APPENDIX H: THE COOK ISLANDS - A CASE STUDY

J. Mitchell^[245] and G. Broadhead^[246]

INTRODUCTION

The Cook Islands consist of 15 islands scattered over some two million square kilometres of the Pacific Ocean. They lie in the centre of the Polynesian Triangle, flanked to the west by the Kingdom of Tonga and the Samoas and to the east by Tahiti and the islands of French Polynesia. The capital island of Rarotonga, lies directly south of Hawaii and is the same distance south of the equator as Hawaii is north. The Cook Islands is just to the east of the International Date Line and is ten hours behind Greenwich Mean Time.

The islands are thought to have become inhabited sometime between 500 and 800 AD by people from other islands in Polynesia. The Spanish explorers Alvaro de Mendana and Pedro Fernandez de Quiros were the first Europeans to sight islands in the group, in 1595. There is no further record of European contact for 150 years, until Captain James Cook explored the group in his expeditions of 1773 and 1777. Remarkably, Cook never sighted the largest island, Rarotonga. That honour was left to the mutineers on HMS Bounty, who landed on Rarotonga in 1789, during their escape to Pitcairn. Cook named the group the Hervey Islands, after a British Lord of the Admiralty, but they were renamed Cook Islands, in honour of the great explorer, some 50 years later by the Russian cartographer, Admiral John von Krusenstern.

The British did not take control of the Cook Islands until 1888 and in 1901 they were annexed by New Zealand. In 1965 the New Zealand Parliament passed the Cook Islands Constitution Act and gave the Cook Islands self-government founded upon its own written constitution. Today the Cook Islands have a Westminster Parliamentary system with democratic elections every five years. The Head of State is Her Majesty Queen Elizabeth II by Her representative in the Cook Islands.

The legal system of the Cook Islands closely reflects that of New Zealand and most other English Common Law jurisdictions. There is a High Court and a Court of Appeal of the Cook Islands, which is presided over predominantly by current or former New Zealand High Court Judges. The ultimate appellate court is the Privy Council in London.

BACKGROUND

Distant water fishing nations (DWFNs) have conducted fishing operations in the Cook Islands EEZ, or an area approximating this, in past years (1960-1994). These fleets have included Japanese, Korean and Taiwanese longline vessels targetting predominantly albacore, and frozen sashimi tunas. More recently, several local or locally based longline vessels were licensed from the period 1994 to mid 1997. The vessels ranged from 16 to 35 metres in length and 30 to 180 GRT, and fished on a year round basis. These vessels targeted export quality fish for the fresh chilled and sashimi markets overseas.

In 1998, there were several bilateral arrangements concluded with foreign companies based overseas. Catch from these vessels, operating mainly in the northern part of the EEZ were very high, particularly of albacore, which was unloaded at the cannery in Pago Pago. During 1999 - 2000, catch rates were lower than 1998, and appeared to be adversely affected by a strong la niña weather pattern.

CURRENT SITUATION

In May 2000, the Cook Islands Government appointed an Administrator for the Cook Islands Ships Registry - Maritime Cook Islands Limited (MCI), a private company registered in the Cook Islands.

The initial tasks facing MCI included encouraging the Cook Islands Government to accede to various important maritime conventions and to join IMO itself. These aspects are now well advanced.

The licensing of foreign fishing vessels was discontinued in 2001, as part of a government strategy to encourage local investment into the sector. The development of the Cook Islands fishing industry has since been a major focus of Government, as evidenced by Budget Statements and other public pronouncements. Government's main emphasis has been on development of the industry within the EEZ. MCI recognized that there was a wider opportunity for the Cook Islands in allowing the registration of High Seas Fishing Vessels and leveraging off the competences learned by MCI and the Ministry of Marine Resources (MMR) in managing the local fishing vessels.

Under the United Nations Convention on the Law of the Sea 1982 (UNCLOS), the Cook Islands have an Exclusive Economic Zone (EEZ) of approximately 1.8 million square kilometres. Several marine species are currently commercially exploited within the EEZ. These include the culture of giant clams and black-lip pearl oysters; a purse seine fishery, regulated in part by the Inter-American Tropical Tuna Commission; an artisanal FAD fishery; a trochus fishery; and more recently a tuna longline fishery.

