The Effectiveness of the Flag State Measures - Essay Example

and Number of the Teacher’s Effectiveness of Flag Measures versus Port and Trade Measures in Promoting Responsible Fishing Introduction The international community has experienced increasing fishing activity that does not comply with applicable laws and regulations, including the standards set forth in recent international instruments. Examples of such activity include reflagging of fishing vessels to evade controls, fishing in areas of national jurisdiction without authorization by the coastal State, failure to report or misrepresenting the quantity of catches, etc. Such irresponsible fishing activity directly undermines efforts to manage marine fisheries optimally, and impedes progress toward the goal of sustainable fisheries1. Flag state, port state and trade measures are implemented for promoting responsible operations of fisheries. Flag state measures in relation to a fishing vessel, are the rules implemented by the state under whose laws the fishing vessel is registered or licensed. In the case of a fishing vessel that is not registered or licensed under the laws of any state, the term refers to actions taken by the state whose flag the fishing vessel is entitled to ply2. Port state measures refers to the “inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements for international regulations, and that the ship is manned and operated in compliance with these rules”3. Trade measures are trade related tools for improving fisheries management, including measures to monitor and enforce compliance with Regional Fisheries Management Organizations (RFMOs), trade regulation under the Convention on International Trade in Endangered Species (CITES), and other trade-related acts4. The purpose of this paper is to evaluate the effectiveness of flag state measures, in comparison with port state measures and trade measures, for promoting responsible fishing practices. Discussion The issue of Illegal, Unreported and Unregulated (IUU) fishing is being highlighted by the international fisheries policy agenda in recent years. This is because IUU fishing not only undermines the sustainability of fisheries management methodology both domestically and internationally thereby impacting ocean biodiversity, but also has detrimental economic and social outcomes. Hence, ensuring the sustainability of fisheries by promoting responsible fishing, is now being increasingly focused on5. Illegal, unreported and unregulated (IUU) fishing is a growing threat to sustainable fisheries management and marine biodiversity. It occurs in all fisheries whether they are operated in areas under national jurisdiction or on the high seas. A number of international policy instruments that address the management of world fishery resources, also cover the issue of IUU fishing. In spite of the implementation of the agreements, plans and policies, and despite the efforts made by global organizations, by regional bodies and a great number of states, IUU fishing continues to persist. IUU fishing is being covertly carried out in areas under the jurisdiction of multiple states and operate within the areas of competence of several Regional Fisheries Management Organizations (RFMOs). In the combat against IUU fishing, the key feature needs to be cooperation in several dimensions, including: tracing IUU vessels, tracing owners of such vessels, and tracing the fish and fish products derived from such fishing. Moreover, some basic standards for Port State measures should be developed in order to harmonize and facilitate cooperation among states and RFMOs6. Flag State Responsibilities The United States federal as well as state governments have a direct and strong interest in the requirements and significance of the navigation and piloting of foreign-flag as well as U.S.-flag vessels in U.S. navigable waters7. According to Article 92 of the United Nations Convention of the Law of the Sea, UNCLOS, “ships shall sail under the flag of one state only, and save in exceptional cases expressly provided for in international treaties, shall be subject to its exclusive jurisdiction on the high seas”. Generally, the flag state alone can exercise jurisdiction over vessels flying its flag on the high seas8. The jurisdiction of the flag state can be superseded only if the flag state has agreed to it specifically or in cases where the coastal state exercises its right of pursuit for violations of its law and regulations in the Exclusive Economic Zone (EEZ). Another major gap in the implementation of UNCLOS is that if a flag state is unable or unwilling to exercise control over vessels flying its flag, no other State can substitute its own jurisdiction. This occurs frequently with open registries also termed as “flags of convenience” or FOCs. These allow vessel owners to register under a state that they know will not enforce conservation and management measures. The use of flags of convenience is wide-spread, allowing large numbers of vessels to display internationally agreed fisheries conservation efforts. Registration under an FOC may allow the vessel owner to circumvent completely, the existing legal regime, and if the flag state is not a party to the regional or international treaties that regulate fishing, the vessel owner does not technically break the law. Such practices are extremely detrimental to the equity of conservation efforts, since those fleets registered under FOCs in principle have a clear competitive advantage over vessels flying the flag of states that have agreed to the conservation methods, and comply with them. This results in different fleets playing by different rules; and those that are less constrained are more at an advantage economically. They are essentially free riders that benefit from the conservation measures adopted and implemented by others, without having to spend for the costs of such measures9. Additionally, the fact that vessels are registered under open registries, mainly for the sole purpose of avoiding legal complications, is basically in violation of UNCLOS since under Article 91.1, “every state shall fix the conditions of 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”. Article 94 further defines the obligations of the flag state that every state shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. The jurisdiction called for is termed effective, which could be interpreted as meaning that a state should not register a vessel over which it knows it has no chance of exercising control10. Mainly in response to the abuses occurring through use of some open registries or flags of convenience, the member states of the FAO negotiated and adopted an Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the FAO Compliance Agreement). If all flag states complied with their obligations concerning their