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U.S. Department of State

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David Balton
Director, Office of Marine Conservation
U.S. Department of State
Remarks Delivered at the Conference on Current Fisheries Issues and the Food and Agriculture Organization of the United Nations
Rome, Italy, March 16-17, 2000

Blue Bar rule

"Making the New Rules Work:
Implementation of the Global Fisheries Instruments"

Introduction

I would like to thank the co-hosts of this conference -- the Center for Oceans Law and Policy and the FAO -- for giving me the opportunity to speak today. I feel privileged to be among such distinguished and knowledgeable people, particularly at a time when the international community appears to be at a turning point in the history of marine conservation issues.

Let me begin my presentation by recounting an anecdote about the drafting of the FAO Compliance Agreement. I expect that a number of other people in this room will recall this story as clearly as I do.

In February 1993, the FAO invited me to participate in a group of so-called experts. Our mission was simple: to produce -- from scratch, in one week's time -- the first draft of the Compliance Agreement. Gerald Moore, in his ever so diplomatic way, led this exercise. He started by locking our group in a room far across Rome, with the implicit promise that we would not be let out until we completed our task.

Thus motivated, our group rose the occasion. At the end of the week, we yielded up a piece of paper with words on it. We declared it to be the first draft of the Compliance Agreement.

From this experience, along with my experiences in other international negotiations, I have derived this basic precept: if you lock a bunch of diplomats, lawyers and bureaucrats in a room for long enough, they will produce a piece of paper with words on it. Sometimes, those words will actually have meaning.

Getting Beyond Words on Paper

In the case of the Compliance Agreement, as well as the UN Fish Stocks Agreement and the Code of Conduct for Responsible Fisheries, those words really do have meaning. Consider, for example, the following three rules on "flag State responsibilities" that form the heart of the Compliance Agreement:

Rule #1: Each Flag State must ensure that its vessels do not engage in any activity that undermines the effectiveness of international fishery conservation and management measures, whether or not the Flag State is a member of the regional fishery organization that adopted such measures.

Rule #2: No Flag State shall allow any of its vessels to be used for fishing on the high seas unless the Flag State has specifically authorized it to do so.

Rule #3: No Flag State shall grant such authority to a vessel unless the Flag State is able to control the fishing activities of that vessel.

These three rules -- these words on paper -- represent a new vision for high seas fisheries. To abide by these rules, Flag States may no longer allow their fishing vessels to venture out into high seas areas in the way that the early explorers ventured out beyond the frontiers of known society. Flag States must now actively oversee the high seas fishing operations of their vessels. They must decide on a case-by-case basis whether to authorize any vessel to fish on the high seas. Most importantly, they may not permit any vessel to fish on the high seas at all, unless they are able to prevent the vessel from undermining agreed high seas conservation rules.

If these three rules from the Compliance Agreement were being implemented in earnest, we would have no problem with "IUU" fishing or "non-member" fishing, at least not on the high seas.

But these rules are not being implemented in earnest. Neither the Compliance Agreement nor the UN Fish Stocks Agreement (which contains the same basic three rules) is yet in force. More importantly, there are many States that are all too willing to offer their flag to fishing vessels over which they exercise no control whatsoever. There are also many vessel owners who are all too willing to pay for the use of flags from these irresponsible States.

We have agreed to these words on paper, but the international community now faces a much more difficult challenge. We must get governments and fishing vessel owners to abide by them. We need to bring to life -- to implement -- the words on the pieces of paper that we have already negotiated.

The "Bad Actors"

To illustrate my point, I would call your attention to a class of people whom I like to call the "bad actors." Who are these people? The classic bad actor is a fishing vessel owner who reflags a vessel to evade internationally agreed fishery regulations. The new Flag States typically have no real connection to the vessel -- the master, crew and real financial control all originate elsewhere.

The new Flag States also typically lack the ability or desire to control the fishing activities of the reflagged vessels; indeed, such lack of control is precisely what makes these States so attractive to irresponsible vessel owners. The government officials in the new Flag States who offer flags to such a vessel, knowing that they cannot or will not regulate the fishing activities of the vessel, are bad actors, too. Without them, this type of reflagging could not occur.

I should note that not all vessels operating outside agreed fishery regulations are reflagged vessels. Some vessels are registered in irresponsible States from the time they are built.

Why are owners of these vessels such bad actors? Given the present depleted status of a number of key fish stocks, fishing opportunities are -- or should be -- limited. It thus follows that the regional fisheries organizations have had to become more and more parsimonious in the quotas they adopt and more and more restrictive in the other fishery rules they set.

These smaller quotas and tighter restrictions, in turn, require significant sacrifice on the part of the Member States of regional fishery organizations. Every year the Member States work hard at the meetings of these organizations to adopt agreed fishing rules. The negotiations are often arduous, and only succeed -- if they succeed -- through the application of considerable political will. At the end of these meetings, the Member States then have the unenviable task of enforcing upon their unhappy fishing industries the smaller allocations and more onerous regulations just adopted.

