I spend most of our southern hemisphere summer break writing a fisheries chapter for the forthcoming Oxford University Handbook of Human Rights at Sea, a study around the mess that HS Longliners Transhipment is in the WCPO and a Sharks NPOA for RMI.
But last week was back on meetings and workshops, albeit unusual for me since it was in Auckland, just 40 minutes by boat from my home in Waiheke; this was for the FAO PSMA Regional Coordination Meeting - South West Pacific.
The PSMA (Port State Measures Agreement) has been a very successful one since it started in 2009 and has 76 parties today.
I have been a full believer in the power of PSM and have been setting up systems and supporting countries on its implementation for FAO and many other agencies. And I always maintained that there is a difference between becoming a party (signing it) and implementing it, it is the implementation that impacts IUU fishing, not ratifying the agreement and being on a website.
My work in RMI with PSM is completely aligned with PSMA and has proven effective against IUU, even if we have not ratified.
Yet I feel, to a certain degree, that we need to resource have good PSM in developing countries and, in particular, island states because of the overall failure of flag state responsibility.
A clear legal and jurisdictional framework for addressing labour rights on board fishing vessels has been stated since 1994 in Article 94(1) and Article 94(3) of UNCLOS. These articles assign a vessel's flag state with the responsibility for, inter alia, ‘administrative, technical and social matters’.
It is crucial to emphasise that flag State obligation is unequivocal, especially considering that UNCLOS, from its outset, is a “package deal” agreement where all its aspects are interdependent and cannot be agreed upon separately.
Following the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) in the Sub-Regional Fisheries Commission case, flag States must exercise due diligence and ‘not an obligation of result’. The flag State is responsible for exercising due diligence to ensure that vessels under their flag comply with all relevant standards under the “applicable international instruments".
Yet even after all that heavy-hitting referencing, internationally, we only have since 2014 the “FAO Voluntary Guidelines for Flag State Performance (VGFSP)” to provide guidance to strengthen and monitor compliance by flag States with their international duties and obligations regarding the flagging and control of fishing vessels.
Not the language… performance (instead of responsibility), guidance (instead of due diligence)… is all soft. How flag state keeps getting away with this…? is infuriating to me!
Yeah, it is great that Port State have a binding agreement… all for it! But what about Flag States? To an extent, I could argue that PSM is the “ambulance at the bottom of the cliff”.
Let me illustrate this with an example.
The Seishin, a carrier that operates in the HS, came to Majuro to get a new crew member. We did the intelligence analysis, and we found out that it had fish originating from 25 Longliners (flagged to 4 different DWFN) after transhipping in 8 defined locations in HS pockets and just outside the EEZ of other FFA members.
Following our PSM obligation (crew change is part of port use), we analysed each of the transhipments in the high seas and the activity of the donor longliners and then verified on board that all of them were declared on board (and yes, thankfully, they all were) in fact we found that the vessels had encounters with other extra two longliners, but these weren’t transhipment and the carrier master had the good transfer recipes, and the names and position recorded from the receiving vessels matched.
Yet it took us a day of work! Plus, 3 hrs in the carrier.
One could argue that the carrier is acting like a “port”, yet we did not find any form of compliance assessment either by the flag state of the longliners authorising them to tranship by the flag state of the carrier. And they are irrefutably primarily responsible for the vessel's action in the HS.
Having a small island state has to take on the responsibility to assess compliance because none of the flag states authorise unloading from their vessels, which is just plain wrong and unfair.
Where is the due diligence? And the proof of their obligation under UNCLOS (and all the rest)
So yeah… I’d like to see the same level of international scrutiny and support for a binding Flag State Responsibilities Agreement (FSRA?) as to PSMA (even if PSMA has six paragraphs on the role of flag states in it)