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What is the UN Convention on the Law of the Sea?
The convention was negotiated from 1973 to 1982 and became legally binding in 1994. It is an attempt by the international community to regulate our use of the ocean and maintain its resources. This includes conservation and management of living marine resources and protection of the marine environment. Unfortunately, the convention offers little guidance on migratory and straddling stocks, such as tuna, and simply calls for vague cooperation with international organisations.
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There are international laws to prevent illegal, unregulated and unreported (IUU) or pirate fishing. Unfortunately pirate fishers are able to get around these laws.
The principle legislation governing the high seas is the United Nations Convention on the Law of the Sea. It contains three concepts which have become three loopholes for pirate fishers:
1) the authority of flag states;
2) the freedom of the high seas;
3) non-signatory exemptions (states are only bound by treaties to which they consent).
These loopholes allow vessels to fish anytime, anywhere (subject only to treaty obligations and coastal states' rights), answerable only to regulations of the flag state to which they are registered.
The loopholes have allowed distant water fishers to cover all corners of the globe. As a result of their overfishing more than 71 per cent of world fish stocks are now fully exploited, overexploited, depleted or recovering from depletion.
Three loopholes that allow pirate fishing
1) Flag state failures
While the UN Law of the Sea largely relies on flag states to enforce laws and regulate fishing, its definition of flag state obligations is limited and vague. Also, the requirements for a "genuine link" between vessels and their flag state are minimal and undefined. Unfortunately, many flag states authorise vessels to fly their flags and then fail, or do not try, to implement their international obligations.
Pirate fishing companies take advantage of the flag state authority and operate their vessels under flags of non-compliance that fall roughly into two categories:
- Rogue states which support their pirate operations despite often being signatories to regional fishing management organisations (RFMOs);
- Flag states with open registries which are not usually members of RFMOs and therefore are not bound by their provisions and refuse to implement their flag state obligations.
States offering flags of convenience operate on the margins. As they are usually not party to fisheries management organisations or agreements such as the FAO Compliance Agreement or UN Fish Stocks Agreement, they are beyond the reach of international law. They are an external threat to the management of fisheries.
Rogue states, on the other hand, are both an external and internal threat. As they are sometimes actively involved on regulatory bodies, they may undermine or sabotage efforts to control pirate fishing or overfishing. Rogue states such as Russia make little attempt to enforce regulations and support pirate fishers by authorising suspect catch documentation (allowing pirates to launder their catch).
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Flags of convenience
Flags of convenience allow a vessel to fish virtually anywhere on the high seas with impunity. Pirates buy flags of convenience from "open registries" that have few or no limitations on accepting foreign vessels and make little pretence of any genuine link to the vessel. These registries offer a loophole around many regulations.
Initially, companies and individuals took advantage of flags of convenience to evade tax and/or reduce safety requirements, tariffs, labour requirements and other shipping regulations. However, as regional fisheries management organisations developed, unscrupulous fishing vessel owners began to reflag under flags of convenience to avoid fishing regulations or limitations on catch.
Because these flag states do not usually belong to regional fisheries management organisations, they are not bound by their decisions and regulations. Therefore, they allow pirates flying their flags to continue their destructive activities.
Flags for sale
Find out how to obtain a flag of convenience is as easy and quick as a few taps on the keyboard. Any notion of genuine link is cynically put aside for a few dollars and registration is sometimes provided within 24 hours.
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2) Freedom of the high seas
The Law of the Sea's second loophole, the freedom of the high seas, allows open access to fisheries, creating a "tragedy of the commons". Unregulated use of a common resource invariably leads to overexploitation and mutual loss.
The tragedy of the commons occurs as individuals try to maximise their gain from a common resource. They increase their exploitation of the common, believing that subsequent gain will go wholly to them, while any loss caused by overexploitation of the common will be shared among all users.
If individual fishers limit their catch to a sustainable level, they believe this saving will only benefit a more aggressive fisher. They feel that, acting alone, they are powerless to halt the destruction of the fishery. This creates an incentive for each individual to increase their exploitation without limit, from a resource that is limited. IUU fishers subscribe to this view and destroy the resource while legal fishers obey the rules.
3) Non-signatory exemptions
The third key loophole is that states are only bound by treaties to which they have consented. This limits the sanctions available to concerned states and means that RFMOs "cannot bind non-signatories, and signatory states are bound to respect flag State rights under the 1982 Convention no matter how disreputable their activities may be".i
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Georgia: A new pirate in the Pacific
A new flag of non-compliance that is causing increasing concern in the Pacific is Georgia. Lloyd's Registry of Ships currently lists 64 Georgian flagged vessels, an increase from 29 in 2001. In the corruption perspective index 2003 by Transparency International, Georgia was placed 127 on a list of 133 surveyed countries.
Record of piracy convictions and suspicious activities:
Shang Yih No.6, a Georgia flagged vessel, was arrested in the Cook Islands on 9 December 2002. The longliner was found by a Cook Islands patrol boat about 30 kilometres within the country's exclusive economic zone near Pennryn. The Taiwanese owners Shine Year Maritime SA and Captain Chin Shih Hsu were each fined US$81,200.
PIC Convicted pirate vessel, Georgian flagged Long Man Yun No.666, in Suva harbour April 2004 |
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Long Man Yun No.666, a Georgia flagged vessel (previously Cambodia), was arrested in American Samoa on October 2002 and was observed in Fiji in April 2004, together with the Georgia flagged Kuo Feng No.11 and Taiwan flagged Kuo Feng No.16. All these vessels had discharged in Pago Pago and refueled in Suva.
