New Flag State Performance Assessment Tool Aims to Help Countries Combat Illegal Fishing

Overview

Illegal, unreported, and unregulated (IUU) fishing activities undermine attempts to manage fisheries sustainably and can inflict grave and often hidden damage on fish stocks and other marine life and ecosystems. They are detrimental to the human communities that depend on the productivity of the sea for their survival and well being, and to the global economy at large.¹

Flag States play a key role in combating IUU fishing, as they bear responsibility for and have powers to control the vessels entitled to fly their flag. This control comes with the right and responsibility of the flag State to translate international obligations and commitments into a framework of rules and processes that will govern their vessels everywhere they go. In the high seas,² which make up nearly two-thirds of the world’s ocean, this oversight includes ensuring that their vessels do not engage in fishing activities that undermine protection of the marine environment and fish stock conservation and management.³ In waters where coastal States have jurisdiction, flag States must ensure that their vessels respect the international rights and obligations of those coastal States to manage their fish stocks.

IUU fishing activities breach domestic laws, undermine regional conservation and management or cooperation measures, or imply responsibility failures on the part of States.⁴ Internationally, differences in the ways in which fishing activities are defined and regulated by flag States can also give rise to incoherencies across their regulatory systems. This makes cooperation and coordination difficult, creating gaps in governance that are exploited by IUU fishing operators.⁵ Weaknesses in data collection and verification processes can result in a wide range of information gaps that prevent flag State authorities from identifying infractions and perpetrators. Such gaps perpetuate uncertainties as to possible noncompliance with legal requirements and the conditions on authorizations, permits or licenses;⁶ the existence of fraud;⁷ or the existence and circumstances of unauthorized operations such as transshipment.⁸ Ultimately, lack of information can frustrate flag State authorities from exercising appropriate oversight over vessels, identifying infractions, and adopting appropriate response measures.

The importance of flag State control in combating IUU fishing cannot be overstated. Robust rule and process frameworks that minimize information leakage and that reinforce flag State control and cooperation with other States, coupled with transparency and data accessibility, are therefore key.

The Pew Charitable Trusts created a performance assessment tool, in the form of a questionnaire, to assist flag States in combating IUU fishing in waters beyond national jurisdiction. Flag States’ authorities and other independent users—such as a nongovernmental organization, an industry group, even a student—can use the questionnaire to evaluate a country’s existing regulatory frameworks and better understand the strengths and weaknesses of relevant rules and processes. The results can then be used to develop an improvement plan.

This report details the objectives and benefits of the assessment tool, as well as its components and a guide for users. It is available for download below.

1. Why a performance assessment tool for flag States?

The approach adopted for the development of the questionnaire stems from the premise that a country’s domestic legal framework should set out the rules and processes that shape the conduct of flag State authorities, and their domestic and international relationships with other actors. In addition, the framework should provide the parameters within which legal and natural persons may perform activities such as fishing in areas beyond national jurisdiction, which require authorization and ongoing oversight. In addition, the existence and visibility of clearly defined processes and substantive rules are especially important in clarifying compliance expectations, particularly when economic drivers capable of undermining legal compliance are present, as is typically the case with IUU fishing activity.⁹

For the governance of fishing activity to be effective, there must be political will and resources to finance, support, and exercise the competences and powers granted by law, effective accountability systems, and a culture of compliance. To be successful in the control of IUU fishing, flag State authorities must act in a systematic manner, with the intention to cooperate, and the ability to coordinate efforts across public authorities with complementary competences. Although many of these elements transcend the mere existence and characteristics of a State’s legal and regulatory framework, the ability to exercise appropriate competences and the quality of the actions taken are dependent on the existence of adequate legal bases and a sufficiently comprehensive framework of rules and processes.

