Controlling flags of convenience: one measure to stop overfishing of collapsing fish stocks.

Author:Ferrell, Jessica K.
  1. INTRODUCTION II. FLAGS OF CONVENIENCE AND THEIR USE IN IUU FISHING A. Origins of FOCs and ORs B. The Size of the World FOC Fleet C. Effects of FOC-IUU Fishing 1. Species Devastation Fish and Birds 2. Effects on Fishing States with Traditional Vessel Registries D. Detrimental Effects of FOCs Beyond the Fishing Industry 1. Environmental and Economic Effects 2. Labor and Safety Violations III. THE LEGAL FRAMEWORK IN WHICH FOC-IUU VESSELS OPERATE A. International Law and the Law of the Flag 1. Flag State Exclusivity. 2. Customary International Law and Agreements Addressing FOC-IUU Fishing. a. Vessel Registration b. Domestic Legislation Controlling Nationals on the High Seas. c. Enforcement. B. Attempts by the Fish Stocks Treaty and RFMOs to Control FOC-IUU Fishing. 1. Using Enforcement Provisions in the Fish Stocks Treaty to Patrol FOCs 2. CCAMLR's Attempts to Control FOC-IUU Fishing C. Gaps in the Law: General Shortcomings in Existing FOC Enforcement Mechanisms IV. POTENTIAL NEW RULES FOR CONTROLLING FOC-IUU FISHING A. Promoting Flag State Responsibility. 1. Goals of Responsible Flag States 2. Moving Toward a "White List" of Responsible" Registries a. Encouraging Effective Monitoring and Enforcement by Flag States Through Independent Audits of ORs b. Ceding Authority: Where Flag States Lack Resources to Fulfill Their Obligations 3. Encouraging Flag States to Control Their Nationals Through Domestic Legislation B. Reaching the Shipowners 1. Methods to Encourage Flagging in States to Which Shipowners Have a Genuine Link 2. Blacklisting: Use by RFMOs and Port States C. Financial Methods to Discourage FOCs 1. Trade Sanctions 2. Market Measures a. Consumer Boycotts b. Eco-labeling Legally Caught Fish c. New Taxes to Enforce RFMO Quotas D. Enforcement: Diligent Surveillance and Inspection by RFMO Parties and Litigation Against Negligent Flag States 1. Strengthening Existing Conventions with International Agreements 2. Possible Litigation Strategies V. CONCLUSION I. INTRODUCTION

    In August 2003, Australian and South African ships pursued a Uruguayan-flagged trawler, the Viarsa--suspected of poaching Patagonian Toothfish (Dissostichus eleginoides) (1)--for over 3,900 nautical miles. (2) The dramatic Viarsa pursuit highlights the lengths to which states will go to stop illegal, unregulated, and unreported (IUU) fishing (3) and prevent further decimation of the world's collapsing fisheries. (4) About 75 percent of world fisheries are fully exploited, overexploited, or depleted--their maximum sustainable limits exceeded. (5) As of 2002, nearly half of the world's marine stocks offered "no reasonable expectations for further expansion." (6) According to a recent ten-year study on marine fisheries, the biomass of large predatory fish has decreased by 90 percent in the past 50 years. (7) Increasing demand for seafood coupled with an expanding, staggeringly efficient fleet of fishing boats has resulted in overfishing on a massive scale. (8) The toothfish, for example, commands such a high market price that fishers call it "white gold." (9) It is particularly susceptible to overfishing due to its large size, low fertility, and slow rate of growth. (10) Even conservative estimates show that IUU catch accounts for half of the toothfish traded in the 1990s. (11) For every ton of legally caught toothfish, the National Environmental Trust estimates another five to six tons are caught illegally. (12) Scientists warn that toothfish could become commercially extinct by 2007 due to this illegal fishing alone. (13)

    Yet states like Australia, faced with illegal fishing by vessels like the Viarsa, can only pursue illegal fishers within their "exclusive economic zone" (EEZ), (14) an area up to 200 nautical miles of their coast according to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). (15) So long as a vessel is flagged, (16) states other than the flag state generally cannot take any meaningful action for violations outside of their EEZs, because the flag state--the state that registered the vessel (17)--possesses exclusive control over their vessels. (18)

