THE SECOND U IN IUU FISHING

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THE SECOND U IN IUU FISHING

HOW RFMOS COMBAT UNREGULATED FISHING ACTIVITIES

Clara Sophia Debertin claradebertin@outlook.com

Master Track Public International Law Submission of final version on 1 July 2022

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Abstract

While the topic of illegal, unreported, and unregulated fishing (IUU fishing) has received much attention in international legal literature, the issue of unregulated fishing is rarely singled out. For this reason, this thesis will shed light on the second U in IUU fishing and focus on how regional fisheries management organisations (RFMOs) combat unregulated fishing activities by non-contracting parties. Even though unregulated fishing activities are mostly mentioned as part of IUU fishing, it is technically not illegal. In this thesis,

unregulated fishing is defined as fishing activities within regulatory areas of RFMOs on the high sea by states that are not members of these organisations. These non-contracting parties of RFMOs continue fishing on the high sea while other states are cooperating for the

protection of the marine environment in the same areas. These differences in state cooperation behaviour make unregulated fishing especially interesting.

As non-members, third states are not bound by RFMO regulations. This pays tribute to the general principle of consent in public international law. Within an RFMO regulatory area, member states have taken on certain obligations for conservation and the sustainable

management of fish stocks. Unregulated fishing is problematic because non-contracting parties of RFMOs can potentially undermine the organisations’ efforts for conservation and management of fish stocks by fishing in their territories without abiding by the applicable RFMO conservation and management rules.

This thesis analyses the most common methods employed by RFMOs to deal with unregulated fishing and comes up with new ideas on how to combat the issue. After an introduction into the topic and description of the exact scope of research, the legal framework of the most important international instruments on unregulated fishing in the context of RFMOs is portrayed. This main part introduces the UN Fish Stocks Agreement and explains its relation to RFMO constituent documents. These constituent treaties are analysed for their provisions on unregulated fishing activities undertaken by non-contracting parties of RFMOs and the organisations’ methods to address these activities. The last part of the thesis will introduce new ideas, that could complement current methods to combat unregulated fishing activities by non-member states of RFMOs. The new ideas of this thesis are built on existing literature and transferred to the issue of unregulated fishing in the RFMO context.

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Table of Contents

Abstract ... 1

A. Introduction ... 3

B. The Legal Framework ... 9

I. UNCLOS ... 9

II. UN Fish Stocks Agreement ... 12

III. The Regulatory System of Generic RFMOs ... 16

IV. Provisions on Unregulated Fishing... 19

1. General Remarks ... 19

2. Specific RFMO Provisions Against Unregulated Fishing ... 21

a) Exchange of Information ... 21

b) Promotion of the Object and Purpose of RFMOs ... 22

c) Recruiting Members ... 23

d) The Prevention of Reflagging ... 25

e) Market-related measures ... 27

C. Ways Forward: Possible Methods to Combat Unregulated Fishing ... 30

I. Building on UN Fish Stocks Agreement ... 30

II. Specific Suggestions for RFMOs ... 31

1. Emphasising Long-Term Benefits ... 32

2. Funding ... 34

3. Technology Solutions ... 36

D. Conclusion ... 38

Bibliography ... 42

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A. Introduction

At around 340 metres in length and built to carry almost 6000 guests and crew

members across the ocean, the Freedom of the Sea is one of the world’s biggest cruise ships.1 A holiday on the floating skyscraper promises adventure and exploring new shores far away from daily life limitations – the literal freedom on the sea. While today, this thought appeals to many cruise ship guests, Hugo Grotius probably had different scenarios in mind when he formulated The Freedom of the Sea in 1608.2 The overarching principle in international law of the sea is, for example, expressed in Art. 87 UNCLOS. Not only can states send swimming amusement parks to conquer the oceans, but the principle also entails, inter alia, the freedom of fishing.3

However, Art. 87 UNCLOS also subjects the freedom of fishing to various

conservation and management regulations. One of the provisions referred to that limits the freedom on the high sea is Art. 116(a) UNCLOS:

“All States have the right for their nationals to engage in fishing on the high sea subject to (a) their treaty obligations”.

This provision mirrors another fundamental principle of international law: the theory of consent. States are generally only bound by obligations they consented to.4 If a state has not consented to an international treaty, the state does not have to abide by the obligations stipulated in this treaty. As a result, different states can have different international

obligations – depending on which treaties and agreements they have given their consent to.

Exactly this combination of the (limited) principle of the freedom of the high sea and the theory of consent constitutes the predicament of unregulated fishing. State consent to

1 <https://www.royalcaribbean.com/faq/questions/how-big-are-royal-caribbean-cruise-ships> (accessed 24.02.2022).

2 H Grotius, The Free Sea (Mare Liberum) edited by D Armitage and K Haakonssen (Liberty Fund 2004) 11.

3 Art. 87(1)(e) UNCLOS.

4 J Klabbers, International Law (Third Edition, Cambridge University Press 2021) 24.

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international treaties will constrain the states’ freedom of fishing. UNCLOS already restricts the freedom of fishing, for example.5 Nevertheless, more specific conservation and

management regimes for particular species or geographical areas of the high sea are not included. Where the freedom of the high sea accompanied by the freedom of fishing meets the theory of consent, unregulated fishing is produced. The lack of regulation in international law is the lack of consent to specific conservation and management regimes. After all, public international law is first and foremost regulated by states consenting to international treaties.

Where states refrain from agreeing on conservation and management regimes for fisheries, unregulated fishing can take place without it being illegal.

The term unregulated fishing is frequently used within the broader term of IUU fishing, which abbreviates illegal, unreported, and unregulated fishing. IUU fishing has been identified as one of the main contributors to the issue of overfishing.6 It is very hard to pinpoint exact numbers in the realm of IUU fishing. The most cited study estimates that worldwide illegal, unreported, or unregulated fishing activities since 1980 have averaged between 21% of all fishing activities in 1980 and 18% in 2003.7 International law has developed ways to deal with IUU fishing in general. As can be seen from the cited numbers, IUU fishing seems to have been in decline since 1980. Yet, there is quite a bit of room for improvement.

As the title indicates the research theme of this thesis will be the “second U” in IUU fishing. It entails fishing activities in waters beyond national jurisdiction, meaning in waters beyond a state’s exclusive economic zone (EEZ) and in the high sea. If these waters are within an area regulated by a regional fisheries management organisation (RFMO)

unregulated fishing means fishing activities by vessels that fly the flag of a non-member state, and whose activity therefore threatens to contravene or undermine the organisation’s

conservation and management efforts.8 Even though unregulated fishing also covers fishing

5 Art. 117-119 UNCLOS.

6 <https://www.fao.org/iuu-fishing/en/> (accessed 24.02.2022).

