LEGAL TOOLS FOR MONITORING AND ENFORCING SHARK MANAGEMENT MEASURES

		Shark Conference 2000 Online Documents Honolulu, Hawaii February 21-24
Sponsored By: The Barbara Delano Foundation The Homeland Foundation The David & Lucile Packard Foundation The AVINA Foundation	Presented By: WildAid Hawaii Audubon Society Pacific Fisheries Coalition
LEGAL TOOLS FOR MONITORING AND ENFORCING SHARK MANAGEMENT MEASURES
Linda M. B. Paul Hawaii Audubon Society Email: [email protected] UN Convention on the Law of the Sea (1982) (in force November 1994) In 1982 the United Nations Convention on the Law of the Sea⁽¹⁾ (UNCLOS) assigned jurisdiction over the bulk of marine fishery resources to the coastal states by establishing 200 mile Exclusive Economic Zones (EEZs) (Part V). Although UNCLOS provides that the freedom to fish on the high seas is subject to "treaty obligations"(Article 116(a)) and the rights and duties as well as the interests of the coastal States as provided for in provisions dealing with straddling stocks (Article 63(2)), highly migratory species (Article 64), marine mammals (article 65), anadromous stocks (Article 66) and catadromous species (Article 67), just how "the interests of the coastal States" were supposed to be accommodated was not spelled out. UNCLOS came into force in November 1994. As of August 1999 132 States had become parties. The Cancun Declaration (1992) The 1992 Cancun Declaration⁽²⁾, adopted by the International Conference on Responsible Fishing, presented a comprehensive concept of "responsible fishing", which encompassed the 1) sustainable utilization of fisheries resources in harmony with the environment, 2) use of practices not harmful to ecosystems, resources, or their quality, 3) incorporation of added value to fish products processed according to required standards, and the conduct of commercial practices providing high quality. "Responsible fishing" applies equally to the EEZs and the high seas. The 1992 FAO Technical Consultations on High Seas Fisheries in Rome agreed on the need for accurate and complete statistical reporting on fisheries in all waters, particularly on high seas fisheries, including data on catches of targeted species and discards by area and by gear. The International Code of Conduct for Responsible Fisheries (1993) The International Code of Conduct for Responsible Fisheries⁽³⁾, adopted by the FAO Conference on 4 November 1993, and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas⁽⁴⁾, approved by the FAO Conference on 24 November 1993, came out of Chapter 17 of Agenda 21 and the 1992 Declaration of Cancun. The objectives of the Code and the Compliance Agreement are to 1) establish principles in accordance with the relevant rules of international law for responsible fishing and fishing activities, 2) serve as an instrument of reference to help States establish or improve the legal and institutional framework required for the exercise of responsible fisheries, and 3) provide standards of conduct for all persons involved in the fisheries sector. The Code's general principles include the following: 1) States and users should use selective and environmentally safe fishing gear and practices, and should minimize waste, catch of non-target species, and impacts on associated or dependent species; 2) States should ensure that timely, complete and reliable statistics on catch and fishing effort are collected and maintained; 3) States should ensure compliance with and enforcement of conservation and management measures; 4) States authorizing fishing and fishing support vessels to fly their flags should exercise effective control over those vessels; 5) States should ensure that no unauthorized vessel fish within areas of national jurisdiction; 6) States should implement effective fisheries monitoring, control, surveillance and law enforcement measures, including where appropriate observer programs, inspection schemes and vessel monitoring systems; 7) flag States should maintain records of fishing vessels entitled to fly their flag and authorized to be used for fishing and should indicate in such records details of the vessels, their ownership and authorization to fish. Such vessels should carry on board the Certificate of Registry and their authorization to fish. The Compliance Agreement The Compliance Agreement, which was created to deter the practice of re-flagging of vessels to avoid compliance with conservation and management rules for fishing activities on the high seas, is an integral part of the Code and a binding instrument. It spells out flag State responsibilities, including requiring a genuine link between the flag State and the fishing vessel. The Compliance Agreement provides inter alia that "No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exists between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel." (Article II para 3) Twenty five acceptances are required for it to come into force. As of February 1999, 14 States and one entity had ratified the Compliance Agreement, including Argentina, Canada, the European Community, Mexico, and the United States. The United States implemented the Agreement in the High Seas Fishing Compliance Act of 1995.⁽⁵⁾ In March 1999, the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries was adopted unanimously by the FAO Ministerial Meeting on Fisheries. The ministers pledged to develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying "flags of convenience". The meeting was attended by 126 members of FAO, including China, Japan, and North and South Korea. FAO International Plans of Action (1999) In February 1999 the FAO Committee on Fisheries adopted International Plans of Action (IPOA) within the framework of the Code of Conduct, for the Conservation and Management of Sharks, the Management of Fishing Capacity, and Reducing Incidental Catch of Seabirds in Long-line Fisheries. IPOA-SHARKS calls for countries to develop by the year 2001 national plans of action to ensure that direct and indirect shark catches are sustainable. The aim of the FAO initiative is the full use of dead sharks, the minimization of waste and discards from shark catches, the minimization of unutilized incidental catches of sharks, the improvement of biological and