States are unwilling or unable to locate and punish the actors who provide the capital
and planning for IUU fishing, thus allowing them to sustain their illicit activities.
Lack of flag State control has long been identified as the root cause of IUU
fishing. This lack of control can be traced back to the disagreement among international communities to provide a definitive meaning to the term genuine link, which
was first found in the Article 5 of the High Seas Convention and later adopted in the
Article 91 of the United Nations Convention on the Law of the Sea [UNCLOS]:
Every State shall fix the conditions for 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.
10
A study by D’Andrea to the history of Article 5 of the High Seas Convention
indicates that ownership was actually the idea behind the genuine link concept, even
though the actual wording did not make it to the final draft.
11 Even though a genuine
link, which is based on actual ownership, will likely facilitate a better enforcement
action against IUU fishing vessels, it does not receive full support from the international community—likely because the practice of open registries has lured a mountain of money in exchange for anonymity of vessel ownership.
Because of the lack of international support, the discussion has turned to the issue
of flag State’s performance in exercising an effective jurisdiction and control over
vessels flying its nationality. In the M/V Saiga case, the International Tribunal for the
Law of the Sea [ITLOS] accepted that a ship owned by a Cypriot, managed by a
Scottish corporation, and chartered to a Swiss company could be legally registered in
Saint Vincent and the Grenadines as long as it met Saint Vincent and the Grenadines’
requirements.
12 Then, in the M/V Virginia G, ITLOS also accepted that an effective
jurisdiction and control of a flag State could be met by delegating technical certificates issuance and annual safety inspections to the third parties.
13 Yet, in its second
advisory opinion, ITLOS held that a flag State holds the responsibility to ensure
compliance by its vessels and its nationals to the coastal State’s conservation
measures,
14 and to ensure that its vessels and nationals are not engaged in IUU
fishing activities.
15 This duty is known as the due diligence obligation of a flag
State,
16 though it has yet to be tested. Ensuring flag States’ compliance has been
10 United Nations Convention on the Law of the Sea, Art. 91(1).
11 D’Andrea (2006), p. 4.
12 The M/V Saiga (No. 2) (St Vincent and the Grenadines v. Guinea), Case No. 2, Order of July
1, 1999, paras. 75–88.
13 The M/V Virginia G (No. 19) (Panama v. Guinea-Bissau), Case No. 19, Order of April 14, 2014,
para. 106.
14 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC)
(Request for Advisory Opinion submitted to the Tribunal), Advisory Opinion, ITLOS Case
No. 21 (April 2, 2015), para. 127.
15 Id., para. 129.
16 Id., para. 128.
7 Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in. . .
123
and planning for IUU fishing, thus allowing them to sustain their illicit activities.
Lack of flag State control has long been identified as the root cause of IUU
fishing. This lack of control can be traced back to the disagreement among international communities to provide a definitive meaning to the term genuine link, which
was first found in the Article 5 of the High Seas Convention and later adopted in the
Article 91 of the United Nations Convention on the Law of the Sea [UNCLOS]:
Every State shall fix the conditions for 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.
10
A study by D’Andrea to the history of Article 5 of the High Seas Convention
indicates that ownership was actually the idea behind the genuine link concept, even
though the actual wording did not make it to the final draft.
11 Even though a genuine
link, which is based on actual ownership, will likely facilitate a better enforcement
action against IUU fishing vessels, it does not receive full support from the international community—likely because the practice of open registries has lured a mountain of money in exchange for anonymity of vessel ownership.
Because of the lack of international support, the discussion has turned to the issue
of flag State’s performance in exercising an effective jurisdiction and control over
vessels flying its nationality. In the M/V Saiga case, the International Tribunal for the
Law of the Sea [ITLOS] accepted that a ship owned by a Cypriot, managed by a
Scottish corporation, and chartered to a Swiss company could be legally registered in
Saint Vincent and the Grenadines as long as it met Saint Vincent and the Grenadines’
requirements.
12 Then, in the M/V Virginia G, ITLOS also accepted that an effective
jurisdiction and control of a flag State could be met by delegating technical certificates issuance and annual safety inspections to the third parties.
13 Yet, in its second
advisory opinion, ITLOS held that a flag State holds the responsibility to ensure
compliance by its vessels and its nationals to the coastal State’s conservation
measures,
14 and to ensure that its vessels and nationals are not engaged in IUU
fishing activities.
15 This duty is known as the due diligence obligation of a flag
State,
16 though it has yet to be tested. Ensuring flag States’ compliance has been
10 United Nations Convention on the Law of the Sea, Art. 91(1).
11 D’Andrea (2006), p. 4.
12 The M/V Saiga (No. 2) (St Vincent and the Grenadines v. Guinea), Case No. 2, Order of July
1, 1999, paras. 75–88.
13 The M/V Virginia G (No. 19) (Panama v. Guinea-Bissau), Case No. 19, Order of April 14, 2014,
para. 106.
14 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC)
(Request for Advisory Opinion submitted to the Tribunal), Advisory Opinion, ITLOS Case
No. 21 (April 2, 2015), para. 127.
15 Id., para. 129.
16 Id., para. 128.
7 Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in. . .
123