Over the past two years, there has been considerable development of the domestic tuna longline fishery and a corresponding increase in the number of licenses granted to locally based fishing vessels, from 5 in the first year to 37 at present. There has also been considerable interest from DWFNs in establishing fishing operations in the Cook Islands EEZ. This interest has influenced further investment in the industry.

A Maritime Training School has been established with the assistance of New Zealand to ensure the availability of certified crew aboard locally operated vessels.

Government supports the development of the Cook Islands fisheries industry in both the EEZ and upon the high seas. In relation to both these areas Government has stressed as part of its policy the imperative of compliance with management and protectionist measures for fish stocks in the interests of sustainable exploitation.

POLICY

The Cook Islands Government is leading the way in the Pacific and internationally, with the regulation of its High Seas vessels through the issuing of High Seas authorisations and through entering into permitting agreements with Cook Islands-flagged, High Seas vessels. This is an integral part of the Cook Islands goal of becoming a strong regional player in the Pacific and possibly an influential High Seas Fishing Nation, in respect of other Regional Fisheries Organisations.

This new emphasis has required the broadening of legislative and regulatory structure currently in place and a change in focus from purely a coastal state, protecting its resources from illegal foreign fishing and developing its local industry, to recognising and facilitating the legitimate interests of the Cook Islands Industry in operating beyond its EEZ. In addition, it is necessary to ensure that the interests of other countries are respected and international goals for the conservation of High Seas resources are enshrined and enforced in the new legislative environment.

The prescription of policy for the registration of vessels is derived from several sources:

· official Government Policy is revealed in documents such as the recent Budget Statement which promotes;

· "safe and efficient maritime regulatory policies consistent with international standards".

However, specific reference to shipping falls under a wider umbrella of Government Policy that seeks to broaden the economy of the Cook Islands. This is in particular reference to the development of a Cook Islands Fishing Industry and its offshoots which bring together many of the aspects of a wider shipping policy.

On a "nuts and bolts" level, policy is directed by three bodies: The Ministry of Transport (MoT), Maritime Cook Islands Limited (MCI) (the corporate administrators of the Cook Islands Ship Registry) and, additionally in the case of Fishing Vessels, The Ministry of Marine Resources (MMR).

Policy, at a practical level, finds its expression in the Shipping Act 1998 (as amended) which has as its preamble the following:

"An act to consolidate and amend the law relating to Shipping and Seafarers and to control the registration, safety and manning of ships, and to give effect to various international maritime conventions, and for the purposes connected therewith."

Part 3 of the Act was recently amended and lays out the legal parameters governing the registration of vessels (both convention and non convention vessels). In line with government policy to contract out non-core activities, the registration of vessels was contacted out to MCI by an agreement signed in May 2000, which defines the parameters for the administration of the Registry by a private company. A particular tenet of the agreement is that MCI should do nothing that may risk bringing the Government of the Cook Islands into disrepute and any such action can be sanctioned by cancellation of the contract.

MCI's policy is set out in (in part) in the Registration Requirements and is circumscribed by two over-riding principles.

The first principle is control; MCI sees the ability to exercise direct control over the fleet as a key factor in discharging responsibilities to government and thereby the Cook Islands' flag state responsibilities. Control is multi faceted and is exercised through a variety of mechanisms. Examples of this are:

· all Flag State documentation is generated in Rarotonga;

· a thorough due diligence is conducted on all owners who apply for registration and the effect of this, to date, is that far more vessels are rejected than are accepted onto the Register; and

· any vessel inspection is conducted by an independent Cook Islands surveyor, with whom MCI has a contract.

The direct involvement by MCI in all aspects of vessel registration, crew certification, safety issues, in the discharge of its flag state duties brings confidence to both owners and Port State Controllers that the Registry is aware of and complicit with all actions taken in its name and under the Cook Islands Flag.

The second is positioning. MCI seeks to "position" the Cook Islands flag at the upper end of the registration market. MCI seeks to attract quality owners that take their own responsibilities seriously and are looking for a high quality, customer-oriented service, from a Registry that does not compromise safety. It is considered that finding such owners makes the primary goal of "control" far easier to achieve.

A specific policy is in place for the registration of Fishing Vessels and this is jointly administered by MCI and MMR. The registration of any Fishing Vessel is dependent on its ability to get a fishing authorisation from MMR and subsequent to registration the two agencies work together to enforce their separate requirements. One of the key features of policy in relation to fishing within the Cook Islands EEZ has been to require that all vessels licensed to fish be also registered on the Cook Islands register, either normally, or under a demise charter. This has been a very effective policy: It has deterred undesirables from seeking local licences and has seen the establishment of one of the newest and highest quality local fishing fleets in the Pacific Islands.