trade data collection, and the implementation of harvesting strategies consistent with the principles of biological sustainability and rational long-term use. IPOA-SHARKS applies to all States in the waters of which sharks are caught by their own or foreign vessels and to States the vessels of which catch sharks on the high seas. National implementation is progressing. The U.S. Secretary of Commerce has taken major steps to implement the FAO initiative, including prohibiting finning in the Atlantic, Gulf and Caribbean U.S. EEZ unless the entire shark is utilized. NMFS has stated that the full utilization policy should apply to all U.S. waters. The Australian Seafood Industry Council has published on the Web a Code of Conduct for Responsible Seafood Industry that sets out principles and standards of behavior for responsible practices in the seafood industry. Canada is in the process of developing a Canadian code of Conduct for Responsible Fisheries Operations. The Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement (1995) In 1992 the United Nations Conference on Environment and Development (UNCED) requested the UN General Assembly to convene a conference to address the management of straddling and highly migratory fish stocks, which it did (Resolution 47/192). The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 2023 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement)⁽⁶⁾ was opened for signature on 4 December 1995. The Fish Stocks Agreement was intended to flesh out the general provisions related to fisheries in UNCLOS and serve as a framework for subsequent regional fisheries agreements. The Agreement contains eight parts (50 articles) and two annexes. Part II covers application of general principles of conservation and management, including application of the precautionary approach (taking action despite inadequate information), the duty of coastal States to seek appropriate measures and to cooperate; the duty of coastal States and States fishing on the high seas to develop compatible measures; settlement of disputes over measures and provisional arrangements pending negotiations or dispute settlement. Part III covers mechanisms for international cooperation, including consultations, a framework for regional or sub regional fisheries management organizations or arrangements (scope, functions, membership and participation, transparency, information exchange, scientific and technical cooperation), and guidelines for establishing cooperative management for enclosed and semi-enclosed seas and areas of high seas surrounded entirely by an area under the national jurisdiction of a single State. Part IV covers the duty of non members in regional management organizations [and other fishing entities] to cooperate in the conservation and management of stocks managed by the organization, not to authorize their flag vessels to fish those stocks, and to exchange information. Part V specifies the duties of the flag state, stating that a State's authorization to fly its flag shall be commensurate with its ability to exercise control over the ship flying it. Part VI covers compliance and enforcement by the flag state including measures for international, regional and subregional cooperation, procedures for boarding and inspection and measures to be taken by the port State. The compliance and enforcement measures in Part VI continue the process of qualifying access to high seas fishing resources that was begun by UNCLOS. In addition to tying access to stocks to participation in conservation and management measures (Article 17), Article 19 specifies in order to ensure that its flag vessels comply with regional and subregional measures States shall (a) enforce such measures irrespective of where violations occur; (b) immediately and fully investigate any alleged violation of such measures; (c) require its vessels to give information to the investigating authority regarding vessel position, catches, fishing gear, fishing operations and related activities in the area of an alleged violation; (d) if satisfied that there is sufficient evidence, refer the case without delay to its authorities with a view to instituting proceedings in accordance with its laws and, where appropriate, detain the vessel concerned; and (e) ensure that where a vessel has been involved in the commission of a serious violation, it does not engage in fishing operations on the high seas until all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. The intent of the Agreement is to deprive offenders of the benefits of illegal activities. However, the severity of the penalties is still subject to national laws, and in some States the penalties are minimal. The Fish Stocks Agreement also includes some non flag State enforcement powers. For example, States Parties which are members of regional or subregional fisheries management organizations may deter vessels that have engaged in activities that undermine the effectiveness of the organization's conservation and management measures on the high seas until such time as appropriate action is taken by the flag State (Article 20(7). A port State has the right and duty to take certain measures such as inspect documents, fishing gear and catch on board fishing vessels when such vessels are voluntarily in its ports or at its offshore terminals (Article 23(2)). A port State may adopt regulations prohibiting landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas (Article 23(3)). This is an extension of the port State enforcement provisions of UNCLOS, which allowed port State enforcement only with respect to pollution discharges. However, State sovereignty over ports and territorial waters, as well as customary international law, particularly that created by the International Maritime Organization's family of treaties, and the practices of States, have established the right of a State to enforce generally accepted international rules and standards when a vessel voluntarily enters its ports and offshore terminals. The Fish Stocks Agreement also allows States Parties which are members of a regional or subregional fisheries management organizations to board and inspect fishing vessels flying the flag of a State Party, whether or