11. As an initial step in fulfilling the FAO mandate and developing proposals for the IPOA, a global review of activities undertaken by regional fishery management organizations to deal with the problems of IUU fishing was carried out.
12. This report presents the results of the global review in the form of a summary of the issues related to IUU fishing identified by the regional fisheries bodies and the actions currently being undertaken by them, or which they have proposed, to combat IUU fishing.
2. SUMMARY OF IUU FISHING ISSUES AND RESPONSES
13. The responsibility for implementing an IPOA to curb IUU fishing will rest primarily on States and fishing entities acting individually, or jointly through sub-regional, regional or global agreements and arrangements. It therefore seemed useful to set out this summary in a manner that broadly parallels the way that fisheries conservation and management instruments and arrangements are implemented by these individual and joint actors. Among other things, this reflects the fact that the global survey responses did not propose any significant change to the underlying framework of national and international fisheries management arrangements.
14. The summary is accordingly set out in terms of issues of and responses to IUU fishing, first within the areas of fisheries jurisdiction of coastal States, secondly within the areas of responsibility of regional fisheries bodies, and finally for fishing on the high seas. Many of the issues raised by IUU fishing and the means to address them are common to more than one of these fishing zones, leading to some repetition. However, that reflects the reality of fisheries management. Given the focus of the survey on obtaining replies from regional fisheries bodies, this element will dominate the summary. However, IUU fishing is not confined to the areas of responsibility of regional fisheries bodies alone.
2.2 Economic Motivation for IUU Fishing
15. Responses in the global survey demonstrate the significant economic gains available through IUU fishing. Demand for fish as a healthy, wholesome food is increasing in virtually all parts of the world. In a perverse sense, the more legal fishing is constrained by catch and effort limits &endash; as the overall state of global fish stocks rightly requires in many cases &endash; the greater the motivation for and gains from IUU fishing. Efforts to combat IUU fishing need to recognise this basic fact and be integrated into wider fishery policy developments and initiatives, such as the expansion of legitimate and responsible forms of fishing (including aquaculture), the reduction in fishing vessel capacity and the increasing need to adopt an eco-system approach to the management of fish stocks and related species.
2.3 Barriers to Addressing IUU Fishing
16. In addition to the specific issues identified in the global survey, some broad barriers to combating IUU fishing have emerged. These include the status in international law of third States &endash; those that choose to stay outside regional and global fisheries management instruments &endash; who regard themselves as not bound by such obligations, often to the detriment of the achievement of important fishery conservation and management objectives. The IPOA on IUU fishing may need to consider whether action could be taken to limit this form of international free-riding. Elaborations of Articles 64 and 116-119 of UNCLOS and, when it enters into force, Articles 8, 17 and 18 of the UN Fish Stocks Agreement, may provide the basis for some progressive developments in international law that would seek to address this major issue.
17. Other barriers to combating IUU fishing include potential conflicts between different policy objectives (and the instruments by which they are given effect) and the existence of the "corporate veil" that frequently hides the real beneficial owners of vessels engaged in IUU fishing. In addition, since the formal legal vehicle for implementing fisheries conservation and management measures is almost invariably national legislation or regulation, there can be constitutional or other legal impediments to effective implementation on, for example, the high seas.
2.4 IUU Fishing Within the Fisheries Jurisdictions of Coastal States
18. Each coastal State has the right and duty and, in principle, the legal capacity to effectively manage fisheries within its area of national jurisdiction. However, areas under coastal State jurisdiction can be very large and remote and IUU fishing may be difficult to detect and counter. Curbing IUU fishing in these circumstances therefore depends mainly on ensuring the coastal State has a real capacity to detect such activity, to apprehend the perpetrators and to deal with them under effective domestic laws and regulations. This presupposes the existence of appropriate, effective institutional arrangements and the resources necessary to put them into effect.
