Controlling flags of convenience: one measure to stop overfishing of collapsing fish stocks.
I. INTRODUCTION
II. FLAGS OF CONVENIENCE AND THEIR USE IN IUU FISHING
A. Origins of FOCs and ORs
B. The Size of the World FOC Fleet
C. Effects of FOC-IUU Fishing
1. Species Devastation Fish and Birds
2. Effects on Fishing States with Traditional Vessel Registries
D. Detrimental Effects of FOCs Beyond the Fishing Industry
1. Environmental and Economic Effects
2. Labor and Safety Violations
III. THE LEGAL FRAMEWORK IN WHICH FOC-IUU VESSELS OPERATE
A. International Law and the Law of the Flag
1. Flag State Exclusivity.
2. Customary International Law and Agreements Addressing
FOC-IUU Fishing.
a. Vessel Registration
b. Domestic Legislation Controlling Nationals on the High
Seas.
c. Enforcement.
B. Attempts by the Fish Stocks Treaty and RFMOs to Control
FOC-IUU Fishing.
1. Using Enforcement Provisions in the Fish Stocks Treaty
to Patrol FOCs
2. CCAMLR's Attempts to Control FOC-IUU Fishing
C. Gaps in the Law: General Shortcomings in Existing FOC
Enforcement Mechanisms
IV. POTENTIAL NEW RULES FOR CONTROLLING FOC-IUU FISHING
A. Promoting Flag State Responsibility.
1. Goals of Responsible Flag States
2. Moving Toward a "White List" of Responsible" Registries
a. Encouraging Effective Monitoring and Enforcement by Flag
States Through Independent Audits of ORs
b. Ceding Authority: Where Flag States Lack Resources to
Fulfill Their Obligations
3. Encouraging Flag States to Control Their Nationals Through
Domestic Legislation
B. Reaching the Shipowners
1. Methods to Encourage Flagging in States to Which Shipowners
Have a Genuine Link
2. Blacklisting: Use by RFMOs and Port States
C. Financial Methods to Discourage FOCs
1. Trade Sanctions
2. Market Measures
a. Consumer Boycotts
b. Eco-labeling Legally Caught Fish
c. New Taxes to Enforce RFMO Quotas
D. Enforcement: Diligent Surveillance and Inspection by RFMO
Parties and Litigation Against Negligent Flag States
1. Strengthening Existing Conventions with
International Agreements
2. Possible Litigation Strategies
V. CONCLUSION
I. INTRODUCTION In August 2003, Australian and South African ships pursued a Uruguayan-flagged trawler, the Viarsa--suspected of poaching Patagonian Toothfish (Dissostichus eleginoides) (1)--for over 3,900 nautical miles. (2) The dramatic Viarsa pursuit highlights the lengths to which states will go to stop illegal, unregulated, and unreported (IUU) fishing (3) and prevent further decimation of the world's collapsing fisheries. (4) About 75 percent of world fisheries are fully exploited, overexploited, or depleted--their maximum sustainable limits exceeded. (5) As of 2002, nearly half of the world's marine stocks offered "no reasonable expectations for further expansion." (6) According to a recent ten-year study on marine fisheries, the biomass of large predatory fish has decreased by 90 percent in the past 50 years. (7) Increasing demand for seafood coupled with an expanding, staggeringly efficient fleet of fishing boats has resulted in overfishing on a massive scale. (8) The toothfish, for example, commands such a high market price that fishers call it "white gold." (9) It is particularly susceptible to overfishing due to its large size, low fertility, and slow rate of growth. (10) Even conservative estimates show that IUU catch accounts for half of the toothfish traded in the 1990s. (11) For every ton of legally caught toothfish, the National Environmental Trust estimates another five to six tons are caught illegally. (12) Scientists warn that toothfish could become commercially extinct by 2007 due to this illegal fishing alone. (13) Yet states like Australia, faced with illegal fishing by vessels like the Viarsa, can only pursue illegal fishers within their "exclusive economic zone" (EEZ), (14) an area up to 200 nautical miles of their coast according to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). (15) So long as a vessel is flagged, (16) states other than the flag state generally cannot take any meaningful action for violations outside of their EEZs, because the flag state--the state that registered the vessel (17)--possesses exclusive control over their vessels. (18) Although the Geneva Convention on the High Seas and UNCLOS both require a "genuine link" between a state and vessel for registration, (19) the genuine link requirement has proven malleable (20) and open to widely different interpretations; this is evident in domestic ship registration legislation. (21) A number of vessels suffering from declining standards whose flag states disregard safety, pollution, and environmental regulations emerged from "open registries" (ORs) (22)--state vessel registries that do not have strict registration requirements in terms of nationality, safety record, labor practices, or other traditional factors. (23) The flags these vessels fly are commonly known as "flags of convenience" (FOCs): (24) flags of a state whose government sees registration as a service it can sell to foreign vessel owners--not as a method to control its vessels through imposition of its sovereignty. (25) Poaching of toothfish, tuna, and other high value species is nothing new, (26) nor is the use of FOCs by poachers to evade regulation and authorities. (27) In a coastal state's EEZ, vessels are subject to that state's rUles and regulations. (28) But on the high seas, flag states possess primary enforcement responsibility. (29) Current legal structures fail to control IUU fishing by FOCs (FOC-IUU fishing) on