Flag State responsibility in international fisheries law - effective fact, creative fiction or further work required?

• Author: Camille Jean Goodman
• Position: This paper won the Morella Calder Best Essay Prize in 2009
• Pages: 157-169

THE REGIME FOR FLAG STATE RESPONSIBILITY IN INTERNATIONAL FISHERIES

LAW – EFFECTIVE FACT, CREATIVE FICTION, OR FURTHER WORK REQUIRED?

Camille Goodman*

1 Introduction

The principle of flag State jurisdiction is one of the most widely acknowledged in international maritime law, yet it

remains one of the most contentious. The rights of flag States have remained largely unchanged since the original

evolution of the concept. But the list of their responsibilities has grown exponentially, in areas ranging from ship

safety standards and crew training to marine pollution, maritime security, and seafarer welfare. The increasing

importance attributed to the role of the port State and the coastal State, the ever-present debate on ‘open registries’ or

‘flags of convenience’, and the unresolved question of the ‘genuine link’ have all contributed to an ongoing

international discussion regarding the effectiveness of flag State jurisdiction, and the extent of responsibility which

can, or should, be effectively met by flag States.

In general maritime law, this discussion has produced a range of initiatives intended to combat inadequate flag State

action, reduce the impacts and attraction of open registries, and ensure that responsibilities which are not met by flag

States are fulfilled through complementary controls. While the topic of flag State jurisdiction is still the subject of

significant discussion in the general maritime context, the principal focus is now on implementing internationally

agreed rules and requirements, rather than developing significant new areas of flag State responsibility.

In the international fisheries sector, however, flag State responsibility is the subject of an almost entirely different

regime. Attention is centred on the responsible flag State as the key panacea for combating illegal, unreported and

unregulated (IUU) fishing, and the concept of flag State responsibility itself is still evolving. As fish stocks around the

world reach the point of collapse,1 and IUU fishing continues to undermine international management efforts, issues

such as the need for a ‘genuine link’ between the vessel and its flag State, what action could be taken against ‘flags of

non-compliance’, and the criteria for a responsible flag State are front and centre in international discussions. But

these developments present a range of new challenges, and raise the question whether a system of extensive flag State

responsibility is an effective approach, or whether we should be concentrating our efforts on the development of

complementary controls to assist where flag State jurisdiction fails.

This paper will consider the rationales, rights, responsibilities and lessons learned regarding flag State responsibility

in the general maritime context, before discussing the contemporary concept and specific regime of the ‘responsible

flag State’ in international fisheries, and the legal and practical challenges this concept presents. In concluding, the

paper makes some observations about the effectiveness of flag State responsibility and the alternatives that might be

available.

2 Background: the responsible flag State

The institution of the ‘flag State’ developed over several hundred years. Its early development was influenced by two

key imperatives, which can be summed up as ‘nationality’ and ‘registration’. The importance of the ‘flag’ or

‘nationality’ of vessels stems from the principle of freedom of the seas, and the realities of long-distance sea voyages.

Historically, the flag embodied the idea of national protection and national administration of the vessels of a nation-

state, and was necessary to ensure adequate protection of vessels travelling far from their home port. Over time,

requirements for registration, regulating the ownership and operation of vessels, developed to give effect to

improvements in safety standards for navigation, vessels and seafarers, and to put in place some environmental

protections in relation to the conduct of shipping operations.2

The international codification of the principle of flag State jurisdiction took place as part of the development of legally

binding global instruments on the law of the sea in the second half of the 20th century. The Draft Articles Concerning

the Law of the Sea 1956,3 prepared by the International Law Commission, formed the basis for discussion and

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* This paper won the Morella Calder Best Essay Prize in 2009.

1 In 2008, 80 per cent of the world fish stocks for which information is available were fully exploited or over exploited. Fisheries and Aquaculture

Department: Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2008, (2009) Rome.

2 A detailed account of the historical development of the concept of flag State responsibility can be found in John Mansell, An Analysis of Flag

State Responsibility from an Historical Perspective: delegation or derogation? (D Phil Thesis, University of Wollongong, 2007).

3 Yearbook of the International Law Commission 1956, vol II, 256.

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(2009) 23 A&NZ Mar LJ