found difficult to the extent that the term “flags of convenience” has been gradually
replaced by the term “flags of non-compliance.”
On the other hand, the Food and Agriculture Organisation [FAO] has developed
the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported,
and Unregulated Fishing [IPOA-IUU], which requires data on the name and address
of beneficial owner as well as the ownership history of a vessel. Paragraph 18 of the
IPOA-IUU states that:
In the light of relevant provisions of the 1982 UN Convention, and without prejudice to the
primary responsibility of the flag State on the high seas, each State should, to the greatest
extent possible, take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. All States should cooperate to identify those
nationals who are the operators or beneficial owners of vessels involved in IUU fishing.
17
Paragraph 42 of the IPOA-IUU further specifies that a flag State has a positive
obligation to maintain a record of their fishing vessels, and it may include name,
street address, mailing address and nationality of natural or legal persons with
beneficial ownership of the vessel, name and ownership history of the vessel, as
well as history of non-compliance.
18 At least seven Regional Fisheries Management
Organisations [RFMOs] have included a section on ownership in their IUU vessels
lists, even though the lists may not be updated regularly. These regional bodies are
the Commission for the Conservation of Antarctic Marine Living Resources
[CCAMLR], the International Commission for the Conservation of Atlantic Tunas
[ICCAT], the North Pacific Fisheries Commission [NPFC], the Southern Indian
Ocean Fisheries Agreement [SIOFA], the South Pacific Regional Fisheries Management Organisation [SPRFMO], the Western and Central Pacific Fisheries Commission [WCPFC], and the Indian Ocean Tuna Commission [IOTC]. While CCAMLR,
NPFC and SPRFMO list previous owners,
19 SIOFA, WCPFC and IOTC also
include beneficial owners.
20
Lack of a genuine relationship between a flag State and a vessel may also lead to
the flag State’s inability to exercise duties incumbent upon them under international
law. Addressing issues as problematic as IUU fishing should be approached with
compliance in mind. Some scholars argue that sovereign States’ compliance with
international norms would depend on the States’ reputational concerns.
21 Norms
with reputational effects are likely to affect States’ behaviour.
22 This chapter submits
that market-based measures can be tools with reputational consequences that would
inevitably change how States behave. Market-based measures that could identify and
17 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated
Fishing [hereinafter referred as “IPOA-IUU”], para. 18.
18 Id., para. 42.
19 CCAMLR, Non-Contracting Party IUU Vessel List; NPFC, NPFC IUU Vessel List; SPRFMO,
SPRFMO IUU List.
20 SIOFA IUU Vessels List; IOTC, List of IUU Vessels.
21 Downs and Jones (2002), p. 97.
22 Guzman (2002), p. 1885.
124
D. Liliansa
replaced by the term “flags of non-compliance.”
On the other hand, the Food and Agriculture Organisation [FAO] has developed
the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported,
and Unregulated Fishing [IPOA-IUU], which requires data on the name and address
of beneficial owner as well as the ownership history of a vessel. Paragraph 18 of the
IPOA-IUU states that:
In the light of relevant provisions of the 1982 UN Convention, and without prejudice to the
primary responsibility of the flag State on the high seas, each State should, to the greatest
extent possible, take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. All States should cooperate to identify those
nationals who are the operators or beneficial owners of vessels involved in IUU fishing.
17
Paragraph 42 of the IPOA-IUU further specifies that a flag State has a positive
obligation to maintain a record of their fishing vessels, and it may include name,
street address, mailing address and nationality of natural or legal persons with
beneficial ownership of the vessel, name and ownership history of the vessel, as
well as history of non-compliance.
18 At least seven Regional Fisheries Management
Organisations [RFMOs] have included a section on ownership in their IUU vessels
lists, even though the lists may not be updated regularly. These regional bodies are
the Commission for the Conservation of Antarctic Marine Living Resources
[CCAMLR], the International Commission for the Conservation of Atlantic Tunas
[ICCAT], the North Pacific Fisheries Commission [NPFC], the Southern Indian
Ocean Fisheries Agreement [SIOFA], the South Pacific Regional Fisheries Management Organisation [SPRFMO], the Western and Central Pacific Fisheries Commission [WCPFC], and the Indian Ocean Tuna Commission [IOTC]. While CCAMLR,
NPFC and SPRFMO list previous owners,
19 SIOFA, WCPFC and IOTC also
include beneficial owners.
20
Lack of a genuine relationship between a flag State and a vessel may also lead to
the flag State’s inability to exercise duties incumbent upon them under international
law. Addressing issues as problematic as IUU fishing should be approached with
compliance in mind. Some scholars argue that sovereign States’ compliance with
international norms would depend on the States’ reputational concerns.
21 Norms
with reputational effects are likely to affect States’ behaviour.
22 This chapter submits
that market-based measures can be tools with reputational consequences that would
inevitably change how States behave. Market-based measures that could identify and
17 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated
Fishing [hereinafter referred as “IPOA-IUU”], para. 18.
18 Id., para. 42.
19 CCAMLR, Non-Contracting Party IUU Vessel List; NPFC, NPFC IUU Vessel List; SPRFMO,
SPRFMO IUU List.
20 SIOFA IUU Vessels List; IOTC, List of IUU Vessels.
21 Downs and Jones (2002), p. 97.
22 Guzman (2002), p. 1885.
124
D. Liliansa