not the flag State is a member of the organization for purposes of ensuring compliance with conservation and management measures (Article 21). The boarding and inspection procedures of the organization must be consistent with the basic procedures set out in Article 22. The authorized inspectors are required to secure evidence of the alleged violation and promptly notify the flag State, which must respond in three days. Where there are clear grounds for believing that a vessel has committed a serious violation and the flag State has failed to respond or take action, the vessel may be taken to the nearest appropriate port by the inspecting State. Article 21 therefore provides a method for dealing with illegal fishing practices by vessels flying flags of convenience. The boarding and inspection procedures also apply to stateless vessels. A serious violation means: (a) fishing without a valid license, authorization or permit issued by the flag State; (b) failing to maintain accurate records of catch and catch-related data, as required by the management organization, or serious misreporting of catch, contrary to the organization's catch reporting requirements; (c) fishing in a closed area, during a closed season, or without a quota; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; (i) such other violations as may be specified in procedures established by the management organization. Implementation of the Fish Stocks Agreement As of 30 September 1999, 58 states plus the European Union had signed the Fish Stocks Agreement, but only 24 had ratified, including the United States of America, Canada, Norway, the Russian Federation, and eight Pacific island states. Entry into force requires the ratification or accession of 30 States. However, it has been implemented by several regional fishery management organizations, including the Inter American Tropical Tuna Commission (IATTC), the International Whaling Commission (IWC), the Northeast Atlantic Fisheries Commission (NEAFC), the Indian Ocean Tuna Commission (IOFC), the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), and the International Commission for the Conservation of Atlantic Tunas (ICCAT). Although China, Japan, the Republic of Korea have not yet ratified, they are members of many of these regional organizations, are currently participating in negotiations over a draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean that is based on the Fish Stocks Agreement, and are expected to honor its provisions. The Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean In 1995 the Multilateral High Level Conference (MHLC) began negotiations for a new regional commission to manage tuna stocks in the Central and Western Pacific with the Fish Stocks Agreement serving as a framework for the draft Convention. The commission's area of jurisdiction will pick up roughly where the IATTC's leaves off. However, in the course of negotiating the MHLC agreement, several issues have surfaced. For example "fishing vessels" are not defined in the Fish Stocks Agreement and the question arose whether the boarding and inspection provisions apply to transshipment vessels at sea. Although a port State may address transshipments, a port State's jurisdiction may be limited to its 12-mile territorial sea. To address this problem, in the latest draft of the Convention, 15 September 1999, MHLC/WP.1/Rev.4, "fishing vessel" is defined as "any vessel used or intended for use for the purpose of fishing, including support ships, carrier vessels and any other vessel directly involved in such fishing operations." "Fishing" is defined as including "any operations at sea directly in support of, or in preparation for, any activity described in subparagraphs (I) to (v), including transhipment." "Transhipment" is defined as "the unloading of all or any of the fish on board a vessel to another vessel either at sea or in port." The draft Convention also mandates that "no member of the Commission shall allow any fishing vessel entitled [emphasis added] to fly its flag to be used for fishing for highly migratory fish stocks in the Convention Area beyond its area of national jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of that member." This provision appears to authorize a member State to exercise jurisdiction over vessels that have a genuine link with a member State but are flying a flag of convenience. Article 24(8) of the draft Convention also mandates the use of vessel monitoring systems (VMS), stating that "[e]ach member of the Commission shall require its fishing vessels that fish for highly migratory fish stocks on the high seas in the Convention Area to use near real-time satellite position-fixing transmitters while in such areas." The transmitting route is not fixed and some distant water fishing States are insisting that information from their flag vessels should be sent to them first, asserting national sovereignty concerns. However, this is clearly not the most effective enforcement route where non complying flag States are concerned. In areas under national jurisdiction the transmitters must be operated in accordance with the standards, specification and procedures of the coastal State. The draft Convention does not reiterate the enforcement cooperation articles of the Fish Stocks Agreement, which include the provision that allows members to take action against offending vessels if the flag State does not take action. However, if the member State has adopted the framework Fish Stock Agreement its provisions should apply to the Convention area as well. Details regarding boarding and inspection procedures have been delegated to the new Commission. Transhipment at sea is allowed only in accordance with the terms and conditions set out in Annex II, Article 4. Annex II sets forth the terms and conditions for fishing and Article 4 requires the operator of a vessel engaged in transhipment at sea to comply with any procedures established by the Commission to verify the quantity and species transhipped. Enforcement of Shark Management Measures Pending the entry into force of the legal instruments outlined above, fishing activity continues to be governed by customary international law, regional and bilateral agreements, and