complement provisions relating to other aspects of fisheries management so that ultimately, effective fisheries management and sustainable utilisation of living natural resources are attained.
