One Fish, Two Fish, Few Fish, No Fish: Regional Fisheries Management Organisations, IUU Fishing and High Seas Fisheries Management

<p>The World's fisheries are in a desperate state, they have been utilised to a point where a majority of the fisheries resources are fully exploited. In addition to overfishing, the responsibility of the sad state of affairs of the world's High Seas' fish stocks can be put down to inefficient management. The high seas fisheries regime is dominated by two powerful, tried, tested and consented to norms: the principle of freedom of fishing on the high seas and the principle of exclusive flag state jurisdiction over flagged vessels on the high seas. These Grotius norms (unintentionally) obstruct effective and meaningful high seas fisheries management, and have enabled unscrupulous states and actors to take advantage of the lacunae created by the UNCLOS High Seas fisheries framework and engage in IUU fishing which has resulted in a tragedy of the high seas commons. Furthermore these norms have a 'hobbling' effect on RFMOS and coastal states alike, and leave them almost powerless to ensure flag-state compliance with their sustainable fishing measures without the consent of the flag state, and totally unable to enforce its measures directly on that flagged vessel. Thus in the absence of an express reference to the superiority of coastal state rights over those of high seas fishing states, freedom of high seas fishing prevails. However the international community armed with weaker UNCLOS obligations of conservation and co-operation and have fought the good fight, and in lightening speed have constructed a normative framework that is additional to but consistent and complimentary with the UNCLOS regime. With the use of port state measures, voluntary instruments that codify responsible fisheries practice, surveillance and the denial of the right to land IUU fish – the fight is gradually beginning to turn in favour of the international community.</p>

One Fish, Two Fish, Few Fish, No Fish: Regional Fisheries Management Organisations, IUU Fishing and High Seas Fisheries Management

<p>The World's fisheries are in a desperate state, they have been utilised to a point where a majority of the fisheries resources are fully exploited. In addition to overfishing, the responsibility of the sad state of affairs of the world's High Seas' fish stocks can be put down to inefficient management. The high seas fisheries regime is dominated by two powerful, tried, tested and consented to norms: the principle of freedom of fishing on the high seas and the principle of exclusive flag state jurisdiction over flagged vessels on the high seas. These Grotius norms (unintentionally) obstruct effective and meaningful high seas fisheries management, and have enabled unscrupulous states and actors to take advantage of the lacunae created by the UNCLOS High Seas fisheries framework and engage in IUU fishing which has resulted in a tragedy of the high seas commons. Furthermore these norms have a 'hobbling' effect on RFMOS and coastal states alike, and leave them almost powerless to ensure flag-state compliance with their sustainable fishing measures without the consent of the flag state, and totally unable to enforce its measures directly on that flagged vessel. Thus in the absence of an express reference to the superiority of coastal state rights over those of high seas fishing states, freedom of high seas fishing prevails. However the international community armed with weaker UNCLOS obligations of conservation and co-operation and have fought the good fight, and in lightening speed have constructed a normative framework that is additional to but consistent and complimentary with the UNCLOS regime. With the use of port state measures, voluntary instruments that codify responsible fisheries practice, surveillance and the denial of the right to land IUU fish – the fight is gradually beginning to turn in favour of the international community.</p>

Ships, sovereign immunity and the subtleties of the Brussels I regulation: Case C-641/18 LG and others v. Rina SpA, Ente Registro Italiano Navale: Ships, sovereign immunity and the subtleties of Brussels I: Rina

More than 1000 passengers on a Panamanian-registered ferry drowned in the Red Sea. Some survivors and relatives of some of the victims sued the classification and certification ship society which had surveyed the ferry. Relying on the Brussels I Regulation, the plaintiffs sued the defendants in the latter’s seat (in Italy). The defendants claimed sovereign immunity as they were acting on behalf of Panama (that is, the flag state). The CJEU ruled that, generally, Article 1(1) of the Regulation means that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of, and upon delegation from, a non-EU Member State, falls within the concept of ‘civil and commercial matters’ in the Regulation. The defendants were therefore not immune. The CJEU qualified its ruling by saying that this is conditional on the activity being not exercised under ‘public powers’ (within the meaning of EU law) because then it would then be a sovereign and not a commercial activity. The CJEU thereby ruled that the customary public international law principle that foreign states have immunity from jurisdiction does not preclude an EU Member State court seised of a dispute from exercising jurisdiction under the Regulation in these circumstances.

The Interpretation and Application of the Freedom of Navigation and Flag State Jurisdiction in the M/V “Norstar” and the M/T “San Padre Pio” Cases

The M/V “Norstar” and the M/T “San Padre Pio” cases raise important questions regarding the interpretation and application of the freedom of navigation and the principle of exclusive flag State jurisdiction, namely if the latter prohibits the exercise of prescriptive jurisdiction on the high seas by non-flag States. One of the exceptional aspects of the M/V “Norstar” case is the Joint Dissenting Opinion (JDO) by seven judges underlining a distinctive view regarding the interpretation of the freedom of navigation and the principle of exclusive flag State jurisdiction. Subsequent to the M/V “Norstar” case, the M/T “San Padre Pio” case was submitted and bares relevance for the clarification on some of the key matters addressed in the Judgment and the JDO in the M/V “Norstar” case. This article highlights the different views of the Judgment and the JDO and examines the relation with the M/T “San Padre Pio” case.

Modern Slavery and the Law of the Sea

Practices of modern slavery across maritime borders, such as human trafficking and forced labour in the maritime and fishing industries, are often unregulated and uncontrolled due to legal uncertainties and the lack of political will. This article discusses possibilities to re-interpret the United Nations Convention on the Law of the Sea to give a complementary role to non-flag States in controlling modern slavery practices at sea. In particular, it analyses the question as to whether a non-flag State may take prescriptive and enforcement measures against a foreign vessel suspected of modern slavery on the high seas.

Cumulative Analysis of Port State Control Based on Paris MoU Inspections

The Port State Control (PSC) was established to control ships entering ports or coastal facilities under its jurisdiction, with inspections by PSC officers aiming to determine whether ships meet safety and pollution prevention requirements and comply with the standards prescribed under the relevant international conventions. Annual reports based on PSC’s inspection reports are published under each memorandum of understanding (MoU) regime. The detailed inspection reports within the scope of the PSC, that contain a variety of information about vessels, and the processing and sharing of such information with other regional MoUs are intended to reduce the number of non-conforming practices in the global maritime system. In addition, PSCs publish lists of black, gray and white (BGW) flags, with the classification depending on the number of ship deficiencies and detentions. The classification is an indication of the quality of national flags. When a ship is found to have deficiencies, the inspection takes longer, and when the deficiencies are serious, the vessel is detained. Detention periods mean financial losses for the operator and loss of reputation for the flag state. Hence, the lists of black, gray and white flags published by the regional regimes are important in terms of reflecting the reputation of different countries. For these purposes, in this study, the inspections and detentions under the Paris MoU in 2019 have been examined and analyzed by countries and regions. Countries are categorized by UN geographical regions. In particular, the goal of the study was to identify the flag countries of the most frequently inspected and detained ships in 2019, as well as to determine the strategic measures developed by the countries and establish their differences and similarities compared to inspections and detentions in 2018. In addition, the global COVID-19 pandemic in 2019 had a lockdown effect in the maritime domain and a profound effect on society, economy and health worldwide. The result of this study is the prediction of PSC efficiency in terms of the COVID-19 pandemic and the effect of the pandemic on the order of countries in the flag lists.