7 D Agnew et al. (2009) Estimating the Worldwide Extent of Illegal Fishing, PLoS ONE 4, e4570, 2.

8 J Green, D Agnew, (2002) Catch Documentation Schemes to Combat Illegal, Unreported and Unregulated Fishing: CCAMLR’s Experience with Southern Ocean Toothfish 16 Ocean Yearbook 173.

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activities in areas beyond RFMO convention areas9, those will not be within the scope of this research. Rather, the focus will lie on the relationship and dynamics between the

organisations and non-member states. This specific part of the issue of unregulated fishing is particularly interesting because it shows the effects of the theory of consent very clearly. Even if a group of states have committed themselves to abide by certain rules in order to protect (a part of) the environment, third states that are not bound by obligations of RFMO regimes can potentially undermine the object and purpose of the entire organisation. Third states in this context and throughout this thesis refer to states that are not members of any RFMO and neither members of the UN Fish Stocks Agreement (which will be addressed in more detail below).

The abbreviation RFMO refers to regional fisheries management organisation. States cooperate in RFMOs by collecting and analysing fisheries data as well as coordinating fisheries management.10 Generally, RFMOs can be defined as inter-governmental

organisations: they have the power to adopt legally binding measures to conserve and manage fisheries within their regulatory areas.11 Their competence can extend to the high sea.12 There is no blueprint to set up such an organisation. They are endowed with varying mandates by their different member states.13 Consequently, the legal competences of RFMOs can be

9 In accordance with Article 3 of the 2001 Food and Agriculture Organization of the United Nations (FAO) International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA) the given definition of unregulated fishing can be complemented by the following situations.

(1) With respect to RFMOs that are not Generic RFMOs, unregulated fishing can also mean fishing activities within an RFMO regulatory area but with respect to fish stocks that are not regulated by the RFMO.

(2) Unregulated fishing beyond RFMO regulatory areas means fishing activities on the high sea that are not covered by any RFMO agreement regarding conservation and management of fisheries.

10 <https://www.nyulawglobal.org/globalex/International_Fisheries_Law.html> (accessed 24.02.2022).

11 S Ásmundsson, Regional Fisheries Management Organisations (RFMOs): Who are they, what is their geographic coverage on the high sea and which ones should be considered as General RFMOs, Tuna RFMOs and Specialised RFMOs? 3.

12 ibid.

13 ibid.

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limited to the conservation of particular species or expand to all fisheries occurring in their respective areas.14 The latter ones will be referred to as Generic RFMOs.

Non-member states of RFMOs are not bound by corresponding fishing regulations.

According to the principles of the freedom of the high sea in conjunction with the theory of consent, non-member states can be free to fish in areas where other states have subjected themselves to elaborate conservation and management measures. Non-contracting parties can therefore benefit from the conservation and management efforts of RFMO members as well as the scientific research undertaken by these states while not being burdened with the same restrictions and obligations.15 As a result, the effectiveness of RFMOs can be severely limited by unregulated fishing activities. Therefore, the main research question of this thesis will be aimed at how RFMOs can deal with third states potentially undermining the object and purpose of their conservation efforts.

As generally more and more species on the planet are endangered or even extinct, sustaining biodiversity becomes an ever more pressing problem. Especially the issue of overfishing threatens the balance of marine ecosystems in the world’s oceans. While 32 years ago 90% of fish stocks were still within biologically sustainable levels, this number was reduced to only 65.8% by 2017.16 According to the Food and Agriculture Organisation of the United Nations (FAO) fish stocks are in poor and deteriorating conditions where they are not managed appropriately.17 These facts quite plainly show the importance of fisheries

conservation and management regulations. IUU fishing needs to be effectively combatted as one of the main causes for the poor status of fish stocks worldwide. One of many solutions could be efficient ways to counter third party fishing activities within areas of Generic

14 S Ámundsson, (n 11).

15 JP Plé, Responding to Non-Member Fishing in the Atlantic: The ICCAT and NAFO Experiences, in HN Scheiber, The Law of the Sea (Kluwer Law International 2000) 199.

16 <https://www.fao.org/state-of-fisheries-aquaculture>.

17 ibid.

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RFMOs. The following figure prepared by the FAO in 2020 shows the geographical coverage of Generic RFMOs.18

This thesis will focus on eight of the Generic RFMOs depicted in Figure 1: North West Atlantic Fisheries Organisation (NAFO), North East Atlantic Fisheries Commission (NEAFC), North Pacific Fisheries Commission (NPFC), South East Atlantic Fisheries Organisation (SEFAO), Southern Indian Ocean Fisheries Agreement (SIOFA), South Pacific Regional Fisheries Management Organisation (SPRFMO), General Fisheries Commission for the Mediterranean (GFCM), and Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). These are the RFMOs whose competences extend to waters beyond national jurisdiction. Coastal states will most often enforce their national conservation

18 Løbach T et al, Regional fisheries management organizations and advisory bodies – Activities and developments, 2000-2017, (2020) 651 FAO Fisheries and Aquaculture Technical Paper 10.

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and management rules within their jurisdiction. The issue of unregulated fishing activities explored here focuses on the high sea within convention areas of RFMOs.

The goal of this research is to work out the respective ways the above RFMOs use to combat unregulated fishing. It will explore methods to encourage non-contracting parties to join RFMOs or to otherwise comply with their conservation regimes. This will be done by firstly portraying the current legal framework in Part B of this paper. For this purpose, the most important sources will be RFMO conventions and their practices in order to reveal how they handle unregulated fishing activities by non-member states. This part will also analyse and the effectiveness of the methods in place. Finally, the thesis will introduce ideas to help discourage non-contracting parties from engaging in unregulated fishing activities. This will be done by consulting secondary literature on the topic and building on it to generate new ideas to combat unregulated fishing.

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B. The Legal Framework

This part of the thesis will outline the regulatory system and most common rules and obligations of the eight Generic RFMOs by looking at their respective constituent documents.

Furthermore, the specific provisions on unregulated fishing activities carried out by third parties will be portrayed. Before going into the details of the regulatory system of RFMOs, the paper will shortly give an overview of two of the most important general international law instruments in the context of fishing on the high sea: UNCLOS and the UN Fish Stocks Agreement. This description will further elaborate on the matter of the freedom of fishing and its constraints as well as explain why RFMOs play an important role in the conservation and management of marine species.

I. UNCLOS

The 1982 UN Convention on the Law of the Sea entered into force in 1994.19 One of the most significant changes it brought was the division of the oceans into maritime zones. This division is depicted in the following illustration prepared by the International Institute for Law of the Sea Studies. 20

19 <https://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm> (accessed 19 May 2022).