fishing fleets, Port State Control would be almost superfluous. But this is definitely not the case. The growing trend for the use of “flags of convenience” by fishing vessels, is a matter of particular concern. Flagging and re-flagging of vessels is very easy and takes a few moments on the internet. For example, there are sites offering registration services for named States with a turn-around of twenty-four hours or less. Under international law, the flag state is responsible for ensuring that vessels abide with relevant rules. However, some countries are willing to sell their flag with no questions asked, in exchange for a license fee, while exerting no control over the vessel’s activities. Flags of convenience or FOC is used in relation to states with open shipping registers. To avoid being bound by conservation and management measures, the term FOC would have a wider application, since the problem with IUU stems partly from it being convenien to use certain flags. In principle, states with restricted shipping registers could thus be regarded as FOC in relation to fishing11 The call for Port State measures is closely associated to the lack of Flag State responsibilities. Thus, port state measures are highly relevant for counteracting IUU fishing, and some initiatives have now been taken to address the issue12. The many restrictions on the exercise of the customary international law rule of freedom of the high seas, give rise to exceptions to the rule of exclusive flag state jurisdiction. These exceptions have developed precisely because of failures in the application of exclusive flag state jurisdiction. It is important to understand the parameters of the principle of flag state, to understand why the principle of flag state jurisdiction has failed in the high seas fisheries context. The issue is not unique to high seas fisheries, it pervades every aspect of the law of the sea relating to high sea uses. The development of non-flag state enforcement of high seas fisheries conservation and management methods is advocated for adoption by Regional Fishing Organizations13. A consequence of the principle of the freedom of the high seas is that no State may appropriate for itself sovereignty over the high seas. This emphasizes the absolute opposite of sovereign claims. In a world of sovereign equal states, this principle leads to the inescapable conclusion of an equal right of user, which necessitates the obligation not to interfere with vessels of other flag states. This obligation to refrain from interference leads inexorably to the principle of exclusivity of flag state jurisdiction. The territoriality of ships was rejected as an inaccurate basis on which to ground jurisdiction. To ensure that all states could effectively exercise their equal freedom, some basis on which to ensure its regulation was needed. The practical approach required retention of the flag state as the state with control over and responsibility for vessels on the high seas. Thus, while the underlying theoretical rationale for the rule may have changed, the principle of exclusive flag state jurisdiction remained. However, the exclusivity of flag state jurisdiction is not absolute. The principle is one of primacy of flag state jurisdiction, unless a contrary rule applies. It cannot preclude the development of customary exceptions which bind all states or conventional exceptions which are binding on the states. Thus new contrary rules or exceptions to the primary rule may emerge; and the burden of establishing such contrary rules or exceptions will be high 14. Port State Responsibilities Port State Control (PSC) has been developed based on seven of the most important conventions in the international regulatory framework. This was in reaction to the generally-held belief that many flag states are unable to adequately perform their mandated duties of ensuring that ships flying their flag comply fully with international safety standards formulated under the auspices of the International Maritime Organization and the International Labour Organization. PSC is merely a complement, not a substitute, to effective maritime safety administration by the flag state. While it was originally intended as an interim measure, developments in international enforcement indicate that PSC is here to stay15. Illegal, Unreported and Unregulated (IUU) fishing requires the use of port for landing and trans-shipment. Unwittingly, some states allow their ports to be used for this purpose, thereby facilitating IUU fishing. Other States, either individually or in cooperation with other States have begun to limit and regulate access to their ports, towards controlling IUU fishing. Increasing the strength and coordination of Port State measures, will be necessary. A State has full sovereignty with respect to ports in its territory, as recognized by international law, and has the power to deny port access to vessels registered in other States16. The Port State measures for a State include prohibition of vessels registerd in other States from landing or trans-shipping fish in its ports. Vessels seeking port access would need to provide information relating to their identity and activities. Vessels that are voluntarily in one of the ports, have to be inspected. Port State measures for the purpose of promoting compliance with fishery conservation and management standards are now considered as both a duty and a right17. On the other hand, registration with “flags of convenience” may assist an IUU vessel owner to avoid being caught by the existing legal regime, and if the flag state is not a part of the regional or international treaties that regulate fishing, the vessel owner is able to escape being apprehended. Such practices which adversely impact the equity of conservation efforts, are occurring only because of lack of adequate controlling devices in Flag State measures. A port state can implement some control measures even before vessels enter its ports. Foreign fishing vessels seeking port access should provide reasonable advance notice of their entry into port, a copy of their authorization to fish, and details of their fishing trip and quantities of fish on board. By obtaining this information in advance, a port state will be able to determine whether the vessel has engaged in or supported IUU fishing. For example, a port state may have received earlier notice from another state or from a RFMO that a particular vessel was sighted fishing in a closed area or using prohibited fishing gear. This will help to identify such a vessel beforehand and deny it access to the port, or grant it access but subject it to a thorough inspection while in port18. Only where the port has capability to conduct vessel inspections, should foreign fishing vessels be permitted access to the port. Some of the significant