The questionnaire provides a mechanism for a flag State to identify specific rules and procedures that should be present in the domestic legal framework governing any fishing vessel entitled to fly its flag, when that vessel is operating in the high seas or in waters under the jurisdiction of other States. Such rules and procedures are identified via a series of indicators, which are arranged across six modules, each of which concerns a distinct governance category, such as international cooperation and authorization and licensing. Three types of indicator categories facilitate additional analysis and support the design of a plan to improve the domestic legal framework. Each module can be implemented with or without a weighting system, which is described in further detail below, in the methodology.

Drawn from a spectrum of international instruments and treaties, the flag State performance assessment tool has benefited from advice and feedback from a number of fisheries, legal and ocean governance experts. It reflects changes resulting from testing in two flag States by a contractor, and a self-assessment by a third flag State.

The assessment tool aims to deliver the following overall benefits:

1. To encourage and facilitate the incorporation of international rules and standards into the flag State’s domestic regulatory framework.
2. To help identify procedures, such as recording vessel information upon registration, that could help improve efforts to stop IUU on the high seas and in exclusive economic zones (EEZs).
3. To promote the strengthening of flag State oversight, processes and rules relevant to IUU fishing control in the high seas and in ocean waters under the jurisdiction of States other than the flag State.
4. To promote information visibility and accessibility in support of institutional and international cooperation in matters of IUU fishing control.
5. To encourage inter-institutional cooperation and dialogue, including between departments and issue areas, when government officials review vessel-related paperwork, such as fishing license or authorization.
6. To encourage flag State cooperation with other States, regional fisheries bodies and the FAO.
7. To encourage ongoing improvement through lessons learned when assessments are done cyclically.

2. User guide

2.1 User instructions

The questionnaire contains indicator lists to guide users in identifying the existence of specific rules and

processes, and in assigning points. Where no match is found for specific indicators, the assessment highlights voids in the legal framework of the flag State. The tool can reveal substantial differences in a flag State’s performance across the areas measured by the different modules; for example, a country may get a high score in the Infractions and Sanctions module but a much lower score in Registration and Due Diligence.

The results of a one-time assessment can be utilized to identify the type of effort or support that a flag State requires to improve, and cyclical assessments will enable the evolution of the legal framework of a flag State to be mapped over time. Pew recommends that assessments be carried out periodically. Plans and strategies to improve a flag State’s legal frameworks should be considered alongside the development or review of existing IUU fishing action plans, so that any legal voids and related problem areas can be identified and addressed. At the same time, when assessments are carried out it is also an opportunity to refine and improve the questionnaire itself. Pew recommends that independent users as well as self-assessing flag State authorities provide feedback if they consider that any part of the questionnaire should undergo modification or development. To provide

feedback, please contact Tahiana Fajardo Vargas at [email protected].

2.1.1 User skills

For optimum evaluation of the flag State’s domestic legal framework, users should possess the following skills:

1. An understanding of distant water fisheries and their regulations.
2. An understanding of the legal framework in the fag State undergoing assessment.

2.1.2 Assessment procedure

The assessment of the legal framework must be carried out as comprehensively as possible, within the parameters of each module. Users should make any observations, as considered appropriate, in order to ensure that the results of the questionnaire are clear, and that any needed clarification or reasoning is included. The assessment should reveal either the existence of specific domestic legal rules and processes as referenced by the indicators, or voids where such rules and processes should be. With the criteria afforded by each module theme and indicator type, the result of the assessment should provide the basis for the elaboration of a basic roadmap to support regulatory framework improvement.

When the questionnaire is being completed by independent users rather than flag State authorities, the latter should be contacted to ensure they are able to make any observations they think pertinent in respect to any legal voids or other problems identified during the assessment.

Where possible, users should record the name, date and type of legal or other documents identified (e.g., laws and implementing regulations) in the course of the application of the questionnaire, and the sources where they were found, as well as any relevant reference numbers, or other identification as appropriate. Any issues considered problematic when working with any of the indicators should be highlighted, and the affected indicators should be clearly earmarked.

