94 and 192.
46 Of particular concern in the context of ending IUU fishing has been the
practice of using “flags of convenience” by some fleet owners to create a cover for
IUU fishing.
47
In addition to the work that the FAO has undertaken to address IUU fishing
through the Port State Measures Agreement, the FAO has also sought to improve the
performance of flag states who allow their flag to be used by fishing vessels. In an
area that is sensitive because it raises issues of sovereignty in terms of the right to
register vessels, the FAO has provided a voluntary set of guidelines for State to
measure their performance.
48 States adopting the guidelines should undertake to
apply the content of the guidelines to “fishing and fishing related activities in
maritime areas beyond national jurisdiction” that might including fish packaging,
fish processing, transhipping, fish transport, or provisioning of crew and supplies to
vessels used for “fishing and fishing related activities.”
49 Generally and in keeping
with UNCLOS obligations, flag states adhering to the guidelines are expected to take
“such measures as may be necessary to ensure that vessels flying its flag do not
engage in any activity that undermines the effectiveness of international conservation and management measures” and to ensure that its flagged vessels “do not
conduct unauthorized fishing and fishing related activities within areas under the
national jurisdiction of other States.”
50 More importantly, the guidelines offer
specific indicators of the content of what might constitute a flag’s states’ obligations
of conduct in relation to other States. Within the guidelines, these potential obligations of conduct are grouped into categories including fisheries management, information exchange, registration procedures, maintenance of records, authorization of
fishing activities, monitoring and enforcement, and cooperation with coastal States.
In many cases the Guidelines offer a minimum standard that could over time either
form the basis for a generally accepted international rule or standard under UNCLOS
or become the standard. For example, in relation to fishing authorization, States
should put into place a fishing license regime that requires at least the name of a
vessel, the areas for fishing, the time for fishing, the authorized species and gear, the
“scope” of fishing (e.g. amount of fish that may be taken) and “where appropriate”
reference to any other relevant management measures.
51 If a State expects to be
challenged for a violation of flag state responsibility, a State could look to the FAO
guidelines as a standard against which a State’s obligations of due diligence might be
measured. If a contentious case was to be brought on the matters that ITLOS advised
46 ITLOS Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(2 April 2015), Case No. 21, Advisory Opinion para. 111.
47 Ferrell (2005).
48 FAO Voluntary Guidelines for Flag State Performance (2015). Available at http://www.fao.org/3/
a-i4577t.pdf.
49 Id. at para. 3–4.
50 Id. at Paragraphs 7 and 9.
51 Id. at Paragraph 29.
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A. Telesetsky
46 Of particular concern in the context of ending IUU fishing has been the
practice of using “flags of convenience” by some fleet owners to create a cover for
IUU fishing.
47
In addition to the work that the FAO has undertaken to address IUU fishing
through the Port State Measures Agreement, the FAO has also sought to improve the
performance of flag states who allow their flag to be used by fishing vessels. In an
area that is sensitive because it raises issues of sovereignty in terms of the right to
register vessels, the FAO has provided a voluntary set of guidelines for State to
measure their performance.
48 States adopting the guidelines should undertake to
apply the content of the guidelines to “fishing and fishing related activities in
maritime areas beyond national jurisdiction” that might including fish packaging,
fish processing, transhipping, fish transport, or provisioning of crew and supplies to
vessels used for “fishing and fishing related activities.”
49 Generally and in keeping
with UNCLOS obligations, flag states adhering to the guidelines are expected to take
“such measures as may be necessary to ensure that vessels flying its flag do not
engage in any activity that undermines the effectiveness of international conservation and management measures” and to ensure that its flagged vessels “do not
conduct unauthorized fishing and fishing related activities within areas under the
national jurisdiction of other States.”
50 More importantly, the guidelines offer
specific indicators of the content of what might constitute a flag’s states’ obligations
of conduct in relation to other States. Within the guidelines, these potential obligations of conduct are grouped into categories including fisheries management, information exchange, registration procedures, maintenance of records, authorization of
fishing activities, monitoring and enforcement, and cooperation with coastal States.
In many cases the Guidelines offer a minimum standard that could over time either
form the basis for a generally accepted international rule or standard under UNCLOS
or become the standard. For example, in relation to fishing authorization, States
should put into place a fishing license regime that requires at least the name of a
vessel, the areas for fishing, the time for fishing, the authorized species and gear, the
“scope” of fishing (e.g. amount of fish that may be taken) and “where appropriate”
reference to any other relevant management measures.
51 If a State expects to be
challenged for a violation of flag state responsibility, a State could look to the FAO
guidelines as a standard against which a State’s obligations of due diligence might be
measured. If a contentious case was to be brought on the matters that ITLOS advised
46 ITLOS Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(2 April 2015), Case No. 21, Advisory Opinion para. 111.
47 Ferrell (2005).
48 FAO Voluntary Guidelines for Flag State Performance (2015). Available at http://www.fao.org/3/
a-i4577t.pdf.
49 Id. at para. 3–4.
50 Id. at Paragraphs 7 and 9.
51 Id. at Paragraph 29.
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A. Telesetsky