John Fitzpatrick
Consultant
Fishery Policy and Planning Division
Fisheries Department
FAO, Rome, Italy
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Fitzpatrick. J. Measures to Enhance the Capability of a FLAG State to Exercise Effective Control Over a Fishing Vessel. Document AUS:IUU/2000/11. 2000. 13p.123456789
ABSTRACT This paper reviews ways to exercise control over a fishing vessel through the implementation of the provisions of existing international legal instruments that are in force as well as taking account of the provisions of relevant instruments that are not yet in force. In particular, the responsibilities of a State in marine law are considered in relation to fishing vessels and other vessels that are associated with a fishing operation.Issues arising from illegal practices in fishing operations that have an adverse effect on maritime safety, the aquatic environment and on conditions of work aboard fishing vessels are mentioned in relation to the links between FAO and the International Maritime Organization (IMO) and the International Labour Organization (ILO). Proposals are made for the adoption of internationally agreed standards aimed at the enhancement of the ability of a flag State to exercise control over fishing vessels entitled to fly its flag. This may be achieved through
It is further proposed that FAO and IMO co-operate in the development
of the proposed standards to ensure that the relevant issues of fisheries
management and maritime matters are addressed in relation to flag State
control and measures to be taken by a port State. |
PREPARATION OF THIS REPORT
This paper has been prepared as one in a series of specialist background papers for the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000. It is expected that this series of papers and the expert consultation will contribute to the elaboration of an international plan of action (IPOA) to deal effectively with all forms of illegal, unreported and unregulated (IUU) fishing, the development of which is being undertaken in accordance with a decision of the 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries. The views expressed in this paper are those of the author and do not necessarily reflect the views of FAO or any of its Members.
EXECUTIVE SUMMARY
If every flag State had the capability and the willingness to exercise effective control over fishing vessels entitled to fly their flags, illegal fishing would be greatly reduced and reporting of catch data would be more accurate. Given also international agreement on fisheries conservation and management measures, there would be fewer, if any unregulated fisheries. Being realistic, however, that ideal state will not be achieved world wide since even in otherwise well managed and regulated fisheries illegal fishing takes place and not all of the catch is reported as evidenced by the numbers of cases brought to court. Nevertheless, action is urgently needed to tackle the main issues if further irreparable damage to fish stocks and the aquatic environment is to be avoided. Let it be clear, however, from the outset, IUU fishing is not confined to large fishing vessels or to any specific geographic area
IUU fishing also leads to other forms of malpractice. Other users of the seas are put at risk to the extent that small fishing vessels and other small craft are run down, often with the loss of life and property. Incidents such as these generally take place in darkness and the culprits steam with navigation lights switched off in contravention of the International Regulations for Preventing Collisions at Sea (COLREGS). A defendant will plead that the small vessels are poorly lit and can not be easily recognized but that carries no weight when the culprit is fishing in an exclusion area for which it has no authorization to fish. Damage to the environment is a common occurrence and this may be due to the use of inappropriate, banned fishing gear or methods or even poisons and explosives.
Although there has been a great improvement in conditions of work and service in fishing vessels in many countries, the treatment of the crew on board many of the vessels fishing illegally is unacceptable. In some case, the crew and forced to set aside agreements made by their own government for their employment overseas and to sign contracts that effectively give them no protection. Furthermore members of crews are often left stranded in a foreign port at the whim of a skipper or owner with no arrangements made for their repatriation.
Control over the operations of a fishing vessel and the actions of those on board are the primary responsibility of the flag State. Control measures should be in place even before a vessel is constructed in keeping with policies on the management of fishing capacity. The next step is when an application is made for the allocation of a flag. At this point, it should not be possible for a fishing vessel to be registered unless the competent authority in the intended flag State for the register of ships is in possession of a certificate of no objection issued by the those responsible for fisheries in the intended flag State. Ideally, the certificate of no objection should indicate the main conditions to be applied to the authorization to fish. If indeed the vessel is to be allowed to fish on the High Seas or in waters of another State, with the permission of the intended flag State, the competent authority should decide whether or not it can exercise effective control over that vessel. Should the answer be in the negative, the vessel should not be allocated a flag.
The processes of registration and the allocation of a flag are complex. Indeed the process is such that although the legal owner may be recognized through entries in the private law record, those who benefit most from the operation of a fishing vessel (if different from the legal owner or owners), are more difficult to identify. This is one of the reasons why the so-called “genuine link” remains an issue. It is quite clear, however, that in relation to domestic law (in particular in national registers) the genuine link between the vessel and the flag State is generally based on certain socio-economic factors (construction, ownership, agent, crew etc.). Whereas, in international law, the genuine link, consists of the effective control of the flag State over a vessel entitled to fly its flag. Nevertheless, there is a condition that expresses the intent of the flag State to exercise control over a fishing vessel entitled to fly its flag and that is the authorization to fish.