Where users are able to identify the rule or process requested by a particular indicator, but it becomes apparent that such rule or process does not attract points because it is found in a document that is not public or binding, the user should nevertheless make a note of the relevant instrument, making clear the reason for the nonassignation of points.

2.1.3 Information accessibility

Access to the information required to carry out the assessment is of the essence for its successful completion. Users may encounter problems in the identification of some rules or processes required by the questionnaire indicators, particularly in States where legislation may not be systematically or comprehensibly publicized or is not freely accessible on online platforms. In cases where the questionnaire is completed by independent users, assistance from flag State authorities is likely to be required, and independent users should endeavor to engage the relevant officials, and to note when the assistance requested is not rendered, and any reasons given.

Indicators containing data accessibility elements have been disaggregated in order to attract additional weighting. It is therefore likely that States with a policy of making certain binding processes publicly and freely accessible may obtain a higher result in the assessment. If access to information is denied to independent users, or if the existence of a rule or process required by an indicator cannot be verified, this should be noted, and no points should be assigned.

2.1.4 Acronyms

2.1.5 Definitions

“Authority” or “Competent authority” means a State authority with legal capacity for the performance of legal, regulatory or governance functions relevant to fishing vessel administration, fishery management or IUU fishing control.

“Coastal State” means the State with jurisdiction emanated from sovereignty or sovereign rights over the waters in which fishing and/or related navigation activities take place.

“Conservation and management” means the conservation and/or management of one or more species of living marine resources.

“Control” means the regulatory conditions and competences under which fishing activities must be conducted.

“Enforcement” means any actions taken by a competent authority to ensure compliance or prevent, deter or sanction noncompliance with the applicable legal and regulatory framework, or with regional fisheries management organization (RFMO) measures where applicable, in respect of fishing activities.

“Fishing,” “fishing activities,” “fishing operations” and/or “to fish” means any method of searching for fish with the intention of catching it, the act of capture irrespective of the methods used and any support or complementary activities such as deployment of fishing gear, attracting, locating, hauling, sorting, discarding, processing, packaging, retaining on board, freezing, transshipping, holding or assisting fishing vessels, transporting and landing.

“‘Fishing authorization” or “authorization” means an entitlement assigned by a competent authority for the conduct of fishing activities in waters beyond the national jurisdiction of the flag State.

“Fishing license” or “license” means an official document conferring on a vessel the right, as determined by the domestic legal framework, to conduct fishing activities, and setting out requirements concerning the identification and technical characteristics and fitting out of the vessel, and the conditions upon which the fishing activities may be conducted. The term license is deemed to include any type of permit to conduct fishing activities.

“Fishing vessel” or “vessel” means any vessel used for, intended to be used for, or equipped to carry out fishing, fishing activities or fishing operations.

“Flag State” means the State in which the vessel is registered.¹⁰

“Infraction” means the breach of one or more conditions established in a fishing authorization, license or permit, and/or the breach of applicable law or regulation.

“Inspection” means any examination, whether at sea or in port, carried out by a competent authority or its agents, in accordance with the domestic legal framework of the flag State, the measures of an RFMO, or a relevant regional or international scheme to which the flag State has agreed.

“Investigation” means a formal inquiry undertaken by a competent authority as a response to allegations of IUU fishing.

“IUU fishing” (illegal, unreported and unregulated fishing) refers to the activities set out in paragraph 3 of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.¹¹

“Monitoring” means the continuous requirement for the measurement of fishing activity and resource yields.

“Operator” means a person who, irrespective of vessel ownership, is in charge of the logistics and management of the vessel.

“Person” means any natural person or legal entity able to hold rights and obligations under the domestic legal framework.

“Regional fisheries management organization” or “RFMO” means an intergovernmental fisheries organization or arrangement that has the mandate to establish fishery conservation and management measures.

“Surveillance” means the observation of fishing activities required to maintain compliance with applicable control rules.

“Transshipment” means the transfer of any fish or fishery products, including the actions of unloading and receiving and any preparatory or consequential action, from one vessel to another, irrespective of the characteristics of the vessel.