national legislation. Under customary international law, nations have a duty to protect and conserve marine resources for present and future generations. World production of capture fisheries production remaining stable at 93.3 million tonnes in 1997. An effective, workable, sustainable global fisheries management regime requires that all participants participate and cooperate fully, fairly and openly. Current information indicates that this is not happening. The Flag State Enforcement Regime The problem with the regime of flag State control over fishing vessels can be illustrated by the operations of high seas longline vessels. A typical scenario is the following: the vessel flies the flag of Country A, sometimes without permission, sometimes as a flag of convenience, the master and officers come from Country B, the crew comes from Countries C and D and may have been conscripted, the catch is sold in Country E, and the hull is owned and the trip is financed by unidentified entities. Enforcement responsibility is assumed by none of the above. The vessels may not come into port for two years or more, transhipping their catch and resupplying at sea. The catch, not to mention the bycatch, is often unreported or under reported. Vessels may keep double sets of fishing logs. The names, numbers and locations of vessels may be misreported. Vessel monitoring systems, if any, may be unplugged, broken, or dumped overboard to avoid location detection. Unauthorized fishing by foreign longline vessels in the EEZs of coastal States is common. Foreign vessels have been caught poaching in just about every EEZ in the Pacific Basin and vessels have been impounded by Argentina, Australia, Indonesia, Malaysia, Philippines, South Africa and Vietnam, as well as the United States. On 17 August 2023 the USCG seized a Mexican vessel fishing for sharks in the U.S. EEZ in the Gulf of Mexico. The case was turned over to Mexico for prosecution. Enforcement Tools Needed Illegal fishing practices are not going to significantly diminish without full and independent observer coverage and regular inspections of both logbooks and catch at sea and at dockside, including free trade zones. In instances where time and/or area closures make sense as a management technique to protect particular populations of sharks, vessel monitoring systems (VMS) or automatic location communicators (ALCs) that transmit the real time locations via satellites are installed on all vessels and monitored by regional management agencies. The FFA operates a system for its 16 member States. These systems are also used by the U.S., the IATTC, CCAMLR, the NAFO, and in the Bering Sea donut hole. Port States could require VMS on all foreign fishing vessels entering their waters. It is a cost effective enforcement method ($800/vessel for a 5000 vessel system) that has reduced the need for aerial and ship surveillance. In the U.S. NMFS-owned VMS equipment is installed on 120 Hawaii pelagic longline vessels on a voluntary basis, with the equipment linked to on-board personal computers. Currently, VMS data can only be used to alert enforcement personnel of possible violations and before a case can be submitted for prosecution, VMS readings must be corroborated by other means. Because of the success of VMS the USCG is now focusing patrols on intrusions of foreign vessels in the U.S. EEZ. VMS could also be used to transmit catch and effort data in real time to improve fisheries management capacity. In addition to VMS, however, there is still a need to check logbooks and compare them with the catch, both on the dock and at sea. Underlogging of the catch is the most frequent infraction next to fishing in closed areas without a permit. That may change in the MHLC area, however, if allocations are based on catch histories. Observers from regional management organizations are needed on every vessel, including transhipment vessels, to ensure accurate catch reports. Vessels and gear also need to be marked for ease of identification. The FFA cooperative management program includes VMS, a regional register for fishing vessels, standardized vessel log sheets, cooperative observer training, and sharing of scientific information. The FAA countries and distant water fishing nations have several bilateral and multilateral access agreements that provide for observer programs, transhipment arrangements, high seas reporting and association responsibilities. It would also be useful if the Pacific Basin States would implement a uniform "Lacey Act" that would allow them to prosecute illegal fishing activities that violate the regulations of any State or regional management organization. The U.S. Lacey Act⁽⁷⁾ makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law. Penalties also need to be uniform and large enough to serve as a deterrent, however, confiscated vessels can create problems. If sold, they may end up back in the fishery. One solution would be to require that the purchasers equip them with VMS. When some foreign fishing vessels were caught fishing in waters belonging to the Northern Mariana Islands, the court settlement agreement required that VMS be installed on the vessels. Cooperative training and enforcement agreements are very helpful, as are customs agreements to help stop the trade and laundering of illegally caught sharks and fins. The U.S. is currently finalizing cooperative enforcement agreements with the governments of Guam and the Northern Mariana Islands. The U.S. Coast Guard is also working on a Combined Operations Manual to assist Central Pacific Basin Cooperation for Regional Non-Defense Maritime Security. Its purpose is to provide a framework for cooperation and coordination among maritime safety and security agencies acting on behalf of their respective States against numerous threats to the non-defense maritime security of the region. Endnotes 1. UNCLOS. 1982. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982. Reprinted in I.L.M. 21:1261 (1982). 2. U.N. GAOP Doc. A/CONF.151/15, annex. 3. www.fao.org/fi/agreem/codecond/ficonde.asp 4. Reprinted in I.L.M. 33:968 (1994). 5. 16 United States Code section 5501 et seq. 6. Reprinted in I.L.M. 34:1542 (1995). 7. 16 United States Code section 3372.

