July 2000

FI:IUU/2000 Inf.4



FAO

TECHNICAL CONSULTATION ON ILLEGAL, UNREPORTED AND UNREGULATED FISHING
Rome, Italy, 2-6 October 2000

EXECUTIVE SUMMARIES OF THE PAPERS PREPARED 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

This information paper provides the Executive Summaries of the background papers that were prepared for the Expert Consultation on Illegal, Unreported and Unregulated Fishing which was organized by the Government of Australia in cooperation with FAO in Sydney, Australia, from 15 to 19 May 2000. The full texts of the papers are available at the following Internet site address: http://www.affa.gov.au/ecoiuuf/. For ease of reference, the document number for each paper is provided in a footnote attached to the title of the papers.

ILLEGAL, UNREPORTED AND UNREGULATED FISHING:
MANDATE FOR AN INTERNATIONAL PLAN OF ACTION

David J. Doulman
Senior Fishery Liaison Officer
Fishery Policy and Planning Division
Fisheries Department
FAO, Rome, Italy

  1. Illegal, unreported and unregulated (IUU) fishing has far-reaching consequences for the long-term sustainable management of capture fisheries. When IUU fishing goes unchecked, the system upon which fisheries management decisions are based becomes flawed. This situation leads to the non-achievement of management goals and the loss of short- and long-term social and economic opportunities. In the extreme, IUU fishing can lead to the collapse of a fishery or seriously affect efforts to rebuild fish stocks that have already been depleted.

  2. IUU fishing occurs, or has the potential to occur, in all capture fisheries. The practice is problematic in inland fisheries as well as marine capture fisheries in zones of national jurisdiction and on the high seas. In industrial fisheries, the problems of IUU fishing are exacerbated by weak flag State control by some States.

  3. The circumstances that lead to IUU fishing are complex but in some way or another, are usually interrelated and of an economic nature. A key consideration in addressing the IUU fishing problem is the need to achieve more effective flag State control. Other considerations that are likely to contribute to IUU fishing include the existence of excess fleet capacity, the payment of government subsidies (where they maintain or increase capacity), and ineffective monitoring, control and surveillance (MCS).

  4. To address IUU fishing in a substantive manner, a number of mutually consistent measures should be implemented. In the first instance, the full and effective implementation of recently concluded international fishery instruments should be encouraged (viz. Code of Conduct for Responsible Fisheries, Compliance Agreement, UN Fish Stocks Agreement and the three international plans of action (IPOAs)). The implementation of these instruments will facilitate in different, but mutually reinforcing ways, greater national control and supervision over fishing vessels operations.

  5. International concern about IUU fishing (previously known as unauthorized fishing in zones of national jurisdiction and on the high seas) has been apparent since the 1990s. A number of fora including the United Nations General Assembly (UNGA) have been addressing the issue on an ongoing basis. However, the Twenty-third Session of the Committee on Fisheries (COFI) in February 1999 considered IUU fishing in the context of FAO's Medium Term Prospects for Major Programmes, largely on the basis of the paper made available to the Committee by Australia. The paper urged FAO to develop an IPOA to combat IUU fishing. COFI expressed concern about the incidence of IUU fishing, including the activities of fishing vessels from open registers. The Committee proposed a suite of activities to address the issue and recommended that the International Maritime Organization (IMO) be appraised of the importance COFI ascribed to the need to combat IUU fishing

  6. Following COFI, an FAO Ministerial Meeting on Fisheries in March 1999, adopted a Declaration which expressed concern at the growing amount of IUU fishing. The Ministers declared that without prejudice to the rights and obligations of States under international law, an IPOA dealing with all form of IUU fishing, including fishing vessels from open registries should be developed. In June 1999 the FAO Council, in considering the Report of the Twenty-third Session of COFI, urged that a global approach be taken by FAO to the development of a strategy to address IUU fishing, Furthermore, Council proposed that this initiative be carried forward through the development of an IPOA within the framework of the Code of Conduct.

  7. Other international for a have addressed, and are continuing to address, issues relating to IUU fishing. The Seventh Session of the UN Commission on Sustainable Development (CSD) in April 1999 considered the issue noting that FAO would give priority to develop an IPOA to deal effectively with any form of IUU fishing. The CSD underscored the importance of flag State and port State issues in combating IUU fishing. In doing so, the Commission invited IMO to develop, as a matter of urgency, measures in binding forms to ensure that ships of all flag State meet international rules and standards so as to give full and complete effect to the 1992 United Nations Convention of the Law of the Sea (Article 91) as well as other relevant conventions.

  8. The IMO has, and will, consider IUU fishing in its various committees and sub-committees. To this end, FAO is cooperating with IMO in line with international calls, to secure concerted action to combat IUU fishing.

  9. Regional fishery management organizations and arrangements and other international fora have, in regular and special sessions, considered IUU fishing and have initiated steps independently of the process to develop an IPOA to deal with the fishery problems posed by IUU fishing.

  10. To permit maximum flexibility in application, an IPOA to combat IUU fishing will need to take account of the characteristics of different fisheries including fleet mobility and stock distributions. The scope of the IPOA should therefore be broad and comprehensive so that, as appropriate, it can be applied regionally, sub-regionally and nationally. Without prejudice to the right and obligations of States under international law, the IPOA should seek to combat and prevent IUU fishing, irrespective to what occurs.