Further complications may arise from bareboat chartering in and out. For example some flag States do not even require the suspension of deletion of the primary register while. others permit splitting the public and private law functions of the register of a fishing vessel that effectively leaves the private law register open (which may give greater protection in relation to mortgages, liens and other encumbrances) but suspending the entry in the public law register. Although these issues are unlikely to be resolved in the context of IUU fishing, it is recommended that the primary register should be closed or suspended prior to, or concomitant with, the flagging- in State allocating its flag to the vessel for the duration of the charter. In addition, the new flag State should not allow sub-demise[262] of the chartered vessel. The next step is the issue of an authorization to fish without which, the vessel should not be allowed to operate as a fishing vessel and without which the genuine link may be questioned. Conditions to be attached to the authorization should reflect the arrangements that have been made by the flag State for control over the vessel. These conditions should include, inter-alia, what species can be caught, what gear can be used, where the vessels may operate and at what time of the year. Reporting procedures should be set out in relation to catch data and the vessel’s “noon” position and requirements with regard to maritime conventions, manning and working conditions should be elaborated. Conditions may also be imposed in the case of a vessel bareboat chartered in and to a vessel associated with joint venture operations. Furthermore, there should be a requirement for fishing vessels and fishing gear to be marked for their identification in accordance with uniform and internationally recognisable vessel and gear marking systems such as the FAO Standard Specifications for the Marking of Fishing Vessels
A combination of the first and second steps should require the flag State to establish records of fishing vessels that contain details of a vessel, its legal ownership and authorization to fish. Furthermore, the flag State should maintain a parallel record of infringements by a vessel and the penalties and or sanctions applied. The information should be readily available to relevant regional bodies, the appropriate international organization and other State on request. Coastal States should maintain similar records of foreign flag fishing vessels authorized by them to fish in waters under their jurisdiction
The third step concerns monitoring, control, surveillance (MCS) and enforcement, without which the State should not flag any vessels. Furthermore, unless a State has an effective MCS system in place and a capability to enforce national laws and regulations it cannot exercise control over any other vessel fishing, with or without permission in waters under the jurisdiction of the State. It is recommended that an integrated approach to MSC is followed and that the principles are agreed internationally for application in regions and sub-regions. Since components of MCS systems overlap with arrangements for maritime search and rescue (regionally co-ordinated) as well as requirements for the safety of navigation, there must be close co-operation between the appropriate international organizations. It is also recommended that the use of satellite based vessel monitoring systems should be mandatory for vessels authorized to fish on the high eas and for vessels authorized to fish in waters of States other that those of the flag State.
The following steps relate to fishing vessels that have been authorized to fish on the high seas and or in waters of other States. These take the form of control by a coastal State (that requires an MCS in the same manner as the flag State) and port State controls (and the port State might also be the coastal State). No coastal State should provide a foreign flag fishing vessel with an authorization to fish unless the request comes from the flag State. The authorization to fish, where issued, should require all foreign flag vessels to be fitted with satellite based VMS and catch data communication systems
The measures to be taken by a port State, in relation to IUU fishing, cannot be confined to matters of fisheries management. If the measures are to be effectve they must also address maritime safety, prevention of pollution and damage to the aquatic environment as well as working conditions. In this regard, some maritime administrations have already entered into agreements or memoranda of understanding (MOUs) in relation to port State control that are not legally binding on the administrations concerned. The measures taken by port States for the control of ships in relation to relevant underlying international conventions are harmonized and applied in like manner by these maritime administrations without discrimination against particular flags. In general, fishing vessels are not directly included as targets for inspection, but where they may be, the inspection is not made in relation to fisheries conservation and management matters. It is also clear from deliberations at the eight session of the IMO Sub-committee on Flag State Implementation (FSI) February, 2000, that maritime administrations in general are not in favour of adding fisheries management matters to the agreed inspection procedures under existing MOUs. This is understandable since most maritime administrations don’t have competence in matters relating to fisheries management.
Nevertheless, in its report to the IMO Marine Environment Protection Committee (MEPC) the FSI Sub-committee proposed the establishment of an ad-hoc joint FAO/IMO working group on IUU fishing and related matters. The 44the. Session of the MEPC endorsed the recommendation of the FSI Sub-committee and the matter will be further discussed at the Maritime Safety Committee (MSC) of IMO in May 2000.
The proposal to establish a joint FAO/IMO ad-hoc working group is in line with the recommendations given in this paper in order to effectively combat IUU fishing through improved flag State and port State control. It is particularly relevant in relation to the recommendation to have a legally binding agreement through which measures to be taken by port States can be harmonized for application globally and or in regions or sub-regions. The joint deliberations would also be beneficial in relation to the recommendations concerning the implementation of the principles contained in Article 8 of the Code of Conduct.
SUGGESTIONS FOR THE IPOA TEXT
Flag State Control
Flag Allocation and the Register of a Fishing Vessel
A flag States should assess all applications for the allocation of its flag on the intended area of operation of the applicant and shall not give entitlement to fly its flag unless the flag State is satisfied that it can exercise effective control over the vessel throughout the intended area of operations. The allocation of the flag should be concomitant with the allocation of an authorization to fish by the flag State in waters under the jurisdiction of the Flag State, on the high seas and or an authorization to fish issued by a coastal State at the request of the flag State.
An application for the allocation of a flag in relation to a bareboat charter should be considered by the flag State to be a registration de novo and shall require the vessels underlying registration to be cancelled if only for the period of the charter. The flagging in State, at the very least, may require the authority responsible for the foreign register to provide details of the legal owners, mortgages, liens and other encumbrances.
A flag State should not allow the sub-demise of a bareboat chartered fishing vessel.
Authorization to Fish
A flag State should not allow a fishing vessel to fish unless it has been issued with and carries on board a valid authorization to fish.
A flag State should set conditions to be met by the owners and those in charge of a fishing vessel. A flag State shall also set penalties and or sanctions in relation to non-compliance with the conditions of the authorization to fish that may include withdrawal of the athorization and closure of the register, depending upon the severity of the non-compliance.