20 <http://iilss.net/tag/maritime-zones-and-maritime-delimitation/> (accessed 19 May 2022).

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Source: <http://iilss.net/tag/maritime-zones-and-maritime-delimitation/>

As can be seen in Figure 2, UNCLOS divides the water into (1) the territorial sea, (2) the contiguous zone, (3) the exclusive economic zone (EEZ), and (4) the high sea. With the inclusion of the EEZ the geographical scope of the high sea has shrunk significantly as the EEZ extends the limit of national fisheries jurisdiction up to 200 nautical miles from the shore.21

As opposed to the other “sections” of the oceans’ waters, the high sea is not subject to national sovereignty.22 This freedom (from national sovereignty) of the high sea extends to the freedom of navigation and overflight, the freedom of scientific research as well as the freedom of fishing, for example.23 For the purposes of this thesis, the freedom of fishing is most relevant. While UNCLOS guarantees the freedom for every state to fish on the high sea, this freedom is not granted limitless. The freedom of fishing is, for example, always subject to

21 K Bangert, Fisheries Agreements, (2018) Max Planck Encyclopedias of International Law 4.

22 Art. 89 UNCLOS.

23 Art. 87(1) UNCLOS.

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a state’s other treaty obligations.24 Furthermore, all states must engage in the conservation of the living resources of the high sea and cooperate with each other for this purpose under UNCLOS itself.25 For instance, states shall take measures with a view to maintaining or restoring populations of marine living resources in the high sea.26 Cooperation in this regard can be carried out by establishing RFMOs.27

Generally, the obligation to take appropriate measures for the conservation and

management of living resources in the high sea lies with the flag state. The flag state is the state in which a (fishing) vessel is registered and can be identified by the flag the vessel is flying. Since no state has sovereign rights on the high sea, the flag state has exclusive

jurisdiction over its vessels on the high sea.28 Therefore, also the duty to enforce international obligations on fishing vessels while they are on the high sea lies with the flag state.

Arguably, the very first step that was taken to combat unregulated fishing already occurred in 1982 when UNCLOS shrunk the area covering the high sea by about one-third.29 This was done by recognising the EEZ extending up to 200 nautical miles from shore. While the division of the oceans in UNCLOS did not aim at reducing unregulated fishing, it still helped the cause as a side effect. As a result, the geographical area where it is possible to fish outside elaborate fishing regulations has shrunk considerably.

However, it is important to keep in mind that the term “unregulated fishing” does not refer to an overall lack of regulation on conservation and management. As shown here, UNCLOS already sets out the duty to implement appropriate conservation measures and cooperate internationally on this issue. Rather, unregulated fishing refers to a lack of consent to fisheries management rules implemented by RFMOs that are already in place. Without consent to RFMO treaties (or the UN Fish Stocks Agreement), states can legally fish within areas of RFMOs without taking on the respective regimes’ obligations. However, as most states are

24 Art. 116(a) UNCLOS.

25 Art. 117, 118 UNCLOS.

26 Art. 119(1)(a) UNCLOS.

27 Art. 118 UNCLOS.

28 Art. 94 UNCLOS.

29 JP Plé, (n 15) 197.

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parties to UNCLOS, for most states there will be no complete lack of international obligations when it comes to fishing on the high sea.

II. UN Fish Stocks Agreement

The UN Fish Stocks Agreement entered into force in 2001.30 It aims at optimising enforcement of conservation and management measures by states, be it flag, port or coastal states.31 The UN Fish Stocks Agreement serves the purpose of implementing the provisions of UNCLOS with special regard to, inter alia, long-term conservation and sustainable use of straddling and highly migratory fish stocks. Highly migratory fish stocks are listed in Annex I of UNCLOS. Highly migratory and straddling fish stocks live in the high sea as well as in the EEZ of one or more states.32 When fishing for such species, conservation measures of a coastal state taken in its EEZ can be undermined when fishing of the same stocks occurs on the high sea.33 The UN Fish Stocks Agreement’s regulatory scope covers the high sea but also stipulates that conservation and management rules on the high sea must be compatible with regulations adopted for areas under national jurisdiction.34 This compatibility is necessary to achieve effective conservation.35 Part III of the UN Fish Stocks Agreement contains extensive provisions that seek to encourage states to cooperate in the form of RFMOs for conservation and management purposes.36 States shall cooperate in RFMOs by founding them and

becoming members where they already exist.37

Generally, the UN Fish Stocks Agreement can be seen as the point of departure for the establishment of RFMOs. It even goes one step further and spells out functions that RFMOs

30 <https://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm> (accessed 06 May 2022).

31 UN Fish Stocks Agreement, Preamble, 2.

32 <http://www.oceansatlas.org/subtopic/en/c/29/> (accessed 31 May 2022).

33 ibid.

34 Art. 7(2) UN Fish Stocks Agreement.

35 ibid.

36 Art. 8-16 UN Fish Stocks Agreement.

37 Art. 8(1), (3) UN Fish Stocks Agreement.

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shall take on in order to fulfil their obligation to cooperate.38 These functions include, for example, the allocation of total allowable catches,39 and the establishment of effective monitoring and enforcement mechanisms.40 Furthermore, it stipulates states’ duties to establish and implement conservation and management measures in order to strengthen the effectiveness of existing RFMOs.41

The UN Fish Stocks Agreement also specifically addresses the issue of unregulated fishing.42 These provisions only concern non-contracting parties to RFMOs who are members of the UN Fish Stocks Agreement. Non-contracting parties to RFMOs are generally always encouraged to cooperate with other states in such organisations. Where this is not the case, non-contracting parties to an organisation must still cooperate by applying the relevant RFMO conservation and management measures as non-members.43 Consequently, only RFMO members or participants are granted access to fishery resources regulated by an RFMO regime.44 This provision seems to contradict the general principle of the freedom of fishing.

Generally, RFMOs cannot forbid non-contracting parties to fish within their regulatory areas.

However, there are measures of RFMOs against unregulated fishing that can influence a non- contracting party’s access to RFMO fisheries. These will be explained in more detail below.

Nevertheless, it is possible that the relevant Art. 8(4) UN Fish Stocks Agreement is seen as inconsistent with Art. 116 UNCLOS which stipulates the freedom of fishing.45 Additionally, non-member flag states must not authorise any vessels to engage in fishing activities that can potentially undermine RFMO conservation and management efforts.46

38 Art. 10 UN Fish Stocks Agreement.

39 Art. 10(a) UN Fish Stocks Agreement.

40 Art. 10(h) UN Fish Stocks Agreement.

41 Art. 13 UN Fish Stocks Agreement.

42 Art. 17 UN Fish Stocks Agreement.

43 Art. 8(3) UN Fish Stocks Agreement.

44 Art. 8(4) UN Fish Stocks Agreement.

45 E. J. Molenaar, Non-Participation in the Fish Stocks Agreement: Status and Reasons, (2011) 26 The International Journal of Marine and Coastal Law 201.