The importance of taking cooperative action against specific fishing vessels that are diminishing effectiveness of tuna conservation and management measures

Masayuki Komatsu
Counsellor
Fisheries Policy Planning Department
Fisheries Agency of Japan
Tokyo, Japan

  1. The Food and Agriculture Organization of the United Nations ("FAO") and regional fisheries management organizations are increasingly emphasizing the importance of States taking cooperative action against fishing vessels that are undermining established fishery conservation and management measures. This includes flag-of-convenience vessels ("FOC vessels") that are registered in a country which is not a member of a particular regional fisheries management organization, and which does not require its vessels to observe the particular organization�s conservation and management measures. These vessels choose their flag States, usually by reflagging, with the apparent aim of circumventing the conservation and management measures of the regional fisheries management organizations. There are other vessels that fly the flag of a State that belongs to the applicable regional fisheries management organization, but the State is either unable or unwilling to prevent the vessels from engaging in Illegal, Unregulated or Unreported ("IUU") fishing activities that undermine the organization�s conservation and management measures. Collectively, vessels falling into either category may be described as IUU/FOC vessels.

  2. The problem of IUU/FOC vessels is particularly significant in the large-scale tuna longline fisheries. Over the past decade, the regional fishery management organizations have taken a number of steps to eliminate these destructive fishing practices because their continued presence poses a threat to the sustainable utilization of fishery resources. The International Commission for the Conservation of Atlantic Tunas ("ICCAT") and the Commission for the Conservation of Southern Bluefin Tuna ("CCSBT") have adopted documentation procedures to monitor the source of all subject fish imported by member States. ICCAT has recommended that member States place a ban on the import of specific kinds of tuna from certain States. With respect to the activities of IUU/FOC vessels, both ICCAT and the Indian Ocean Tuna Commission ("IOTC") have resolved that its member States encourage their citizens to voluntarily refrain from conducting business with vessels that undermine fishery conservation and management practices.

  3. The attention of the tuna organizations have focused particularly on 345 IUU/FOC vessels identified by ICCAT as posing the most specific threat to the management of large-scale tuna longline fisheries. Effective action against these vessels is difficult because the name of the vessels and their country of registration may change frequently, and flag States may fail to effectively oversee the practices of these vessels. Japan has made a maximum effort to counter the threat from these vessels by taking a number of specific steps. It urges all other affected countries to take similar steps against these particular vessels. Only with the active cooperation of a number of States can concrete progress be made in eliminating the destructive fishing practices of these particular vessels.

  4. This paper reviews the nature of the threat posed by IUU/FOC vessels, and the actual measures regional fisheries management organizations have adopted to counter this threat. It details the specific actions Japan has taken to address the problem posed by the activities of the vessels identified, and the specific actions that it encourages other States to take against the same vessels in light of the growing acceptance of the need and justification for such action under international law.

A Global Review of Illegal, Unreported
and Unregulated (IUU) Fishing

Collated and Edited by Kevin Bray
Consultant on IUU Fishing
Fisheries Department, FAO
Rome, Italy

  1. The conservation and management of many international fish stocks are being undermined by increasing levels of illegal, unreported and unregulated (IUU) fishing.

  2. IUU fishing affects fisheries within the jurisdiction of coastal States (particularly developing coastal States), within the areas of responsibility of regional fisheries bodies, and on the high seas.

  3. The 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries decided to develop an international plan of action (IPOA) to deal effectively with all forms of IUU fishing. To this end, a Technical Consultation will be held in Rome from 2-6 October 2000, following an FAO review of activities undertaken by regional fishery management organizations to deal with the problems of IUU fishing. The Technical Consultation will report to the Twenty-fourth Session of the Committee on Fisheries of FAO (COFI), which will take place in Rome from 26 February-2 March 2001.

  4. This global review reports the views of regional fisheries bodies on the extent and impact of IUU fishing and on possible measures to combat it. Information provided by several other international organizations and non-governmental organizations on aspects of IUU fishing is also included.

  5. The global review confirms that IUU fishing is of considerable concern to many regional fisheries bodies (and other organizations). It outlines the measures they are already implementing, or have proposed, to address this problem.

  6. These measures will be considered by fisheries experts in consultations in Sydney, Australia, in May 2000, with a view to their suitability for incorporation into an initial draft of the IPOA to combat IUU fishing referred to above.

  7. The global review has shown that most forms of IUU fishing exhibit several common features. Chief among them are:

  8. the lack of effective control of fishing vessels by some flag States � calling for strengthened flag State control and the implementation of new and complementary forms of port State control;

  9. the difficulty experienced by regional fisheries bodies in applying responsible fisheries management measures to the vessels of non-Parties, particularly those on the fishing vessel registers of some "open register" States � resulting in various proposals, ranging from making efforts to encourage such non-Parties to join the regional fisheries bodies and/or comply with their management measures, to implementing bans of various sorts against them, such as denying port access, banning imports of fish, outlawing trans-shipments, etc;

  10. the ineffectiveness of many measures if implemented by single countries � suggesting the need for concerted action to develop regional and sub-regional cooperation and harmonization with respect to fisheries regulations, monitoring, control, surveillance and enforcement, etc;

  11. the problem of some countries, particularly developing countries, to provide high quality human and adequate financial resources to effectively combat IUU fishing � requiring concrete forms of technical and financial assistance.

