Ideal coastal state configuration / by Francisco Blaha

Following on my post on the Ideal Port State set up for a CDS, I follow here the same principle but for a Port State, based on what I wrote in our recent FAO book for a CDS and that I adapted a bit for the Pacific context for a report I’m doing for FFA.

 Is it your fish or mine?

Is it your fish or mine?

The rights and obligations of coastal states are set out in UNCLOS, but in most CDS systems their rights are not currently represented. Coastal states may have no role in the CDS, or they may have no capacity to object to the validation of catch certificates by flag states. It follows that catch certificates can be issued and validated by a flag state for catches in its waters even if the coastal state suspects infringements, and opportunities to address the issue with the parties concerned before unloading and first sale into the supply chain are hence denied.

The following requirements for good governance of fisheries in coastal states are generally recognized: 

  1. a strategy for effective fishery management; 
  2. adequate laws and sanctions; and 
  3. cooperation with the appropriate RFMO and other regional and international fisheries bodies, particularly when it comes to licensing and access agreements for foreign fleets.

For the Coastal States among the FFA membership, the harmonized minimum terms and conditions for access by foreign fishing vessels (HMTCs) facilitate this role. Provided a vessel meets the requirements laid out in the registration application including proof of a type approved MTU, a foreign fishing vessel in the FFA regional register automatically obtains a "good standing" status. Should it lose its good standing as a result of a violation of conservation and management measures of any FFA member, the vessel will be denied access to the waters under the jurisdiction of any other FFA member. This creates a powerful incentive for compliance.

In discharging their obligations with regard to fishing vessels, coastal states do not automatically act as flag states. Coastal states must, therefore, create tools and mechanisms that enable it to collect information from and oversee foreign fishing fleets operating in their waters. These must be part of a robust and cohesive regulatory framework implemented by a well-resourced and capable fishery administration.

Licensing and access agreements
Vessels operating under coastal state jurisdiction must be licensed and must comply with the responsibilities of license holders or operators with regard to national laws and conservation and management measures.

A common approach is to make access subject to agreements with flag states that detail the responsibilities of a flag state with respect to fishing by vessels flying its flag. Such agreements should at least commit flag states to penalise any of its vessels that violate the terms of access, and could also commit flag states to:

  • assist MCS work by coastal states;
  • make violation of coastal states’ fishing restrictions a violation of flag state laws; and
  • remit to coastal states any fines that flag states collect for fishing violations committed by its vessels in coastal state waters.

Access agreements of this sort can foster partnerships between coastal and flag states for preventing, deterring and eliminating IUU fishing. To be effective, however, any access agreement should only provide access for vessels registered in the state seeking access.

The FFA regional register recognizes that most fishing vessel operators wish to operate in waters under the jurisdiction of more than one FFA member. FFA members undertake to ensure that any access agreements they negotiate will include all the requirements in the harmonized minimum terms:

  • no foreign vessel will fish in a member state’s EEZ unless a standard licence is issued;
  • purse seine transhipments at sea are prohibited; they are permitted only in designated ports; longline vessel transshipments can occur at sea, subject to application and approval by the licensing state;
  • foreign fishing vessels must release logbooks and catch records to officers from the licensing state;
  • vessel operators must maintain and submit catch logs for operations in an EEZ and adjacent high-seas areas; these must be released to the licensing state within 45 days of any fishing trip;
  • vessel operators must provide regular catch records for the licensing state while operating in any EEZ;
  • vessel operators must carry observers to verify reports; they must have access to appropriate parts of the vessel and must record their observations;
  • vessel operators must maintain a local agent;
  • fishing gear must be stowed while transiting an EEZ;
  • vessel operators must comply with the orders of licensing states;
  • operators must mark their vessels in accordance with the FAO Standard Specification for the Marking and Identification of Fishing Vessels; and
  • vessel operators must register automatic location communicators on the VMS Register of Foreign Fishing Vessels.
  • Compliance to the HMTCs is discussed below in Section 6.3.1.2, yet two elements arise as best practices for PSM and CDS

Monitoring harvesting operations in the EEZ of coastal states
Before fishing starts the coastal state must create and maintain a record of authorized foreign-flag fishing vessels in waters under its jurisdiction, and ensure that they are controlled by their flag state. This process starts with pre-fishing inspections of the vessels by the coastal state authorities, either at the vessel’s home port, a port in a third-party port state or the coastal state.

These inspections involve checking a vessel’s ID and operational capabilities against the documentation presented for licensing. If compliance is proven, licences are issued and the vessel is bound by the licensing conditions, which may include:

  • communication of location and EEZ entry and exit times; and
  • VMS, AIS and logbook regimes enabling coastal state oversight using data legally submitted by masters in log sheets or e-Reports.

These capabilities enable coastal states to oversee the legality of catches in their jurisdiction. Their enforcement capacities, however, are limited when vessels unload in other jurisdictions with which the coastal state has no formal linkages.

Blocking certification capacity
Even though coastal states’ rights and duties are enshrined in international law, mechanisms reflecting their rights are absent in current CDS. The Pacific Island countries defended coastal states’ rights in international fora, not least because unilateral schemes affecting them directly ignore their rights and their natural role in certification and validation.

It is essential that coastal states help to determine which catch certificates can be validated on the basis of information they collect about foreign fishing operations in their EEZ – which is often available to them alone. A new mechanism is required, but it must be grounded in the monitoring by coastal states of foreign fishing operations in their EEZ.

When a commercial fishing vessel is nearing the end of its trip and the certificate is being logged on the CDS platform, all coastal states in whose EEZ the vessel has been operating should be notified that the certificate is being applied for. Some coastal states may be overburdened by the tasks of reviewing and verifying every catch certificate, and counter-validating them in real time to enable transhipments, landings and trade to proceed.

As Coastal States should be monitoring vessels that are active in their sovereign waters, there may be opportunities to tie the initial stages of the catch certification process by Coastal States to the zone exit notifications that are standard across the Pacific Island countries. This therefore could set a number of parameters that need to be tallied and verified by the Flag State, if individual further Coastal State verification is not possible in the busy Pacific administrations.

However, the best option is likely to be a system of “non-objection” with regard to validation of catch certificates by coastal states. In such an arrangement, catch certificates validated by a flag state for catches harvested at least in part in a coastal state EEZ trigger an automatic notification to the coastal state, which has the option of reviewing the certificate: if it has no objection within a set period of time, no action is required and validation by the flag state stands. If the coastal state suspects an infringement, however, it can block the certificate in the system, bring the matter before the parties concerned and investigate the suspected IUU fishing event. It is important in this system that more onus is placed on the Flag State to complete a robust assessment as part of the certification process, using all available data including available zone entry and exit notifications, observer and VMS data targeting slow speed events.