The future development of the Cook Islands as a High Seas Fishing Nation will require the Government to become involved in an ever-wider range of Regional Fisheries Organizations and the conventions that govern them, in order to cater for the needs of Cook Islands flagged, High Seas Fishing Vessels. This is something that the Government, in conjunction with its agencies is prepared to do. As the pressure on High Seas fish stocks continues to rise it is inevitable that the high seas and the fish species therein will come under some form of management. Thus the Cook Islands, is seeking to establish a responsible pattern of High Seas fishing, and to become recognized as a responsible Flag State. Any future rights of access to areas under management will to some extent be dependant on nations being able to demonstrate that they have taken their Flag State and international responsibilities seriously. These responsibilities include controls over where and how each vessel fishes (through VMS and other MCS mechanisms) and through active involvement in the individual Regional Fisheries Organizations.

High Seas fishing by Cook Islands flagged vessels is occurring simultaneously with the continuing development of the domestic fishery and they are expected to complement one another.

The ongoing development of the administration and operation of the Registry, complements the efforts of the Ministry of Marine Resources by assisting the Ministry in extending the legislative regime to encompass compliance by Cook Islands flagged fishing vessels with national laws, together with regional and international requirements when engaged in high seas fishing.

The policies as described above give rise to the following benefits:

a) Cook Islanders will benefit from the creation of employment within the fisheries sector. This will happen both in the context of shore based operations and through involvement on the vessels engaged within the EEZ and on the high seas. The regulatory and enforcement functions that would need to be conducted by the Cook Islands Government in respect of these vessels will also give rise to increased employment opportunities.

b) An export orientated fisheries sector would contribute significantly to economic output and growth of the Cook Islands economy both directly and indirectly through generated expenditure. In a relatively closed and isolated economy such as the Cook Islands, the indirect impacts would be significant.

c) The introduction of this new industry will help develop and diversify the economy. This is particularly important for small island nations such as the Cook Islands, which currently relies heavily on tourism and financial services. There will be an increased need for corporate services, local tax and accountancy services, vessel management and crew services and other satellite industries.

d) The involvement of the Cook Islands in various Regional Fisheries Organizations and marketing of Cook Islands product into the EU and other countries will enhance the Cook Islands international profile. That international profile is further enhanced by its emergence as a high quality competent and responsible flag state.

e) Enhancement of the Cook Islands ability to meet its obligations under and take advantage of the opportunities created by the Cotonou Agreement.

f) The resulting investment in the fisheries industry will have regional and international impact, through Cook Islands participation in regional and international fisheries organizations.

Benefits are already being felt directly in the Cook Islands. The recent development of a fresh fish-processing factory in Rarotonga, purported to be among the best in the South Pacific, was made possible by major investment by a large fishing company that originally became involved in the Cooks through the registration of a High Seas Fishing Vessel and has subsequently become interested and involved in the domestic market.

REGISTRATION

Vessel owners currently have a wide choice of registries to choose from. Vessel owners have regard to, inter alia, the following matters when making a choice of flag for their vessels (in no particular order of preference):

· The nature of the maritime administration. This includes the extent of its responsibilities and its efficiency. The distance between the geographic location and the true ownership of the Register is considered.

· The level of registration fees and ongoing fees such as tonnage taxes.

· Limitations on vessels accepted for registration, such as those relating to size, tonnage and age of acceptable vessels.

· Port State Control (PSC) detention rates, casualty statistics and pollution figures.

· Provisions made for seafarers' safety and welfare.

· Crewing provisions, including the national law relating to crew, in particular the respective bargaining power of crew members employed aboard vessels and what the inherent rights are of crew in terms of national legislation. Restrictions placed on crewing, and certification requirements are also important. Given that crew costs account for more than 50% of the costs of operating vessels, this is a major consideration.

· The flag nation's company law is an important consideration. In particular, a ship owner is interested in determining how far a ship owner can legitimately place themselves at arms length from their interests in their vessels. Further, the ability to limit liability and the confidentiality of the underlying company register is important. This has relevance to the prevention of arrests of sister ships.

· The flag state's company tax structures must be efficient, so that earnings are tax exempt in the flag state and can be kept offshore.