ILLEGAL, UNREPORTED AND UNREGULATED FISHING
IN SMALL-SCALE MARINE AND INLAND CAPTURE FISHERIES

Ousman K. L. Drammeh
Director of Fisheries
The Gambia

  1. The majority of small-scale fisheries are located in the third world countries of the Southern Hemisphere but there are a few in Europe (Mediterranean) and in North America.

  2. Most small-scale fisheries are open access in nature and entry into the fishery remains unrestricted. Small-scale fisheries are highly dynamic, labour intensive and usually well integrated with local marketing arrangements. Small-scale fishers, their families and communities are critically dependent on fish for their food and livelihood security and are extremely vulnerable to external pressures and shocks.

  3. In earlier times, small-scale fishing resembled that of natural predation because of the selectivity of fishing gears, methods and techniques employed and the localization of activities. Small-scale fisheries were governed by traditional management systems, which were generally well respected by fishers. Nowadays, small-scale fishing is no longer a subsistence activity but a series of activities which are capable of generating significant economic exchanges. Over time however, traditional management of small-scale fisheries has become replaced by direct Government management; particularly following the introduction of the Law of the Sea and the EEZ. Unfortunately most governments lack the capacity and other capital resources to manage the resources alone.

  4. The ever-increasing international demand for fish has brought about over capacity in both large and small-scale fisheries. Over capacity in fisheries has given rise to a series of problems of profound and disastrous consequences. The competition for fish in the absence of appropriate management practices continue to increase and intensify resulting in the rapid depletion of the resources; the destruction of ecosystems and fish habitats and, diminishing economic returns. In the midst of increased entry and competition, ignorance of existing regulations and control mechanisms, cases of IUU fishing practices arise.

  5. These problems (which can be classified into economic, social, institutional and biological problems) are responsible for the alarming increase in illegal fishing activities by small-scale fishers. The illegal fishing practices range from the use of explosives and poisons to the use of highly destructive fishing gears, methods and techniques by small-scale fishers.

  6. However, there is ample evidence of large-scale industrial fishing vessels operating illegally in fishing zones, which are exclusively reserved for small-scale fisheries. The industrial fishing vessels are habitually encroaching in small scale fishing grounds and they are known to use fishing nets whose mesh sizes are far smaller than the legislated mesh sizes.

  7. The illegal fishing practices in small scale fishing grounds and the ever increasing competition for resources, have a huge negative impact both on the resources and on the small scale fishers whose activities have great social and economic significance unlike industrial operators whose activities are purely and solely commercial.

  8. In the vast majority of the third world countries, there are hardly any specific legislation governing small-scale fisheries. The open access nature of small scale fisheries and the widely scattered nature of fishing communities and fish landing sites make it difficult to regulate fishing and related activities. The lack of human, material and physical resources of local fisheries administrations and sub-regional and regional fisheries bodies to monitor, control and manage fishing activities is another reason for the continued occurrence of illegal fishing practices. Local fisheries administrations, which are often very centralised, are constrained by the lack of personnel and means of transport to monitor fishing activities in the widely scattered settlements to ensure that fishing is practised in a responsible manner. In most cases, the reporting of illegal fishing activities comes from the local citizenry, communities and groups only when there are conflicts and the fisheries administrations are requested to intervene to resolve the conflict(s).

  9. There is an urgent need for collective international effort (in the form of long term support to national Governments of the poorer underdeveloped and developing countries) to combat illegal fishing practices in small scale fisheries. The most important aspects of the long term support will be in the form of capacity building and in the strengthening of MCS systems, An integrated and participatory approach to sustainable development and management of small scale fisheries involving all stakeholders (resource users and Governments) is recommended. This is as a result of the failure of national Governments to adequately manage small-scale fisheries on a sustainable basis and the inability of local fisheries administrations to combat illegal fishing activities alone.

  10. An international plan of action to combat illegal fishing practices in small scale fisheries has to be elaborated and put into effect without delay because the increasing competition for the overexploited resources cannot be sustained. The plan should include, among other things: assistance and support to national Governments to elaborate legislation and regulations for small scale fisheries; the implementation of the FAO Code of Conduct for Responsible Fisheries and its incorporation in national fisheries policy and legislation; awareness and sensitization of fisherfolks on biodiversity and the sustainability of resources; the strengthening of local fisheries organisations and institutions for community based and or participatory management or co-management.

TOOLS TO ADDRESS IUU FISHING:
THE CURRENT LEGAL SITUATION

William Edeson
Senior Legal Officer
Legal Office
Food and Agriculture Organization
of the United Nations
Rome, Italy

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

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

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

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

NATIONAL LEGISLATIVE OPTIONS TO COMBAT IUU FISHING

Blaise Kuemlangan
Legal Officer
Legal Office
Food and Agriculture Organization of the United Nations
Rome, Italy

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

THE ROLE OF NATIONAL FISHERIES ADMINISTRATIONS AND REGIONAL FISHERY BODIES IN ADOPTING AND IMPLEMENTING MEASURES TO COMBAT IUU FISHING

Judith Swan
Fisheries Consultant
SwanSea Oceans Environment Inc
Canada

  1. Fourteen regional fishery bodies or arrangements (RFBs) have been established in the period since the United Nations Convention on the Law of the Sea was adopted in 1982, resulting in almost thirty regional and sub-regional bodies worldwide with a mandate for marine fisheries. The need for all RFBs to be strengthened appropriately to deal with new, additional responsibilities, was recognised at the first historic meeting of FAO and non-FAO RFBs in February, 1999. It was evident at that time that in most cases, present systems of fisheries governance had failed to ensure resource conservation and economic efficiency.

