flag States

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A new IUU fishing control tool for flag states

Pew has published a Flag State Performance Assessment tool this month. The main aim of this new instrument is to help flag States self-assess their domestic legal frameworks so that they can identify strengths and weaknesses in their law and policy frameworks to regulate the activities of fishing vessels in the high seas and in the exclusive economic zones of other States. The tool enables users to identify and map certain rules and processes that, together, enable and help support and shape the powers and actions of flag state authorities, especially those that need a clear and comprehensive legal basis, such as those related to the oversight of fishing activity.

The tool comes in the form of a questionnaire, which is divided into six modules, which contain a range of performance indicators in respect of different fishing vessel governance categories. The modules are: Registration and Due Diligence, Authorisation and Licensing, Catch and Operation Reporting, Monitoring Control and Surveillance, Infractions and Sanctions, and International Cooperation). It can be used with or without a simple weighting method to enable comparison and measure progress through periodical assessments. The questionnaire can be accessed and downloaded through Pew’s website: https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2023/04/new-flag-state-performance-assessment-tool-aims-to-help-countries-combat-illegal-fishing

Beyond its main function of enabling the identification of specific IUU fishing control performance indicators, the questionnaire also has the potential to support flag States in strengthening their efforts to combat IUU fishing in a number of ways. Firstly, as the questionnaire has been developed on the basis of global international treaties and voluntary instruments, it can support the implementation of existing international rules and guidelines. It also enables mapping of the existing domestic rule framework and of changes occurring over time, and supports periodical re-assessments in a way that is objective and methodical, and can help promote legal accessibility and certainty. Some parts of the questionnaire are also designed to strengthen transparency in the domestic IUU control system and to help build cooperation procedures and practices, both domestically and internationally.

The questionnaire is not, and should not be seen as, a silver bullet to remedy weaknesses and failures to control IUU fishing, and in particular it will not be able to replace the political will and financial and technological investment that many states need to become truly effective distant water vessel governance actors. Nevertheless, it should assist in ensuring that key legal building blocks for such endeavour are in place. It is often an overlooked fact that national authorities depend on adequate legal bases to be able to exercise powers, particularly when it comes to surveillance and sanctioning, without which IUU fishing control can simply not take place.

At the same time, national legal frameworks for IUU fishing control also need specific rules that bind individuals and companies to certain obligations, as well as certain protections. With this in mind, the questionnaire contains several indicator categories that are present in each module. One of the categories relates to the powers and obligations of state authorities, and another one to the obligations and rights of individuals and companies. The third one refers to procedural indicators with a function of enhancing transparency through information and rule accessibility and enhanced legal certainty.

Although ideally the questionnaire should be used internally by the authorities of flag States wishing to improve their IUU fishing control performance, it can also be downloaded and used by independent third parties- interested in engaging in the assessment. Nevertheless, the breadth of rules and processes that the questionnaire covers makes it likely that some form of flag State assistance might be required in fully scoping existing national laws and regulations.

This instrument has benefitted from input by many experts from academia, industry, and government throughout its long development. I have had the privilege of assisting with its elaboration and having seen its evolution, maturation, and testing, I very much hope that it will serve to strengthen flag State regulation, and enhance key information and procedural transparency in the areas where it is most needed.

Mercedes Rosello, Leeds, 2023.

Photo credit: House of Ocean
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Should States be internationally accountable for illegal and excessive fishing?

The global marine fisheries industry relies on harvesting limited living resource and requires careful regulation in order to prevent over-exploitation of fish stocks, but some characteristics of the sector make regulation extremely challenging. Factors such as the dual role of the State as ocean steward and economic actor and the policy of competitive open access to high seas resources adopted by the international community have resulted in important governance weaknesses.

One of the most pernicious consequences of inadequate governance is the pervasive presence of Illegal, Unreported and Unregulated (IUU) fishing. IUU fishing is a major contributor to overfishing and a significant obstacle to sustainability. Its effects extend beyond causing damage to fish stocks and the marine environment: IUU fishing has also been linked to organised crime and food insecurity. It has also been recognised as intrinsically damaging to the industry itself and to the global economy at large.

The international community, aware of the need for conservation and concerned that IUU fishing may have become a chronic industry malaise, has made a sustained legislative effort to clarify how shared marine resources should be managed and protected. As part of this trend, the conservation responsibilities of nations whose fishing vessels harvest the oceans beyond the boundaries of their Exclusive Economic Zones have been reinforced and clarified. But in spite of legislative developments IUU fishing and irresponsible overexploitation continue to be rampant.

It has been argued that the sustainable expansion of international law can only be supported by a corresponding development of structures and processes of legal accountability (Jutta Brunee, 2006). In light of this assertion, legislation to define the responsibilities of fishing nations should have been developed alongside associated accountability mechanisms. Has this been observed by international legislators in the context of global fisheries?

There is an emerging debate on the extent to which flag States should be held responsible for the IUU fishing activities of vessels flying their flags and the extent of their liability (Palma, Tsameny and Edeson, 2010). Despite the nebulous nature of State accountability in International Law, it is becoming increasingly important that debate on this subject gathers pace.