· The nature of the governance in the maritime state is important. This refers to the level of political/economic risk, levels of corruption and the Government's views, for example, on nationalisation.

· The extent to which the flag state complies with and enforces the various international instruments emanating from the IMO, ITF, ILO and others.

Maritime Cook Islands Limited (MCI) has contracted with the Cook Islands Government to provide all services that are "reasonably required for the administration, operation and promotion of the Cook Islands Register and Registry."

Part III of the Shipping Act, provides for the appointment of a Registrar of Vessels and outlines the Registrar's duties. The Registrar may delegate all or any of the Registrar's powers and functions to another person, other than the specific power of delegation. The powers of the Registrar of Vessels are set out in the Act and its attendant regulations, specifically the Shipping (Registration) Regulations 2001. The Registrar's powers have effectively been delegated to MCI pursuant to the contract.

The Register is located in Rarotonga. It employs 4 permanent staff to administer approximately 50 vessels. Additional administrative support and assistance in the performance of certain functions is provided by MoT.

In line with the wider Government Policy the degree of interaction between the Registry and other Government Agencies, primarily MoT, MMR and Foreign Affairs, is high. At an informal level there is daily contact particularly with MoT and MMR and more formal meetings take place, on average, every month.

There are currently 59 vessels registered on the Cook Islands Register. 45 of these are fishing vessels; 33 of which are local vessels and 10 High Seas (2 laid up). The balance of the register is made up of several local cargo vessels, private yachts, 3 small external cargo vessels, 2 sail training vessels and the EEZ patrol vessel.

In the long term it is estimated that the High Seas Register has a maximum potential capacity of 150-200 vessels, being those that we are interested to Register.

Some of the benefits of registration of Fishing Vessels in the Cook Islands are summarized as follows:

· Efficient and flexible maritime registration requirements.

· Compliant with FAO instruments (Code of Conduct etc).

· Modern legislative and regulatory regime for fisheries (both EEZ and High Seas).

· The ability to effectively represent the requirements of owners.

· Official participation in Regional Fisheries Organisations to ensure that the rights of Cook Islands flagged vessels are protected.

· Selective registration procedures to ensure that the reputation of both the Cook Islands and those vessels fishing under our flag are protected by the exclusion of irresponsible, poorly managed vessels.

Procedure for the registration of fishing vessels

The Registration Requirements has a full description of the requirements, which can be summarised as follows:

· Application can be received by mail, fax or e-mail, but originals must be received before full registration can occur.

· Registrations are all recorded on the same Register.

· Fishing Related criteria, as required by MMR, are viewed as co-requisites for registration.

· Various checks are made to verify the history of any Fishing Vessel applying for registration and also the history of it owners. The resources used include but are not limited to: the Equasis website, ITF website, FFA Regional Register, other Regional Organisations (e.g. CCAMLR and ICCAT) & private recommendations.

· In cases where incorrect information has been deliberately provided the Shipping Act 1998 provides for various sanctions, including criminal prosecution. The Registrar is empowered with the discretion to vary or revoke any documents issued by the Cook Islands in relation to the registration as he sees fit (Shipping Act 1998, Section 43).

· Provisional Registration is provided for in the Act (Section 19). In practice this is only granted in situations where the vessel is unable, for genuine reasons, to comply with the full registration requirements in the first instance. Three months are allowed for requirements to be met and vessels are financially sanctioned should they fail to meet this time limit.

Fishing-related criteria for registration

A fishing license is required under the Marine Resources Act 1989 for any vessel fishing vessel over 10 metres in length fishing within the Cook Islands EEZ. Registration of the vessel is required before a fishing license is issued.

In addition, the vessel, if fishing within Cook Islands waters, or elsewhere in the region is required to register with the Forum Fisheries Agency (FFA) on the FFA Regional Register.

Vessels fishing on the high seas are not currently expressly considered in the legislation. However, fishing in these areas is permitted through individual fishing agreements between Government and the individual vessel owners. These agreements cover all the terms and conditions of fishing on the high seas by any Cook Islands flagged vessels.

Under the Marine Resources Act 1989, a fishing vessel is defined as: "...any vessel, boat, ship or other craft which is used for, equipped to be used for or of a type that is normally used for fishing or related activities."

The definition of fishing is fairly broad, and includes any operation at sea in support of or in preparation for any fishing activity.

