The recognition of the special requirements of developing States in international law

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1 Special requirements of developing states as flag states, coastal states and port states and their participation in Regional Fisheries Management Organizations: developing capacity-building strategies Fábio H. V. Hazin, D.Sc. UFRPE/ DEPAq/ Professor FAO/ COFI (Committee on Fisheries)- Vice-Chair Introduction This background paper summarizes the contents of a presentation delivered during the event entitled Fishing for Development, a joint meeting of the OECD Fisheries and Development Assistance Committees, with the Food and Agriculture Organization of the United Nations and the World Bank, held at OECD Headquarters, on 10 and 11 April It is adapted from a paper originally published in FAO Fisheries and Aquaculture Report No. 918 FIEL/ R918, which reviews the legal background on the special requirements of developing States and the legal obligations of the international community (including states, relevant international organizations, and financial institutions) in terms of giving full recognition to developing States special circumstances and requirements; addressing their needs, in the areas of financial and technical assistance, technology transfer, training and scientific cooperation; and enhancing their ability to develop their own fisheries as well as to participate in high seas fisheries, including access to such fisheries. The special situation and needs of developing states, as flag states, port States and coastal States are addressed, followed by an overview of priority areas for human capacity development and institutional strengthening. The recognition of the special requirements of developing States in international law

2 The special requirements of developing States are recognized in several clauses of the United Nations Convention on the Law of the Sea (UNCLOS). In relation to the conservation of the living resources of the high seas, a topic directly relevant to RFMOs, there is a specific provision in Article 119, establishing that, in taking measures to maintain or restore fish populations at levels which can produce maximum sustainable yield, the special requirements of developing States shall be taken into account: Article 119- Conservation of the living resources of the high seas 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; Nevertheless, the special requirements of developing States are addressed in a much more detailed manner in relation to the conservation and management of straddling and highly migratory fish stocks, in Part VII of UNFSA 1, particularly in Article 25, which is also especially relevant to RFMOs: Article 25- Forms of cooperation with developing States 1. States shall cooperate, either directly or through subregional, regional or global organizations: (a) to enhance the ability of developing States, in particular the least-developed among them and small island developing States, to conserve and manage straddling fish stocks and highly migratory fish stocks and to develop their own fisheries for such stocks; (b) to assist developing States, in particular the least-developed among them and small island developing States, to enable them to participate in high seas fisheries for such stocks, including facilitating access to such fisheries subject to articles 5 and 11; and (c) to facilitate the participation of developing States in subregional and regional fisheries management organizations and arrangements. 2. Cooperation with developing States for the purposes set out in this article shall include the provision of financial assistance, assistance relating to human resources development, technical assistance, transfer of technology, including through joint venture arrangements, and advisory and consultative services. As it is clearly established in this article, States, as well as RFMOs, shall cooperate not only to enhance the ability of developing States to conserve and manage straddling fish stocks and highly migratory fish stocks, but also to develop their own fisheries for such stocks, including facilitating access to such fisheries. Accordingly, the assistance to developing States to that aim shall include the provision of financial assistance, assistance relating to human 1 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

3 resources development, technical assistance, transfer of technology, and advisory and consultative services. Similar language can also be found in Article V of the FAO Code of Conduct for Responsible Fisheries: ARTICLE 5- SPECIAL REQUIREMENTS OF DEVELOPING COUNTRIES 5.2. In order to achieve the objectives of this Code and to support its effective implementation, countries, relevant international' organizations, whether governmental or non-governmental, and financial institutions should give full recognition to the special circumstances and requirements of developing countries, including in particular the least-developed among them, and small island developing countries. States, relevant intergovernmental and non-governmental organizations and financial institutions should work for the adoption of measures to address the needs of developing countries, especially in the areas of financial and technical assistance, technology transfer, training and scientific cooperation and in enhancing their ability to develop their own fisheries as well as to participate in high seas fisheries, including access to such fisheries. Specific provisions can also be found in Article VII of the 1993 FAO Compliance Agreement 2, in Article 10 of the 1999 International Plan of Action for the Management of Fishing Capacity, in the 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, in its Part V, and in part VI of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. The recognition of the special requirements of developing States has also been included in several resolutions of the United Nations General Assembly, such as the most recent one (A/68/L.19), on sustainable fisheries, in a paragraph referring specifically to the need to address global fishing capacity for highly migratory species: 89. Calls upon States individually and, as appropriate, through subregional and regional fisheries management organizations and arrangements with competence to regulate highly migratory species, urgently to address global fishing capacity for tunas, inter alia, in a way that recognizes the legitimate rights of developing States, in particular small island developing States, to participate in and benefit from such fisheries, taking into account the recommendations of the 2010 Joint Tuna Regional Fisheries Management Organizations International Workshop on RFMO Management of Tuna Fisheries, held in Brisbane, Australia, and the recommendations of the 2011 third joint meeting of tuna regional fisheries management organizations and arrangements Despite all these provisions clearly establishing the obligation of States as well as RFMOs to enhance the ability of developing States not only to conserve and manage straddling fish stocks and highly migratory fish stocks, but also to develop their own fisheries for such stocks, including facilitating access to such fisheries, only the first half of this obligation has been addressed by the international community and even so, in a partial manner. Most of the assistance provided by States, RFMOs and UNFSA Part VII Fund, so far, has been dedicated to allow the participation of developing States in international meetings. 2 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas

4 The special requirements of developing States Well beyond the mere participation in meetings, the special requirements of developing States involve different levels, areas and natures of activities needed for an adequate control of the fishing vessels flying their flag, of the use of their ports, and of fishing activities inside their EEZ, including: Legal and regulatory framework; Institutional organization and infrastructure; Monitoring, control and surveillance (MCS); Scientific personnel and infrastructure, and Participation in high seas fisheries. Legal and regulatory framework As flag States, many developing countries do not have the legal and regulatory framework needed to ensure an adequate control of the fishing vessels flying their flag, which should include a due process for registering a vessel as well as for authorizing it to carry out fishing activities. National laws and regulations need, therefore, in many instances, to be updated and harmonized with international commitments resulting from both hard and soft law. First of all, due to the different nature of their activities and consequently control requirements, the process to register a merchant ship must be differentiated from the one to register a fishing vessel. In the case of a fishing vessel, the national vessel registry must demand, as a minimum, the vessel data required by FAO, as well as information on the history of the vessel, particularly in relation to changes of flag and name, and possible past IUU fishing practices. The vessel should not be included in a RFMO list of vessels engaged in IUU fishing and fishing related activities and the effective owner and operator of the vessel must be clearly identified. It is also essential to ensure that a legal process is established to prosecute and penalize with adequate severity those owners/ operators of fishing vessels that engage in IUU Fishing. As Port States, developing States need considerable improvement of their legal and regulatory framework to ensure that inspections carried out on fishing vessels using their ports are legally sound and consistent with national and international law, so that the actions taken in cases of IUU fishing are not judicially questionable. Finally, as Coastal States, developing States need capacity building, not only in the areas of surveillance of their jurisdictional waters, which is more obvious, but also in terms of legal assistance in those cases where a vessel has been eventually apprehended and a prosecution is consequently required.

5 Institutional organization and infrastructure As flag States, many developing States do not have either the institutional organization or the required infrastructure to adequately control the fishing vessels flying their flag. As already pointed out in relation to the legal and regulatory framework, it is essential that the registry and the control of fishing vessels be clearly differentiated from merchant ships, which includes the need to have a specific government agency or statutory authority with a clear mandate and accountability for the results of the fisheries management policy and system in place. Such a body needs to have an adequate infra-structure and capable personnel to control and enforce the applicable fisheries regulations, particularly in relation to monitoring, control and surveillance (MCS) of the activities carried out by the fishing vessels flying their flag. As a Port State, since the port authorities are generally completely different from the fisheries authorities, it is essential to establish a close interaction and cooperation between these two agencies which, in many cases, have divergent objectives and interests. Since the use of its ports is an important source of income for many developing States, the port authorities might be reluctant to introduce new procedures for the control of fishing vessels, which might be perceived as a threat for their economic sustainability. The establishment of a proper mechanism for the control of fishing vessels using their ports, therefore, will not only require a change in the legal and regulatory framework, discussed above, but also the creation of a new institutional organization and infrastructure needed to ensure a proper cooperation between port and fisheries authorities. As a coastal State, the control of its own vessels is included in its role as flag States, while the control of its ports is included in its role as port States, so the issue left to be addressed is the control of its EEZ, a task that is generally in the hands of the navy. Under this context, a better coordination and cooperation between the national fisheries authorities and the navy is also required. Monitoring, control and surveillance (MCS) The use of MCS measures by developing States to control the vessels flying their flag, although essential for an adequate control of fishing vessels, are commonly very expensive and difficult to implement, particularly so by developing States. Any MCS system needs to include means for immediate contact with the vessel, so that it may be called back to port at any time. All fishing vessels to operate in the high seas need to be equipped with a satellite based, vessel monitoring system (VMS), which, in turn, leads to the necessity of having a monitoring central, capable of receiving and tracking the signal from all monitored vessels. One of the best ways to