19. Many developing countries lack these arrangements and resources. An effective IPOA to address IUU fishing must provide explicitly for action to meet these needs.
20. One country has decided to deny a licence to fish in its coastal jurisdiction to any vessel known to have failed to observe fisheries conservation and management measures on the high seas or in an area of jurisdiction of a regional fisheries body.
21. A major form of illegal fishing within coastal States' jurisdictions is poaching by vessels with no permission to fish there. To address this, States &endash; particularly developing States &endash; need improved surveillance and enforcement (boats, aircraft, satellite coverage, etc). In areas such as west Africa, where poachers can easily move from one country's EEZ to that of another country, regional and sub-regional cooperation can assist. Examples include exchanging information and data on illegal activity, developing and exchanging "black lists" of vessels and owners involved in poaching, developing regionally harmonized legislation and regulations, delegating to and sharing with neighbouring States a State's apprehension and enforcement rights (including the right of hot pursuit), regionally coordinated use of defence force surveillance and apprehension capabilities, and the provision of technical support (and preparation and publication of technical guidelines) by international organizations such as FAO for improving fisheries monitoring, control and surveillance (MCS) including vessel monitoring systems (VMS).
22. The other major form of illegal fishing within coastal States' jurisdictions is non-compliance with the terms of their licences by vessels licensed to fish there (whether flagged to the coastal State or another State). Here, too, the primary need is for more effective MCS, and the approaches mentioned above are relevant in this case as well.
2.4.2 Unreported Fishing
23. This includes unreported, misreported and under-reported fishing. Measures to address this include the more effective and widespread use of observers and VMS (in association with electronic log books), together with stricter rules for use of log books and in-port recording of catch. Regional and sub-regional cooperation, as outlined above, could also provide for harmonized reporting arrangements and the exchange of catch and related information.
2.4.3 Unregulated Fishing
24. In principle, there should be no unregulated fishing of significance within a coastal State's area of jurisdiction. However, lack of detailed knowledge of the area's fishery resources could lead to lack of appropriate regulation, implying that coastal States may require additional resources and, in the case of developing countries, assistance to ensure all significant fish stocks are identified, assessed and regulated. There may also be a need to ensure that any newly exploited fish stocks can be quickly brought under regulation, to avoid the damage that can occur if the new fishery is left open to unregulated "free-for-all" fishing.
2.5 IUU Fishing Within the Jurisdiction of Regional Fisheries Bodies
2.5.1 Illegal Fishing
25. It has been, and remains, a fundamental principle of international law &endash; with a long and respectable history &endash; that States are not bound by treaties to which they are not Party. The consequence, in a regional fisheries conservation and management context, is that non-Parties to regional fisheries agreements cannot be held to be in breach of such agreements. In that sense, they cannot be said to be fishing illegally even if they fish in a manner that is contrary to such an agreement. As noted above, however, there may be a case for developing new norms of international law in which third Party free-riding is no longer possible or at least is heavily proscribed. This could be a longer term objective of an IPOA on IUU fishing, particularly when the UN Fish Stocks Agreement enters into force, giving effect inter alia to Articles 8, 17 and 18.
26. In any case, most non-Parties to regional fisheries agreements are bound by Articles 64 and 116-119 of UNCLOS. An IPOA on IUU fishing could seek to curb illegal fishing by all countries and fishing entities within the meaning of these UNCLOS articles.
27. Illegal fishing also occurs when Parties fail to comply with the conservation and management measures of the regional fisheries bodies.
2.5.2 Unregulated and Unreported Fishing
28. Irrespective of its strict legality, fishing by non-Parties will be unregulated and/or unreported, unless the non-Parties have explicitly agreed to act in conformity with the conservation and management measures of the regional fisheries bodies. It follows that seeking wide scale accession to regional fisheries agreements and/or compliance with their conservation and management measures is the most important action to curb IUU fishing for fisheries within the jurisdiction of regional fisheries bodies.