Shark Conference 2000
Online Documents
Honolulu, Hawaii February 21-24

Sponsored By:
The Barbara Delano Foundation
The Homeland Foundation
The David & Lucile Packard Foundation
The AVINA Foundation

Presented By:
WildAid
Hawaii Audubon Society
Pacific Fisheries Coalition

LEGAL TOOLS FOR MONITORING AND ENFORCING SHARK MANAGEMENT MEASURES

Linda M. B. Paul
Hawaii Audubon Society
Email: [email protected]

UN Convention on the Law of the Sea (1982) (in force November 1994)

In 1982 the United Nations Convention on the Law of the Sea⁽¹⁾ (UNCLOS) assigned jurisdiction over the bulk of marine fishery resources to the coastal states by establishing 200 mile Exclusive Economic Zones (EEZs) (Part V). Although UNCLOS provides that the freedom to fish on the high seas is subject to "treaty obligations"(Article 116(a)) and the rights and duties as well as the interests of the coastal States as provided for in provisions dealing with straddling stocks (Article 63(2)), highly migratory species (Article 64), marine mammals (article 65), anadromous stocks (Article 66) and catadromous species (Article 67), just how "the interests of the coastal States" were supposed to be accommodated was not spelled out. UNCLOS came into force in November 1994. As of August 1999 132 States had become parties.

The Cancun Declaration (1992)

The 1992 Cancun Declaration⁽²⁾, adopted by the International Conference on Responsible Fishing, presented a comprehensive concept of "responsible fishing", which encompassed the 1) sustainable utilization of fisheries resources in harmony with the environment, 2) use of practices not harmful to ecosystems, resources, or their quality, 3) incorporation of added value to fish products processed according to required standards, and the conduct of commercial practices providing high quality. "Responsible fishing" applies equally to the EEZs and the high seas. The 1992 FAO Technical Consultations on High Seas Fisheries in Rome agreed on the need for accurate and complete statistical reporting on fisheries in all waters, particularly on high seas fisheries, including data on catches of targeted species and discards by area and by gear.

The International Code of Conduct for Responsible Fisheries (1993)

The International Code of Conduct for Responsible Fisheries⁽³⁾, adopted by the FAO Conference on 4 November 1993, and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas⁽⁴⁾, approved by the FAO Conference on 24 November 1993, came out of Chapter 17 of Agenda 21 and the 1992 Declaration of Cancun. The objectives of the Code and the Compliance Agreement are to 1) establish principles in accordance with the relevant rules of international law for responsible fishing and fishing activities, 2) serve as an instrument of reference to help States establish or improve the legal and institutional framework required for the exercise of responsible fisheries, and 3) provide standards of conduct for all persons involved in the fisheries sector.

The Code's general principles include the following: 1) States and users should use selective and environmentally safe fishing gear and practices, and should minimize waste, catch of non-target species, and impacts on associated or dependent species; 2) States should ensure that timely, complete and reliable statistics on catch and fishing effort are collected and maintained; 3) States should ensure compliance with and enforcement of conservation and management measures; 4) States authorizing fishing and fishing support vessels to fly their flags should exercise effective control over those vessels; 5) States should ensure that no unauthorized vessel fish within areas of national jurisdiction; 6) States should implement effective fisheries monitoring, control, surveillance and law enforcement measures, including where appropriate observer programs, inspection schemes and vessel monitoring systems; 7) flag States should maintain records of fishing vessels entitled to fly their flag and authorized to be used for fishing and should indicate in such records details of the vessels, their ownership and authorization to fish. Such vessels should carry on board the Certificate of Registry and their authorization to fish.

The Compliance Agreement

The Compliance Agreement, which was created to deter the practice of re-flagging of vessels to avoid compliance with conservation and management rules for fishing activities on the high seas, is an integral part of the Code and a binding instrument. It spells out flag State responsibilities, including requiring a genuine link between the flag State and the fishing vessel. The Compliance Agreement provides inter alia that "No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exists between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel." (Article II para 3) Twenty five acceptances are required for it to come into force. As of February 1999, 14 States and one entity had ratified the Compliance Agreement, including Argentina, Canada, the European Community, Mexico, and the United States. The United States implemented the Agreement in the High Seas Fishing Compliance Act of 1995.⁽⁵⁾ In March 1999, the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries was adopted unanimously by the FAO Ministerial Meeting on Fisheries. The ministers pledged to develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying "flags of convenience". The meeting was attended by 126 members of FAO, including China, Japan, and North and South Korea.