46 Art. 17(2) UN Fish Stocks Agreement.

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The UN Fish Stocks Agreement already refers to UNCLOS in its full title: 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. However, it is also open for accession of non- contracting parties to UNCLOS.47 As a result, the United States was able to become a party to the UN Fish Stocks Agreement.48 Other important fishing nations have also joined the treaty, including Japan, Korea, and the EU.49 While the UN Fish Stocks Agreement does not come close to the near universal recognition of UNCLOS, it has met with wide acceptance counting over 80 parties today.50

For member states to the UN Fish Stocks Agreement, the treaty will be the starting point for establishing effective conservation and management in an RFMO. It provides an abstract framework convention for collaboration of states in the form of RFMOs.51 Of course, non- contracting parties to the UN Fish Stocks Agreement are also free to found and join RFMOs under the general international law of treaties. The only difference will be that third parties to the UN Fish Stocks Agreement will not be bound by its regulations because they have not given their consent. Therefore, they will neither be bound to refrain from engaging in unregulated fishing under the UN Fish Stocks Agreement.

The strategy of the UN Fish Stocks Agreement against unregulated fishing is clearly the persuasion of as many states as possible to give their consent to the UN Fish Stocks

Agreement as well as to relevant RFMOs. By providing a framework agreement for the establishment of RFMOs, it tries to incentivise as many states as possible to agree to existing RFMO regimes or even found new organisations. By becoming a party to the UN Fish Stocks Agreement, states take on substantial obligations regarding cooperation in RFMOs. For example, there is an obligation to join or set up an RFMO for contracting parties of the UN

47 J Fuchs, Marine Living Resources, International Protection, (2015) Max Planck Encyclopedias of International Law (para 26).

48 ibid.

49 ibid.

50 ibid.

51 ibid (para 25).

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Fish Stocks Agreement.52 In the interpretation of this thesis, the practical result is that unregulated fishing and the mere fact of not being a member of an RFMO is rendered illegal under the UN Fish Stocks Agreement. However, this only goes for members of the UN Fish Stocks Agreement. Unregulated fishing still exists as legal practice for states outside this treaty.

This strategy seems to be quite effective. Two problematic states (with respect to unregulated fishing activities), Belize and Panama, have both ratified the UN Fish Stocks Agreement in 2005 and 2008, respectively.53 Both countries are known to be so-called open register states.54 This means that they allow (fishing) vessels owned by foreign nationals to fly their flag.55 The fact that flags can be obtained so easily and open-register states are not members of RFMOs, practically invites fishing vessels to register in a non-contracting party state and subsequently engage in unregulated fishing activities within an RFMO regulatory area. Therefore, the membership of open-register states to the UN Fish Stocks Agreement is a big achievement in the fight against unregulated fishing. However, states such as Bolivia, Venezuela, and Mexico remain non-contracting parties to the UN Fish Stocks Agreement as well as to Generic RFMOs.56

It can be concluded that the UN Fish Stocks Agreement puts a lot of emphasis on the collaboration of states by cooperating in RFMOs. The freedom of the high sea including the freedom of fishing becomes more restricted. However, keeping the theory of consent in mind, only parties to the UN Fish Stocks Agreement are bound by these provisions. As a result, only contracting parties must abide by the obligations set out in the UN Fish Stocks Agreement when they found or join an RFMO.

52 Art. 8(3) UN Fish Stocks Agreement.

53 J Fuchs (n 47).

54 ibid.

55 FAO Fisheries Circular No. 980, FIPL/C980, Fishing Vessels Operating under Open Registers and the Exercise of Flag State Responsibilities, Information and Options 2.

56 EJ Molenaar, (n 45).

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III. The Regulatory System of Generic RFMOs

Generic RFMOs each cover a certain geographic area and are not constrained to the conservation of specific species. The following section will explain their basic structure. Each of the analysed RFMO constituent treaties stipulates its objective at the very beginning of the document. In various forms, all organisations state their objective as long-term conservation.

The goal is to protect the marine ecosystems within their respective convention areas in order to sustainably use fishery resources.57 The organisations commit themselves to abide by certain general principles, such as founding their conservation and management measures on scientific evidence58, preserving marine biodiversity59, and applying the precautionary approach in their work.60

Another commonality is that all organisations have established a commission (or Meeting of the Parties in the case of the SIOFA) as well as subsidiary bodies, namely a scientific

57 Art. II Convention on the Cooperation in the Northwest Atlantic Fisheries (NAFO) (adopted on 24 October 1978, entered into force 1 January 1979);

Art. 2 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC) (adopted on 18 November 1980, entered into force in 1982);

Art. 2 Convention on the Conservation and Management of High Sea Fisheries Resources in the North Pacific Ocean (NPFC) (adopted 24 February 2012, entered into force 19 July 2015);

Art. 2 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (SEAFO) (adopted 20 April 2001, entered into force April 2003);

Art. 2 Southern Indian Ocean Fisheries Agreement (SIOFA) (adopted 7 July 2006, entered into force June 2012);

Art. 2 Convention on the Conservation and Management of High Sea Fishery Resources in the South Pacific Ocean (SPRFMO) (adopted 14 November 2009, entered into force 24 August 2012);

Art. 2(2) Agreement for the Establishment of the General Fisheries Commission for the Mediterranean (GFMC) (adopted and entered into force 24 September 1949);

Art. II Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (adopted and entered into force 7 April 1982).

58 Art. III(b) NAFO; Art. 3(b) NPFC; Art. 3(a) SEAFO; Art. 4(a) SIOFA.

59 Art. III(d) NAFO; Art. 4(f) SIOFA; Art. 5(a) GFMC.

60 Art. III(c) NAFO; Art. 4(b) NEAFC; Art. 3(b) SPRFMO.

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council or scientific committee.61 The commissions have a mandate to make

recommendations and adopt legally binding measures that will help achieve the goal of conservation and sustainable use of fisheries in their respective areas.62

The most common conservation measures of RFMOs include total allowable catches, closed areas and seasons for fishing as well as gear restrictions.63 The allocation of total allowable catches is the most common and arguably the most important measure taken by RFMOs.64 The scientific bodies are tasked with assessing the health of fish stocks.65 They subsequently make recommendations to their respective commissions regarding catch limits that can sustainably be set.66 The goal of this measure is to only catch enough fish to still keep stocks within biologically sustainable levels in order to prevent overfishing.