The conditions to be set in relation to the authorization to fish should include, but need not be limited to the following:
a) a requirement for the maintenance of navigation, fishing and machinery log books;Vessel Position Reportingb) marking of the fishing vessels and marking of the fishing gear;
c) instructions for compliance with international conventions and domestic regulatuins in relation to maritime safety and protection of the marine environment.
d) areas where the vessel is allowed to navigate (may be designated by longitude and latitude references);
e) the duration of the authorization to fish;
f) species/quotas/fishing gear so authorized;
g) catch reporting (retained and discarded);
h) navigational equipment to ensure compliance with boundaries and in relation to restricted areas;
i) where applicable, a requirement to carry vessel monitoring systems;
j) compliance with fisheries agreements to which the flag State and or coastal State is a party;
k) instructions for the carriage of an observer, where applicable.
Flag States should establish and agree on the minimum acceptable performance standards for equipment and systems that do not conflict with performance standards agreed by the relevant international organizations for
a) mandatory reporting of the position of a fishing vessel when it is not in port;Flag States should make satellite based vessel monitoring systems a requirement for fishing vessels authorized to fish on the high seas and or in waters of States other than the flag State.b) the remote sensing of the position of a fishing vessel using satellite based vessel monitoring systems, as well as, surveillance, control and data acquisition systems.
Records of Fishing Vessels
Flag States should establish and maintain records of fishing vessels that contain details of a vessel, its legal and to the extent possible, its beneficial ownership and authorization to fish. Furthermore, the flag State should maintain a parallel record of infringements by a vessel and the penalties and or sanctions applied. The information should be readily available to relevant regional bodies, the appropriate international organization and other State on request.
Coastal States should maintain similar records of foreign flag fishing vessels authorized by them to fish in waters under their jurisdiction
Measures to be taken by a Port State
Port States should take, through procedures established in their national legislation, in accordance with international law, including applicable international agreements or arrangements, such measures as are necessary to achieve and to assist other States in achieving compliance with sub-regional, regional or global conservation and management measures and or with internationally agreed minimum standards for the prevention of pollution and for safety, health and conditions of work on board fishing vessels.
States should establish a harmonized system for the inspection of a foreign flag fishing vessel when it is voluntarily in a port or at an offshore structure of a port State that may be applied, sub-regionally, regionally or globally. The harmized system shall make provisions for:
a) administrative procedures for the conduct of a port State in relation to the master/skipper of a foreign lg fioshing vessels, its master/skipper, its agent, the consulate of the flag State and the flag State;Coastal Stateb) inspection of the documentation carried by the fishing vessel attesting to its nationality, its authorization to fish and where applicable, certificates of origin of the catch;
c) the inspection of its fishing gear and its catch;
d) the inspection of a fishing vessel, its log books, the garbage record book, safety and health certificates and safety equipment;
e) procedures to be followed where there are clear grounds for a more detailed inspection; and,
f) procedures to be followed in the event of the detention of a fishing vessel.
A coastal State should ensure that waters under its jurisdiction are clearly marked on charts for identification by seafarers. The charts should also identify protected sensitive areas, where fishing is prohibited and zones exclusive to artisanal fishers and or types of fishing gear. Provision should be made by the coastal State for the location of the limits of these areas and zones to be recognized by all users of the seas and should require fishing vessels to carry appropriate outfit and equipment for the identification of such navigational aids.
A coastal State should make it known to fishing vessels it has allowed to fish in waters under its jurisdiction by means of the authorization to fish, the measures it has taken to delineate the position and extent of its fishing zones as well as the penalties it has set for non-compliance. Fishing vessels in transit should be provided with the same information through appropriate channels.
In the event that a fishing vessel is authorized to fish in waters of another State, the flag State should inform the other State of the conditions it has set for the good conduct of fishing vessel operations by its vessel and those in charge of the vessel. The coastal State should not give more favourable treatment to the foreign flag vessel that it would give to its own flag fishing vessels and may, therefore, set more stringent conditions than the flag State.
1. PRIMARY ISSUES IN RELATION TO ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING
1.1 Introduction
1. Whereas a full description of the issues in relation to IUU fishing is given in document AUS:IUU/2000/4 and legal issues are discussed in AUS:IUU/2000/8, there is also a need to give interpretation to certain aspects in relation to the respective mandates and competence of the Food and Agriculture Organization (FAO), the International Maritime Organization (IMO), the United Nations Conference on Trade and Development (UNCTAD) and where applicable, the International Labour Organization (ILO). In this regard, it necessary to identify the issues in relation maritime and other matters as well as those concerned with fisheries management in order to arrive at a consolidated and harmonized approach to curb IUU fishing.
1.2 General Understanding
2. Whereas there are no accepted definitions of the terms illegal fishing, unreported or unregulated fishing there is a need for an understanding of these terms for the purpose of this document. For this reason:
3. In all three scenarios set out above, these unacceptable acts take place on the high seas, in exclusive economic zones and inland waters. In each case, the flag State has prime responsibility as provided for in the United Nations Convention on the Law of the Sea of 10 December 1982, irrespective of where its vessels or fishers operate. A coastal State also has responsibilities in international law in relation to the utilization of living marine resources and how it should interact with a flag State, as does a port State (where it is not the coastal State).
4. Since the primary responsibility in international law lies with the flag State, it is duty bound to exercise control over vessels entitled to fly its flag and thus deter any illegal fishing, unreported or unregulated fishing. The fact that these issues do exist is a clear indication that certain flag States are not exercising appropriate control and that there is a need to define the genuine link in relation to fishing vessels. But IUU fishing is in fact wide spread and includes registers, where the so-called genuine link, could not be more clearly defined. In this regard, common practice is quite clear in relation to domestic law (in particular in national or so-called closed registers) where the genuine link between the vessel and the flag State is generally based on certain socio-economic factors construction, ownership, agent, crew etc. In international law, the genuine link consists of the effective control of the flag State over a vessel entitled to fly its flag. Either way, the flag State is responsible and every effort should be made to ensure that the live up to that responsibility.