2.5.3 Action to Curb IUU Fishing
29. Specific action reported in the global review, to address IUU fishing within the jurisdiction of regional fisheries bodies includes:
(a) measures to enhance monitoring, control and surveillance and to penalize non-compliance
- enhance domestic compliance and enforcement instruments (eg, by incorporating the UN Fish Stocks Agreement, FAO Compliance Agreement and FAO Code of Conduct principles and measures into domestic legislation);
- ncrease enforcement and apprehension effort in the regional fisheries bodies and penalize breaches of conservation and management measures (note that many of the measures for improved regional and sub-regional cooperation outlined above in the section on poaching in zones of national jurisdiction could be applicable in this case also);
- implement greater coverage of observers;
- permit inspections of one Party's vessels by inspectors from another Party;
- require Parties to authorize their own vessels to fish in the area of jurisdiction of the regional fisheries body;
- require foreign crew to be licensed by their "home" countries;
- require VMS on all regional fisheries body-authorized vessels;
- adopt and enforce compulsory marking of vessels and gear;
- require mandatory inspection of all non-Party fishing vessels if they enter the port of a Party and provide reports of all such inspections to the regional fisheries body and to all Parties;
- work on the presumption that any non-Party sighted in the regional fisheries body's area is undermining the effectiveness of the body's conservation and management measures and ban landings or trans-shipments of catch in the ports of Parties unless the vessel concerned can establish the catch was taken in a manner consistent with those conservation and management measures;
- develop regional networks of information involving all with an interest in preventing IUU fishing, and improve the collection and reporting of non-Party catches through port monitoring and other catch and import documentation schemes; consider the incentives to timely reporting of non-quota catches when IQ (individual quota) schemes are implemented; in addition, provide for the exchange of information on catches, vessel registration, applicable regulations, etc, between Parties and with relevant international organizations, such as FAO;
- in national legislation, review the relationship between fisheries regulation and Admiralty rules to ensure the Admiralty rules cannot be used in ways that undermine fisheries conservation and management measures and enforcement;3
- provide for criminal penalties and confiscation of assets against nationals responsible for IUU acts in contravention of either domestic or regional fisheries body-based regulations;
(b) measures affecting IUU fishing markets and profitability
- black list vessels and companies not complying with regional fisheries bodies conservation and management measures, ensure they and associated companies do not receive any public funds or other support and persuade private enterprise companies not to purchase fish or fish products from such black listed vessels or companies;
- develop comprehensive criteria for black listing vessels, companies and nationals;
- impose sanctions against all other fishing activities of black listed vessels and companies (and associated companies) known to have been in breach of any regional fisheries body's regulations;
- ensure fish and fish product codes and customs classifications are clear so as to reduce the possibility of misidentification's providing an escape from detection of IUU fishing and from enforcement of appropriate penalties and sanctions;
- reduce fishing vessel over-capacity, particularly for long-line tuna fishing vessels, and take steps to prevent any replacement by new capacity or the transfer of decommissioned vessels to other fishers, including through the implementation of vessel scrapping programs and the payment of compensation to owners whose vessels are being scrapped;
- consider applying forms of control at the "market" stage of the fisheries industry chain (eg, on trading companies, and fish processing and storage companies);
- implement catch documentation/certification schemes and seek non-Party participation;
- ban imports into the territories of all Parties to the regional agreement from named systematically non-complying Parties and non-Parties (this would follow strenuous efforts to persuade the non-complying Party or non-Party to comply and be implemented in the light of well-documented evidence of non-compliance, including from a formal catch documentation scheme);
- request other regional fisheries bodies or countries responsible for adjacent areas to cooperate in combating IUU fishing, particularly with respect to refusal to permit landings and trans-shipments;
(c) measures to enhance flag State control