FAO International Plans of Action (1999)

In February 1999 the FAO Committee on Fisheries adopted International Plans of Action (IPOA) within the framework of the Code of Conduct, for the Conservation and Management of Sharks, the Management of Fishing Capacity, and Reducing Incidental Catch of Seabirds in Long-line Fisheries. IPOA-SHARKS calls for countries to develop by the year 2001 national plans of action to ensure that direct and indirect shark catches are sustainable. The aim of the FAO initiative is the full use of dead sharks, the minimization of waste and discards from shark catches, the minimization of unutilized incidental catches of sharks, the improvement of biological and trade data collection, and the implementation of harvesting strategies consistent with the principles of biological sustainability and rational long-term use. IPOA-SHARKS applies to all States in the waters of which sharks are caught by their own or foreign vessels and to States the vessels of which catch sharks on the high seas. National implementation is progressing. The U.S. Secretary of Commerce has taken major steps to implement the FAO initiative, including prohibiting finning in the Atlantic, Gulf and Caribbean U.S. EEZ unless the entire shark is utilized. NMFS has stated that the full utilization policy should apply to all U.S. waters. The Australian Seafood Industry Council has published on the Web a Code of Conduct for Responsible Seafood Industry that sets out principles and standards of behavior for responsible practices in the seafood industry. Canada is in the process of developing a Canadian code of Conduct for Responsible Fisheries Operations.

The Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement (1995)

In 1992 the United Nations Conference on Environment and Development (UNCED) requested the UN General Assembly to convene a conference to address the management of straddling and highly migratory fish stocks, which it did (Resolution 47/192). The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 2023 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement)⁽⁶⁾ was opened for signature on 4 December 1995. The Fish Stocks Agreement was intended to flesh out the general provisions related to fisheries in UNCLOS and serve as a framework for subsequent regional fisheries agreements. The Agreement contains eight parts (50 articles) and two annexes.

Part II covers application of general principles of conservation and management, including application of the precautionary approach (taking action despite inadequate information), the duty of coastal States to seek appropriate measures and to cooperate; the duty of coastal States and States fishing on the high seas to develop compatible measures; settlement of disputes over measures and provisional arrangements pending negotiations or dispute settlement. Part III covers mechanisms for international cooperation, including consultations, a framework for regional or sub regional fisheries management organizations or arrangements (scope, functions, membership and participation, transparency, information exchange, scientific and technical cooperation), and guidelines for establishing cooperative management for enclosed and semi-enclosed seas and areas of high seas surrounded entirely by an area under the national jurisdiction of a single State. Part IV covers the duty of non members in regional management organizations [and other fishing entities] to cooperate in the conservation and management of stocks managed by the organization, not to authorize their flag vessels to fish those stocks, and to exchange information. Part V specifies the duties of the flag state, stating that a State's authorization to fly its flag shall be commensurate with its ability to exercise control over the ship flying it. Part VI covers compliance and enforcement by the flag state including measures for international, regional and subregional cooperation, procedures for boarding and inspection and measures to be taken by the port State.

The compliance and enforcement measures in Part VI continue the process of qualifying access to high seas fishing resources that was begun by UNCLOS. In addition to tying access to stocks to participation in conservation and management measures (Article 17), Article 19 specifies in order to ensure that its flag vessels comply with regional and subregional measures States shall (a) enforce such measures irrespective of where violations occur; (b) immediately and fully investigate any alleged violation of such measures; (c) require its vessels to give information to the investigating authority regarding vessel position, catches, fishing gear, fishing operations and related activities in the area of an alleged violation; (d) if satisfied that there is sufficient evidence, refer the case without delay to its authorities with a view to instituting proceedings in accordance with its laws and, where appropriate, detain the vessel concerned; and (e) ensure that where a vessel has been involved in the commission of a serious violation, it does not engage in fishing operations on the high seas until all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. The intent of the Agreement is to deprive offenders of the benefits of illegal activities. However, the severity of the penalties is still subject to national laws, and in some States the penalties are minimal.

The Fish Stocks Agreement also includes some non flag State enforcement powers. For example, States Parties which are members of regional or subregional fisheries management organizations may deter vessels that have engaged in activities that undermine the effectiveness of the organization's conservation and management measures on the high seas until such time as appropriate action is taken by the flag State (Article 20(7). A port State has the right and duty to take certain measures such as inspect documents, fishing gear and catch on board fishing vessels when such vessels are voluntarily in its ports or at its offshore terminals (Article 23(2)). A port State may adopt regulations prohibiting landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas (Article 23(3)). This is an extension of the port State enforcement provisions of UNCLOS, which allowed port State enforcement only with respect to pollution discharges. However, State sovereignty over ports and territorial waters, as well as customary international law, particularly that created by the International Maritime Organization's family of treaties, and the practices of States, have established the right of a State to enforce generally accepted international rules and standards when a vessel voluntarily enters its ports and offshore terminals.