5. States are also meant to exercise control over their nationals but this is a grey area when the beneficial ownership is not clearly identified. There is a further complication in relation to the officers and crew of a fishing vessel. The conditions set by many of the international and open registers do not require individuals to be nationals of the flag State. This has lead to the growth of “manpower exporting” agencies with doubtful guarantees in relation to the level of training, experience and certification of officers and crew so recruited. Control by the flag State becomes more difficult or even less stringent with further complications in relation to accountability when the beneficial ownership is also of a different nationality to, and located outside, the flag State. Unfortunately, recent developments, particularly in relation to the right of establishment (where it exists), give further interpretation to the link between the ownership of a vessel and the flag State.
6. Nevertheless, conditions of work and service in the fishing industry that fall below internationally accepted norms are not limited to the so-called open or international registers. This is an issue related to IUU fishing that requires urgent attention by the world community at large through ILO rather that only within the context of curbing IUU fishing.
1.3 Associated Issues
7. As has been indicated above not all of the issues in relation to illegal, unreported or unregulated fishing fall within the competence of fisheries managers but also lie within the wider administrative arrangements made by a State. Within EEZ’s, for example, fishing vessels acting in contravention of applicable rules and regulations promulgated at IMO/ILO often:
8. There are other associated issues that illustrate a disregard for domestic and international law that in some way would be of concern to IMO and ILO and among these are practices in relation to:
9. In this regard, fishing vessels and those vessels directly associated with a fishing operation are, in inextricably linked to international and domestic law in much the same way as any other ship. Thus, fishing vessels are no different from other craft and a flag State sets conditions for, inter alia,
10. The actual conditions so set by a flag State should reflect its obligations in international law and conventions or agreements to which it is a party. However, not all States have ratified each and every relevant international convention, furthermore some have strictly national registers (or closed registers) that place severe conditions for the allocation of a flag. A few of these national registers have introduced what they term an “international register” that offers preferential conditions while ensuring no less stringent conditions in relation to construction, and safety and equipment as required for ships on the national regoster are applied. A third category is that referred to as an open register. Consequently, conditions so set by any one State may be radically different[264] from another as are the arrangements made by a flag State to exercise control over a fishing vessel entitled to fly its flag. Nevertheless, the registration process represents an early stage at which a flag State may exercise control and for this reason, an understanding of the process would be helpful in the development of an international plan of action to combat illegal, unreported and unregulated fishing.
2. REGISTER OF A FISHING VESSEL
2.1 Fundamental Principle of International Law
11. The freedom of the high seas is one of the fundamental principles of international law. However, in order to ensure that the principles of unrestricted access do not lead to abuse, international law lays down rules that provide a framework for the exercise of that freedom and for individual States to enforce compliance with those rules through the jurisdiction exercised over their national vessels. Thus vessels using the high seas must have a national character.[265]
12. A vessel may be considered as possessing the nationality of a State even though it is unregistered, carries no documents in evidence of nationality, nor even flies the flag of that State. Nevertheless, as provided for in Article 91 of the United Nations Convention of the Law of the Sea of 10 December 1882, States determine 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. States are required to issue to a ship to which it has granted the right to fly its flag documents to that effect. Conditions for granting nationality to vessels differ greatly between national registers, open registers and international registers. Ships without nationality are regarded as stateless and receive no protection under international law.
2.2 Documentation
13. This refers to a Document issued by the competent authority in a State, evidencing the vessel’s nationality and attesting to the right of the vessel to fly the national flag of that State. Although the registration of a vessel and the granting of nationality are generally connected, this is not always the case.[266] This is simple because registration generally involves the recognition and protection of the shipowner’s title to a vessel as well as the conferment of nationality, whereas documentation is principally concerned with granting entitlement to fly the national flag. Thus the two concepts should not be confused. Indeed, in so-called “dual registry” situations, which can arise when a vessel already registered in one State obtains the entitlement to fly the flag of another State on the basis of a bareboat charter arrangement, the distinction between documentation and registration becomes critical.[267]
2.3 Flag
14. The flying of a flag is evidence of the nationality and is flown from the stern of the vessel. It should be raised whenever required for the purpose of identification. Nevertheless, International Law does not set an obligation for the national flag to be flown at all times by vessels on the high seas. This lack of an obligation to do so, plus poor maintenance of marks such as those indicating the port of registry and name or number, is a constraint to the identification of vessels for the purposes of safety and fisheries management.[268]
2.4 Registration
15. Registration means the entering of a matter in the public record and the process is equally important when an entry in a register is closed. There are two aspects of registration that pertaining to public law and the other to private law.
16. The public law function of registration, includes, inter alia:
17. The private law functions of registration include, inter alia:
18. Every State has the right to set conditions for the registration of a vessel including the information to be entered in the record. However, in most cases the following information would normally be recorded:
19. In most countries, fishing vessels are registered in much the same way as cargo ships but the competent authority for the registration of ships is usually different from those responsible for fisheries management matters. Unlike cargo vessels, having one authority, dual responsibilities can and do lead to problems in relation to fisheries management since the allocation of the flag precedes the granting of an authorization to fish.[269] Furthermore, in many cases, small fishing vessels are not registered or when they are, they are often exempt from the provisions of national laws governing the registration of merchant ships and they may or may not be entered in a separate record. Unfortunately, there is no universally accepted definition of a small fishing vessel or what sizes should or should not be exempt from the registration process and it is a matter that could be addressed since all sizes of fishing vessels are implicated in IUU fishing.
