Last week I was quite honoured of been asked to participate in a sort of “expert consultation” around flag State performance. There were some very clever people involved and It was an interesting and well-run process that deserves more attention than the one I will give today. Yet it made think a lot about what I wrote in our recent FAO book on the ideal flag state configuration for a CDS and that I adapted a bit for the Pacific context for a report I’m doing for FFA.
While the involvement of the Flag State in the traceability side of a CDS is relatively minimal, especially once the catch is landed, their involvement in ascertaining the legality of the catches is enshrined in all the present CDS initiatives.
Flag State responsibilities have been defined in International agreements since the United Nation Convention on the Law of the Sea (UNCLOS). Under Article 94 of UNCLOS, flag states must oversee the operations of fishing vessels flying their flags and “effectively exercise its jurisdiction and control in administrative, technical and social matters”. The 1995 United Nations Fish Stocks Agreement also mandates this and obliges flag states to investigate “immediately and fully” alleged violations of conservation and management measures (CMM) and apply sanctions “adequate in severity to be effective in securing compliance… and deprive offenders of the benefits accruing from their illegal activities”. The 1995 Code of Conduct for Responsible Fisheries also mandates an approach consistent with this for flag states, but further strengthens and broadens the requirements for the enforcement regimes.
A flag state needs to oversee the operations of fishing vessels flying its flag as follows:
- i) it issues the registrations and licences before fishing can commence;
- ii) during any fishing trip it monitors the activity and subsequent transhipments; and
- iii) on completion of a fishing trip it handles data acquisition and mandatory filing of reports on the quantities of harvested and landed product
Vessel registration and fishing vessel registry
The registration of fishing vessels is typically a function of government departments that have no jurisdiction over fisheries, but the data must nonetheless be available to the department in charge of fishery management.
In several countries, including some suspected for flag-of-convenience infractions, coordination between the departments that register fishing vessels and those in charge of fishery management is poor: in such cases the latter is not aware of or does not have the capacity to monitor, the fishing vessels flying the national flag and operating in distant fisheries, and therefore the flag state oversight is diminished or non-existent.
It is important in the development of CDS that there flag States develop a strong link between the vessel registration and the licences, permits and authorisations required to fish that are discussed in the following section. There needs to be a process in place to ensure that vessels suspected of IUU fishing cannot be registered or licenced by a flag State and that both registration and licensing is in place before a vessel allowed to leave port and fishing under a State’s flag.
Fishing licences
The flag state is expected to control its vessels by means of licences, authorisations or permits, which are based on two complementary elements: i) a basic registration scheme in which a licence may be obtained by filling in a form and paying a nominal fee – useful as a basis for statistics and for controls based on identification of registered licence holders; and ii) the required compliance conditions regulating the licence holder or operator and the vessel and crew, in accordance with national laws and international conservation and management measures. The latter will not be identical in all fisheries, but they define the basis for the legality of the catch.
With regard fishing vessels operating in WCPFC areas of competence, the situation has improved markedly since the establishment of the WCPFC Record of Fishing Vessels (RFV) and sub-regional records of authorization, such as the FFA Record of Vessels in Good Standing. A fishing vessel that is not on an authorization or ‘white list’ would not be able to obtain a catch certificate through any RFMO/CDS interface, regardless of flag state performance.
Authorization to sail and/or fish in areas beyond national jurisdiction
The authorization to fish in waters beyond the Flag State EEZ, and especially in the EEZ of a third country, is a rare best-practice that requires a fishing vessel operator to submit mandatory documents to the fishery administration before commencing fishing on the high seas or in third country waters.
Such documents should include certified copies of fishing licences for operations in the EEZs of third countries, thereby making the licence to fish in coastal state waters a prerequisite to the Flag State authorization.
Among FFA membership there is a situation of overlapping authorisations and access agreements in the purse seine fishery (i.e. FSMA Arrangement, US Treaty, PNA conditions, and bilateral arrangements) that is, for the most part, managed and coordinated. However, the situation differs in the long line fishery and arrangements linking the vessels right to fish from Flag and Coastal States is not as well coordinated.
Observer programmes
A fisheries observer is an independent specialist who works on board fishing vessels as part of an observation programme administered by a government agency or third-party contractor.