  2. Although important contributions to fisheries governance have already been made by some RFBs in recent years, some key problem areas for RFBs have been identified as: conservation of resources; control of catches and effort; fleet capacity; by-catch and discards; data and information collection, dissemination and distribution; monitoring, control and surveillance (MCS); and illegal, unreported and unregulated (IUU) fishing. IUU fishing is not stand-alone in this list; it is related to each of the other problem areas. This underlines the complexities in focusing the action and coordination that is needed to combat it.

  3. It has been widely recognised at international levels that coordination among RFBs is essential for developing and implementing an IPOA to combat IUU fishing In developing such coordination, the roles of national fishery administrations (NFAs) and RFBs should be clear. They are pivotal to the process, and clarification and acceptance of their existing and potential roles is as vital as formulating the IPOA itself. The actions of NFAs, whether members or non-members of RFBs, directly impact on the effectiveness of the RFB. Their legal obligations in relation to RFBs, even as non-members, are increasingly important.

  4. To help close existing gaps in RFBs, NFAs should review and prioritise their roles within RFBs and international law with the objective of combating IUU fishing. To this end, their roles and obligations within the constitutive instrument of the RFB are described, problem areas in discharging their roles in RFBs are identified, as well as the consequences when they do or do not take action to fulfill these roles. Some essential roles of NFAs in RFBs for combating IUU fishing are also presented.

  5. RFBs serve as a gateway between international and national levels. They are well placed to contribute to the global efforts to combat IUU fishing, both in relation to their own convention or regulatory area � which in many cases includes high seas - and in collaboration with NFAs, other RFBs and international bodies. To do this effectively, the institutional and policy aspects of RFBs must be attuned to the task. These are assessed in the context of the global movement towards strengthened fisheries governance by RFBs.

  6. While FAO RFBs have reviewed their institutional aspects, especially in the past decade, there has been no collective systematic approach. It is recommended that as part of such review and adaptation, RFBs consider the institutional and policy aspects which need strengthening to deal with IUU fishing and to implement the IPOA on IUU fishing.

  7. The two levels relevant to consideration of institutional aspects - one being the overall institutional functioning of the RFB, and the second being the institutional mechanisms used to implement policy - are identified and discussed.

  8. It is recognised that, on a global scale, policies to deal specifically with IUU fishing have only begun to emerge due to the relatively recent identification of the concept. They have been adopted for the most part in recent years, on a patchwork basis, to respond to urgent situations. A number of these relate to fishing by non-parties of RFBs, but IUU fishing by members is also a problem. To enhance a coherent approach at this stage, it is recommended that a common playing field be identified. To this end, the basic elements of the ambit of IUU fishing are suggested for consideration.

  9. The policies and measures already adopted by RFBs are described, including: registers and information relating to IUU fishing; inspection and enforcement; VMS, presumptions, landings, port inspection and transhipments, trade measures; cooperation with non-contracting parties; fleet capacity, and resolution calling for action against IUU fishing. Implementation of the recent international instruments has also formed part of the focus for RFBs, but it is noted that while some progress has been made in areas such as adopting resolutions on implementation and development of the precautionary approach, very few RFBs have actually taken concrete steps towards implementing the applicable regimes. To this end, RFBs should adopt, and encourage members and non-members to adopt, provisional measures to implement applicable international instruments, as formal solutions are being developed.

  10. To address policy aspects of IUU fishing, RFBs should cooperate to evaluate existing policies to counter IUU fishing, proactively develop new policies as appropriate and prioritise the implementation of measures in support of such policies.

  11. It is noted that the above measures taken to date by NFAs and RFBs have made a start at deterring IUU fishing, but there is still much work to be done, considering the existing situation: the movement of displaced fleets to other fishing grounds to continue IUU fishing for other species; fleet capacity has not been significantly reduced; many countries where the IUU fleets are based have little enforcement capacity; required inspection and documentation for trade, landings and transhipments of IUU caught fish is not uniformly enforced; fishing vessels operating under open registers do not respect RFBs regulations and still engage in rapid and frequent change-of-flag practices; and the negative effects of IUU fishing can be more economic and social rather than ecological in nature.

  12. The increasing cooperation among RFBs is described, and additional measures which RFBs could consider or build upon to combat problem areas in IUU fishing are presented. It is suggested that these measures could serve in evaluating existing measures and strengthening cooperation and coordination among RFBs.

MEASURES TO ENHANCE THE CAPABILITY OF A FLAG STATE TO EXERCISE EFFECTIVE CONTROL OVER A FISHING VESSEL

John Fitzpatrick
Consultant
Fishery Policy and Planning Division
Fisheries Department
FAO, Rome, Italy

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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 of the chartered vessel.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

THE CONSEQUENCES OF ILLEGAL, UNREPORTED AND UNREGULATED FISHING FOR FISHERY DATA AND MANAGEMENT

David Evans
Consultant
Fisheries Department
FAO, Rome, Italy

  1. The application of fisheries management for the effective conservation and sustainable development of living aquatic resources requires large quantities of information of many kinds, from catch and fishing operations, and from biological, ecological, oceanographic, economic and socio-cultural sources. IUU fishing limits the availability of information, and distorts and devalues information from compliant (non-IUU) fishing.