Some RFMOs establish closed seasons and closed areas.67 For instance, NEAFC forbids bottom fishing in certain areas of its Regulatory Area.68 These areas are “closed” for bottom fishing, which is defined as using fishing gear that might come into physical contact with the seabed while fishing normally.69 The rules on gear restriction can include the size of mesh of fishing nets, for example.70 Using appropriate fishing gear can be crucial in the conservation of fish stocks. Many nets used today are not very selective. They simply take anything out of

61 Art. VI NAFO; Art. 3 NEAFC; Art. 5, 6 NPFC; Art. 5(1) SEAFO; Art. 5, 7 SIOFA; Art. 7, 10 SPRFMO; Art.

6 GFCM; Art. VII CCAMLR.

62 Art. VI NAFO; Art. 4-10 NEAFC; Art. 7 NPFC; Art. 6, 7 SEAFO; Art. 6 SIOFA; Art. 8 SPRFMO; Art. 8 GFMC; Art. IX CCAMLR.

63 JS Barkin, ER DeSombre, Do we need a global fisheries management organization?, (2013) 3 J Environ Stud Sci 235.

64 Art. VI(8)(c) NAFO; Art. 7(e) NEAFC; Art. 7(1)(a) NPFC; Art. 6(3)(c) SEAFO; Art. 6(2) SIOFA; Art.

20(2)(c) SPRFMO; Art. IX (2)(a) CAMLR.

65 JS Barkin, ER DeSombre (n 63).

66 ibid.

67 Art. 7(c) NEAFC; Art. IX (2)(f) CAMLR.

68 NEAFC, Recommendation 19: 2014 on area management measures for the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area, as amended, Art. 5(2).

69 ibid, Art. 2(a).

70 Art. 7(a) NEAFC.

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the ocean that is in their way without giving non-targeted species the possibility to escape.

However, more selective fishing is possible. Newer scientific research has shed more light on fish behaviour which can positively influence the use of different types of fishing nets. For instance, there are some species that naturally flee from danger towards to the surface of the water.71 Therefore, fishing nets that are open towards the top can be used in order to allow non-targeted species to flee in that direction.72 These examples have shown some of the conservation measures, that RFMOs usually take on in their conservation and management efforts.

It is also notable which obligations the constituent documents set out for contracting parties. The most important general duty for member states is to ensure compliance and effectiveness of their respective organisation’s functioning.73 Moreover, there are specific duties for flag states as well as port states in most of the treaties.74 These include, for example, the following key obligations. Flag states must not engage in fishing activities that have not been authorised by the RFMO.75 Additionally, they must maintain a record of fishing vessels flying their flag and ensure their compliance with the convention.76 Port states must inspect documents, fishing gear, and catch on fishing vessels that enter their ports.77 They must not allow landings of vessels that have engaged in fishing activities contrary to the conventions’

provisions.78 To give a more precise example, vessels flying the flag of a non-contracting

71 Tagesschau Podcast Mal Angenommen, Nachhaltiger Fischfang, episode of 21 October 2021, from 6:30 minutes, <https://www.tagesschau.de/multimedia/podcasts/malangenommen-nachhaltiger-fischfang-101.html>

(accessed 31 May 2022).

72 ibid.

73 Art. X(1)(c) NAFO; Art. 15(1) NEAFC; Art. 13(8) NPFC; Art. 13(4) SEAFO; Art. 10(1)(b) SIOFA; Art.

24(1)(a) SPRFMO; Art. 14(1) GFCM; Art. XXI(1) CCAMLR.

74 Art. XI, XII NAFO; Art. 13, 14 NPFC; Art. 14, 15 SEAFO; Art. 11, 12 SIOFA; Art. 25, 26 SPRFMO.

75 ibid.

76 ibid.

77 ibid.

78 ibid.

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party can be prohibited to land, transship, or process any of their catch in a contracting party’s port.79

Clearly, these obligations are only relevant for contracting parties because they have given their consent to an RFMO’s rules. As states can only be bound internationally when they have agreed to subject themselves to a treaty, non-contracting parties do not have to abide by these duties. While RFMOs cannot prescribe rules for non-contracting parties, they still try to use their regulatory mandate to advance their object and purpose in this regard. Consequently, most of the described constituent documents mention third parties and how to deal with their fishing activities within the respective convention areas.

IV. Provisions on Unregulated Fishing 1. General Remarks

In this thesis unregulated fishing is referred to as fishing activities by states that have not become members of any of the analysed RFMOs or the UN Fish Stocks Agreement and are therefore not bound by RFMO conservation and management rules. These states are referred to as third parties. Examples include Bolivia, Venezuela, and Mexico. If a vessel flying the flag of one of these states fishes in the North Atlantic regulatory are of NAFO, for example, this activity constitutes unregulated fishing. Neither state is a member of NAFO (or of any other of the analysed RFMOs) or of the UN Fish Stocks Agreement. As a result, they are not bound by conservation and management rules of NAFO. Their vessels enjoy the freedom of fishing as perceived under UNCLOS. This is a classic example of unregulated fishing for the purposes of this thesis.

The term unregulated fishing is defined by a lack of regulation. With this definition in mind, the heading “provisions on unregulated fishing” might seem contradictory. However, in this section, provisions on unregulated fishing mean norms in RFMO conventions that touch on the topic of how to deal with third party fishing activities. Non-member states cannot be

79 GFCM, REC.MCS-GFCM/40/2016/1 on a regional scheme on port State measures to combat illegal, unreported and unregulated fishing activities in the GFCM area of application, 4.

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forced to comply with an RFMO’s rules or to become members due to a lack of consent to the constituent treaty. Nevertheless, there are several methods that RFMOs can use in their efforts to reduce unregulated fishing activities.

The general structure of RFMOs and most of their obligations are common to all the Generic RFMOs depicted in this thesis. Similarly, most organisations also include specific provisions on non-contracting parties in their constituent documents. Before going into the detailed provisions dealing with third parties, it is worth mentioning that the UN Fish Stocks Agreement stipulates that states with an interest in the fisheries managed by an RFMO may join the organistion.80 Additionally, all RFMOs are generally open for accession of new member states at any time at their own conditions.81

Most RFMOs touch on five main points regarding the fight against unregulated fishing activities by non-member states: (a) exchanging information between member states on third party fishing activities,82 (b) promoting the object and purpose of the treaty,83 (c) requesting non-contracting parties to become members or apply the convention as non-member states,84 (d) preventing fishing vessels flying a member state’s flag from reflagging to a third state in order to circumvent obligations,85 and (e) market-related measures.86 These specific measures against unregulated fishing will be addressed in the next section one by one.