    Although the Geneva Convention on the High Seas and UNCLOS both require a "genuine link" between a state and vessel for registration, (19) the genuine link requirement has proven malleable (20) and open to widely different interpretations; this is evident in domestic ship registration legislation. (21) A number of vessels suffering from declining standards whose flag states disregard safety, pollution, and environmental regulations emerged from "open registries" (ORs) (22)--state vessel registries that do not have strict registration requirements in terms of nationality, safety record, labor practices, or other traditional factors. (23) The flags these vessels fly are commonly known as "flags of convenience" (FOCs): (24) flags of a state whose government sees registration as a service it can sell to foreign vessel owners--not as a method to control its vessels through imposition of its sovereignty. (25)

    Poaching of toothfish, tuna, and other high value species is nothing new, (26) nor is the use of FOCs by poachers to evade regulation and authorities. (27) In a coastal state's EEZ, vessels are subject to that state's rUles and regulations. (28) But on the high seas, flag states possess primary enforcement responsibility. (29)

    Current legal structures fail to control IUU fishing by FOCs (FOC-IUU fishing) on the high seas. (30) UNCLOS allowed coastal states to establish EEZs, (31) which shrank the high seas (32) and weakened the traditional global commons doctrine of the sea. (33) But UNCLOS did not prevent FOC-IUU fishing or provide responsible states any enforcement options on the high seas, and its genuine link requirement seems to have whatever definition that the flag state chooses. (34) Regional fishery management organizations (RFMOs) attempt to fill the gaps left between domestic enforcement and international agreements. (35) Yet monitoring agencies agree that, despite RFMO management, IUU fishing remains a serious threat to toothfish and other species. (36) The following agreements proposed by the United Nations Food and Agriculture Organization (FAO) could enhance RFMO measures to conserve fisheries if they enter into force: The International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing (IPOA-IUU), (37) The Code of Conduct For Responsible Fisheries (Code of Conduct), (38) and The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement). (39)

    The FAO agreements are voluntary (40) and therefore useful primarily as "toolboxes" containing ideas for responsible states. (41) The Code of Conduct provides general guidance on fisheries management, (42) advocating reliance on the best available scientific evidence when setting quotas and other management measures. (43) It also encourages financial institutions not to require fishing vessels to be flagged in any jurisdiction other than the state of beneficial ownership. (44) The IPOA-IUU recommends national legislation address "all aspects" (45) of IUU fishing--a complicated and highly technical task. (46) Its general recommendations include sanctions; (47) economic incentives; (48) improved monitoring, control, and surveillance; (49) national plans of action; (50) and publicity. (51) Especially valuable is the IPOA-IUU's specific delineation of flag, port, and coastal state responsibilities. (52) This allows responsible states to point directly to flag state negligence, strengthening arguments for increased controls of FOC-IUU. The Compliance Agreement addresses FOC-IUU of toothfish specifically, and attempts to change flagging and enforcement laws. (53)

    In combination with the U.N. Straddling and Migratory Fish Stocks Treaty (Fish Stocks Treaty) (54)--which changes enforcement law to allow some high seas enforcement (55) and increases flag state duties over its vessels (56)--the framework provided by these agreements combines new enforcement ideas with methods already used by RFMOs. But ultimately, the current legal framework fails to adequately address FOC-IUU fishing: (57) FOCs are technically legal under the vague parameters provided by UNCLOS. (58) This Comment argues that customary international law is changing--FOCs may not enjoy the protection they do today for much longer. (59) But until this change comes, states must decide whether to allow present rates of overfishing to persist (60)--and complete the destruction of the world's fisheries--or work to end it. The international community must encourage flag states that lack the ability to effectively monitor and sanction their vessels to cede enforcement authority over vessels operating in violation of RFMO agreements on the high seas to an RFMO. (61) In exchange, the flag state will remain on a "white list" of responsible flag states and avoid alienation and blacklisting in commerce, politics, and media. (62) The impacts of FOC use and IUU fishing generally on fish stocks already in "cataclysmic decline" are not disputed. (63) Therefore, states must further cooperate to slow the rate of global fish stock destruction by bringing the FAO agreements into force and vigorously pursuing market-based, diplomatic, and litigious methods to eliminate FOCs. (64) These methods include the following: encouraging flag states to fulfill their duties and effectively monitor their vessels; (65) advocating domestic legislation controlling nationals on the high seas; (66) exerting political pressure on irresponsible flag states and shipowners; (67) blacklisting; (68) independent audits; (69) eco-labeling; (70) tonnage tax changes; (71) consumer boycotts; (72) and inter-state litigation. (73)

    This Comment recommends methods to combat FOC-IUU fishing, one element of IUU fishing, through public and private means. Part II details...

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