3. CONTROL OF A FISHING VESSEL
3.1 Authorization to Fish
20. It is clear from the above arguments that from a fisheries perspective, the “authorization to fish” is a key element. The flag State and where applicable, the coastal State, should set conditions to be attached to the authorization to fish that include, but need not be limited to:
3.2 Records of fishing vessels
21. The maintenance of records of fishing vessels is another key component of the Code of Conduct for Responsible Fisheries (the Code), the Compliance Agreement[271] and the Straddling Stocks Agreement[272] and these also stress the need for regional co-operation in this regard. It is only through control that fishing capacity can be managed and it is only through transparency that the global effect can be measured. Unfortunately, there is no single and complete record of the fishing fleets of the world, although it would be fair to say that the response to the recently revised FAO questionnaires is encouraging. IMO draws on the data held by Lloyds Maritime Information Services for estimates of the number of fishing vessels in the world of 100 GT and over and FAO uses the same information. Although useful, it is not complete record, it is flawed in many respects and does not store fisheries related information. It would, however, be fair to say that it is dependent to a great extent on the information available from maritime administrations, the international classification societies and shipbuilders. From the point of view of FAO, it assists in tracing new building, scrapping and reflagging trends within the range of vessels so covered as well as providing estimates of the age of the fleets.
22. To combat IUU fishing, information on fishing vessels and where they are authorized to fish is essential for effective flag State control and as well as port State control. The information should, therefore, be readily available to nearby States, regional fisheries bodies and the appropriate international organization. The Compliance Agreement is specific in relation to how such records should be maintained and for the exchange of information as explained in Document AUS: IUU/2000/8 and FAO has already developed suitable data-bases, as well as, guidelines for the maintenance of records. The template might be readily adopted for reporting to the regional fisheries bodies (and to FAO) and the data-bases could be amended to store similar data on fishing vessels of non-parties while maintaining the integrity of the files dedicated to Parties to the Compliance Agreement. As a matter of priority, such regional (and international) records should be established in relation to:
23. It would also be useful for all flag States to enter the same details as suggested above, in a record of fishing vessels that they have authorized to fish within waters under their jurisdiction and to make these records available to regional fisheries bodies. Due to the numbers of vessels involved, however, it may be necessary to set a lower length limit below which it would not be a requirement to enter details of such vessels in the same record. In this regard, it may be worthwhile to note that the General Fisheries Council for the Mediterranean, agreed to set the lower limit for the application of the provisions of the Compliance Agreement at a length of 15m.[274]
3.3 Catch Data Reporting
24. The reporting of catch data is not within the mandate of IMO or, for that matter, ILO; it falls mainly within the competence of FAO. With regard to the reporting of catch data, there cannot be a globally agreed requirement for artisanal fishing units on the basis of electronic equipment or even hand written logbooks. There are obvious reasons for this with varying levels of literacy being only one of these and consequently, methods and regulations will differ from State to State. What is important, is that the State does adopt a system of collecting and processing the data to enable it to make a rapid assessment of the state of the stocks.
25. Satellite data communication systems offer the possibility for the transmission of catch data and this is readily incorporated in satellite based VMS. However, where States insist on using the systems, they should ensure the confidentiality of the raw data, subject of course to the obligations of the State under such treaties or agreements that it has entered into with others. One advantage of an integrated VMS is that those exercising control over a fishing vessel are in a better position to assess the validity of the report in relation to catch composition and other criteria.
26. In some fisheries, the carrying of observers is one way of ensuring that catch reporting is carried out in a responsible manner, provided that the terms of reference of the observer are clear and that the relationship between the observer and the skipper of the fishing vessel is established beforehand. It is known that observers have been threatened and, at times maltreated. Therefore, within a truly integrated system of monitoring, control, surveillance and enforcement, there should be a common approach to defining the responsibilities and rights of the observer. In this regard, the experience gained by the merchant marine in relation to a “supergargo” could be helpful.
3.4 Vessel Monitoring Systems
3.4.1 Measures to Be Taken by Flag States
27. A flag State cannot exercise control over a fishing vessel entitled to fly its flag and may be frustrated in giving it protection or assistance if the flag State does not know where the vessel is. From a safety point of view it is unfortunate that those in charge of a fishing vessel favour secrecy and that they are reluctant to divulge their position if it means a competitor taking advantage. Fisheries managers may see it differently, particularly when reports of activities cannot be reconciled or at worst, they are absent. But for a flag State to be in the dark is a deficiency if not a lack of due diligence and it should cease to allocate its flag accordingly.
28. Therefore, a flag State, with full intentions to exercise control over its flag vessels, should require all fishing vessels entitled to fly its flag to keep appropriate fishing and navigation logs and regularly report the position of the vessel to the competent authority in the flag State. This requirement should apply within waters under the jurisdiction of the flag State,[275] on the high seas and in waters of other States. The position of the vessel may be reported in a number of ways and the requirement would differ with regard to the size of the vessel, its area of operation, the type of safety network in force and weather patterns. The requirement to report should be a condition of the authorization to fish and the frequency of reporting as well as the method of reporting should also be stated. The authorization should also include a requirement for the vessel to carry equipment for the transmission of the position of a vessel whether over a radio network or a satellite data communication system. The choice, however, should be taken in cooperation with the maritime administration responsible for compliance with the provisions of relevant IMO instruments.