80 Art. 8(3) UN Fish Stocks Agreement.

81 Art. XXIII(4) NAFO; Art. 20(4) NEAFC; Art. 24(1) NPFC; Art. 26 SEAFO; Art. 23(1) SIOFA; Art. 37 SPRFMO; Art. 23(2) GFCM; Art. XXIX CCAMLR.

82 Art. XVI(2)(a) NAFO; Art. 20(1) NPFC; Art. 22(2) SEAFO; Art. 17(2) SIOFA; Art. 32(1) SPRFMO; Art.

18(2) GFCM.

83 Art. XVI(2)(c) NAFO; Art. 20(2) NPFC; Art. 17(3) SIOFA; Art. 32(2) SPRFMO; Art. 18(4) GFCM; Art. X(1) CCAMLR.

84 Art. 20(3) NPFC; Art. 22(1) SEAFO; Art. 17(4) SIOFA; Art. 32(3) SPRFMO; Art. 18(1) GFCM.

85 Art. 20(5) NPFC.

86 Art. 7(2)(g) NPFC; Art. 27(1)(d), 32(4) SPRFMO; Art. 18(2) GFCM.

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2. Specific RFMO Provisions Against Unregulated Fishing a) Exchange of Information

Turning now to the specific provisions on unregulated fishing, it is notable that most RFMOs include the exchange of information as one of the first provisions relating to non- contracting parties.87 This information concerns fishing activities in the respective convention areas by vessels flying the flag of third states. One common practical example relating to the provisions on the collection and exchange of data is the maintaining of IUU vessel lists.88 One RFMO, namely the SPRFMO, even explicitly regulates this practice in the constituent

treaty.89

Vessels that are suspected of engaging in illegal, unreported, or unregulated fishing are documented on such lists. As soon as a vessel is listed, the respective RFMO secretariat will usually circulate the information to the contracting parties as well as to the vessels’ flag states.90 Following this procedure, the relevant flag state is requested to notify the owner of the fishing vessel about the listing.91 A vessel’s flag state is then given the opportunity to react to the claim of participation in illegal, unreported, and unregulated fishing either by proving the opposite or by demonstrating that appropriate action has been taken against it.92 The final IUU lists are shared between organisations and states93 and can be easily searched for specific vessel names.94

87 Art. XVI(2)(a) NAFO; Art. 20(1) NPFC; Art. 22(2) SEAFO; Art. 17(2) SIOFA; Art. 32(1) SPRFMO; Art.

18(2) GFCM.

88 Z Scanlon, Safeguarding the Legitimacy of Illegal, Unreported and Unregulated Fishing Vessel Listings, (2019) 68 International and Comparative Law Quarterly 370.

89 Art. 27(1)(f) SPRFMO.

90 ibid.

91 SPRFMO, CMM 04-2019, Conservation and Management Measure Establishing a List of Vessels Presumed to Have Carried Out Illegal, Unreported and Unregulated Fishing activities in the SPRFMO Convention Area, para 7.

92 Z Scanlon, (n 88) 373.

93 ibid.

94 <https://iuu-vessels.org/Home/Search> (accessed 10 May 2022).

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The exchange of information is an essential first step in combatting unregulated fishing activities. Without information on the vessels and their flag states, RFMOs would not be able to take any further measures. Another effect is that non-contracting parties to RFMOs stay on the radar of the organisations. As a result, RFMOs are constantly aware of flag states that are potentially undermining the object and purpose of their conservation and management efforts.

RFMOs can then react accordingly using one of the following measures against unregulated fishing in order to try and gain the consent and membership of non-contracting parties or to take deterring measures.

b) Promotion of the Object and Purpose of RFMOs

There are several provisions to be found that can be summarised under the term

“promotion of the object and purpose” of the respective convention.95 All of these rules stipulate in similar formulations that the attention of non-contracting parties shall be drawn to fishing activities that adversely affect the implementation of RFMO goals.96 RFMOs will approach states if they detect unregulated fishing activities within their regulatory areas and actively defend their object and purpose against the intrusion of non-contracting parties.

In the interpretation of this thesis, the promotion of the object and purpose of an RFMO is one of the least confrontational measures that can be taken by an organisation. It is essentially limited to diplomatic action. However, in the view of this thesis, this does not mean that it is also the least effective. Before moving to more drastic means, it is always advisable to turn to non-confrontational diplomatic action first. A vessel that is flying the flag of a non-

contracting party will most often not be directly sent to do so by the state itself. At first sight and without any further evidence, it must be assumed that the third state is acting in good faith. While there is a lot of criticism on the effectiveness of flag state jurisdiction it can neither be assumed that the respective flag state is not willing or able to exercise its

jurisdiction properly. As a result, the least confrontational method to respond to unregulated

95 Art. XVI(2)(c) NAFO, Art. 20(2) NPFC, Art. 17(3) SIOFA, Art. 32(2) SPRFMO, Art. 18(4) GFCM, Art. X(1) CCAMLR.

96 ibid.

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fishing activities might also turn out to be very effective and quick, if the flag state responds by supporting the RFMO regime. Drawing the attention to the RFMO regime in the first place, can likely be the first step in gaining more support and new member states. It serves the purpose of convincing more and more states to consent to the organisations’ conservation and management measures. Consequently, in the interpretation of this thesis, this method of combatting unregulated fishing also aims at mitigating the effects of the theory of consent.

c) Recruiting Members

The most straight forward but not the easiest way to combat unregulated fishing is to convince other states to become members to RFMOs or at least cooperate with the organisation even without becoming a member state. Most RFMOs entail provisions revolving around approaching non-contracting parties in order to invite them to become members or cooperate as a non-member state.97 Non-contracting parties do not necessarily need to become members of an RFMO in order to apply its conservation and management regime. It is also possible for them to gain the status of cooperating non-contracting party.

While this is not quite the same as becoming a member of an organisation, cooperating non- contracting parties are still promised benefits from their participation in the conservation and management regimes. The idea of cooperating non-contracting parties originated withing CCAMLR and other RFMOs, such as NEAFC for example, have taken up the concept.98 For instance, cooperating non-contracting parties with NEAFC are not subject to any trade restrictions. This pays tribute to the origin of the concept which aimed at avoiding inconsistencies with WTO non-discrimination commitments.99

In the interpretation of this thesis, inviting and convincing more and more states to join RFMOs addresses the problem of the lack of consent at its root. After all, the best solution to any problem is the abolition of the problem itself. If every state was a member of one or more

97 Art. 20(3) NPFC; Art. 22(1) SEAFO; Art. 17(4) SIOFA; Art. 32(3) SPRFMO; Art. 18(1) GFCM.

98 OS Stokke, Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic, (2009) 22 Marine Policy 347.

99 ibid.