EXERCISE OF FLAG STATE CONTROL OVER FISHING VESSELS - REGISTRY

Fishing vessel safety

The primary responsibility of a Flag State is to govern the safety of the vessel, her crew and the environment and the lack of prescription for Fishing Vessels from many of the IMO conventions means that there is a huge amount of flexibility in the standards that Flag States can choose to apply. This has resulted in a number of flags giving carte blanch to Fishing Vessels to, more or less, do what they please. This has further resulted in a number of owners operating sub-standard and dangerous vessels the effect of which has been to endanger lives.

Fishing vessels have always presented the IMO with substantial difficulties, in that there is a large variation in the design and construction of fishing vessels, which make the standardisation of safety rules difficult to draft and more difficult to enforce. This has resulted in their exclusion from SOLAS and the Loadlines Convention.

The issue of safety of fishing vessels has been the subject of several attempts to standardise the safety requirements for these vessels, the first being the Torremolinos International Convention for the Safety of Fishing Vessels 1977. This convention contained safety requirements for the construction and equipment of new, decked, sea-going fishing vessels of 24 metres in length and over, including those vessels processing their catch. Existing vessels were not covered, other than in respect of their radio requirements. A contentious issue is grappled with in the convention, namely that of stability of fishing vessels. This has been one of the prime causes of sinking of fishing vessels and has been recently highlighted by a number of significant cases in South Africa and the United States, in which the flag state survey system relating to the stability of vessels, has been reviewed and criticised by the courts. The recent sinking of the fishing vessel Sudurhavid, off the Falkland Islands, as a direct result of lack of control over the amendments to the stability of the vessel, resulted in a South African Court finding that the South African Registry was negligent in the application of the provisions of the Merchant Shipping Act.

The Torremolinos Convention was met with little enthusiasm and this resulted in it being amended in 1993 by the Torremolinos Protocol. The Protocol was aimed at removing the technical complexities that caused difficulties for flag states and thereby enabling the convention to be brought into effect as soon as possible. The rapid development in fishing vessel technology, and the more recent focus on deep water High Seas fishing, resulted in further strides being made in the design and safety of fishing vessels. In addition, these vessels are often operating in hostile environments and this protocol seeks to regulate safety on board and implement safety provisions with regard to machinery spaces, improved lifesaving appliances, immersion suits and thermal protective aids, satellite communication systems and other components of the GMDSS.

The Cook Islands is in the process of deciding whether or not to accede to the Torremolinos Protocol or to develop a unique Fishing Vessel Safety Code, drawing from both the Protocol and the New Zealand Maritime Safety Authority's Safety Code for Fishing Vessels.

Bare boat chartering, the genuine link and IUU vessels

The FAO initiatives in restricting the operation of IUU vessels have resulted to some extent in the reduction in the flexibility of operation of these vessels and their ability to flag hop. The emphasis of these initiatives, however, is a "top down" approach, through providing guidelines to flag states with suggested amendments to their legislation, and attaching certain stigmas to non-compliance. To this extent they provide useful guidelines for flag states in the quest to produce legislation that limits the activities of IUU vessels, but they are in many respects a "blunt instrument" in restricting the operations of IUU vessels. They are dependent on the will of the flag state itself to comply with the provisions of these instruments.

In practice, our experience has been that there are more practical ways of limiting the operation of IUU vessels and these are primarily focused upon the "nuts and bolts" of the legislation of the state concerned. Most IUU activity occurs in the context of the bare boat chartering of these vessels through various jurisdictions, to obfuscate the true ownership of the vessel. It is within this intricate matrix of ownership and bare boat chartering of the vessels that more attention should be focused:

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) gives considerable weight to the idea of a "genuine link" between the ship and the flag of the vessel and states in Article 91 that:

"Every state shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly. There must exist a genuine link between the state and the ship."

The "genuine link" has long been a problematic and controversial concept and particularly so where bare boat chartering is concerned. The judgment in the case of the "Saiga II" tells us that tells us that the "genuine link" is to do with effective control over the vessel, but does not tell us when the link must be established or in respect of which obligations it refers. After all, what does "effective control" mean?