  2. Consistent with the precautionay approach, the recognition that information is uncertain, unreliable or inadequate forces fishery managers and scientists to be more cautious than would otherwise be the case. Thus IUU fishing not only deprives legitimate fishers of fish harvest potential, but also results in lowered confidence in stock assessments. The consequent application of lowered limits to allowable catches, in order to minimise stock overexploitation risks, further reduces stock availability to legitimate participants.

  3. There is growing evidence of widespread evasion of information obligations by fishery participants. At national scales there is often complacency about the intractability of the problem, as evidenced by the �standard� methods in some countries to estimate information slippage (statistical analysis, observer reports and best guesses). At the international scale, particularly where there are bilateral or regional access agreements, the degree of under-reporting against reporting obligations is difficult to assess, but can be up to 75%. On the high seas, as fishing technology has increased accessibility to deeper or more marginal stocks not subject to effective control, the degree of non-reporting with respect to these stocks may well be 100%.

  4. There is a range of solutions to the problem of obtaining more reliable fisheries information, including the use of logbooks, observer and inspection programmes and monitoring, and control and surveillance systems, all of which have recently been supplemented by the availability of vessel monitoring systems. However, these mechanisms vary enormously from country to country and region to region, and there is a need to establish compatible regional and international standards for them as well as standards/protocols for data exchange. Implementing such systems for developing countries can be difficult due to resistance and non-compliance from foreign fleets, and lack of resources and workable examples and standards.

  5. The international community has adopted the Code of Conduct for Responsible Fisheries (FAO, 1995), and has formulated the UN Fish Stocks Agreement (1995, not yet force) and the FAO Compliance Agreement (1993, not yet in force). These fisheries instruments, the first two of which incorporate the precautionary approach explicitly, are taking time to be put into practical effect. They contain important obligations and duties, including requirements to develop and maintain systems for the generation and exchange of fishery information. Effective implementation of the fishery data requirements in these instruments by all States and fishing entities would largely resolve inter alia the problems of data distortion due to IUU fishing that currently contribute to inadequate fisheries management and fish stock assessments.

  6. In principle, technical data matters can be resolved; information procedures and standards can be developed; systems can be implemented (including through assistance to developing countries, as necessary); information cooperation can be facilitated, especially through regional fisheries management organisations or arrangements; and the burden of IUU fishing on global fisheries� sustainability can be ameliorated through adequate control mechanisms. However, none of these things is possible or likely until all States, including flag States in particular, accept and implement the duties and responsibilities in the Code of Conduct, the UN Fish Stocks Agreement and the FAO Compliance Agreement.

THE INTERNATIONAL PLAN OF ACTION FOR THE MANAGEMENT OF FISHING CAPACITY AND SELECTED ISSUES PERTAINING TO ILLEGAL, UNREPORTED AND UNREGULATED FISHING

Dominique F. Gréboval
Senior Fishery Planning Officer
Fishery Policy and Planning Division
Fisheries Department
FAO, Rome, Italy

  1. There is a rather obvious linkage between IUU fishing and excess fishing capacity: the more vessels, the less fish, the larger the tendency to engage in IUU fishing so as to preserve adequate return on fishing activities. A less obvious linkage also exists whereby attempts to control and to reduce excess fishing capacity may result involuntarily in promoting IUU fishing. The effective and timely implementation of the IPOA should therefore contribute significantly to the reduction of illegal, unreported and unregulated fishing, but caution would nevertheless be required to avoid undesirable outcomes.

  2. Enhanced monitoring and assessment capabilities should be developed at national, regional and global levels, with due emphasis being given to creating appropriate fleet records and to addressing the issue of fleet mobility - a key issue to controlling both fishing capacity and IUU fishing. The establishment of more appropriate records of fishing vessels, as stipulated in the IPOA, is a basic requirement. In addition to monitoring physical characteristics, it is also essential to better assess fleet dynamics in terms of investment-disinvestment and in terms of deployment - allocation of fishing inputs in time and space, and especially among fisheries.

  3. The control of excess fishing capacity and IUU fishing requires a much greater harmonization of management strategies and policies between the main levels of fishery management: fishery sector, industry segments and fisheries per se.

  4. The most appropriate methods for controlling fishing capacity -although not specified in the IPOA- imply strictly controlled and rather exclusive access and a direct or indirect control of both inputs and output. Getting around such controls might involve, inter alia, under-reporting of catch and/or fishing inputs, illegal fishing practices, and the partial reallocation of fleet capacity to other fisheries. Examples are given in the document of steps that can be taken to avoid undesirable reactions to the management of fishing capacity.

  5. Management schemes involving property rights, such as ITQs, do provide strong incentive for capacity adjustment but not for permanent disposal. Other methods do not provide such incentive, and attempts to reduce fleet size through buyback programmes may often lead to a net increase in capacity if implemented within such management frameworks. For these reasons, caution should be exercised when designing and implementing any buyback programmes. The issue of vessel disposal also needs to be carefully reviewed and caution needs to be exercised by countries undertaking such schemes to avoid uncontrolled export of capacity to overcapitalized fisheries outside their jurisdiction and to the high seas in particular.