The primary objectives of observer programmes vary and may be oriented towards science or compliance. They usually develop a balance between the two and hence support the flag state in exercising its data capture and oversight responsibilities.
For Flag States among the FFA membership, the situation is founded by WCPFC CMM 2007-01 that establishes the WCPFC regional observer programme (ROP). The ROP collects verified catch data, scientific data and information related to the fishery from the convention area, and monitors the vessel implementation of conservation and management measures adopted by the commission.
Each member and cooperating member of the commission must ensure that vessels fishing in the convention area accept an observer from the regional observer programme if required, except for vessels that operate exclusively in flag State or a single coastal State’s waters. The members and cooperating members are responsible for providing observer coverage as required by the commission, and source observers for their vessels. The requirement is for 100% coverage of purse seine vessels and 5% for longline vessels.
Observer programmes, particularly the training and coverage levels, are a vital tool in developing effective PSM and CDS. The coverage of any monitoring needs to target key CTE’s in order ensure the accuracy of records and observers play a key role in this, so it is particularly important that the observer coverage is adequately trained and targeted to cover risk harvesting and transhipment activities.
Logbook regime
A Fisheries Logbook records the fishing and non-fishing activity of fishers, who are required to report their activity and submit the logbook at regular intervals. Logbooks are a general licensing requirement of flag and coastal states and RFMOs; they are used to record fishing operational data in standardized logsheets, or logbook pages, for presentation to the authorities of the port state of transhipment or unloading and/or to be forwarded to the flag state.
Log sheets have historically been submitted in hard copy to fishery authorities during unloading, but they are now increasingly managed by means of electronic platforms, particularly in the Purse Seine fishery of FFA Member States. This electronic data recording and real-time transmission to authorities, in accordance with data collection protocols, is a foundation for the integration of data into e-CDS initiatives.
In principle, the flag State receives the electronic records, and port and coastal states are increasingly collecting logsheet data for their own use. Flag States operating among the FFA membership utilize the SPC Data collection forms (and standards) presented in appendices of the DCC10 report.
Vessel monitoring systems
The acronym VMS denotes systems used in commercial fishing that enable regulatory organizations to track and monitor individual fishing vessels. Its operation and the equipment involved differ according to the requirements of the flag or coastal state, and of the RFMO in which the vessel operates.
A VMS requires each vessel to install a mobile transceiver unit, which identifies and locates a vessel by means of global positioning satellites. The mobile transceiver unit transmits the sending location and the data network identity to the receiving location, from which the data are transmitted to electronic chart display and information systems to enable the authorities to see the position of any vessel.
With vessels, in many cases, operating so far from flag State’s sovereign areas, VMS tools for monitoring spatial activity are pivotal in fulfilling flag State responsibilities. A typical VMS unit tracks and stores a vessel’s unique ID, position, speed and bearing and transmits this information to a shore in pre-agreed intervals, known as polling rates. These polling rates have an important bearing on the effectiveness of the monitoring. As well as understanding the location of the vessel, ensuring compliance necessitates gaining a greater understanding of the vessel activities in these areas. A polling interval too large makes it easy for illegal activity to be missed by States monitoring activity.
Oversight of unloading
Fish can be removed from a fishing vessel as a landing, an at-sea or in-port transhipment to a reefer vessel, or as any other form of transferring fish from a fishing vessel into the supply chain. Discards are logically ignored in CDS because they will not enter the supply chain, however, they are an important consideration when monitoring harvesting activities and ensuring the legality of vessel operation and compliance with national and regional rules around catch retention.
The flag state will, in principle, record what is being unloaded by fishing vessels flying its flag and the quantity involved, but this control capacity varies considerably among states. Port states are increasingly mandated to monitor unloading at their ports and record the related data, especially unloadings from foreign vessels, according to the terms of the 2009 PSMA-IUU and the recently adopted Conservation and Management Measure on minimum standards for Port State Measures, WCPFC PSM CMM 2017 - 2.
A CDS will provide a stimulus for weaker flag states to improve their oversight of unloading because catch certificates are normally issued and validated before unloading occurs. Planned unloadings must be communicated to flag state authorities, and there needs to be some form of flag State authorization of the unloading and, as noted earlier, sharing of information on vessel authorisations and activities is required for robust CDS and PSM. Then the submitted information must be approved through a robust validation process for the issuance of the catch certificates.