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RFMOs, the theory of consent would no longer stand in the way of conservation and

management of the marine environment. Unregulated fishing would become a phenomenon of the past.

This common idea can also be found in several RFMO constituent documents.100 For illustration purposes, NAFO will serve as an example. According to estimates by Canada, unregulated fishing activities in the convention area of NAFO quadrupled between 1984 and 1990.101 This development came with an immense total catch increase, contributing

significantly to the problem of overfishing in the area.102 Therefore, the organisation has repeatedly made use of diplomatic means in order to reduce unregulated fishing.103

Such diplomatic efforts have resulted in the Republic of Korea joining NAFO.104 The same is true for the US, where diplomatic measures have led to the cessation of American fishing activities in NAFO waters.105

Such developments are not unique to NAFO. A lot of states have joined multiple RFMOs.106 Additionally, an increasing number of nations have joined one or more

organisations in the last two decades: between 2000 and 2017, these amounted to 66 new state parties worldwide.107 Recruiting new member states can therefore be seen as the most

effective way to combat unregulated fishing. After all, this thesis represents the opinion that, unregulated fishing as the result of a lack of consent can best be solved with consent itself.

100 Art. 20(3) NPFC, Art. 22(1) SEAFO, Art. 17(4) SIOFA, Art. 32(3) SPRFMO, Art. 18(1) GFCM.

101 D Day, Tending to the Achilles’ heel of NAFO: Canada acts to protect the Nose and Tail of the Grand Banks, (1995) 19 Marine Policy 262.

102 ibid.

103 ibid.

104 ibid.

105 ibid.

106 T Løbach et al, (n 18) 11.

107 ibid.

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A very common problem seems to be the reflagging of vessels to non-member states of RFMOs. What happens is that fishing vessels that fly the flag of an RFMO member state are confronted with the organisation’s conservation and management rules.108 This often results in restrictions in the form of total allowable catches when it comes to the number of fish that can legally be taken out of the sea, for example. Additionally, fishing can be limited to certain areas and season according to the conservation and management schemes of the organisation.

Moreover, vessels must implement conservation rules on the kind of fishing gear they use.

However, only vessels flying the flags of RFMO members need to abide by the RFMO rules. Consequently, vessels flagged to non-contracting parties can legally ignore specific RFMO conservation and management obligations. As a result, vessels owned and crewed by nationals of RFMO member states reflag to third states in order to circumvent RFMO obligations. In these cases, possible solutions are not easy to find because in fact, nothing illegal is happening. Each state has its own conditions on granting a vessel to fly its flag109 and as long as the flag state is not an RFMO member, it is not bound by RFMO rules. Fishing entities that reflag their vessels in order to be able to conduct fishing activities in RFMO convention areas therefore are purposefully using the process of reflagging to circumvent member state obligations. In fact, member state vessels themselves are undermining the object and purpose of the convention by using the loophole of unbound non-contracting parties.

However, the problem is not completely solved when states become members of RFMOs.

It has not been uncommon in the past for vessels owned and crewed by individuals of RFMO members to reflag their vessels to non-contracting parties.110 As a result, the vessel appears to be that of a non-contracting party, while it is actually operated by nationals of an RFMO member. This process of reflagging to non-contracting parties makes it possible for member state vessels to then engage in unregulated fishing activities.

108 R Rayfuse, Countermeasures and High Seas Fisheries Enforcement, (2004) Netherlands International Law Review 69.

109 A Henriksen, International Law, (Third Edition, Oxford University Press, 2021), 152.

110 R Rayfuse (n 108).

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To prevent reflagging from happening, some RFMOs have adopted provisions that prohibit the practice specifically.111 To illustrate this point, NAFO will serve as an example again. The NAFO “Scheme to Promote Compliance with the Conservation and Enforcement Measures Established by NAFO” adopted in 1997 was modified to accommodate for the circumvention of the previously implemented rules through reflagging two years later.112 According to the modified version, vessels flying the flag of third states are directly suspected of contravening NAFO conservation and management efforts and become the target of

inspections.113 This makes the process of reflagging less attractive to vessels operated by nationals of NAFO members.

However, the law was still one step behind the sophisticated methods of fishing vessels to circumvent NAFO rules. To work around the new scheme critical non-contracting party vessels (prohibited from landing in NAFO ports) took to the habit of transferring their catch to member state vessels while they were still at sea.114 In response, NAFO forbade member state fishing vessels from taking on fish at sea from third party fishing vessels that had previously engaged in fishing activities within the NAFO Regulatory Area.115 Following NAFO’s example, the CCAMLR and NEAFC also adopted similar schemes.116 Even though the constituent documents of the latter two organisations do not provide for very specific measures against unregulated fishing, both organisation have still taken up the fight.

In the context of NAFO, some non-member flag states, such as Panama, Honduras, and Sierra Leone, for example, have agreed to help prevent the circumvention of NAFO rules through reflagging.117 They de-registered some vessels flying their flags that are owned and

111 Art. X(1)(h) NAFO, Art. 20(5) NPFC.

112 NAFO, Report of the General Council Meeting, 19th Annual Meeting, reprinted in Meeting Proceedings of the General Council and the Fisheries Commission for 1997 (1998) 209-210.

113 JP Plé, (n 15) 203.

114 ibid.

115 ibid.

116 ibid.

117 D Day (n 101).

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crewed by nationals of NAFO members.118 As a result, these vessels can no longer fish under the cover of a non-member state flag. Nevertheless, there were not only positive

developments to be noted. For example, while Panama had de-registered vessel owned and crewed by NAFO members, Belize had allowed these same vessels to fly its non-member state flag instead.119 This had made their circumvention of NAFO regulations possible once more. However, in 2005 and 2008, respectively, these two open-register states have ratified the UN Fish Stocks Agreement and have therefore consented to the UN Fish Stocks

Agreement’s measures against unregulated fishing as well.120 The issue of reflagging to Belize and Panama was finally solved by these two countries themselves consenting to international obligations.

This example shows that the problem of circumvention is one of the most difficult to tackle. As long as there is a profitable possibility of engaging in unregulated fishing, vessels will probably find a way to do so. The only way to address the more or less legal

circumvention of RFMO regulations is to get non-contracting parties to join the regime. Once consent is given, each member state is obliged to effectively implement and enforce

conservation and management rules. Thus, there would be less room for avoiding RFMO rules and engaging in unregulated fishing.

e) Market-related measures

Finally, some of the analysed RFMO treaties address the topic of market-related measures.121 This last category of measures against unregulated fishing can be aimed at market and port states. For this purpose, RFMO commissions will approach relevant market and port states and seek their cooperation in the implementation of the object and purpose of their goals.122 As opposed to the formerly explained provisions, this last category is not

118 ibid.