6 ensure compliance by fishing vessels, however, is by having observers on board, who can not only inspect the fishing operations in a continuous and permanent basis, but can also gather valuable scientific information. Quite unfortunately, however, observers programmes are generally quite expensive, so that the coverage rates are rather low, even in developed countries. All fishing activities must be recorded in a fishing logsheet, which should include, in a daily basis, data on the time and position of fishing operations, technical details of the fishing gear employed and records of the catch, by species, in the most detailed way possible. Ideally, this information should be transmitted to the monitoring center of the flag State electronically, after every fishing operation, through a system that could be easily coupled with the VMS, although, again, at a price that is commonly not low. Finally, all landing and transshipping operations of the fishing vessel should be monitored, and the data compared to the information available from the fishing logsheets. Very few, if any, developing States are prepared to implement such a MCS system, so considerable investments are needed in order to enhance their capacity in this regard, as flag States. As port States, a significant investment will also be required to train inspectors to perform the inspections required by the FAO Port State Measures Agreement, according to its guidelines for the training of inspectors (Appendix E). For this purpose, the funds envisaged in Part 6 of the referred agreement will be of utmost importance, although it can only be made available after its entering into force. As a coastal State, the main MCS challenge of developing States is to be able to survey their EEZ to prevent and deter IUU fishing by foreign vessels, a task generally in the hands of their navies which are in most, if not all, cases, very much short of the minimal capability to ensure a proper surveillance. This is certainly the most expensive investment required in terms of MCS, since it involves not only patrol vessels, but the whole infrastructure and personnel required by them, with a significant amount of fixed costs. Scientific personnel and infrastructure As a flag State, all information generated by the MCS system, particularly data from observers on board, fishing logsheets and landings/ transshipment, needs to be processed, analyzed, and transmitted to the pertinent RFMO. Most developing countries do not have either the facilities for doing so (office space, computers, etc.), nor the personnel with the required scientific capabilities. Besides, in order to ensure that the scientists involved in the process of data gathering and analysis are adequately motivated, it is essential to give them the opportunity to fully participate in the work done by the relevant RFMO, including the stock assessment

7 exercises. When a scientist from a developing country, which is part of an RFMO, realizes that he is only good for providing data, but that he will not be granted the opportunity to actually participate in the exercise of analyzing the data he helped to provide, of assessing the stock condition and of providing management advice in equal footing with the scientists from more developed nations, he will no longer care about the quality of the data he is gathering and providing. In order to improve data quality, therefore, it is essential to ensure full participation of scientists from all nations that take part in the fishery. That includes surely the need to provide travel support for scientists from developing countries to allow their participation in RFMO meetings, but, much more than that, it also requires heavy investments in capacity building, for the training of these scientists in several aspects of fisheries sciences. There are, however, two risks in this process that need to be highlighted. The first one is the selection of the right personnel to train. The capacity building initiative must ensure that the technicians and scientists to be trained are the ones really involved with the relevant fisheries. When a training chance arises, many times involving travel opportunities to a foreign country, quite unfortunately, it is not uncommon that the candidates indicated by the countries invited to participate are chosen much more for political reasons than for their real involvement with the fishery. The second problem, much more difficult to avoid, is that, many times, because of the better training acquired, the capacitated scientists then tend to migrate to higher level jobs, quite often of a more bureaucratic nature, and even to other countries, where they can get much better salaries. So, in any capacity building initiative, mechanisms to ensure that the personnel chosen to be trained are the ones effectively involved in the fishery management process, as well as to reduce the risk of their subsequent evasion from their original posts should be envisaged. There is not much further to be addressed under this point with regard of the role of developing States as port or coastal States, which has not already been covered in its role as flag State, discussed above. Participation in high seas fisheries The commitment and willingness by developing States to exercise adequate control over fishing vessels flying their flag and over their ports are also dependent on their perception that they too have the opportunity to participate in high seas fisheries. So, the capacity building efforts should not be restricted to improving their MCS and enforcement capabilities, but also to enhance their ability to develop their own fisheries for highly migratory fish stocks, including access to such fisheries, as clearly spelled out in the several instruments of international law listed in the introductory part of this document. That also implies the need to incorporate in