  6. The management of fleet capacity and IUU fishing may also benefit from: the adoption of more specific conditions for access to high seas fisheries by flag vessels; the strengthening and empowerment of regional fishery organizations; the creation of new organizations to ensure full coverage of the resources concerned; strengthened mechanisms to encourage non-members to become member of such organizations; and more effective donor support to the implementation of the IPOAs by developing countries.

MONITORING CONTROL SURVEILLANCE AND VESSEL MONITORING SYSTEM REQUIREMENTS TO COMBAT IUU FISHING

John M. Davis
Compliance Officer � International
Operations Branch
Australian Fisheries Management Authority
Canberra, Australia

  1. Both developed and developing countries are facing increasing pressure on their fisheries resources from IUU fishing. With the excess capacity in many of the worlds fishing fleets and coastal states facing further depletion of their fish resources the incidence of IUU fishing will increase in the absence of any meaningful ability to monitor and control such activity.

  2. In many cases IUU operations rely heavily on the lack of MCS communication and coordination between countries to avoid detection and conduct ongoing operations. IUU operators also place faith in the time and difficulty associated with states reaching international agreement on matters concerning MCS, and subsequently implementing these agreements in their domestic legislation.

  3. For MCS to be effective information on vessels owners, masters, catches, positions and infringement history must be made available to the appropriate authorities in as near to real time as possible.

  4. This paper concentrates on those MCS measures which may be feasible in the short term (0-3 years) aimed at improving the standardisation and flow of MCS information between parties concerned over IUU fishing.

  5. Issues relating to responsibility of nationals are discussed and it is proposed that a system be established for penalising nationals who involve themselves in IUU fishing.

  6. In examining the issue of port state access for the purpose of landing catch, transhipping, bunkering or victualling it is recommended that countries deny access to any non-party vessel that is unable to demonstrate that it has complied with regional management arrangements.

  7. It is recommended that Catch Documentation Schemes be developed for appropriate species to improve knowledge on the flow of international trade for catch taken from areas where regional management arrangements apply.

  8. The issue of VMS is addressed and two existing regional fisheries management body VMS reporting models are evaluated. In the first model the regional fisheries management body has no technical involvement in VMS data management and delivery to member states. In the second model the regional management body has a direct technical involvement.

  9. The conclusion is drawn that for more effective MCS, direct involvement of the regional management body is preferable, especially in developing countries. A global VMS model is discussed based on networking the fisheries management bodies VMS sites, and consideration is given to using the network for transfer additional data such as infringement and vessel status information.

  10. In establishing such a network VMS standards are discussed and a proposal is made to undertake a pilot VMS project involving at least two regional fisheries bodies.

MEASURES TO BE ADOPTED BY THE PORT
STATE IN COMBATING IUU FISHING

Terje Lobach
Legal Adviser
Directorate of Fisheries
Norway

  1. During the 1990s a number of approaches were taken in the international arena in an attempt to govern world fisheries, including combating illegal, unreported and unregulated (IUU) fishing. These initiatives have so far only partly led to a more sound management of the fisheries resources as some of the agreed instruments have not entered into force and due to the fact that poachers still find loopholes in the established systems.

  2. The new tools concerning the conservation and management of world fisheries resources have strengthened the role of regional fisheries management organizations. Some of these organizations have established measures also on port State control, concerning fishing vessels flying the flag of parties as well as non-parties of the organization. These measures seem to be too weak, in particular in relation to the parties of such organizations, and regional bodies should be encouraged to get their �own houses in order�.

  3. The usual approach when dealing with non-parties is under the presumption that fishing vessels sighted in an area governed by a regional fisheries management organization are undermining the organization�s conservation and management measures and thereby should be refused to land that particular catch in ports of parties to the organization.

  4. Some States have established measures reaching further than those established by the regional fisheries management organization to which those States are parties. In this regard, Norway has taken the radical approach to deny fishing vessels (the physical vessels) taking part in unregulated fisheries on the high seas the right to fly the Norwegian flag and/or a licence to fish in waters under Norwegian jurisdiction under a foreign flag. States like Canada, Iceland, Norway and United States are refusing access to port services for vessels undermining conservation and management measures on the high seas.

  5. Port State regimes have got international acceptance in recent years as a result of numerous developments for the merchant shipping fleet. Inspired by the Paris MOU (Memorandum of Understanding) several new MOUs have been adopted in different regions of the world in order to trace substandard vessels. Such port State control is tied to internationally agreed rules and standards.

  6. By examining internationally agreed instruments like the UN Fish Stocks Agreement and the Compliance Agreement, measures established by several regional fisheries management organizations and unilateral approaches taken by some States, it is found that port State control is highly relevant for fishery conservation and management.

  7. As the existing MOUs on port State control are targeting the standard of the vessel itself, they seem not to be the right vehicles for seeking compliance with fisheries conservation and management measures. It should therefore be considered to take the now widely applicable regional MOUs on merchant shipping as a model for a regional approach to fisheries.

  8. In doing so, it is recommended that such an approach is closely linked to the existing regional fisheries management organizations. Their role in world fisheries is strengthened in recent years and most of the conservation and management measures for different regions are established by such organizations. Thereby the internationally agreed measures that vessels should comply with, will be those of the relevant organization. Consequently, there is a direct link between that particular organization and port States in the region. In order to achieve a comprehensive system within a region, the regional fisheries management organization should be encouraged to enter into agreements on mandatory port State control with port States in the region, including those which are not parties to the relevant regional fisheries body.