The Fish Stocks Agreement also allows States Parties which are members of a regional or subregional fisheries management organizations to board and inspect fishing vessels flying the flag of a State Party, whether or not the flag State is a member of the organization for purposes of ensuring compliance with conservation and management measures (Article 21). The boarding and inspection procedures of the organization must be consistent with the basic procedures set out in Article 22. The authorized inspectors are required to secure evidence of the alleged violation and promptly notify the flag State, which must respond in three days. Where there are clear grounds for believing that a vessel has committed a serious violation and the flag State has failed to respond or take action, the vessel may be taken to the nearest appropriate port by the inspecting State. Article 21 therefore provides a method for dealing with illegal fishing practices by vessels flying flags of convenience. The boarding and inspection procedures also apply to stateless vessels.

A serious violation means: (a) fishing without a valid license, authorization or permit issued by the flag State; (b) failing to maintain accurate records of catch and catch-related data, as required by the management organization, or serious misreporting of catch, contrary to the organization's catch reporting requirements; (c) fishing in a closed area, during a closed season, or without a quota; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; (i) such other violations as may be specified in procedures established by the management organization.

Implementation of the Fish Stocks Agreement

As of 30 September 1999, 58 states plus the European Union had signed the Fish Stocks Agreement, but only 24 had ratified, including the United States of America, Canada, Norway, the Russian Federation, and eight Pacific island states. Entry into force requires the ratification or accession of 30 States. However, it has been implemented by several regional fishery management organizations, including the Inter American Tropical Tuna Commission (IATTC), the International Whaling Commission (IWC), the Northeast Atlantic Fisheries Commission (NEAFC), the Indian Ocean Tuna Commission (IOFC), the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), and the International Commission for the Conservation of Atlantic Tunas (ICCAT). Although China, Japan, the Republic of Korea have not yet ratified, they are members of many of these regional organizations, are currently participating in negotiations over a draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean that is based on the Fish Stocks Agreement, and are expected to honor its provisions.

The Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean

In 1995 the Multilateral High Level Conference (MHLC) began negotiations for a new regional commission to manage tuna stocks in the Central and Western Pacific with the Fish Stocks Agreement serving as a framework for the draft Convention. The commission's area of jurisdiction will pick up roughly where the IATTC's leaves off. However, in the course of negotiating the MHLC agreement, several issues have surfaced. For example "fishing vessels" are not defined in the Fish Stocks Agreement and the question arose whether the boarding and inspection provisions apply to transshipment vessels at sea. Although a port State may address transshipments, a port State's jurisdiction may be limited to its 12-mile territorial sea. To address this problem, in the latest draft of the Convention, 15 September 1999, MHLC/WP.1/Rev.4, "fishing vessel" is defined as "any vessel used or intended for use for the purpose of fishing, including support ships, carrier vessels and any other vessel directly involved in such fishing operations." "Fishing" is defined as including "any operations at sea directly in support of, or in preparation for, any activity described in subparagraphs (I) to (v), including transhipment." "Transhipment" is defined as "the unloading of all or any of the fish on board a vessel to another vessel either at sea or in port."

The draft Convention also mandates that "no member of the Commission shall allow any fishing vessel entitled [emphasis added] to fly its flag to be used for fishing for highly migratory fish stocks in the Convention Area beyond its area of national jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of that member." This provision appears to authorize a member State to exercise jurisdiction over vessels that have a genuine link with a member State but are flying a flag of convenience. Article 24(8) of the draft Convention also mandates the use of vessel monitoring systems (VMS), stating that "[e]ach member of the Commission shall require its fishing vessels that fish for highly migratory fish stocks on the high seas in the Convention Area to use near real-time satellite position-fixing transmitters while in such areas." The transmitting route is not fixed and some distant water fishing States are insisting that information from their flag vessels should be sent to them first, asserting national sovereignty concerns. However, this is clearly not the most effective enforcement route where non complying flag States are concerned. In areas under national jurisdiction the transmitters must be operated in accordance with the standards, specification and procedures of the coastal State.

The draft Convention does not reiterate the enforcement cooperation articles of the Fish Stocks Agreement, which include the provision that allows members to take action against offending vessels if the flag State does not take action. However, if the member State has adopted the framework Fish Stock Agreement its provisions should apply to the Convention area as well. Details regarding boarding and inspection procedures have been delegated to the new Commission. Transhipment at sea is allowed only in accordance with the terms and conditions set out in Annex II, Article 4. Annex II sets forth the terms and conditions for fishing and Article 4 requires the operator of a vessel engaged in transhipment at sea to comply with any procedures established by the Commission to verify the quantity and species transhipped.

Enforcement of Shark Management Measures

Pending the entry into force of the legal instruments outlined above, fishing activity continues to be governed by customary international law, regional and bilateral agreements, and national legislation. Under customary international law, nations have a duty to protect and conserve marine resources for present and future generations. World production of capture fisheries production remaining stable at 93.3 million tonnes in 1997. An effective, workable, sustainable global fisheries management regime requires that all participants participate and cooperate fully, fairly and openly. Current information indicates that this is not happening.