29. In particular, there should be a requirement to monitor the international calling and distress frequency whenever other vessels or aircraft are in the vicinity. In this regard, due consideration should be given to the requirements of GMDSS in relation to the sea areas forming the 4 different operational zones:
3.4.2 Measures to Be Taken by Coastal States
30. Coastal States should put in place a system of monitoring control and surveillance (MCS) and enforcement. In addition, they should make known to all users of the seas, the position and extent of its fishing zones.[276] In particular, it should specify areas exclusive to certain fisheries or sectors such as the artisanal sector and should:
31. It would follow that vessels authorized to fish in the zones exclusive to artisanal fisheries, should be fitted with the necessary navigation equipment for the recognition of the boundaries of the zone(s) in daylight and at times of poor visibility and darkness. In addition, where applicable, there could be a requirement for the vessel to be fitted with means for the identification of its position by MCS officers operating a radar watch from the land, sea or air. This requirement would often be limited to a radar reflector but could include low cost echo-enhancement units.
32. In the design of such systems, there would be need for close co-operations between fisheries managers, those responsible for coastal navigation (including IMO designated traffic separation schemes), telecommunications administrations and civil aviation authorities since the selection of operating frequencies must not conflict with internationally agreed frequencies for the purpose of navigation and communication. Other vessels that are not authorized to fish in the designated exclusion zones should be fitted with navigation equipment that:
In the case of positioning by satellite, the system can be interfaced with data communications equipment
3.5 Measure to be taken by a port State
3.5.1 Authority
33. It is obvious the ineffective flag State control of fishing vessels is not confined to matters of fisheries management. Maritime safety and protection of the marine environment are put at risk and acceptable levels of working conditions are disregarded. The ability of a flag State to exercise control presupposes an efficient maritime and fisheries administration, a navy and an extensive consular network. In practice, however, the absence of control procedures by flag States has led to the development of the law of the sea in the direction of port State control. This is evident from the experience of IMO in recent years and maritime administrations throughout the world have sought to find a common format for the implementation of port State control of ships. The very lack of a common global format led to regional agreements and arrangements and the first such agreement, known as the Paris Memorandum on Port State Control (Paris MoU) was signed in 1982. Since then, as described in document AUS:IUU/2000/15 there is virtually world wide (coastal) coverage with the promulgation of further regional agreements and arrangements.
34. In general these MoU arrangements aim to eliminate the operation of sub-standard ships, through a harmonized system of port State control, in relation to international safety and environmental standards, as well as, adequate living and working conditions for crewmembers. These agreements are not legally binding and they are not intended to impose legal obligations on any of the authorities. The fact that they lack a legally binding structure would not appear to be a weakness since the list of detention reports would indicate that the action taken by the port States is becoming more effective in targeting sub-standard ships.
35. Currently, most MoU specifically exclude fishing vessels and small merchant ships. One exception is the Viña del Mar Agreement, covering Latin America, in that it does not make specific reference to fishing vessels. It may be seen as a clever omission since it may well be amended in the near future to include them[278] but within the context of targeting sub-standard ships rather than fisheries management issues.
36. Inspections within the ports of the MoU members are carried out by the maritime administrations and in general, such administrations are usually under a different ministry to that responsible for fisheries management. It is, therefore, unlikely (and probably unnecessary) that the inspection of fishing vessels, for the purpose of fisheries conservation and management would be undertaken within the context of an existing MoU. Indeed, notwithstanding the proposals to target fishing vessels within the context of the Viña del Mar Agreement, maritime administrations in general are not in favour of extending the “terms of reference” of a MoU to include matters of fisheries management and this is understandable.
37. Nevertheless, the approach to regional arrangements for port State control as foreseen under the various memoranda of understanding could be followed, although for fisheries management purposes a legally binding agreement may be more suitable. As a first step, however, it would be pertinent be to bring together the requirements for the inspection of a fishing vessel in relation to relevant international conventions that are in force and thereafter make provisions for inspections and co-ordination. Since many of these have been done at the United Nations Office for the Law of the Sea, IMO, ILO and FAO, the expertise required would be unlikely to fall within one single administration although it is obvious that both maritime and fisheries administrations would be heavily involved. Pertinent conventions include, inter alia:
38. However, in making arrangements for the inspection of fishing vessels, it should also be kept in mind, that important legal instruments concerning fishing vessels await entry into force and it would be prudent to bear these in mind., particularly where the provisions overlap with existing conventions. For this reason, due note should be taken to incorporate relevant provisions of these instruments as and when they do enter into force. Such instruments include, inter alia;
3.5.2 Inspection of a Fishing Vessel by a Port State
39. The main reason for a port State to inspect a foreign fishing vessel should be to enhance the ability of flag States to comply with sub-regional, regional or global conservation and management measures and with internationally agreed minimum standards for the prevention of pollution and for safety, health and conditions of work on board fishing vessels.
40. It is perfectly clear from the list of instruments given above, that the inspection of a fishing vessel should extend to matters of safety, prevention of pollution, conditions of work and service as well as fisheries conservation and management measures. In this regard, FAO, ILO and IMO have an interest. Thus, to be effective, there should be clear guidelines for States to follow and these should be harmonized in order to ensure consistency of application between States and would probably be best applied regionally or sub-regionally.
41. FAO is committed to the implementation of the Code and, when in force, the Compliance Agreement as well as the Straddling Socks Agreement. All three instruments provide for measures to be taken by a port State as well as the duties of a flag State and for regional co-operation. FAO is also committed to co-operate with other international organization, in particular IMO and ILO, to ensure that the principal and associated issues of IUU fishing are adequately addressed.
