As I sat last week on an update of where FFA is up to in terms of their “Persons of Interest - PoI” initiative (which I wrote about here a few years back), my mind was in 3 places:
Asian master in a Micronesian flagged vessel
1) Overall Due Diligence by DWFN
This, to a large extent, motivated me to write my last blog before this one: What About Flag State Performance? Yet I’m fully aware that operators from rich countries flag their vessels to poor countries for various reasons and drop the responsibilities of compliance on them, while they know these flagging countries are not always able or willing to do so.
2) Resourcing and cost recovery
This is all very nice and necessary, but POI is another thing to do… for the same amount of people in MIMRA earning the same salaries. This will have an operational impact and a cost which we are not clear about yet. I understand we need to get the legal basis to pursue PoI before pushing through, but it cannot just be a legal-led process. It also needs to be an operational-led process… which is something I’m repetitive about.
Also, I think that an easy solution for these infringers/violators is to impose higher access fees to fish to those vessels/persons associated with IUU fishing records. Vessel days/licensing is more expensive because of alleged infringements and having them embedded into license conditions. The system purifies itself, and it would be something worth considering as an incentive for compliance… I worry that if you bluntly deny them the right to fish based on what they could say are “mistakes”, they become martyrs … yet If you make it more expensive for them to fish, we justify it as cost recovery.
3) Roles of Nationals
What are the responsibilities of the state of nationality of this PoI… particularly now when the fag state primarily does not guarantee at all a tangible link between the vessel and operators based in the flag state… we have many vessels in the region flagged to Nauru, FSM, Vanuatu, Kiribati, Fiji, Solomons, RMI, etc… where no nationals of the flag state are on board. This wasn't at all the case when I started fishing…
The role of “national” is present in all multilateral legislation and treaties from UNCLOS onwards all the way to PSMA and others… but I’ve never seen it described in detail about IUU until today!
To my luck, a recent paper by two young and brilliant acquaintances: Arron N. Honniball and Valentin J. Schatz goes deep into the role of nationals: “Nationals” at Forty: From an Undefined UNCLOS Term to Due Diligence Obligations on the State of Nationality to Combat IUU Fishing.
It is an excellent and informative paper that I can only recommend being read in its entirety. For now, I quote the conclusions.
Conclusions
“One reason why IUU fishing has been such a persistent problem is that many States have not been successful in controlling the fishing activities by their nationals.” (IUU International Plan of Action Implementation)
This article has sought to demonstrate the extent to which international law recognizes the jurisdiction and responsibilities of the State of nationality when addressing IUU fishing. Practice at the global, regional, and unilateral level points towards an increasing recognition and depth of the State of nationality’s responsibilities, albeit in a much softer form than the more established responsibilities of flag, coastal, and port States. Since the 1990s, the international community has recognized the necessity of regulating nationals to combat IUU fishing. Global treaties do not impose explicit jurisdictional obligations on the State of nationality. Still, the broad wording of relevant provisions of UNCLOS (particularly Articles 58(3) and 117) can arguably be interpreted as a sufficient basis for (due diligence) obligations of States of nationality to take the necessary measures to prevent their nationals from engaging in or supporting IUU fishing.
A more concrete affirmation of these obligations in treaty or customary law has yet to occur, but soft law and obiter dicta of international courts and tribunals clearly demonstrate the winds are very much in favor of recognition and are only expected to harden further.
Moreover, regional fisheries management organizations have further strengthened and elaborated upon the regulatory expectations of parties and cooperating non-parties with respect to their nationals. This includes both prescription and enforcement jurisdiction, although regional fisheries management organization parties have to date been careful to use conditional language or implementation (e.g., “to the greatest extent possible”) or limiting investigation requirements to reported cases or allegations. Nonetheless, there is a clear trend towards further development of nationality-based measures.
The previously “small minority of countries” regulating their nationals involved in IUU fishing, regardless of flag, is a growing club. The practice of the EU is of particular importance, although a recent study commissioned by the European Commission showed “significant weaknesses” in the legislative frameworks and enforcement systems of EU member States. Specifically, the weaknesses are regarding their obligations and sanctioning of nationals for infringements of relevant EU law, as well as “(nearly) non-existent sanctioning of, on the one hand, nationals having engaged in IUU fishing activities outside EU waters, either operating or on board fishing vessels registered in third countries or vessels without nationality and, on the other, nationals supporting IUU fishing activities wherever their location.
The State of nationality therefore no longer presents a potential area for the evolution of international fisheries law, but rather an area where significant developments are already ongoing. Its active personality basis of prescriptive jurisdiction is not limited by the territory, maritime zone, or vessel where a national’s conduct occurs. It can thus not only address IUU fishing wherever it may occur but equally the natural and juridical persons, and not merely vessels, involved. This disincentivizes nationals engaging in or supporting IUU fishing, enables the punishment of non-compliance, and “sends a strong signal to other countries.” While enforcement may be limited by a lack of awareness of what a national is doing with respect to or aboard a foreign vessel, and unenforceable until the national returns to the State’s territory (except with respect to juridical persons, assets, licenses, and other issues not dependent on the presence of natural persons), these limitations are also seen in respect of other jurisdictional capacities. Cooperation may partially address these limitations, including greater information sharing or promoting the owners and operators of parties and cooperating non-parties flagged vessels within a State’s territory to enable effective enforcement.
Exercising due diligence in the regulation of nationals and the further development of the applicable threshold of due diligence arguably represents the next bastion in international fisheries law’s defences against IUU fishing.
Significant States of nationality should recognize these developments and proactively fortify their domestic legal systems through sufficient prescriptions and enforcement of provisions governing their nationals, domiciles, and, where applicable, residents.