The Flag State Enforcement Regime

The problem with the regime of flag State control over fishing vessels can be illustrated by the operations of high seas longline vessels. A typical scenario is the following: the vessel flies the flag of Country A, sometimes without permission, sometimes as a flag of convenience, the master and officers come from Country B, the crew comes from Countries C and D and may have been conscripted, the catch is sold in Country E, and the hull is owned and the trip is financed by unidentified entities. Enforcement responsibility is assumed by none of the above. The vessels may not come into port for two years or more, transhipping their catch and resupplying at sea. The catch, not to mention the bycatch, is often unreported or under reported. Vessels may keep double sets of fishing logs. The names, numbers and locations of vessels may be misreported. Vessel monitoring systems, if any, may be unplugged, broken, or dumped overboard to avoid location detection.

Unauthorized fishing by foreign longline vessels in the EEZs of coastal States is common. Foreign vessels have been caught poaching in just about every EEZ in the Pacific Basin and vessels have been impounded by Argentina, Australia, Indonesia, Malaysia, Philippines, South Africa and Vietnam, as well as the United States. On 17 August 2023 the USCG seized a Mexican vessel fishing for sharks in the U.S. EEZ in the Gulf of Mexico. The case was turned over to Mexico for prosecution.

Enforcement Tools Needed

Illegal fishing practices are not going to significantly diminish without full and independent observer coverage and regular inspections of both logbooks and catch at sea and at dockside, including free trade zones. In instances where time and/or area closures make sense as a management technique to protect particular populations of sharks, vessel monitoring systems (VMS) or automatic location communicators (ALCs) that transmit the real time locations via satellites are installed on all vessels and monitored by regional management agencies. The FFA operates a system for its 16 member States. These systems are also used by the U.S., the IATTC, CCAMLR, the NAFO, and in the Bering Sea donut hole. Port States could require VMS on all foreign fishing vessels entering their waters. It is a cost effective enforcement method ($800/vessel for a 5000 vessel system) that has reduced the need for aerial and ship surveillance. In the U.S. NMFS-owned VMS equipment is installed on 120 Hawaii pelagic longline vessels on a voluntary basis, with the equipment linked to on-board personal computers. Currently, VMS data can only be used to alert enforcement personnel of possible violations and before a case can be submitted for prosecution, VMS readings must be corroborated by other means. Because of the success of VMS the USCG is now focusing patrols on intrusions of foreign vessels in the U.S. EEZ. VMS could also be used to transmit catch and effort data in real time to improve fisheries management capacity.

In addition to VMS, however, there is still a need to check logbooks and compare them with the catch, both on the dock and at sea. Underlogging of the catch is the most frequent infraction next to fishing in closed areas without a permit. That may change in the MHLC area, however, if allocations are based on catch histories. Observers from regional management organizations are needed on every vessel, including transhipment vessels, to ensure accurate catch reports. Vessels and gear also need to be marked for ease of identification. The FFA cooperative management program includes VMS, a regional register for fishing vessels, standardized vessel log sheets, cooperative observer training, and sharing of scientific information. The FAA countries and distant water fishing nations have several bilateral and multilateral access agreements that provide for observer programs, transhipment arrangements, high seas reporting and association responsibilities.

It would also be useful if the Pacific Basin States would implement a uniform "Lacey Act" that would allow them to prosecute illegal fishing activities that violate the regulations of any State or regional management organization. The U.S. Lacey Act⁽⁷⁾ makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law. Penalties also need to be uniform and large enough to serve as a deterrent, however, confiscated vessels can create problems. If sold, they may end up back in the fishery. One solution would be to require that the purchasers equip them with VMS. When some foreign fishing vessels were caught fishing in waters belonging to the Northern Mariana Islands, the court settlement agreement required that VMS be installed on the vessels.

Cooperative training and enforcement agreements are very helpful, as are customs agreements to help stop the trade and laundering of illegally caught sharks and fins. The U.S. is currently finalizing cooperative enforcement agreements with the governments of Guam and the Northern Mariana Islands. The U.S. Coast Guard is also working on a Combined Operations Manual to assist Central Pacific Basin Cooperation for Regional Non-Defense Maritime Security. Its purpose is to provide a framework for cooperation and coordination among maritime safety and security agencies acting on behalf of their respective States against numerous threats to the non-defense maritime security of the region.

Endnotes

1. UNCLOS. 1982. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982. Reprinted in I.L.M. 21:1261 (1982).

2. U.N. GAOP Doc. A/CONF.151/15, annex.

3. www.fao.org/fi/agreem/codecond/ficonde.asp

4. Reprinted in I.L.M. 33:968 (1994).

5. 16 United States Code section 5501 et seq.

6. Reprinted in I.L.M. 34:1542 (1995).

7. 16 United States Code section 3372.