42. Therefore, as a matter of high priority, FAO should work towards the development of an international agreement on the principles, both general and applied, for the inspection of a fishing vessel and, as appropriate, guidelines for their implementation. Such guidelines should be applied by all port States, in accordance with national laws and regulations, to the inspection of foreign flag fishing vessels when they are voluntarily in their ports or at their offshore terminals.[280] In order to de this, it is essential to develop reference points so that the measures to be taken by a port State cover both fisheries and maritime matters.
3.6 Points of Reference for the elaboration of arrangements for control by a port sate
3.6.1 Fisheries Conservation and Management Measures
43. A weakness in combating IUU fishing is that there is no single legal instrument governing all fisheries that has been agreed internationally. There are of course many legal instrument relating to specific species or to regions or a combination of both that are in force, but that is not enough, although it might be argued that in relation to marine fisheries, the principles are set out in the Law of the Sea. Further action is needed and one way to do this is to promote control by port States. After all, a fishing vessel must enter a port at some time or another and inspection is much easier in port.
44. Some of the existing fisheries Conventions do in fact expand on measures to be taken by a port State. The Convention for the Conservation of Antarctic Living Marine Resources is a case in point and it would be worthwhile to reproduce the relevant section. This states that, “When a fishing vessel licensed by a Contracting Party to fish in the Convention Area in accordance with Conservation Measures 119/XVII approaches the port of another Contracting Party in order to land or transship its catch, it shall notify the Port State, 72 hours in advance of its intended arrival. The Port State, in exercising its rights under international law, shall undertake an inspection of the vessel, within 48 hours of the vessel entering the port, to confirm that it has carried out activities in the Convention Area in accordance with CCAMLR Conservation Measures. The inspection shall be carried out in an expeditious fashion, shall impose no undue burdens on the vessel or its crew, and shall be guided by the relevant provisions of the CCMLAR System of Inspection.”
45. In addition, the - International Commission for the Conservation of Atlantic Tunas (ICCAT) takes a different approach. In this case although port State control is not so included in the manner set out by CCMLAR, the Commission has adopted a port inspection scheme. This requires, “Contracting Parties whose vessels enter, land or transship their catches in ports other than their own, can send inspectors authorized by the Commission to inspect their own vessels, with respect to the observance of the Commissions regulations, having previously obtained an invitation from the port State in which the inspection shall be executed”.
46. Unfortunately, as with the IMO and ILO Conventions and Agreements, the above arrangements in fisheries apply to the Contracting Parties which is all very well if all fishing nations ratify them but this is not the case. In this regard, there are two extremely important Agreements that await entry into force. These are:
47. There is also the Code, although voluntary, it establishes principles in relation to measures that should be implemented in order to exercise control over fishing vessels wherever they may be. The Code provides principles in relation to control or the duties of flag States and port States and looks towards regional co-operation. Furthermore, certain parts of the Code are based on relevant rules of international Law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982. The Code also contains provisions that may be or have already been given binding effect by means of other obligatory instruments amongst the Parties, such as the Compliance Agreement.
48. The Compliance Agreement contains three very important elements, the first has already been mentioned and that is the authorization to fish, which is a direct consequence of flag State control. The other two are the record of fishing vessels authorized to fish on the high seas and measures to be taken by a port State. The authorization to fish and the records must be addressed when determining what is required of a port State.
3.6.2 Maritime Matters
49. A fishing vessel on an international voyage is no different from any other craft and must abide by certain international norms and port regulations of a coastal State. Nevertheless, the extent to which a fishing vessel is subject to the provisions of international instruments is not always readily understood and it is in this connection that there has to be close co-operation between the relevant international organizations, particularly IMO and FAO.
50. As mentioned above, there is agreement between maritime administrations on measures to be taken by a port State in relation to the prevention of marine pollution, safety, conditions of work and conservation and management measures and these in general do not target fishing vessels.
51. However, SOLAS is one example of why there is a need for a clear understanding of the various instruments. Its regulations are to be applied only to ships engaged on international voyages unless expressly provided otherwise. The classes of ships to which the regulations apply and the extent to which they should be applied are more precisely defined in each chapter. In the first instance, however, there are also exemptions to the regulations and these include fishing vessels.
52. This is misleading to the first time reader, since parts of Chapter V of SOLAS apply to fishing vessels in relation to requirements for navigational equipment and certificates to be carried on board. Furthermore, other types of vessels associated with IUU fishing, such as motherships, supply vessels and reefers that would normally fall within the broader interpretation of SOLAS.
53. MARPOL 73/78, which has amended on a number of occasions, also presents similar problems of interpretation. Annex V, for example, which entered into force in 1988 deals with Regulations for the Prevention of Pollution by Garbage from Ships and is of particular relevance to fishing vessels.[281] The problem of interpretation is of course not only in relation to fishing vessels. Various provisions of the convention and subsequent amendments were found by IMO to require clarification and in order to resolve ambiguities and difficulties in a uniform manner, the IMO Marine Environment Protection Committee (MEPC) agreed that it was desirable to develop a unified interpretation. The IMO publication, MARPOL 73/78, Consolidated Edition, 1997 reflects the interpretation of the MEPC. The Convention is to be applied, inter alia to:
54. The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STWC) is in force. It requires ships, except those excluded,[283] while in the ports of a Party, to be subject to control by officers duly authorized by that Party to verify that all seafarers serving on board who are required to be certificated by the convention are so certificated or hold an appropriate dispensation. Such certificates shall be accepted unless there are clear grounds for believing that a certificate has been fraudulently obtained or that the holder of a certificate is not the person to whom that certificate was originally issued. As already mentioned above many of the non-fishing vessels associated with IUU fishing operations fall under this and other conventions.