- seek the widespread ratification and/or compliance by flag States and fishing entities with international instruments aimed at enhancing flag State control, including the UN Fish Stocks Agreement, and the FAO Compliance Agreement and Code of Conduct;
- define the UNCLOS requirement for a genuine link between a flag State and a fishing vessel flying its flag, such that the flag State will have effective control over the vessel through the implementation of specific measures to that effect;
- investigate and implement ways of lifting the corporate veil that frequently hides details of the beneficial ownership of non-complying vessels registered by open register,4 non-Party flag States, and ensure that this information is openly and readily available at reasonable cost, for example through the development of an effective, up to date global fishing vessel registration data base ;
- develop lists of vessels registered by open register, non-Party flag States and of the owners of these vessels and update and publish the lists regularly;
- require flag State licensing of all vessels in the fishery;
- ensure that fishing vessels less than 24 m in length are not able to use the exemptions that apply in some cases to such vessels to enable them to engage in IUU fishing (vessels under 24 m are subject to the FAO Compliance Agreement, unless specifically made exempt);
- in order to reduce the number of fishing vessels flying the flags of States not willing or able to implement effective flag State control, develop and implement strategies and programs to purchase and decommission vessels registered by these flag States;
- ensure that other measures to combat IUU fishing, particularly those aimed at limiting the sale of IUU fish and the profitability of IUU fishing, have particular regard to the need to reduce the level of avoidance of their international obligations to fish responsibly by vessels registered by open register, non-Party flag States;
- reverse the onus of proof such that fishing by vessels registered to open register, non-Party flag States is deemed illegal unless the contrary can be established;
- adopt mandatory port State control to complement and encourage more effective flag State control;
(d) other measures to combat IUU fishing
- establish data recording/reporting programs for catches, by-catches and discards of related species and develop national and regional programs to reduce them; where necessary, amend international agreements with no or inadequate provisions to reduce catches, by-catches and discards of related species;
- establish specific measures to enhance cooperation between regional fisheries bodies and non-Parties;
- undertake coordinated diplomatic demarches to non-complying Parties and non-Parties;
- reverse the onus of proof with respect to all landings of specified fish and fish products (ie that all catches not clearly taken in compliance with regional fisheries bodies conservation and management measures are deemed to be from IUU fishing); and
- to the extent that they are not already provided for in international law, develop a body of rights-based mechanisms to combat IUU fishing, including the right to inspect vessels and catch and to confiscate vessels, catch and fishing gear, and the right to institute proceedings in international courts and tribunals.
2.6 IUU Fishing on the High Seas
30. There is considerable overlap between issues of IUU fishing on the high seas and within areas of jurisdiction of regional fisheries bodies, especially as regional fisheries bodies have largely focused on IUU fishing by non-Parties on high seas parts of the regional fisheries bodies' areas of jurisdiction. To that extent, the issues and proposed responses to curb IUU fishing set out above for areas within the jurisdiction of regional fisheries bodies apply equally to the high seas.
2.6.1 Illegal Fishing
31. Strictly speaking, illegal fishing on the high seas, separate from that already covered above, would be fishing on the high seas contrary to Articles 116-119 of UNCLOS. As suggested in the above reference to these articles, there is a case for the IPOA on IUU fishing to establish longer term action aimed at elaborating practical measures and standards for the implementation of the general high seas fisheries conservation and management obligations. For example, there could be merit in removing any doubt as to the extent that the flag State duties of Part V of the UN Fish Stocks Agreement apply to high seas fishing generally, as well as to straddling fish stocks and highly migratory fish stocks.
32. Regional fisheries bodies have indicated concern that IUU fishing within their areas of jurisdiction can be "hidden" as catch taken on the high seas outside the regional fisheries bodies' jurisdiction. The IPOA on IUU fishing needs to give attention to measures (for recording, reporting, landing, trans-shipping and marketing catch and for the surveillance of fishing operations) that minimize the opportunity for deception of this kind.