Also, there is a clear lack of uniformity in private international law governing the registration of vessels, bare boat charter registration and the protection of ship's mortgages. In addition, the "suspension" of the private law provisions of the underlying registry causes confusion. In some cases (South Africa and the Cook Islands on the "flagging in" of vessels) the private law provisions continue, and in other cases it would appear that they lapse (New Zealand and Cook Islands on the "flagging out of vessels"), coupled to varying requirements in bareboat charter registers regarding mortgagee consent (none in South Africa or New Zealand on "flagging in" but required in Cook Islands), creates an environment that allows unscrupulous operators to "flag hop". The United Nations Convention on Conditions for Registration of Ships 1986 sets a good standard and provides a number of protections built into the provisions of this convention. However, it is not yet in force and the lack of enthusiasm of the international community for a cessation to this convention is a reflection of the inherent complexities of the law.

It must not be forgotten that a bare boat charter is a contract and not a creature of statute. The Shipping acts mentioned governing the registration of vessels in bareboat charter registries, set out the public law consequences of registration. However, they do not deal with the underlying private law issues, which include the notional "knock on" effect of the frustration of or termination of the underlying bareboat charter, on the nationality of the vessel that is driven by the flag state.

In the event that the contract is cancelled, most bareboat jurisdictions will deny the vessel the right to fly the flag of the flag state (and thus become stateless), and by so doing would be in breach of the provisions of the relevant Ship Registration Act of the underlying registry which in most cases have a specific stipulation requiring the vessel (owned in that state) to be registered. The consequences of becoming stateless are various; not least of these is that the insurances on the vessel will lapse, and in addition, absent any clear indication of nationality, the vessel will be dealt with, in all likelihood, by the law of the jurisdiction in which it finds itself. So too the mortgagees may find themselves without the comfort of a registered mortgage, battling for a priority on the judicial sale of a vessel that was not within their contemplation when the funds were advanced. This places an increased onus on the flag state to ensure that the underlying contracts remain extant and provisions should be incorporated in legislation to deal with the termination of the charter. What is the "default" position if the contract is cancelled? Does the underlying registry assume "full flower"? It can only do so if the underlying flag state laws contemplate this. How to enforce or keep track of the change is a different matter.

Where to from here? The Cook Islands legislation (Shipping Act 1998, Part 3) sets the requirement for entry onto the bareboat charter register high by providing the Registrar with discretion to admit bareboat charter vessels on the production of a range of consents from, inter alia, the mortgagee. To this extent, the spirit and intention of the Cook Islands Shipping Act 1998 certainly endorses the laudable aims reflected in Article 91 and Article 92 of UNCLOS, particularly as interpreted by the 1986 Convention on Ship Registration.

The conundrum presented by the dual flagging dilemma is not so easily resolved. Various attempts at international regulation clearly indicate the lack of appetite for a uniform code regulating bareboat chartering and the position of the mortgagee. The 1986 Convention sets a good standard, but is not in force. The fishing industry, driven by the imperative to sustain stocks, has moved the debate to a new level, and much of what has been said can be applied in general maritime commerce. They are slowly making the "genuine link" less of a "missing link".

Indeed, the plethora of jurisdictions involved, and the variety of law arising, gives rise to alternative dictates. These include the public image of the register, and their striving to remain free of the international odium that clings to registries that are more interested in registration revenue than safety of vessels, and protection of their crew and the sanctity of the mortgage.

Finally, effective flag state administration is paramount. Due diligence on the part of the Registrar is vital in preserving the image of the flag and the rights of the vessel owners and mortgagees. Sloppy administration allows vessels to be flagged in multiple jurisdictions with the attendant abuses that follow.

The issues and problems mentioned above are being addressed by the Cook Islands and must be resolved, in part at least, if international objectives are to be met. Resolution of these issues is complex and will require extensive co-operation between the Cook Islands and those states that charter vessels onto the Register. This may involve numerous unique solutions depending on each state's unique laws. However, modern legislation and the implementation of the detail of the legislation, in line with internationally recognized best practice, will be an effective toolbox in curbing IUU operations.

The effect of sanctions

The importance of Regional Fishery Management Organizations (RFMOs) and the ability of their member states to impose trade sanctions on flag states seen to be operating out of compliance with the flag state legislation, has been emphasised recently by the International Commission for the Conservation of Atlantic Tuna (ICCAT), passing a resolution at the 2000 general commission meeting in Marrakech. The resolution called for the implementation of prohibitions (trade sanctions) on the import of products caught by vessels flagged in Equatorial Guinea, Belize and St Vincent & the Grenadines, as these flag states had a history of non-compliance with international efforts to conserve fish stocks. As a result of these sanctions vessels have either chosen, or have been asked, to seek another flag. The effect of which will be to simply transfer the problem into another jurisdiction. It is to be anticipated that approaches will be made to the Cook Island Registry by non-compliant vessel owners to reflag their vessels into the Cook Islands. The Cook Islands will refuse such applications. However, where these vessels end up will be anyone's guess and the question may be asked as to whether or not the fishery would have been better served by the vessels remaining with their previous flag and efforts made to encourage compliance. This in turn raises questions as to what purpose it serves to sanction all vessels of a given State, rather than individual offending vessels, if all it serves to do is trigger a total loss of control over the vessel.