8 RFMO regimes transparent and equitable mechanisms for the allocation of fishing possibilities. Interestingly, this very important aspect of Part VII of UNFSA and several other legal instruments is often forgotten, with a much greater emphasis being usually placed on the need of capacity building exclusively for the purpose of making developing States more capable of controlling the vessels flying their flag and controlling their ports. As coastal States, an increased participation of developing States in the high seas fisheries would also have the natural consequence of increasing their interest and consequent investment in MCS systems for a better surveillance of their EEZ, since most of it is made of oceanic waters where the main fishing activity is the fishing for highly migratory fish stocks, managed by RFMOs. Capacity building initiatives in the five main areas above listed will naturally require significant investment of three different natures: a) Material resources (facilities, hardware and equipment); b) Human resources (training); and c) Financial resources. It is important to note, however, that capacity building should not be conceived as an isolated action, punctual in time. It has to be understood as a process, and, as such, it has to be approached and developed, in a coherent and integrated manner. Capacity building initiatives in regard to human development, in particular, must take a holistic/ systemic approach. Human capacity development is the process by which individuals, groups, organizations, institutions, and societies develop their abilities- both individually and collectively- to set and achieve objectives, perform functions, solve problems and to develop the means and conditions required to enable this process. It is, therefore, a long-term process, whereby individual development becomes embedded in a sustainable shift in performance and collective behavior, which requires continued support through national initiatives and partnerships 3. Human resource development, therefore, is much more than simply technical support through training in science, research and development. Incapacity to recognize this fact, often leads to failure of capacity building projects. Furthermore, besides training in several fields related to MCS, such as maritime legislation and international law, vessel monitoring systems, and fisheries management, as already pointed out, capacity building initiatives should also focus on fisheries science, particularly in fish population dynamics and stock assessment, in order to enhance the participation of scientists from developing countries in the scientific bodies of RFMOs. 3 FAO Advisory Committee on Fisheries Research. Report of the first session of the Working Party on Human Capacity Development in Fisheries. Rome, April FAO Fisheries Report. No Rome, FAO p.

9 Methods and mechanisms for providing assistance to developing countries to improve their participation in RFMOs could be achieved either directly, through bilateral arrangements, or through FAO and other specialized agencies of the United Nations, relevant intergovernmental and non-governmental organizations and financial institutions. For those who have joined UNFSA, the Part VII fund could be very well used for this purpose, since its objectives specifically include 4 : to build capacity for activities in key areas such as effective exercise of flag State responsibilities, MCS, data collection and scientific research; to facilitate the exchange of information and experience on the implementation of the Agreement; to facilitate human resources development, technical training, and technical assistance in relation to conservation and management of straddling and highly migratory fish stocks and development of fisheries for such stocks; and to facilitate the participation in RFMO/A meetings. A similar fund has also been foreseen in Part 6 of the FAO Port State Measures Agreement and should be made available by the time it enters into force. In the FAO voluntary guidelines for Flag State Performance, the special requirements of developing States with regard to their needs in terms of capacity development was also duly recognized in paragraph 49, referring specifically to the points above addressed: 49. States should give full recognition to the special requirements of developing States in relation to improving flag State performance consistent with these Guidelines. States may, either directly or through international organizations, including RFMO/As, provide assistance to developing States in order for them to enhance their ability to: (a) develop an adequate legal and regulatory framework; (b) strengthen institutional organization and infrastructure needed to ensure adequate control of vessels flying their flag; (c) develop, implement and improve practical and effective MCS; (d) build institutional and human resource capacity to process and analyse scientific and other data, and make it available to relevant users, including relevant RFMO/As; and (e) participate in international organizations that promote flag State performance. Nevertheless, the RFMO/As, in particular, are the ones who have the obligation to participate in capacity building efforts in developing countries in all aspects above indicated, but 4 Although it has been largely used to facilitate the participation of developing States representatives in fisheriesrelated international meetings.

10 specially in relation to training in data collection and analysis, and to facilitate the scientific participation of scientists from developing States in scientific meetings, in a meaningful manner.