  9. It is also recommended to formalize co-operation between regional fisheries management organizations. Such co-operation would be essential in areas where IUU fishing is the concern of two or more regional bodies. For example, the conservation and management of fish resources in the Atlantic Ocean is the responsibility of several fisheries management organizations. A comprehensive system on port State control would require that IUU fishing within the area of responsibility of one specific organization, should have consequences for port States which have agreed on mandatory measures in another region.

  10. A regional system on port State control would also require common procedures for inspection, qualification requirements for inspection officers and agreed consequences for vessels found to be in non-compliance. Possible common elements in this regard would be denial of access to port, detention, denial of landing of catch or denial of fishing licence and the right to fly the flag of a party to the system.

ILLEGAL, UNREPORTED AND UNREGULATED FISHING:
WTO-CONSISTENT TRADE RELATED MEASURES
TO ADDRESS IUU FISHING

Linda A. Chaves
Chief
Office of Industry and Trade
National Marine Fisheries Service
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
Silver Spring, MD, USA

  1. This paper discusses the scope of WTO-consistent trade related measures to address IUU fishing. It covers relevant WTO provisions, the role of trade measures in combating IUU fishing, numerous trade measures which may be employed and examples of such which have been employed.

  2. In order that there be international consensus on an IPOA to combat IUU fishing, the amorphous term "IUU Fishing" need further precision or greater elaboration. There may be problems with leaving the definition of IUU fishing undefined. Some States may not be comfortable in joining to fight IUU fishing without some clear agreement concerning the range of fishing activities that are being targeted. Furthermore, the absence of a clear definition of "IUU fishing" means that there may in fact be less of an international consensus on the practices targeted by the trade measures and the means necessary to address them. Bearing in mind these concerns, the consultation and follow-up sessions should craft a definition of IUU fishing of the greatest possible precision.

  3. A fundamental question that must be sorted out is against whom or what are port State actions to be taken -- vessels, officers, owners, or States? What about countries with fisheries management regimes in place that are routinely ignored by their own fleet? Are their vessels or the flag State culpable as far as the world community is concerned? The answers to these and other questions will influence the evaluation of a trade measure's effectiveness.

  4. With nearly 40% of the world's fishery production traded internationally, it follows that trade measures may have impact on IUU fishing through the regulation of imports. Experience indicates that trade measures can be an effective tool for fisheries management officials trying to prevent circumvention of agreed conservation goals. As importantly, World Trade Organization (WTO) rules provide flexibility to use trade measures for conservation purposes subject to certain safeguards against abuse.

  5. With a plethora of trade measures it is necessary to determine what type of mechanism would be most fair and transparent and therefore be the least likely to engender controversy. It is submitted that monitoring, control and surveillance plus some form of certification will be essential features in enforcement of conservation goals and verification of compliance.

  6. A certification requirement tailored in such a way so as not to constitute discrimination or be excessively burdensome could be extremely effective in combating IUU fishing. Creating a mandatory certification requirement as an integral part of a new international agreement to eliminate IUU fishing would be a bold step. Under this scheme, all imports would be considered legal if the flag State could certify that the fish has been harvested in accordance with their own fisheries management regime/requirements; or from an area governed by an RFMO or other regional body; or on the high seas in accordance with international standards. If, however, it has been harvested outside of existing regulations, then it should not be certified as legal and as a result cannot enter the markets of those countries requiring certification of legal harvest. In addition, States should prohibit their fisheries processors, brokers and dealers from receiving or trading in illegally-harvested fisheries resources. This would be a first step toward prohibiting entry of IUU caught fish into any State or market.

  7. Trade measures in support of national and international conservation goals should be transparent and administered in a fair and non-discriminatory manner. The underlying conservation goals must be based on best available science, well defined, and to the extent possible, multilaterally agreed. As highlighted in this paper, recent jurisprudence and the experience of RFMOs may provide useful guidance in designing elements of an IPOA aimed at eliminating IUU fishing particularly if it relies on the use of trade measures.

  8. The lessons learned include that:

  1. Under the conditions described above, and taking into consideration the market concentration for high valued fisheries products, if it can be agreed multilaterally that only legally harvested fisheries products be allowed to enter into domestic or international commerce, then trade measures could be most effective in eliminating IUU fishing.

WTO-CONSISTENT TRADE-RELATED MEASURES TO ADDRESS IUU FISHING � DEVELOPING COUNTRY ISSUES

Ruangrai Tokrisna
Faculty of Economics
Kasetsart University
Bangkok, Thailand

  1. IUU fishing in coastal state jurisdictions is more relevant to developing countries. Lack of capability in effective resource management and regulation lead to overfishing and resource degradation. There is a need for strengthening developing country capability in fishery resource management and regulation.

  2. While enjoying foreign exchange from fish exports, developing countries may have been exporting their fishery resource abundance at an underpaid value. Fishing costs which accrue to the fishermen do not reflect the "true" cost of fishery resources. An individual fisherman has not taken into account the social cost of fishing. Such cost underestimation can lead to overfishing and resource degradation. Development in fish trade without proper management of fishery resources can be a net social loss, not a gain to developing countries. Fish trade liberalization can lead to undesirable social and economic impacts and bring about over-exploitation and depleted fishery resources.