Export documentation

The activities of IUU vessels are further curtailed by the recent implementation of systems governing the export of fisheries products through statistical documents/trade information (Certificate of Origin) schemes. An example of such a scheme is the export of Southern Blue Fin Tuna to Japan, which is governed by the provisions of the Commission for the Conservation of Southern Blue Fin Tuna (CCSBT). Further, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) has implemented similar, complex schemes in relation to the export of Patagonian Toothfish. The Cook Islands issues Certificates of Origin, Documents of Compliance and Hygiene Certificates for the export of product. The Certificate of Origin and Document of Compliance are issued on the basis of declarations. A false declaration can lead to a criminal prosecution. Hygiene Certificates are issued based on reports from properly authorised laboratories.

EXERCISE OF FLAG STATE CONTROL OVER FISHING VESSELS - MINISTRY OF MARINE RESOURCES

Registration trends

Since 2001, the Government domestic fishing policy has placed a moratorium on foreign fishing vessels operating in Cook Islands waters. This was part of an effort to encourage local participation and investment into the longline fishery. In 2003 however, the policy was amended to allow local companies to bare boat charter up to three foreign vessels as part of their existing operations, provided the vessels were registered and flagged in the Cook Islands.

Government currently only allows the use of horizontal longlining in Cook Islands waters, therefore ALL domestic commercial fishing vessels are longline vessels.

Access to Cook Islands waters by US Purse Seiners is allowed as part of a Multilateral Treaty between the US and the 16 member countries of the Forum Fisheries Agency.

In terms of the High Seas, the development, over the past two years, of a Deep Seas Trawl fleet of four vessels has been primarily in response to Cook Islands policy in relation to these types of vessels and has seen a growing interest from other similar vessels to register in the Cook Islands.

Restrictions on fishing vessels

These are imposed via the terms and conditions of the License and/or any applicable access agreement. Such conditions include provision for fisheries observers, vessel-reporting routines, catch reporting, area restrictions etc.

REGIONAL COOPERATION

The Cook Islands is a member of the Forum Fisheries Council, made up of 16 member states from within the South Pacific geographical area. Initiatives taken up by its Agency, the FFA, are supported by the Cook Islands. These initiatives are related to the management of the valuable tuna resources of the region and include the regional register of fishing vessels (FFA Regional Register), the FFA Regional VMS, the regional observer programme, the Niue Treaty (related to shared MCS activities between countries), the US Treaty on Fisheries, and so on.

The Cook Islands is also a member of the Pacific Community, whose Secretariat acts as the central repository for all catch data taken in the Western and Central Pacific Region. Most of the scientific analysis of this data is undertaken by the Secretariat, which provides scientific advice to its member countries in support of any management decisions taken either collectively or individually.

The Cook Islands has also signed the new Tuna Convention of the Western and Central Pacific and has been an active participant at the preparatory conferences leading up to the establishment of the Commission once the Convention comes in force. This Regional Fisheries Authority will have a mandate over the entire Western and Central Pacific Ocean in relation to the management of all highly migratory species (with a key focus on species with commercial value e.g. tropical tunas and billfish).

Concerning Cook Islands flagged vessels fishing on the high seas outside the immediate region; the government has been in regular contact with FAO as to developments regarding deep-water species in the Indian Ocean.

LAWS AND REGULATIONS RELATING TO THE EXERCISE OF FLAG STATE CONTROL OVER FISHING VESSELS

The major piece of legislation covering the control of any kind of fishing or fishing vessel is, as previously mentioned, the Cook Islands Marine Resources Act 1989, and the Fisheries Regulations 1995. It should also be noted here that the Cook Islands has also ratified UNCLOS, and the UN Fish Stocks Agreement.