55. The interpretations of other instruments that are fairly straightforward at first sight include FAL, COLREGS, Load Lines and the Tonnage Convention. Having made that point, it must be said that the tonnage measurement of fishing vessels is a cause for concern since fishing vessels are still measured under different systems which makes it difficult to fully measure and compare fishing capacity. This may have to be further reviewed by IMO.
56. In the development of guidelines, it would be irresponsible to ignore certain provisions of maritime International Conventions that are not yet in force. One of those is the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention on the Safety of Fishing Vessels, 1977 (Torremolinos). The aim is to establish in common agreement the highest practicable standards for the safety of fishing vessels that can be implemented by all States concerned. It shall apply to seagoing fishing vessels including vessels also processing their catch entitled to fly the flag of a Party. It does not, however, apply to fishing vessels of less than 24m.[284] For the most part, the duties of the flag State are clear but provision is made for further agreement at regional level where the regulations are not specific in the Protocol relation to fishing vessels of less than 45m in length. The contents of such regional agreement are to be circulated by IMO thus there should be no misunderstanding when another State Party inspects a vessel[285].
57. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (1995) is another instrument that is not in force. It has similar objectives to the STWC and the requirements for control by a port State are also similar and as stated above, the provisions should be taken into consideration when making arrangements for port State control. Early entry into force of all of these conventions would be beneficial.
4. RECOMMENDATIONS
58. Fishing vessels are not the sole responsibility of fisheries managers or maritime administrations. Neither one or the other should take decisions or give legal substance to any activity that would undermine agreed conservation and management measure, place the safety of a fishing vessel and or its crew at risk and or pose a threat to the environment. For this reason, there is a need for close co-operation between administrations in a flag State as well as between the appropriate international organizations. In particular, efforts to combat IUU fishing by FAO would benefit from the knowledge and experience of IMO in relation to flag and port State control. Through such co-operation, appropriate measures could be formulated for all States to follow on control procedures and also assist in the establishment of points of reference for control as well as conditions in relation to maritime matters to be applied to an äuthorization to fish.
59. An early entry into force of the Compliance Agreement and the UN Fish Stocks Agreement would facilitate efforts to combat IUU fishing. In particular, entry into force of the Compliance Agreement would allow negotiations on amendments to reflect progress to give interpretation to port State control of fishing vessels for the purpose of fisheries management. In the meantime, there should be acceptance, in the form of a legal instrument, of the principles of the Code that:
60. The conditions to determine the extent of the genuine link between a fishing vessel and a flag would be more transparent if the flag State requires a fishing vessel to be issued with, and carry on board, an authorization to fish that clearly identifies the beneficial ownership of vessels operating:
61. Flag States should establish records of fishing vessels that contain details of a vessel, its legal and to the extent possible its beneficial ownership and authorization to fish. Furthermore, the flag State should maintain a parallel record of infringements by a vessel and the penalties and or sanctions applied. The information should be readily available to relevant regional bodies, the appropriate international organization and other State on request. Coastal States should maintain similar records of foreign flag fishing vessels authorized by them to fish in waters under their jurisdiction.
62. Control over fishing vessels could certainly be enhanced if satellite based, vessel-monitoring systems (VMS) are made obligatory and this would appear to be confirmed by the increase in such applications worldwide. At the very least, States should require satellite based VMS for all fishing vessels authorized to fish on the high seas[287] and for vessels authorized to fish in waters of States other than the flag State. Nevertheless, the wider application should be encouraged and coastal States should review the situation in waters under their jurisdiction in relation to their flag vessels, taking into consideration aspects of safety and compliance with MARPOL, as well as, IUU fishing related issues.[288] Due consideration, however, should be given to the need for internationally agreed performance standards particularly where the operating system is an integral part of the (IMO) search and rescue network.
63. There should be adopted internationally, a form of protocol for the inspection of a fishing vessel by a port State. The instrument should be developed on the basis of key reference points in relation to fisheries and maritime matters without which, the objectives of control by a port State might not be met. Furthermore, there may also be a need to develop guidelines for the implementation of the provisions of a legal instrument in relation to measures to be taken by a port State such as communication with a flag State, detentions, more detailed inspections and repatriation of the crew.
64. There should be wide agreement that the penalties and or sanctions for infringements of national/international law in relation to fisheries and maritime matters, should be severe and that records are kept by flag States, coastal States and or port States as the case may be of such infringements. From the information so kept, it should be possible to identify the owners, vessel managers, the vessel, previous name(s) of the vessel and previous flag(s) as well as details of the infringement(s) and penalty (ies) and or sanction(s) applied. In the event that the flag State takes a decision to close the entry of the vessel in its register, full details of the reasons for doing so should be given in the document certifying that the entry has been closed. Should an application be made to flag such a vessel elsewhere by the same owners or managers, other flag States should not accept the vessel on its register. In such cases, a vessel will have lost the right to fly the flag of a State and so face the consequences that may arise. The same records of infringements, penalties and sanctions should also be consulted by the “flagging in State” when reviewing applications for the resister of a new fishing vessel and in the case of a bare-boat charter.
65. States should also agree that in the case of a bareboat charter, the primary register should be closed or suspended prior to the flagging in State allocating its flag to the vessel for the duration of the charter. The flagging in State, should ensure that the former flag State is notified when the entry of the bareboat vessel in its register is closed. Furthermore, the sub-demise of a bareboat chartered fishing vessel should not be allowed.
66. Whereas FAO should take a leading role in the preparation of an IPOA to deter IUU fishing, it is patently obvious that it can only be achieved through cooperation with other relevant international organizations and in accordance with standing agreements on interagency cooperation and taking into condideration respective mandates. In short:
