by Pieter van welzen, Lawyer
is a senior lawyer with CMS South Africa. He defended in September 2024 at the University of Hamburg his dissertation examining state responsibility under international law for illegal fishing activities, which was published recently.
Reading time: 18 minutes.
Flag states are obliged to control the activities of vessels flying their flag in maritime areas that are not subject to such state’s jurisdiction, such as the exclusive economic zone (EEZ) of another state and the high seas.
Developing coastal states affected by illegal fishing in their waters often argue that the flag states of the vessels involved do not do enough to control their vessels to ensure that their activities comply with the coastal state's regulations for the conservation and management of living resources. Often, developing coastal states are also flag states of fishing vessels and, therefore, in this capacity, have similar obligations to ensure that their vessels do not engage in illegal, unreported or unregulated (IUU) fishing operations in the EEZ of another state or in the high seas. This means that if they allow their vessels to fish in the EEZ of another state or the high seas they must have rules in place that regulate such fishing activities, and the capacity to enforce such rules.
This article describes the obligations to which flag states are subject and the role that the European Union (EU) can play to support its developing partner states comply with these obligations, through appropriate fisheries regulations and enforcement. Moreover, to illustrate how a developing coastal state international obligations as a flag state can be translated into local fisheries regulations, the relevant provisions of the Fisheries Act 2023 of Mauritius are discussed.
1. Flag State obligations under international law
The basic obligation flag states are subjected to regarding the activities of their fishing vessels in the EEZ of another state or the high seas is that such activities comply with applicable rules which the flag state or its vessels are obliged to observe in accordance with international law and, more in particular, the United Nations Convention on the Law of the Sea (UNCLOS). Various binding and non-binding international fisheries related instruments, such as the FAO Compliance Agreement, the Fish Stock Agreement, the IPOA IUU as well as the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) of 2015 regarding IUU fishing in EEZs (IUU Advisory Opinion), have given more context to these obligations. This means that in relation to an EEZ, the vessels must comply with the relevant coastal state’s fisheries regulations, and in the high seas with the rules of regional fisheries management organisations (RFMOs) of which the flag state is a member or other treaty obligations to which the flag state is bound.
IUU fishing not only includes activities that are in breach of a coastal state's regulations, but also situations where the activities are allowed under the coastal state's regulations, but breach international law. For example, coastal states must determine the allowable catch in their EEZs in accordance with Art. 61 UNCLOS before they can give access for the surplus to their EEZs to vessels of other states in accordance with Art. 62 UNCLOS. Various developing states may not have determined the 'allowable catch' in accordance with the relevant UNCLOS but nonetheless allow foreign vessels to fish in their waters, or permit vessels to fish in excess of the allowable catch (see for example André Standing, Criminality in Africa’s Fishing Industry: A Threat to Human Security and Sustainable Fishing Levels & Quotas | How It Works). Given the general obligations that states have to protect the marine environment under Art. 192 UNCLOS, it could be argued that if a flag state is aware that a coastal state has not adequately regulated fishing in its EEZ in accordance with international law or otherwise allows overfishing, it should not authorise its vessels to fish in the EEZ of that coastal state, even if the coastal state has granted its authorisation.
a) Authorisation
A fishing vessel wishing to fish in maritime zones that are not subject to jurisdiction of its flag state should require an authorisation from the flag state to conduct such activities (see for example §44 and §45 IPOA IUU and art. 4 of the EU Sustainable Management of External Fishing Fleets Regulation (SMEFF)). The application for authorisation should provide sufficient detail, such as location, timing, species, proposed quantity, fishing gear and similar information (see §46 IPOA IUU and art. 5 SMEFF). The authorisation must be subject to conditions, such as observing the limitations set out in the application, the use of vessel monitoring systems as well as administrative and reporting requirements (see for example §47 IPOA IUU and art. 7(3) SMEFF). It should also require compliance with applicable fisheries regulations in the areas where the fishing activities occur (see for example Art. 18(1) Fish Stock Agreement and §123 of the IUU Advisory Opinion).
Where the consent of a coastal state or an RFMO is required for fishing in the relevant area, such consent should be obtained before a flag state’s authorities grant the authorisation (see for example arts. 10(d), 17§1(e) and 20(c) and (d) SMEFF and §44 IPOA IUU). However, as discussed above, where a coastal state's regulations for the conservation and management of living resources are not compliant with international law, a flag state may still be required to refuse its authorisation even if the coastal state provided its consent.
B) Addressees
Fisheries regulations should be clear enough to understand whom they intend to address. Although regulations deal with the activities of a vessel, it does not conduct such activities itself. In order to ensure that the rules can be enforced effectively, it should be clear which person or persons can be held responsible (directly or indirectly, for example on the basis of vicarious liability) for compliance. This means that it may be necessary to define certain terms, like those of 'owner' and 'operator', more precisely to identify which categories of persons are intended to be covered. It often means that the terms cover more persons than their literal text would suggest.
The experience and information that civil society may have can support the efforts of the states and international organisations to challenge IUU fishing and put pressure on governments to comply with their obligations under international law. Photo: illustrative photo by NOAA.
For example, the Fisheries Act 2023 of Mauritius, which will be discussed in more detail below, defines in its Art. 2 'operator' as any person who is in charge of, responsible for the operations of, directs or controls, the vessel, which includes the owner, agent, charterer, master and the beneficiary of the economic or financial benefit of the operations of the vessel. The term 'owner' refers to persons who own the vessel, including its beneficial owner, a charterer and the person who controls the destination, function or operation of the vessel under a management agreement or other similar agreement. The terms 'owner' and 'operator' therefore to some degree overlap.
C) Sanctions and enforcement
Flag states should ensure that their fisheries regulations include sanctions for non-compliance with its rules and authorisation conditions, including the requirement that the fishing activities are conducted in accordance with the regulations of a coastal state, an RFMO or other international legal obligations to which the flag state is subject. These sanctions should be of sufficient severity to effectively prevent and deter non-compliance and to deprive offenders of the benefits accruing from such non-compliance (see for example art. 19(2) Fish Stock Agreement and §138 of the IUU Advisory Opinion). A flag state should also be in a position to enforce such sanctions effectively.
There are various problems that a flag state may face when trying to enforce sanctions. For example, if the addressees of its regulations, such as the vessel’s operator, owner or master, are not based in the flag state, it may need the cooperation of the states where these persons are located in order to enforce such sanctions, since under international law it cannot do so without the consent of the state where the sanctions are to be enforced.
Unless the flag state has arrangements in place with the latter state that provides for such consent or obliges it to cooperate with the flag state in the enforcement of sanctions, it is not a given that the state will consent to such enforcement measures. The flag state may therefore need to include conditions that allow it to enforce its sanctions without the involvement of other states such as requiring a bank guarantee or other form of security that would cover fines and other monetary sanctions that the flag state can impose for breaches of its fisheries regulations.
If a flag state has regulations in place that reflect its international legal obligations, it will be easier to cooperate with other states that have taken legal actions against persons involved in IUU fishing. In order to provide assistance, it may be a requirement that the activity for which the persons are prosecuted abroad is also an offence in the state from which the cooperation is sought. For example, if the activities of a vessel breach the regulations of a coastal state, but the flag state has no regulations that obliges its vessel to comply with such regulations, the flag state may not be in a position to provide assistance to the coastal state to act against the offenders, such as exchanging information, seizure of assets, or extradition.
Non-governmental organisations, organisations of fishers and civil society more generally, can play an important role in the enforcement of fisheries regulations, for example by supporting the authorities through monitoring activities of vessels and informing them of possible offences. The experience and information that civil society may have can support the efforts of the states and international organisations to challenge IUU fishing and put pressure on governments to comply with their obligations under international law.
2. Regional cooperation: harmonising regulations
States, in particular with connected EEZs, should opt for regional harmonisation of fisheries regulations, also considering the impact that IUU fishing in one EEZ will have on the EEZs of neighbouring states. Harmonised regulations would make it easier to cooperate in their enforcement. Regional initiatives for harmonisation as well as regional cooperation in monitoring and enforcing compliance with fisheries regulations should therefore be placed high on the agenda. It is in this context encouraging that ECOWAS proposes a regional action plan against IUU fishing in West Africa.
However, given that the regulations as well as the measures taken may impact on the livelihood of local fishing communities, the regulations should ensure that their views and interests are properly taken into account and that, if measures are taken that affect their fishing activities, arrangements are put in place that mitigate the adverse consequences that such measures may have. For example, while developed states may be able to subsidise fishers who are affected by biological rest periods, developing states often lack the means to do so. Moreover, such rest periods may also reduce the food resources that are available to local communities.
Although neighbouring states may have different legal traditions, this situation should not be an impediment to harmonisation given the objectives and technical similarities of fisheries regulations, applicable standards and guidelines, such as the IPOA IUU, and the international legal obligations to which such states are subject. It should therefore be possible to develop harmonised rules for flag and coastal states regarding, for example, authorisation requirements, technical standards relating to the vessel and its equipment, permitted fishing activities and techniques, reporting, and conditions for access to a coastal state's waters.
While harmonised rules between neighbouring countries might be beneficial in the fight against IUU, it is important that measures are decided in consultation with local fishing communities as some of the measures might affect their access to ressources and their livelihoods. Photo: A protest by Liberian fishers against the reduction of their Inshore Exclusive zone, back in 2017.
African states have already developed various regional initiatives regarding access conditions. See for example, the Convention on the Minimum Access Conditions adopted by the member states of the West African Sub-Regional Fisheries Commission (SRCF) and the Guidelines for Minimum Terms and Conditions for Foreign Fisheries Access of the Southwest Indian Ocean Fisheries Commission (SWIOFC). One of the problems encountered in relation to various regional initiatives, is the lack of follow-up. Often the initiatives, once adopted, appear difficult to implement, for example, due to the lack of financial or human resources, or the relevant states having different priorities. It is therefore crucial that proper consideration is given to the questions how and by when states should adopt the agreed measures and ensure that the initiatives have appropriate mechanisms and resources in place to hold non-complying states to account.
Regional organisations and initiatives can also play an important role in the enforcement of the international obligations to which states in the region are subject. If one state allows IUU fishing to occur in its EEZ, this is likely to impact on the marine resources in the EEZs of its neighbouring states. The interests of a coastal state will also be affected if its neighbour state allows vessels flying its flag to engage in IUU fishing in such coastal state's EEZ. It would therefore be logical for regional organisations to have arrangements in place that allow them to act against member states that fail to comply with their international obligations in this respect.
3. The role of the EU under SFPAs
Under the terms of the Sustainable Fisheries Partnership Agreements (SFPAs), which the European Union (EU) has concluded with a series of developing coastal states, the EU encourages the establishment of joint fishing ventures between European and local companies [Ed.: See for example Art. 12.1 of the protocol with Guinea-Bissau]. In relation to the issue discussed here, an important question that the EU will need to consider is whether the fisheries regulations of the partner state comply with a flag state’s international obligations regarding fishing in the EEZ of another state and the high seas, both in terms of regulations as well as its ability to enforce them. If it cannot comply, then encouraging the reflagging of EU vessels to such states may incentivise IUU fishing.
The EU regulates the fishing activities by vessels flagged to EU member states in third-party states’ waters and the high sea pursuant to the earlier mentioned SMEFF. Given that the rules set out in the SMEFF reflect the principles that follow from the aforementioned international fisheries related instruments, it would not be illogical for the EU to ensure that partner states apply similar rules, also in view of Art. 31(1) of the EU IUU Fishing Regulation that allows the EU Commission to take measures against states that it considers as non-cooperating third-party states in fighting IUU fishing. It would therefore be coherent that the EU requires its partner states to have rules in place, and means to enforce these rules, to regulate the activities of vessels flying their flag in the waters of third states or the high seas, and prohibit their involvement in IUU fishing.
When negociating an SFPA, the EU should ensure that its partner state has the capacity to comply with its international obligations both as a flag and coastal state. Otherwise, encouraging the creation of joint ventures (most often involving reflagging of EU vessels to the partner state) may incentivise IUU fishing. Photo: A Spanish-origin vessel reflagged to Senegal. Click here for more information.
The EU can, through the SPFAs, play an active role in supporting states to comply with their international obligations as flag and coastal state. Since the EU IUU Regulation makes the import of fish to the EU dependent on the exporting state complying with its international legal obligations regarding IUU fishing, it would be inconsistent if the EU were to promote reflagging through its SFPAs to states that cannot comply with their international obligations as flag states.
Where the fishing vessels reflagged to such partner states operate regionally, such as in West Africa, a regional approach to enhancing coastal states fisheries regulations and their enforcement may be appropriate to increase their effectiveness. Regional initiatives are likely to have more impact than those that focus on particular states only. In those cases, the EU should also encourage the actual implementation by states of existing regional initiatives, such as, for example, the aforementioned access conditions, and support initiatives developed by civil society, in particular fishers’ organisations, to promote compliance with their respective states' international legal obligations.
Another point to consider is that it is not always clear for the partner states whether the access arrangements agreed with the EU are separate from the support that the EU and its member states provide in other areas. Sometimes access is thought to be a quid pro quo for other forms of cooperation that the partner state receives, for example in the form of financial support for infrastructure projects. Given the obligations that coastal states have under international law for the conservation and management of living resources as well as the need to protect their own food security, it should be made clear in all access arrangements that there is no such (perceived) interdependency.
4. Implementation: looking at the example of the Mauritius fisheries act
To illustrate the regulations that a developing flag state could implement to support the fight against IUU fishing, some of the provisions of the Fisheries Act 2023 of Mauritius (the Act) will be discussed below. They can be considered as 'state of the art', and include various rules that challenge IUU fishing by Mauritius flagged vessels in areas beyond Mauritius’s jurisdiction.
a) SCOPE
The Act applies to all Mauritian fishing vessels and all persons on them or dealing with or having any relevant relationship to them or persons on them, in and in relation to any areas within or beyond the national jurisdiction of Mauritius. It also applies to all persons, including non-citizens, and all fishing vessels, including foreign fishing vessels and fishing vessels without nationality, and in relation to the high seas or the EEZ of other states (defined as 'areas beyond national jurisdiction') as may be required pursuant to international conservation and management measures or international agreements, or as permitted by international law. More generally, the Act prohibits the possession, trade and export in fish and fish products taken or obtained in contravention of the Act or international conservation and management measure or taken or obtained in contravention of relevant laws of another state.
b) AUTHORISATION AND COMPLIANCE
Mauritian fishing vessels require authorisation from the authorities for fishing or fishing related activities in areas beyond national jurisdiction or in an area of competence of an RFMO. A Mauritian fishing vessel may not be used in areas under the national jurisdiction of another state except in accordance with the laws of that state or engage in any activity on the high seas or in areas of national jurisdiction of another state that does not comply with an applicable access agreement. It should also not engage in activities that undermine the effectiveness of international conservation and management measures. Likewise, Mauritian nationals in areas beyond national jurisdiction must comply with applicable international conservation and management measures, and the relevant laws of another state when in areas under the jurisdiction of that state. Given the increasing involvement of criminal organisations in illegal fisheries, the Act states that no member of or associated with a transnational criminal group shall be permitted to engage in any fisheries related activity.
C) RESTRICTIONS ON ACTIVITIES
The Act contains a number of more specific obligations with which a Mauritian fishing vessel needs to comply. For example, the operator of a Mauritius fishing vessel in areas beyond national jurisdiction must comply with prohibitions on the removal of shark fins and sale and of illegally removing such shark fins as prescribed or required by applicable conservation and management measures. The operator is also obliged to cooperate with boarding and inspection in areas beyond national jurisdiction where it is undertaken under the rules of an international agreement or in accordance with the relevant laws of the coastal or port state. Moreover, an operator of a fishing vessel, cargo vessel or other ship may not provide assistance, engage in fish processing operations, or participate in transhipment or joint fishing operations in relation to any IUU listed vessel, except for rendering assistance where such vessel, or any person on that vessel, is in danger or distress.
The Act provides a list of circumstances where a fishing vessel is considered to have engaged in IUU fishing and related activities. This includes engagement in fishing or fishing related activities in areas under the jurisdiction of any other coastal state in contravention of the latter’s laws or any applicable international conservation and management measure.
d) LIABILITY FOR VIOLATIONS
In terms of addressees of the provisions of the Act, it contains various provisions that extend the liability for offences committed under the Act to persons who are considered to be responsible for the actions of the offender. For example, it provides that where an offence is committed by an employee, officer or agent of an association, the association or by an association, every person who was concerned in the management of the association or was purporting to act in that capacity also commits the relevant offence, unless it or he proves that the offence was committed without its or his knowledge or consent and that it or he took all reasonable steps to prevent the commission of the offence. Moreover, the act or omission of a crew member of a fishing vessel or a person working in association with a fishing vessel is deemed to be that of the operator of the vessel. In relation to enforcement jurisdiction, the Act states where an offence is committed in areas beyond national jurisdiction or in the area of competence of a relevant fisheries management organisation, that offence shall for jurisdictional purposes be deemed to have been committed in Mauritius. This means that the Mauritian courts are competent to deal with the offences and impose sanctions.
e) SANCTIONS
Violations of the Act are penalised with administrative or criminal sanctions. The evidentiary rules make it easier to impose administrative sanctions and include provisions that provide for a reversal of the burden of proof. The Act also sets out the principles to be applied when determining the amount of an administrative penalty and specifically mentions that it should include such amount that may be necessary to deprive the person of monetary benefits acquired or saved by the person as a result of the commission of the offence. Criminal sanctions include fines and imprisonment as well as ancillary measures, such as compensation for actual losses and damages, punitive damages, seizure of profits and equipment, banning from access to Mauritian waters and revocation of authorisations. There are also provisions that deal with the sharing of fines imposed on offenders with other affected states.
Conclusion
The Mauritian fisheries regulations are a useful example for flag states that need or wish to update their fisheries regulations. If a state has well drafted regulations dealing with IUU fishing by vessels flying its flag, this does not imply that such activities will disappear. However, regulations that include the above-described provisions will make it easier to act, whether or not there is cooperation with other states, against IUU fishing practices, both for the flag state concerned as well as for other states affected by the activities.
As alluded to above, the EU could play an important role in supporting its partner countries to meet their obligations as a flag state, for example by ensuring that its SFPA partner states have rules in place that address the activities of vessels beyond the third state’s national jurisdiction. It should do so to ensure the reflagging of vessels to such partner states does not make it easier for the vessels concerned to engage in IUU fishing, and also to ensure that the partner state does not qualify as 'non-cooperating' under the terms of the EU IUU Regulation.
Finally, in order to fight IUU fishing effectively, regional cooperation is crucial, not only to support the measures that states take against IUU fishing, but also to guarantee that they meet their obligations, both as coastal state and flag state, to regulate fishing in their EEZ, fishing by vessels flying their flag and fishing by their nationals. They should of course also ensure that these regulations are adequately enforced. As mentioned earlier, such regional cooperation should not just involve states, but also the participation of civil society.
Banner photo: A Chinese-origin fishing vessel moored at Bissau harbour. Photo by a local source.
Recent studies show that, while these closures can momentarily lead to increased fish sizes and abundance, their socio-economic impact on fishing communities is dire.