information that would be required are: the flag state of the vessel and identification details; name, nationality and qualifications of the master and the fishing. The port state has the right to investigate the credentials of the vessel, and if necessary, prosecute and penalize those responsible for IUU fishing. Even when the suspected IUU fishing may have taken place in waters beyond the jurisdiction of the port state, the port state may take action against the vessel and its operators with the consent of the flag state. At port visits, “enforcement officials should, at the very least board the vessels, examine the logbook and collect other relevant information”19. Though relatively inexpensive to conduct, the inspection would need some training in boarding and inspection techniques. Trade Measures A variety of trade measures are available to achieve a variety of goals, such as to monitor and enforce compliance with Regional Fisheries Management Organizations (RFMO) conservation and management initiatives. Similar objectives are achieved through measures applied to landings and trans-shipments. Survival of traded species need to be ensured through trade measures available to regulate trade. Further trade measures to be implemented are the introduction of ecolabels applied to traded products to inform consumers of the environmental impacts of the fish and fish products they purchase; while creating a rewards system for producers who comply with responsible practices for harvesting and processing. Trade rules may be developed, requiring governments to reduce subsidies to the fishing sector since they cause distortion of trade, obstacles in development, and harm the long-term health of fisheries and related ecosystems. Trade measures should be implemented to protect against invasive species which have a potential to harm target species, related species or the ecosystem. Finally, countries may benefit from taking action to overcome the environmental impacts of their own consumption of fish and fish products. This necessitates taking measures with respect to trade, because a country tends to consume a significant number of products that were produced outside the country’s jurisdiction and whose production had environmental impacts20. Enforcement of rules has always been a problem for regional organizations such as RFMOs. Trade measures are among the most effective enforcement mechanisms available in international law. Hence, RFMOs are increasingly resorting to such measures to help monitor and encourage compliance with agreed conservation measures. Further, consistency has to be ensured between trade rules and fisheries policy. A conflict could arise with trade rules when without a clear multilateral basis, a country applies a regulation or market-based mechanism to import fish products as a means of achieving more ecologically responsible fisheries practices. A distinction based on production and processing methods (PPM) would be involved in such a regulation. The problem is that non-product related criteria such as PPM-based regulatory distinctions, are not favored under World Trade Organization rules21. “The fact that regional states have introduced trade restrictions only when non- or less restrictive measures have failed enhances their World Trade Organization (WTO) compatibility”22. This is similar to the move from unilateral to multilateral measures and the increase in transparency, openness and target-state involvement. These features do not reduce the effectiveness of regional trade measures, they minimize tension with trade commitments and help regional states grow in power in the struggle to combat IUU fishing. Conclusion This paper has compared the effectiveness of flag state, port state and trade measures for the purpose of promoting responsible fishing. It is found that if flag state measures were more stringently applied, there would be no requirement for port state measures. Trade measures are found to achieve several significant goals for improving fisheries operations. Concurrent with the establishment and implementation of these policies, it is also important to achieve extensive cooperation among all the States for successfully preventing IUU fishing. Implementation of measures in the future to increase mutual assistance among States, would prove to be beneficial. Cooperation through monitoring, control and surveillance activities by all States are required, since vessels engaged in IUU fishing often move in and out of areas which are under the jurisdiction of multiple States and operate on the high seas as well. Further, cooperation among the States involved is necessary to determine the identities of those who control the IUU fishing operations, whose nationalities are normally different from those of the fishing vessels, and to ensure that they are subjected to penalties. Moreover, cooperation between exporting and importing states is necessary to deny market access to fish harvested through IUU fishing. Cooperation among states can be achieved by their participation in Regional Fisheries Management Organizations, sharing of relevant information, providing assistance to developing States, as well as establishing points of contact through designated persons23. Works Cited Cariou, Pierre, Mejia Jr, Maximo Q. & Wolff, Francois-Charles. On the effectiveness of port state control inspections. Transportation Research Part E, 44 (2008): 491-503. De Fontaubert, Charlotte & Lutchman, Indrani. Achieving sustainable fisheries. The United Kingdom: International Union for Conservation of Nature (IUCN) Publications. 2003. FAO Fisheries Dept. (Food and Agricultural Organization, Fisheries Department). Implementation of the international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing. FAO Technical Guidelines for Responsible Fisheries. No.9. Rome, Food and Agricultural Organization. 2004. Retrieved on 29th October, 2008 from: ftp://ftp.fao.org/docrep/fao/005/y3536e/y3536e00.pdf IMO (International Maritime Organization). Port state control. 2002. Retrieved on 30th October, 2008 from: http://www.imo.org/Facilitation/mainframe.asp?topic_id=159 NRC (National Research Council). Minding the helm. The United States: National Academies Press. 1994. OECD (Organization for Economic Cooperation and Development). Fish piracy. The United States of America: OECD Publishing. 2004. OECD (Organization for Economic Cooperation and Development). Flag state for fishing vessel. 2002. Retrieved on 30th October, 2008 from: http://stats.oecd.org/glossary/detail.asp?ID=1001 Rayfuse, Rosemary G. Non-flag state enforcement in high seas fisheries. Martinus Nijhoff Publishers. 2004. Stokke, Olav S. Trade measures and the combat of IUU fishing: institutional interplay and effective governance in the northeast Atlantic. Marine Policy (2008): 1-11. Read More