In May 2004 another Georgia flagged vessel arrived in Suva, the Rezeki Abadi. This vessel has Indonesian links with Taiwanese business interests.
The European Union banned imports of tuna and swordfish from Georgia in April 2004 because Georgian fishing activities undermined international conservation efforts and sustainable management of these species. It appears that the Pacific has become their new hunting ground as enforcement is more difficult.
Most of the above Georgian vessels are unknown to Lloyd's, apart from Long Man Yun No.66 and Fu Lien No.1. Only one vessel is registered with the Forum Fisheries Agency (Sheng Yin No.688, which is not on Lloyd's Register of Ships).
This implies that there must be many more vessels from Georgia whose operations are vague and most likely IUU related. Georgia is a strong example of the need to blacklist flag states whose vessels engage in IUU or pirate fishing.
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Repairing the loopholes: Further agreements
Since the Law of the Sea came into force, there have been efforts to tighten up flag state controls and improve management of migratory stocks and the high seas. This led to the negotiation of three instruments with special relevance to pirate fishing in the Pacific:
- FAO Compliance Agreement;
- United Nations Fish Stocks Agreement;
- International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).
These agreements allow regulators to build on the Law of the Sea and fence out IUU fishers. They repair many of the loopholes in the Law of the Sea and increase the scope and detail of oceans governance. However, there are problems.
FAO Compliance Agreement
The Compliance Agreement was adopted by the United Nations Food and Agricultural Organisation (FAO) and came into force on 24 April 2003ii. A binding agreement, it tackles the responsibilities of flag states, requiring parties to ensure that their flagged vessels do not undermine the effectiveness of international conservation and management measures and do not fish on the high seas unless expressly authorised to do so.
Unfortunately, the agreement has not been widely accepted and is limited to those states which have consented to it, that is, states that already act within existing laws. Flag states of non-compliance have been predictably slow to ratify.
United Nations Fish Stocks Agreement
The United Nations Fish Stocks Agreement (UNFSA) came into force on 11 December 2001iii and imposes further obligations on flag states (albeit only those which consent). UNFSA is a binding agreement which lays down important provisions. It requires parties to ensure their vessels comply with subregional and regional conservation and management measures and do not engage in any activity which undermines the effectiveness of such measures.
UNFSA also introduces important new measures:
- It obligates parties to abide by the regulations of all regional fisheries management organisations (RFMOs), whether they are signatories to the organisations or not. Parties cannot authorise their vessels to fish in RFMO waters unless they are a member of that RFMO and ensure their vessels abide by all regulations.
- It allows boarding and inspection on the high seas within a RFMO's boundary by vessels flagged to other parties to UNFSA and including inspectors from parties to the relevant RFMO.
"This is as close as international law gets to curbing the otherwise sacrosanct rights of flag states and, at least in this respect, starts to place illegal fishing on a par with such obnoxious activities as slavery and piracy."iv
Stopping the High Seas Robbers, S Upton and V Vitalis
As with the Compliance Agreement, this impressive new agreement only applies to signatories. Predictably, flag of non-compliance are not rushing to ratify.
The International Plan of Action to Prevent, Deter and Eliminate Illegal, Unregulated and Unreported Fishing (IPOA-IUU)
The final relevant instrument is the non-binding IPOA-IUU which was endorsed by the FAO Council on 23 June 2001v. The IPOA-IUU recommends good practice and calls upon states to adopt national plans of action to combat IUU fishing.
It describes highly detailed measures to halt IUU fishing, including improved control of nationals to ensure they do not engage in IUU fishing, tougher requirements for vessel authorisations and registers, port state controls to restrict IUU landings, and market-related measures to prevent IUU catch from being traded or imported.
The IPOA-IUU may become binding nationally, through legislation, or regionally by an RFMO Paragraph 25 of the IPOA-IUU calls for the adoption of national plans of action by mid-2004.
In June, the FAO convened a meeting at its Rome headquarters to assess progress towards implementation of the IPOA on IUU fishing and the IPOA on overcapacity of fishing vessels. According to FAO reports at the meeting, IUU fishing is worsening and there are still too many fishing vessels in a large number of fisheries, with negative consequences for commercial fish stocks.
Summary
Despite these three treaties, IUU fishing continues to rise in some regions. The failure of recent efforts to tackle IUU fishing reveals that the problem lies with the Law of the Sea (and the associated legal norms in which it operates) and the inability of multilateral processes to sign up all relevant parties and effectively implement regulations. The three key weaknesses of international law stop the three subsequent sagreements from halting IUU fishing.
i Upton, Simon and Vitalis, Vangelis, (2003) 'Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing on the High Seas,' OECD at http://www.oecd.org?dataoecd/15/16/16801381.pdf
ii FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. Rome, 24 November 1993. http://www.fao.org/waicent/faoinfo/fishery/agreem/complian/complian.htm
iii Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 11 December 2001. http://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm
iv Upton, Simon and Vitalis, Vangelis, (2003) 'Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing on the High Seas,' page 7. OECD at http://www.oecd.org?dataoecd/15/16/16801381.pdf
v FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU). Rome. 2 March 2001. http://www.fao.org/DOCREP/003/y1224e/y1224e00.htm