Responsible vessel owners accept the smaller allocations and tighter regulations in the hope that today's conservation efforts will yield greater fishing opportunities tomorrow. Other owners, however, reflag their vessels (or initially flag their new vessels) in States that are not members of the organization in question precisely to avoid these restrictions. These vessels then fish for the very same stocks in the very same region, unbound by the agreed rules.

These non-member vessels are essentially free riders -- enjoying the benefits of conservation efforts and scientific research undertaken by Member States without bearing any of the costs. Not only is this grossly unfair -- it greatly compromises the integrity of the agreed rules and undermines the willingness of the remaining "good actors" to comply with them.

And when the good actors -- those fishing vessel owners who do not change flags -- start to violate the agreed rules, they become bad actors too.

Steps Toward Full Implementation

Needless to say, the words that appear in the Compliance Agreement and in the UN Fish Stocks Agreement have not done much to deter the bad actors, at least not yet. Indeed, as I mentioned earlier, neither treaty is even in force. But both will eventually enter into force, very soon I hope. The United States Government has been urging other governments to become party to these treaties. Entry into force is an essential prerequisite to implementation of the new rules they contain.

But mere entry into force of these instruments is not enough. The major fishing powers of the world must become party for them to be effective. More importantly, these States must develop the political will to implement the provisions of these instruments fully.

In the meantime, regional fishery management organizations have begun to take steps to deal with the bad actors. Other speakers at this conference will undoubtedly review the measures that have been adopted in recent years by ICCAT, NAFO and CCAMLR to crack down on non-member fishing. Still other speakers will discuss the steps being taken under FAO auspices to address the cutting-edge issues in international fisheries management, particularly the need to reduce fishing capacity worldwide and to eliminate government subsidies that contribute to overfishing.

Some regional fishery organizations and individual governments have also taken steps to implement certain other commitments found in the new global instruments.

These are just some examples of the progress that can be made, and is being made, even before the Compliance Agreement and the Fish Stocks Agreement enter into force. But much more needs to be done.

Getting back to the "bad actors," I would like to call attention to a phenomenon that is of particular interest to the international lawyers among us, a phenomenon that I regard as a warning shot across the bow of irresponsible Flag States and the vessels they aid and abet.

I noted earlier that the Compliance Agreement elaborates a series of Flag State responsibilities with respect to fishing vessels on the high seas. This approach is fully consistent with the traditional principle of international law that a vessel on the high seas is subject exclusively to the jurisdiction of its Flag State. Historically, international law has carved out only limited exceptions to this rule of exclusive Flag State jurisdiction, for example to combat piracy and slave trade.

But what if this approach does not solve the problem? What if fishing vessels continue to evade agreed fishing restrictions and their Flag States fail to do anything about it?

Indeed, these very concerns, coupled with the depletion of a number of key fish stocks, have caused the international community to rethink the rule of exclusive Flag State jurisdiction over fishing vessels on the high seas.

The UN Fish Stocks Agreement, for example, allows States other than the Flag State to board and inspect vessels fishing on the high seas under certain circumstances. If such inspections reveal the violation of agreed fishing rules, the inspectors may take certain actions to prevent further violations. Similar provisions appear in at least several regional fishery agreements, including the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean and the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea. The members of the Northwest Atlantic Fisheries Organization have also set up a comparable scheme.

All these regimes, however, depend on the consent of the Flag State in the first instance. That is, non-Flag States can only take action against a fishing vessel on the high seas if the Flag State has become party to the agreement in question and thus has consented to the regime of non-Flag State boarding and inspection.

In considering these developments, I would offer the following observation: the Compliance Agreement elaborates the responsibilities that flag States must fulfill with respect to their fishing vessels on the high seas. The UN Fish Stocks Agreement and various regional regimes have taken matters a step further by imposing an additional duty on Flag States -- either take action against your vessels on the high seas that undermine agreed fishing rules or allow other States to do so.

If flag States do not fulfill these responsibilities, the international community will have no choice but to look for other ways to control irresponsible fishing vessels on the high seas. The exclusive jurisdiction that Flag States enjoy over such vessels will be in jeopardy.

Conclusion

I mentioned at the outset that the international community finds itself at a turning point in the history of marine conservation issues. Let me now be more specific. The 1980s saw, for the first time, the depletion of an alarming number of key fish stocks around the globe. In the 1990s, the international community responded to this development by negotiating a series of forward-looking instruments, including the Compliance Agreement, the UN Fish Stocks Agreement, the Code of Conduct for Responsible Fisheries and a variety of regional regimes. In short, the 1990s were an era of big negotiations.

But the era of big negotiations is over. In this decade, we must turn our efforts to an even more difficult task -- implementing the agreements we negotiated last decade.

Thank you for your kind attention.

[end of document]

Blue Bar rule

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