the high seas. (30) UNCLOS allowed coastal states to establish EEZs, (31) which shrank the high seas (32) and weakened the traditional global commons doctrine of the sea. (33) But UNCLOS did not prevent FOC-IUU fishing or provide responsible states any enforcement options on the high seas, and its genuine link requirement seems to have whatever definition that the flag state chooses. (34) Regional fishery management organizations (RFMOs) attempt to fill the gaps left between domestic enforcement and international agreements. (35) Yet monitoring agencies agree that, despite RFMO management, IUU fishing remains a serious threat to toothfish and other species. (36) The following agreements proposed by the United Nations Food and Agriculture Organization (FAO) could enhance RFMO measures to conserve fisheries if they enter into force: The International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing (IPOA-IUU), (37) The Code of Conduct For Responsible Fisheries (Code of Conduct), (38) and The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement). (39) The FAO agreements are voluntary (40) and therefore useful primarily as "toolboxes" containing ideas for responsible states. (41) The Code of Conduct provides general guidance on fisheries management, (42) advocating reliance on the best available scientific evidence when setting quotas and other management measures. (43) It also encourages financial institutions not to require fishing vessels to be flagged in any jurisdiction other than the state of beneficial ownership. (44) The IPOA-IUU recommends national legislation address "all aspects" (45) of IUU fishing--a complicated and highly technical task. (46) Its general recommendations include sanctions; (47) economic incentives; (48) improved monitoring, control, and surveillance; (49) national plans of action; (50) and publicity. (51) Especially valuable is the IPOA-IUU's specific delineation of flag, port, and coastal state responsibilities. (52) This allows responsible states to point directly to flag state negligence, strengthening arguments for increased controls of FOC-IUU. The Compliance Agreement addresses FOC-IUU of toothfish specifically, and attempts to change flagging and enforcement laws. (53) In combination with the U.N. Straddling and Migratory Fish Stocks Treaty (Fish Stocks Treaty) (54)--which changes enforcement law to allow some high seas enforcement (55) and increases flag state duties over its vessels (56)--the framework provided by these agreements combines new enforcement ideas with methods already used by RFMOs. But ultimately, the current legal framework fails to adequately address FOC-IUU fishing: (57) FOCs are technically legal under the vague parameters provided by UNCLOS. (58) This Comment argues that customary international law is changing--FOCs may not enjoy the protection they do today for much longer. (59) But until this change comes, states must decide whether to allow present rates of overfishing to persist (60)--and complete the destruction of the world's fisheries--or work to end it. The international community must encourage flag states that lack the ability to effectively monitor and sanction their vessels to cede enforcement authority over vessels operating in violation of RFMO agreements on the high seas to an RFMO. (61) In exchange, the flag state will remain on a "white list" of responsible flag states and avoid alienation and blacklisting in commerce, politics, and media. (62) The impacts of FOC use and IUU fishing generally on fish stocks already in "cataclysmic decline" are not disputed. (63) Therefore, states must further cooperate to slow the rate of global fish stock destruction by bringing the FAO agreements into force and vigorously pursuing market-based, diplomatic, and litigious methods to eliminate FOCs. (64) These methods include the following: encouraging flag states to fulfill their duties and effectively monitor their vessels; (65) advocating domestic legislation controlling nationals on the high seas; (66) exerting political pressure on irresponsible flag states and shipowners; (67) blacklisting; (68) independent audits; (69) eco-labeling; (70) tonnage tax changes; (71) consumer boycotts; (72) and inter-state litigation. (73) This Comment recommends methods to combat FOC-IUU fishing, one element of IUU fishing, through public and private means. Part II details FOC origins, FOC use in IUU fishing, and the estimated impact of IUU fishing on fish stocks. Part III describes the current legal framework in which FOC-IUU fishing operates and analyzes its deficiencies. Part IV suggests new rules for controlling FOC-IUU fishing. Part V concludes that existing international law fails to combat FOCs, and suggests implementation of multiple methods to eliminate FOC-IUU fishing. II. FLAGS OF CONVENIENCE AND THEIR USE IN IUU FISHING FOCs account for a disproportionate share of vessel and tonnage losses; (74) labor violations; (75) oil spills (76) and pollution violations; (77) instances of inadequate communication and equipment; (78) deliberate mislabeling of vessels to disguise the vessel's true identity; (70) falsified certificates of competency and documentation on engine power output; (80) unauthorized modifications of vessel structures (such as hulls to conceal catch); (81) discarded illegal fishing gear upon sighting of fishery protection vessels; (82) altered satellite communication systems; (83) falsified fisheries information; (84) piracy; (85) and overfishing (86)--all in contravention of and without regard to international, national, and regional regulations. (87) Despite the multiple problems FOCs engender, they have existed for centuries with little international legal impediment. (88) A. Origins of FOCs and ORs Vessels entered into state public records as possessing that state's nationality are registered under public law and governed by public international law conventions such as UNCLOS. (89) International law requires registration in order to identify the vessel throughout its operating life. (90) Even if a vessel is not registered and lacks documents or a flag identifying its nationality, it still may be considered to possess its owner's nationality if the vessel owner's state defines a vessel by the nationality of its owner. (91) In contrast, other state legislation requires that the corporation owning the vessel be incorporated in the state, (92) that the flag state's nationals own a certain percentage of company shares, (93) and other less stringent "connecting factors" between shipowners and the vessel. (94) UNCLOS requires a "genuine link" between vessel and state, but does not define the actual relationship required by the Geneva Convention on the High Seas. (95) The United Nations Convention on the Conditions for Registration of Ships (UNCCORS) (96) defines a genuine link as an economic connection between the vessel's owner and the registering state. (97) Experts define the current interpretative purpose of the requirement as ensuring that flag states actually complete their duties in setting standards and enforcing them. (98) Some commentators encourage strengthening the standards governing the genuine link requirement, (99) while others argue that the requirement fails to provide effective control over vessels. (100) The fact that the genuine link requirement gives states no additional grounds for action against a vessel shows the ineffectiveness of the requirement in its current form. (101) To be an effective limitation on a state's registration provisions, only an agreement or case to which the state is a party can provide meaningful guidance. (102) Without this, parties instead resort to flexible canons of treaty interpretation, and various kinds of vessel registries emerge. (103) At least three types of vessel registries exist: traditional (also known as closed registries), open, and international. (104) Traditional national registries are usually over one hundred years old and require the shipowner or operator and a percentage of the crew to be nationals of the state in which the vessel is flagged. (105) Some traditional registries define a ship purely in terms of its ownership, (106) while others require a minimum of equity participation in shipowning companies by national citizens, or a minimum percentage of nationals involved in management. (107) Open national registries, in contrast to traditional registries, lack strict registration requirements and set a low bar to establish a genuine link with the flag state. (108) If a shipowner registers in a national registry but wants to employ a high percentage of nonnational crew members, he may do so by registering in a second, offshore registry. (109) In issuing FOCs to non-nationals who have little or no connection to the flag state and whose vessel may never actually port there, ORs interpret the genuine link requirement loosely. OR states assert the ability to establish their own conditions for registration, relying on precedents in international and U.S. law. (110) Finally, through international registries, traditional national registries try to compete with the less strict open registries. (111) International registry conditions are relatively strict for management and crew, but less so than traditional national registries. (112) Generally, a vessel's flag is considered an FOC if the only link between the flag state and the ship is registration--as opposed to management, crew nationality, ownership, or any other "genuine" connection with the state. (113) States have used historical analogues of FOCs for centuries, often for political expediency, sometimes without the stigma that FOCs carry today. (114) Historians trace FOC use to English merchants sailing under the Spanish flag in the sixteenth century to evade regulations governing trade with the West Indies. (115) In the United States, shipping companies have sailed under the Panamanian flag since the 1920s--with shipowners arguing that they could not compete with foreign companies that were not subject to alcohol prohibition laws like those of the United States. (116) American businesspeople increasingly used FOCs throughout the first half of the twentieth century due to operating costs raised by union pressure and the imminence of war. (117) For example, FOC use rose under U.S. neutrality laws at the beginning of World War II--American-owned vessels reflagged under Panama to sail to Britain despite U.S. laws forbidding it. (118) European shipowners similarly reflagged to avoid wartime requisition of their vessels. (119) Prior FOC use has sometimes actually furthered the principle of customary international law codified in UNCLOS providing that "ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea" (120) by making passage safer through use of a more politically acceptable flag. (121) But the FOC label today connotes registration for economic rather than political reasons. (122) The term is used in a derogatory manner because it indicates a desire