33. The action mentioned in paragraph 18 above, in which a country has decided to apply sanctions against vessels known to have fished illegally on the high seas, by denying them licences to fish in its coastal waters and by publishing this information so that other States might take similar action, although affecting fishing within the coastal State's jurisdiction, is designed to discourage IUU fishing on the high seas.
2.6.2 Unreported and Unregulated Fishing
34. UNCLOS Articles 116-119 establish a general duty for States to cooperate in the conservation and management of the living resources of the high seas, and provide for the adoption of total allowable catches and other conservation measures. They also require such measures to be based on the best scientific advice available (Article 119.1(a)), and require the contribution and exchange on a regular basis of scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks.
35. It follows that high seas fishing that is unregulated and/or unreported is contrary to the duty to cooperate in accordance with UNCLOS Articles 116-119.
2.6.3 Action to Curb IUU Fishing on the High Seas
36. The most effective measure to curb IUU fishing on the high seas would be the earliest possible adoption or ratification of, or accession to relevant international fisheries instruments, including the UN Fish Stocks Agreement and the FAO Compliance Agreement and full implementation of the FAO Code of Conduct, by all States engaged in fishing.
37. The full and effective implementation of flag State control and the development of complementary port State control, as outlined above in the section on regional fisheries bodies, would also contribute to a reduction in IUU fishing on the high seas.
38. Consistent with UNCLOS and the UN Fish Stocks Agreement, the IPOA on IUU fishing could propose action to establish new regional fisheries bodies for any fisheries and/or regions not currently covered by a regional fisheries body.
39. Other measures proposed in the global survey responses include (in addition to those already outlined in the above sections that are relevant to high seas fishing):
- all States to maintain registers of vessels licensed to fish on the high seas, and to exchange such information through FAO and other appropriate fisheries organizations;
- consider the possibility of restricting the export of fishing vessels and the transfer of fishing masters to third countries;
- establish a mechanism for the effective sharing and exchange of information about IUU fishing activity on the high seas;
- empower and adequately resource the secretariats of regional fisheries bodies to undertake independent action to collect relevant fisheries information in ports and from vessels, managers, processing facilities and national agencies;
- on a regional or sub-regional basis, harmonize domestic regulations with respect to high seas fishing and develop "model" legislation (or the framework for such legislation) to assist this process; and
- develop a code of conduct for distant water fishing fleets.
2.7 Developing Country Needs
40. Effective implementation of an IPOA to combat IUU will be impossible if suitable, well trained and adequately rewarded personnel with access to appropriate hardware (boats, aircraft, satellite data, communication systems, computer systems and networks, etc) are not available nationally and (where appropriate) regionally to carry out the specific measures in the IPOA. In particular, developing countries have special needs in this regard, both for human and physical resources.
41. Regional cooperation and harmonization, as suggested in this summary, can help to ensure available resources are used as effectively as possible. However, regions and sub-regions with predominantly developing country membership will need particular assistance if the benefits of cooperation and harmonization are to be realized.
1 Collated and Edited by Kevin Bray. This paper was completed while the author worked as a consultant on IUU fishing at FAO, under an arrangement between FAO and Australia. In April 2000, the author is returned to Australia, to the Fisheries and Aquaculture Branch, Agriculture, Fisheries and Forestry-Australia.
Note: Paragraph numbering follows that of the full report
2Doulman, D J, "Illegal, Unreported and Unregulated Fishing: Mandate for an International Plan of Action." (document AUS:IUU/2000/4, 2000).
3 The Fisheries Legislation Amendment Act (No. 1) 1999 of Australia amends the Fisheries Management Act 1991 to make clear that third party interests will not prevail, by virtue of the Admiralty Act 1988, over Australian Government enforcement action.
4 In this paper "open register" is used in preference to "flag of convenience", since the latter term is held by some members of the International Maritime Organization to be incorrect and offensive. A complicating factor is that neither expression has a widely accepted definition.