The historic "genuine link" doctrine, which calls for a connection between the vessel and the flag State, is currently regarded as a basis for securing more effective implementation of the duties of the flag State, rather than a condition for valid registration. This underscores the need to assess the activities of open register fishing fleets, the exercise of control by the flag State and the role of States, RFMOs and the international instruments.
The FOC issue has been addressed in a wide range of international fora. International organizations have been urged to cooperate more closely on the matter and RFMOs encouraged to address FOC fishing activities with greater focus than previously.
The ratification or adoption of post-UNCED international fishery instruments and their implementation in national law is an obvious first step towards addressing fishing by FOC vessels. In addition, initiatives being taken by open register States, RFMOs and non-flag States serve as useful precedent on a practical level. Guidelines for fishing vessel registration and compliance mechanisms could also be developed by FAO under the Code of Conduct for Responsible Fisheries, in collaboration with the International Maritime Organization (IMO) and other agencies and in accordance with the FAO International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).
Collaboration could take into account the genuine link requirement (that States ensure that they can exercise their responsibilities effectively before registering a fishing vessel), and tools developed to date such as an effective information and data base, application process, fishing authorization process and cost-effective monitoring, control and surveillance strategies. Significant fines and other penalties such as deregistration could be reviewed.
Positive motivation for open register States to control their fishing fleets has been successful through the threat of trade sanctions adopted by members of RFMOs. Responses by flag States to the threat of sanctions have included initiating control programs, taking actions against offending vessels and canceling fishing licenses.
Although the number of FOC fishing vessels is increasing, they represent less than 10 percent of the world's fishing fleets. Even at that level, they have a disproportionately negative impact on fisheries conservation and management measures.
International action to secure effective flag State control of fishing vessels is on the rise, as evidenced in a series of post-UNCED international instruments, both binding and voluntary:
- 1993 FAO Compliance Agreement
- 1995 UN Fish Stocks Agreement
- 1995 FAO Code of Conduct for Responsible Fisheries
- 2001 FAO IPOA-IUU
These instruments have progressively strengthened flag State duties and responsibilities, including compliance with applicable laws and international fisheries conservation and management measures. They apply to fishing on the high seas and in areas of national jurisdiction, and respond to practices undercutting sustainable fisheries management such as reflagging vessels to evade controls, undermining international conservation and management measures, illegal fishing in areas of national jurisdiction and unreported fishing.
Actions taken by some RFMOs to implement flag State compliance have met with some compelling successes. Specific measures successfully taken by RFMOs relate to port access and trade. Some RFMOs have adopted action plans or resolutions, created committees to promote compliance and implemented programs to encourage effective flag State control. The trend of increasing cooperation among RFMOs is particularly effective in the campaign to prevent and deter the undermining of conservation and management measures, including by open register vessels.
Some examples of the ways in which RFMOs have generally promoted effective flag State control include implementation of conservation and management measures through their Conventions; implementation by members of the post-UNCED international instruments; membership by open register States; encouraging non-Contracting Parties to adopt laws consistent with the instruments and conservation and management measures; rules requiring authorizations to fish; and exchange of information with non-Contracting Parties, including those from open register States.
Action taken by non-flag States to discourage unregulated activities of FOC vessels can productively complement the initiatives of open register States and RFMOs and can include: restricting the fishing companies registered within their jurisdiction from owning and operating open register fishing vessels; conducting rigorous inspections of open register vessels when landing their catch or re-supplying; and imposing trade or other sanctions if they are the ultimate destination of fish caught by the open register fleets.
Fishing by FOC vessels is not likely to diminish significantly in the short- to medium-terms. Countries operating open registries must be convinced of the need to discontinue the registration of fishing vessels. At the same time all States must strengthen their flag State duties by taking effective control of their flag vessels. Port States, as a means of supporting flag State duties, must adopt fair, transparent and non-discriminatory measures that will serve to deter IUU fishing. The implementation of internationally agreed market-related measures are encouraged to bolster flag State and port State initiatives and the measures taken by RFMOs to try to ensure that their conservation and management measures are not undermined.