THE IMPRACTICABILITY EXEMPTION TO THE WCPFC'S PROHIBITION ON TRANSHIPMENT ON THE HIGH SEAS.

• Author: Wold, Chris
• Position: Western and Central Pacific Fisheries Commission

I INTRODUCTION 133 II. THE MOVE TOWARDS TRANSHIPMENT IN PORT 138 III. THE TRANSHIPMENT RULES OF THE WCPFC 140 A. The WCPF Convention 140 B. CMM 2009-06 141 C. Transhipment in Practice 144 IV. OTHER APPROACHES TO DEFINING "IMPRACTICABILITY" AND TO HIGH Seas Transhipment 146 A. The Executive Director's 2013 Approach 147 B. The Secretariat's 2016 Approach 149 C. Transhipment Rules of the Other Tuna RFMOs 151 V. THE CCM'S VIEWS OF "IMPRACTICABILITY" 155 VI. IS TRANSHIPMENT IN THE WCPFC CONVENTION AREA REALLY IMPRACTICABLE? 159 A. Location and Composition of the Catch in the WCPFC Convention Area 160 B. Ports and Port Infrastructure 162 C. The Role of Transhipment Fees and Other Port Costs 166 D. Fuel, Labor, and Other Costs and Trends 168 E. The "Fresh Fish" and "ULT Fish" Exemptions 173 VII. RETHINKING THE IMPRACTICABILITY STANDARD: A PROPOSAL 175 A. Problems with the Impracticability Test 175 B. A New Test: A Presumption Against High Seas Transhipment 178 VIII. CONCLUSION 185 I. INTRODUCTION

The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western Pacific Ocean (WCPF Convention) establishes the Western and Central Pacific Fisheries Commission (WCPFC) (1) to manage tuna and other fish stocks in an area that covers roughly 20% of Earth's surface. (2) The WCPFC includes a mix of Pacific Island States that manage tuna stocks in their jurisdictional waters and rely on tuna as a major economic resource and distant water fishing nations that have historically had short-term economic interests in the fisheries. (3) As a consequence, the WCPFC has found it difficult to manage tuna and other species effectively, with the short-term profit motives often prevailing over a more conservation-oriented approach. (4) For example, Pacific bluefin tuna is now at 2.6% of historic spawning biomass (5) and stock levels for other tuna species appear headed in the same direction. (6)

Fisheries scientists tasked with providing advice to the WCPFC on maximum sustainable yields for fish catches have been challenged to provide this advice (7) for a number of reasons, (8) including "important gaps" in catch, effort, and size composition data. (9) For example, the vessels of some members tranship fish on the high seas to carrier vessels (often referred to as refrigerated vessels or "reefers"), non-fishing vessels with massive capacity to move refrigerated or frozen fish from ocean to port. (10) Most regional fisheries management organizations (RFMOs), like the WCPFC, have identified transhipment at sea--both within waters under national jurisdiction and on the high seas--as a major concern because it is difficult, if not impossible, to monitor. (11) Without effective monitoring, transhipment provides easy opportunities to mix illegal or unreported catch with legal catch, thus allowing illegal operators to "launder" their product. (12) Transhipment at sea has also been implicated in a range of criminal activities, including wildlife trafficking, drug trafficking, human smuggling, and more. (13)

For these reasons, the international community has sought to limit or ban transhipment at sea. (14) The United Nations Fish Stocks Agreement requires flag states to regulate transhipment on the high seas to ensure that the effectiveness of conservation and management measures is not undermined. (15) The United Nations General Assembly has noted "the importance of adequately regulating, monitoring and controlling transshipment at sea to contribute to combating illegal, unreported and unregulated fishing activities." (16) It has called "upon States to take all measures necessary to ensure that vessels flying their flag do not engage in trans-shipment of fish caught by fishing vessels engaged in illegal, unreported, and unregulated [(IUU)] fishing" by monitoring, controlling, and preventing transhipment at sea. (17) The United Nations Food and Agriculture Organization (FAO) Technical Guidelines for Responsible Fisheries state that a high seas transhipment ban would be an effective means of limiting IUU fishing. (18)