“Unique vessel identifier” or “UVI” means a unique number that is permanently allocated to a vessel. Unless otherwise specified, UVI references include the unique number assigned by the International Maritime Organization (IMO) to the vessel.

“Vessel monitoring system” or “VMS” means an on-board tamper-proof monitoring or surveillance system whereby data on vessel identification, location, position, course, operational pattern, speed, date and/or time may be transmitted by satellite, radio or other means to the relevant authority of the flag State.

3. Sources

The indicators set out in the questionnaire have been developed from a broad number of provisions established in the following international treaties and nonbinding instruments:

1. United Nations Convention on the Law of the Sea (1982).
2. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993).
3. United Nations 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 (1995).
4. Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing (2001).
5. Code of Conduct for Responsible Fisheries (1995).
6. International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing (2001).
7. Voluntary Guidelines for Flag State Performance (2014).
8. Global Record of Fishing Vessels, Refrigerated Transport Vessels, and Supply Vessels.

4. Questionnaire

To access the full, clickable performance assessment tool questionnaire, please download the PDF.

5. Methodology

5.1 Module classification

The questionnaire modules cover the following areas:

Registration and due diligence. The indicators in this model trace the extent to which the legislation of the flag State establishes appropriate procedures for the registration of fishing vessels, and for the compilation, recording and sharing of information with relevant authorities required for the effective oversight of the fishing activity.

Authorization and licensing. The indicators in this module map the preparation and verification duties that the authorities of the flag State should observe as part of the authorization of distant-water fishing vessels, as well as the information contained in authorization and/or permit or license documentation, and related duties and processes.

Catch and operation reporting. The indicators in this module cover the duties to which individuals or companies should be bound in respect to operation and catch data collection and reporting.

Monitoring control and surveillance. The indicators in this module lay out the duties and processes whereby flag State authorities ensure legal compliance by the persons responsible for fishing operations. They cover the monitoring of fishing vessels, fishing operations and catch, as well as inspections and evidence collection.

Infractions and sanctions. These indicators cover the basic elements that should be included in a domestic framework of infraction and sanction to ensure deterrence of future violations.

International cooperation. These indicators cover key processes intended to ensure interaction and information-sharing with other States, and with relevant international organizations.

5.2 Weighting system

The questionnaire includes a points-based weighting system that has been designed not only to reward procedural transparency and information accessibility, but also to promote legal certainty. Accordingly, only binding and public rules at the national level associated to the indicators are weighted. Users should note the existence of nonbinding and/or nonpublic rules and processes, but they should not be allocated points as part of the application of the questionnaire.

The use of the weighting system is optional for all the modules, and not recommended for the international cooperation module. State practice in the areas covered by the indicators contained in this module is likely to include a significant amount of nonbinding and/or nonpublic processes and practices. Although nonbinding processes can play a role in cooperative governance, they do not meet the legal certainty and transparency criteria required to activate point assignation as part of the questionnaire application method.

5.2.1 Point assignation rules

Where users include the weighting system as part of their assessment, the following rules should be followed:

Each indicator is associated to a weight measure referred to as a “point.” Points are cumulative within each individual module. Within each module, weight is distributed across three functional indicator types. This classification enables further insight into the strengths and weaknesses of the regulatory frameworks under assessment. Another layer of analysis is provided by this additional classification, highlighting the type of indicators that are present or absent within and across modules, and facilitating basic roadmapping for future improvement of the flag State’s regulatory framework.

5.2.2 Module indicator type

Each regular indicator belonging to any of the three types attracts one point (1.0) when the existence of the rule, process or standard referred to by that indicator is verified.

Complex indicators relating to transparency in data compilation and information-sharing processes have been disaggregated to enable individual indicator elements to attract an additional half a point (0.5). This additional weight is indicative of the importance of standards of transparency in data collection, data visibility or data sharing as part of the assessment.