MCS/ENFORCEMENT ACTIVITIES

Current Enforcement and MCS activities involve the placement of observers on domestic fishing vessels, and also providing observers for the regional observer programme run by FFA/SPC. In addition, a specific condition for all fishing licenses calls for the installation of VMS devices on the vessel. This is also part of a regional VMS system run by the FFA. This enables the fisheries authorities in the Cook Islands to track their vessels and monitor any suspected illegal fishing activities. The Cook Islands Government also has a surface patrol asset, and coordinates surveillance activities with the French and New Zealand Air forces within the Cook Islands EEZ.

INITIATIVES TAKEN BY GOVERNMENT IN THE CASE OF NON-COMPLIANCE WITH FISHERIES MANAGEMENT MEASURES

Non-compliance involving 'minor' infringements can result in written warnings where no further action is required. However, more than three written warnings may constitute grounds for a suspension of even cancellation of the vessel's license.

Prosecution of vessel owners for non compliance of their vessels, forfeiture of the vessels, suspension or cancellation of a vessel license, and the imposition of fines to both operator and/or owner are provided for in the legislation. All represent actions that have been taken by the Cook Islands government for non-compliance of fisheries management measures.

PORT STATE CONTROL

It is worthwhile to note here that in spite of relevant FAO guidelines for Port State Controllers to help combat IUU vessels, there does not seem to be much interest or activity from many Port States in implementing proper measures to look at fisheries issues. It is our perception that some Port State Controllers view fisheries violations as matters for other competent authorities and do not wish to extend their mandate to include them. This attitude is disappointing and to some degree subverts the efforts of Flag States to ensure compliance.

EXERCISE OF FLAG STATE CONTROL OVER FISHING VESSELS - CONCLUSIONS

The international trend is towards increasing regulation of the activities of fishing vessels, and the export of product caught utilising these vessels. The increasing prominence of regional fisheries organisations such as the Western and Central Pacific Convention for the Conservation and Management of Tuna, the Indian Ocean Tuna Commission, ICCAT and many others, will inevitably result in fishing vessel owners being obliged to flag their vessels in jurisdictions that are seen to be compliant with international fisheries conservation measures.

The effect of this complex matrix of international regulation is to present the Cook Islands Registry with an opportunity to develop an upmarket, compliant register aimed at fishing vessel owners that wish to fulfil their obligations in terms of the Code of Compliance and other international instruments. This presupposes an effective monitoring and control mechanism to limit the operation of these vessels. This will be an important step towards fulfilling the Government's policy of broadening the economy as it sets the stage for more direct and indirect investment in the Cook Islands (An example of which has been highlighted elsewhere in this report).

Some of the problems of exerting control have been described above, as well as the various measures currently taken or in the process of development to ensure the full compliance of Cook Islands vessels. We believe that good progress has been made in this regard as confirmed by:

· No Cook Islands vessel has ever been identified as IUU.

· Increased interest in the Cook Islands Registry by fishing vessel owners.

· Our recent removal from the ITF list of FOCs, after several years' inclusion.

Future developments relating to high seas fishing, domestic fishing and the registry

In the Cook Islands we recognise that there are still numerous tasks for us to address in order to fully comply with international requirements. Yet there will always be things for any State to achieve if they are to remain a competent and compliant jurisdiction.

Some of the things we seek to address are as follows.

The introduction of new legislation (i.e. new Marine Resources Act) aims to enable the Cook Islands to more adequately fulfill its obligations under international law, specifically in the areas of Flag State responsibility and control of nationals on the high seas. The draft Act also introduces more severe penalties for fisheries infringements, and the requirement for high seas fishing authorizations. It is anticipated the Act will be passed at the next sitting of Parliament in November this year.

In addition, a revised Shipping Act and a new Admiralty Act are currently being drafted to address the particular private law issues addressed previously and also to homogenise the shipping legislation with the new Marine Resources Act. New regulations will include the adoption and implementation of a safety Code for Fishing Vessels.

Other objectives include:

· To formalize the relationship between MCI (the Registry) and MMR (Marine Resources), through an MOU.

· To strengthen port inspections both domestically and internationally.

· To improve certification/hygiene standards (e.g. EU and HACCP) standards - this will require either a) additional legislation, or b) amendments to existing health legislation.

· Formal inter-government agreements regarding testing and approval of fisheries products especially in relation to EU exports.

· Ratification of the Western and Central Pacific Tuna Convention at the PrepCon hosted in the Cook Islands next week.