The WCPF Convention and the WCPFC have also sought to limit transhipment at sea, but they have established different transhipment rules for purse seine vessels and other fishing vessels. (19) The WCPF Convention expressly prohibits transhipment on the high seas and in a WCPFC Member's territorial sea and exclusive economic zone by purse seine vessels operating within the WCPFC Convention Area. (20) For longliners and other vessels, however, the WCPF Convention only requires WCPFC members and cooperating non-members (collectively known as CCMs) to "encourage their vessels, to the extent practicable, to conduct transshipment in port." (21) Through a binding conservation and management measure (CMM)--CMM 2009-06--the WCPFC prohibits longliners and other vessels from transhipping on the high seas except where CCM has determined that "it is impracticable for certain vessels... to operate without being able to tranship on the high seas." (22) CMM 2009-06 requires WCPFC Members to make vessel-specific determinations as to impracticability and submit a plan detailing the steps being taken to encourage transhipment in port. (23) However, certain CCMs are not implementing either of these duties and transhipment on the high seas has become the norm rather than the exception. (24) Just under 55% of longline and other non-purse vessels are registered to tranship on the high seas (25) and significant amounts of valuable tuna, including 42.2% of bigeye tuna, are transhipped on the highs seas. (26) Clearly, CMM 2009-06 is not effectively reducing transhipment on the high seas.

Moreover, the evidence indicates that transhipment in port is not impracticable. Port infrastructure throughout the region is sufficient to support and supply fishing vessels. (27) The purse seine fleet, which catches a significant amount of fish on the high seas, still manages to tranship in port. (28) At least three longline fleets--those of the European Union, Japan, and the United States--fish on the high seas hundreds of nautical miles from port, yet tranship all (E.U. and U.S.) or most (Japan) of their high seas catch in port. (29) Yet, a large number of high seas transhipments occur just outside the exclusive economic zones (EEZs) of CCMs, (30) about 200 nautical miles from a port, (31) suggesting that these vessels are able to travel a much shorter distance than the E.U., U.S., and Japanese longliners do to tranship in port. It also suggests that they are moving from waters under national jurisdiction to the high seas in order to avoid monitoring by coastal state CCMs. In fact, over the last two years, just three CCMs--China, Chinese Taipei, and Vanuatu--accounted for 84% and 89% of those transhipments in 2015 and 2016, respectively. (32) Moreover, costs associated with transhipment in port are insignificant in relation to the costs of operating a tuna vessel. (33) Fuel and labor costs do not fully explain the impracticability of transhipping in port as overcapacity may play a more significant role as evidenced by the profitability of the Japanese fleet. (34) Given the variables affecting profitability--operational costs, subsidies, over-capitalization--assessing whether transhipment in port causes "significant economic hardship" on a vessel-by-vessel basis is challenging. Even two conditions used to support exemptions from a high seas transhipment ban--the lack of ultra-low temperature (ULT) freezer capacity at some ports (35) and the need to get fresh fish to market--are questionable.

Thus, this Article proposes replacing the "impracticability" test with bright line rules. It begins with a presumption against transhipment on the high seas but allows, at least in the short term, vessel-specific exemptions to tranship ULT frozen fish from a fishing vessel to a carrier vessel with ULT freezer capacity and for fresh fish. However, it directs the WCPFC Secretariat to study whether ports have a shortage of ULT freezer capacity and whether carrier vessels can be placed in various ports to accept ULT frozen fish just as they would on the high seas. It also directs the Secretariat to identify the circumstances under which fresh fish needs to be transhipped in order to maintain a high-quality fish product. In addition, and in sharp contrast to the current regime, vessel-specific exemptions must be approved by the WCPFC; they cannot be unilaterally established. The abject failure of CCMs to comply with the WCPFC's information requirements, including the submission of a plan to encourage transhipment in port, indicates that unilateral decision making should be abandoned. (36) Moreover, to promote the implementation of a plan to encourage transhipment in port, exemptions may not be granted for more than three years. While a CCM may apply for a new exemption for a vessel at the end of the three years, presumably the WCPFC will want evidence that the CCM is implementing its plan before granting the exemption.

Part II of this Article describes the reasons why the international community has moved to limit transhipment at sea, particularly transhipment on the high seas. Part III reviews the rules for transhipment in the WCPFC as well as the current transhipment practices of CCMs. Part IV summarizes two previous Secretariat proposals to revise the impracticability standard as well as the transhipment rules of the four other tuna RFMOs. Part V discusses CCMs' views of the impracticability standard as well as their views of the two Secretariat proposals. Part VI evaluates a number of factors, including location of the catch, port infrastructure and fuel costs, and concludes that transhipment in port is not impracticable. Part VII then recommends the rejection of the impracticability standard and articulates a new test for granting time-limited, vessel-specific exemptions to a ban on high seas transhipment. Part VIII concludes that the WCPFC...