119 ibid.

120 J Fuchs (n 47).

121 Art. 7(2)(g) NPFC; Art. 27(1)(d), 32(4) SPRFMO; Art. 18(2) GFCM.

122 Art. 32(4) SPRFMO.

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primarily aimed at non-member flag states but at non-member port and market states. Market- related measures can also concern states that import, export, or re-export fish that has been caught within a RFMO regulatory area.123 RFMO commissions can also be allowed to apply market-related sanctions where third state fishing threatens to undermine the object and purpose of the RFMO.124

NAFO approaches the topic from the point of cooperation, for example. Its member states shall not only seek cooperation with non-contracting parties that wish to fish within the NAFO Convention Area. They shall do the same regarding countries categorised as importing, exporting, or re-exporting fishery products derived from the regulatory area.125 Sometimes RFMO conventions only entail a very general provision on preventing, deterring, and eliminating IUU fishing. 126 In the interpretation of this thesis, it can be argued that this includes the possibility of adopting market-related measures. Only one organisation (GFCM) goes beyond the formerly explained regulations. According to its constituent treaty the exchange of information on third state fishing vessels can be followed by the adoption of sanctions, including market-related measures.127

Unlike most of the previously introduced methods, market-related measures are not primarily aimed at gaining the support of non-contracting parties but at deterring unregulated fishing by making it unprofitable and generally unattractive. One example for such measures, that can also be categorised as port state measures against unregulated fishing is NAFO’s

“Scheme to Promote Compliance with the Conservation and Enforcement Measures Established by NAFO” adopted in 1997.128 According to this Scheme, all fishing vessels flying the flag of a non-contracting party are documented and presumed to have engaged in unregulated fishing. Following the sharing of information with all member states, critical non-

123 Art. XVI(2)(d) NAFO.

124 Art. 18(2) GFCM.

125 Art. XVI(2)(d) NAFO; 32(4) SPRFMO.

126 Art. 7(2)(g) NPFC; Art. 27(1)(d) SPRFMO.

127 Art. 18(2) GFCM.

128 NAFO, Report of the General Council Meeting, 19th Annual Meeting, reprinted in Meeting Proceedings of the General Council and the Fisheries Commission for 1997 (1998) 209-210.

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contracting party vessels must not be permitted to land or discharge of any fish before inspection by the authorities when it enters a NAFO member state port.129 If any species regulated by NAFO are found onboard the vessel, it is prohibited from landing and

transshipment. This is the case unless it can be proven that the catch has its origin beyond the regulatory area or was otherwise caught in a way not contravening NAFO provisions.130 This method prevents fish that has been caught by non-contracting parties from entering NAFO markets.

Market-related measures such as these aim at making unregulated fishing as unattractive as possible. While they are not primarily made in order to get non-contracting parties to become RFMO members, market-related measures might also help in gaining more consent for RFMO regimes. Taking the economic benefit away from the vessels is hoped to prevent them from engaging in unregulated fishing in the first place. This sends the message that only states that actively engage in conservation and management of fish stocks can benefit from fishing rights. Ultimately, in the interpretation of this thesis, market-related measures are not only supposed to have a deterring effect but also to incentivise states to consent to RFMO rules. Only if they apply the respective conservation and management rules or consent to becoming members of RFMO regimes, can they really engage in economically beneficial fishing.

129 ibid.

130 ibid.

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C. Ways Forward: Possible Methods to Combat Unregulated Fishing

The following section will explore new ideas that could be implemented by RFMOs to prevent and deter unregulated fishing activities. It is worth keeping in mind that the primary goal of RFMOs is not to extinguish the phenomenon of unregulated fishing, but to put in place effective conservation and management plans. However, the role of unregulated fishing with respect to achieving the object and purpose of RFMOs must not be underestimated.

Therefore, such provisions are necessary and worth a regular review and improvement process. The challenge of this section will be to find new ways to deal with the predicament of unregulated fishing and go beyond the existing provisions. The methods already in place could be inspired by the following ideas.

I. Building on UN Fish Stocks Agreement

The UN Fish Stocks Agreement contains a provision that essentially renders unregulated fishing illegal. It says that only RFMO member states shall have access to fishery

resources.131 Nevertheless, only member states of the UN Fish Stocks Agreement acquire obligations from this treaty. The most effective and possibly only solution for a way forward into drastically reducing unregulated fishing activities of third parties is for states to give their consent to specific conservation and management obligations. The goal must be for states to give their consent to be legally bound by the relevant norms.

Simply transforming unregulated fishing into illegal fishing on a normative level can be quite effective as far as member states of the UN Fish Stocks Agreement are concerned.

Where consent to RFMO regimes is missing, the UN Fish Stocks Agreement can fill the gap of specific consent. Consent to the UN Fish Stocks Agreement can be seen as a general agreement to cooperate with RFMOs. Even if a state party of the UN Fish Stocks Agreement is not a member of any RFMO, the state will generally have agreed to be bound by some management and conservation rules and to cooperate with RFMO regimes. In the interpreatin

131 Art. 8(4) UN Fish Stocks Agreement.

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of this thesis, wide participation in the UN Fish Stocks Agreement would be greatly beneficial for the environment as well as for states’ fishing opportunities in the future.

However, it must be kept in mind that the lack of consent for specific RFMO regimes and its replacement with general consent to the UN Fish Stocks Agreement does not entirely overcome the problem of the lack of consent. Rather, it is transferred to the more general level of the UN Fish Stocks Agreement. Additionally, it must be remembered that the UN Fish Stocks Agreement only concerns straddling and highly migratory fish stocks, while the above analysed RFMOs aim to protect all fish stocks within their regulatory area.

II. Specific Suggestions for RFMOs

Convincing as many states as possible to become members of the UN Fish Stocks Agreement can, of course, be reproduced for RFMOs. The more member stateswilling to comply with RFMO conservation and management rules, the better fish stocks can recover.

Nearly all the analysed RFMO constituent documents already provide for the recruiting of new members. For the most effective way to work individually, as well as jointly, RFMOs should all learn from each other and from their respective experiences when it comes to unregulated fishing.

Generally, there are two ways to address the problem. On the one hand, incentives can be set for non-member states to join one or more RFMOs. On the other hand, the consequences of unregulated fishing could be made more severe in order to deter fishing entities from conducting them. For this to be effective, the cost of unregulated fishing must be higher than the potential benefits.

Figure

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References

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