  3. Relevant Articles in GATT 1994 for WTO-consistent trade-related measures in combating IUU fishing in developing countries are Article III National Treatment on Internal Taxation and Regulation, Article VIII Fees and Formalities connected with importation and Exportation, Article X Publication and Administration of Trade Regulations, Article XI General Elimination of Quantitative Restrictions, Article XIII Non-discriminatory Administration of Quantitative Restriction, and Article XX General Exemptions.

  4. Relevant Agreements to be considered for WTO-consistent trade-related measures in combating IUU fishing in developing countries are the Agreement on Technical Barriers to Trade, the Agreement on Preshipment Inspection, the Agreement on Rules of Origin, the Agreement on Import Licensing Procedures, and the Agreement on Subsidies and Countervailing Measures.

  5. Article XX allows the adoption of an IPOA to take measures in combating IUU fishing for conservation of depleting fishery resources. Nevertheless the trade-related measures must be non-discriminatory between countries where the same conditions prevail. Lack of effective fishery management and regulation in developing countries may impede actions to effectively curb IUU fishing.

  6. IUU fishing has to be clearly defined and identifiable. Unless being equally effective in fishery regulation, trade-related measures in curbing IUU fishing may not be WTO consistent in the perspective of developing countries.

ILLEGAL UNREPORTED AND UNREGULATED FISHING: CONSIDERATIONS FOR DEVELOPING COUNTRIES

Transform Aqorau
Legal Counsel
Legal Services Division
South Pacific Forum Fisheries Agency
Honiara, Solomon Islands

  1. The challenge posed by IUU fishing requires a global response. The IPOA on IUU fishing is therefore a welcome initiative to deal with an increasingly complex problem. Developing countries experience greater difficulties in dealing with IUU fishing because of their limited resources. Their problems are exacerbated by the large area of ocean space that they have to control and the migratory nature of stocks and fishing vessels that target the stocks. The fishing industry has also become more highly organized and sophisticated. Countries cannot unilaterally respond to the problems of IUU fishing because of the transnational nature of the fishery and the vessels that exploit the fishery. Thus, international cooperation is called for to address the problems of IUU fishing.

  2. In recognition of the limitations suffered by developing countries in dealing with IUU fishing, various international instruments have called for special assistance to be given to developing countries. The United Nations Fish Stocks Agreement specifically calls on States to assist developing countries in monitoring, control and surveillance and to provide funding for national and regional observer programs. The FAO Code of Conduct for Responsible Fishing also enjoins States and intergovernmental organizations to give full recognition to the special requirements of developing countries. The IPOA on IUU fishing must reiterate the call to give special assistance to developing countries.

  3. The problem of IUU fishing for developing countries has been manifested through the use of flags of convenience (FOC), reflagging of fishing vessels to the licensing State to avoid stringent conservation and management controls, illegal fishing on the margins of the EEZ and high seas, and misreporting of catch. Developing countries which depend on access fees for their economic development are particularly vulnerable because of distortions to the fees levels which are conditional upon the volume of catch. There are a number of tools which are available to developing countries to deal with IUU fishing. These include, port State enforcement, effective exercise of flag State responsibilities, harmonization of regulations so that fishing vessels are not subjected to different regulatory regimes, and transforming international fisheries law so that it is responsive to the needs of modern fisheries management.

  4. Developing countries can learn from the experiences of the small island States in the South Pacific region who have developed low cost, non-conventional yet innovative means of dealing with controlling the activities of foreign fishing vessels. Although the measures have not been developed to deal with IUU fishing per se, their broad application is pertinent in combating IUU fishing. These measures include the following:

  1. The harmonization of terms and conditions of access for fishing vessels requires close coordination and cooperation amongst countries with contiguous EEZs so that fishing vessels can operate under uniform regulations. The need for information is addressed through the Regional Register which is an information database of fishing vessels operating in the region. Each vessel is given a unique Regional Registration number which guarantees that it can be licensed. Without a regional registration number, no fishing vessel may be licensed to fish in the region. The registration may be withdrawn or suspended if the vessel has been involved in a serious violation of the fisheries laws of any of the member countries of the Forum Fisheries Agency.

  2. Effective flag State control is essential to proper management of the fisheries resources. The best illustration of comprehensive flag State control is provided for in the Treaty on Fisheries between the Governments of certain Pacific island States and the United States. Port state control is also being advanced in the region through the prohibition of the importation of fish caught illegally in the waters of another State. This does not require investment of enormous financial and human resources. However, it would require training to improve boarding and inspection skills.

  3. Linked to the need for improved information is the development of a violations and prosecutions database. This database houses information on vessels that have violated the fisheries laws of the member countries of the Forum Fisheries Agency. Suggestions are made to consider the development of a database that can be linked to a central hub site which would allow licensing authorities to verify whether vessels that apply for a license have a clean compliance record. The satellite-based vessel monitoring system now makes it possible to track the movement of vessels. The problem with the system is that only licensed vessels can be monitored. Some consideration needs to be given to expanding the scope of the system so that it includes non-licensed vessels. This is a function that could be given to regional fisheries management organizations.

  4. Finally, consideration could be given to the establishment of a framework that would enable developing countries to cooperate through the sharing of enforcement equipment and personnel. Logically, it makes sense for countries with resources to share them with those that are not as well endowed. The paper concludes by proposing actions that can be considered in the IPOA on IUU fishing. These are:

Actions immediately feasible

Actions feasible in a medium term timeframe

Actions feasible in the longer term