5.3 Scope

Although the questionnaire is composed of indicators designed to enable the assessment of a flag State’s regulatory framework, particularly framework rules and processes that are transparency enhancing, it does not extend to other factors that can also be important to IUU fishing control in waters beyond national jurisdiction.

In order to ensure the objectivity and generality that form part of the aims of the questionnaire, it has been necessary to delimit its scope: It does not contain region-specific indicators, or any indicators that may favor the more developed States. Neither does it extend to considerations of compliance and enforcement of the legal framework, institutional design, scientific activity, development, or resourcing. Comparative and functional assessment of economic sanctions is not included either, beyond a standard threshold whereby sanctions must be sufficient to deprive offenders of their IUU fishing gains.

Even though the questionnaire takes into account objectivity and generality criteria, it is nevertheless possible that less developed States that suffer from legal and regulatory capacity limitations may have lower questionnaire scores, reflecting a need for legal capacity assistance. Lastly, the questionnaire does not cover non-fishing activities that have operational synergy with IUU fishing, such as some forms of domestic or transnational crime, labour abuses, or human rights violations. Non-operational areas, such as capacity control through subsidies and other financial stimuli, are also excluded.

Endnotes

1. U.N. Food and Agriculture Organization, “Four Reasons Illegal, Unreported and Unregulated (IUU) Fishing Affects Us and What We Can Do About It,” accessed Aug. 18, 202, https://fao.org/fao-stories/article/en/c/1403336/.
2. United Nations, Article 92(1), Convention on the Law of the Sea (1982), https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm.
3. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), 21, (International Tribunal for the Law of the Sea, April 2, 2015), https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion_published/2015_21-advop-E.pdf.
4. U.N. Food and Agriculture Organization, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009), http://www.fao.org/fileadmin/user_upload/legal/docs/037t-e.pdf; U.N. Food and Agriculture Organization, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001), http://www.fao.org/3/y1224e/Y1224E.pdf.
5. H. Österblom et al., “Adapting to Regional Enforcement: Fishing Down the Governance Index,” PLOS ONE 5, no. 9 (2010), https://doi.org/10.1371/journal.pone.0012832.
6. A. Arias and R.L. Pressey, “Combatting Illegal, Unreported, and Unregulated Fishing with Information: A Case of Probable Illegal Fishing in the Tropical Eastern Pacific,” Frontiers in Marine Science 3, no. 13 (2016), https://doi.org/10.3389/fmars.2016.00013; C. Pongsri et al., “Regional Fishing Vessels Record: Option to Mitigate IUU Fishing in Southeast Asia,” Fish for the People 12, no. 1 (2014), https://repository.seafdec.org/bitstream/handle/20.500.12066/935/SP12-1%20rfvr.pdf?sequence=1.
7. G.A. Petrossian and F.S. Pezzella, “IUU Fishing and Seafood Fraud: Using Crime Script Analysis to Inform Intervention,” The Annals of the American Academy of Political and Social Science 679, no. 1 (2018): 121-39, https://doi.org/10.1177/0002716218784533.
8. B. Hutniczak, C. Delpeuch, and A. Leroy, “Closing Gaps in National Regulations against IUU Fishing,” OECD Food, Agriculture and Fisheries Papers (2019), https://www.oecd-ilibrary.org/content/paper/9b86ba08-en.
9. B. Le Gallic, “The Use of Trade Measures Against Illicit Fishing: Economic and Legal Considerations,” Ecological Economics 64, no. 4 (2008): 858-66, https://doi.org/10.1016/j.ecolecon.2007.05.010; L. Cordner, “Risk Managing Maritime Security in the Indian Ocean Region,” Journal of the Indian Ocean Region 10, no. 1 (2014): 46-66, https://doi.org/10.1080/19480881.2014.882148.
10. The flag State may delegate some of its administrative functions on one or more third parties, but remains responsible for discharging flag State duties.
11. U.N. Food and Agriculture Organization, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.