to evade taxes, insurance and inspection standards, union contracts (enabling vessel owners to pay lower crew wages), international environmental agreements and duties, and other burdensome and costly regulations. (123) FOC use, however, is not technically illegal. (124) The failure of international and domestic law to address exploitative use of FOCs leaves lucrative loopholes for profit-seeking opportunists, unconcerned with species extinction and the decimation of the world's fish stocks. (125) B. The Size of the World FOC Fleet As of January 2003, over 60 percent of the total tonnage of the world's merchant fleet was "flagged out" (registered outside of the owner's domicile). (126) In 1998, FOCs constituted approximately 51 percent of the world's total gross tonnage. (127) OR state vessels fall under the International Transport Workers' Federation (ITF) (128) definition of an FOC. (129) OR states accounting for over 80 percent of the total deadweight tonnage registered in the top ten major OR states include, among others, Panama, Liberia, the Bahamas, Bermuda, and Cyprus. (130) These ORs retain their tonnage today, and vie with St. Vincent, the Marshall Islands, Antigua, Barbuda, and the Cayman Islands for the "top ten" OR flags in terms of GT. (131) In 1995, Panama registered 75 million gross tons (GT) of shipping vessels. (132) Its fleet continues to grow: In 1998, the fleet weighed in at over 98 million GT from over 13,400 vessels. (133) In 1996, Liberia's fleet included over 1,900 vessels weighing over 64 million GT. (134) According to the Liberian International Ship and Corporate Registry (LISCR), (135) Liberia's fleet consisted of over 2,000 vessels weighing approximately 60 million GT as of 2004. (136) Without context, these statistics may have little meaning: At the beginning of 2003, the world fleet of merchant ships of at least 1,000 GT stood at 26,221 vessels (137)--Panamanian and Liberian flags fly over 25 percent of the world fleet, (138) and FOCs collectively account for between 53 and 63 percent of the gross tonnage of the world fleet. (139) Lloyd's Register (140) and the Institute of Shipping Economics and Logistics statistics indicate that cargo and container ships, bulk carriers, and tankers all largely operate under foreign flags. (141) It is difficult to estimate the size and impact of FOC fleets on IUU fishing because vessels change flags, names, and operators frequently and use shell corporations to conceal owners' identities. (142) In just the Southern Ocean, (143) prime fishing waters for toothfish, legal fishermen estimate that approximately 40 boats regularly engage in IUU fishing for toothfish. (144) The large-scale, industrialized FOC fishing fleet comprises approximately 35,000 vessels--just one percent of the entire global fishing fleet by number. (145) Yet these 35,000 vessels make up about half of the world's fishing capacity. (146) C Effects of FOC-IUU Fishing 1. Species Devastation: Fish and Birds With fishery stocks collapsing worldwide, (147) the toothfish is but one more casualty of overfishing driven by market demand. (148) Environmentalists estimate conservatively that at least 50 percent of the total annual worldwide catch of toothfish is due to IUU fishing, (149) while others estimate the figure at over 90 percent. (150) Since 1996, illegal toothfish catch has exceeded legal catch by a factor of ten. (151) The decline in large predator populations, estimated at 90 percent as of 2003, (152) indicates fishery collapse, as does decreasing fish size. (153) Instead of toothfish over five feet long and 200 pounds, (154) toothfish on the market now are only around two feet long and 20 pounds. (155) Species other than fish also suffer enormously from IUU fishing. Pirate catches using illegal longlining equipment kill tens of thousands of seabirds every year. (156) For example, the wandering albatross, the largest flying bird in the world, goes after the bait, gets dragged underwater, and drowns. (157) 2. Effects on Fishing States with Traditional Vessel Registries Given the size of the world FOC fleet, it is safe to assume that a large percentage of fishing vessels, both legitimate and illegal, operate under FOCs. (158) It is extremely difficult for responsible flag states (RFSs) like Australia (159)--which pay decent wages, ensure that vessels they flag abide by environmental and safety regulations, and require a genuine link between vessel and state--to compete with FOCs. (160) ORs arose in part to beat competition in the international maritime industry, where many costs remain fixed (161) (such as the price of ships and fuel), and reduction in crew costs reduces a vessel's operating costs by at least 20 percent. (162) For RFSs whose registries require a certain percentage of nationals be employed, (163) crew costs are significantly higher than those of OR states. (164) These RFS wages are "simply ... unsustainable in the international fleet environment." (165) D. Detrimental Effects of FOCs Beyond the Fishing Industry 1. Environmental and Economic Effects By operating ORs, developing states gained international influence in the 1950s because of their large registered GT. (166) However, the practice now brings disrepute instead, (167) and usually minimal profits to the state. (168) OR countries may generate some revenue from registering ships, but this gain can be very minor--between 0.1 and 1.9 percent--as compared to gross national product (GNP). (169) However, in some circumstances, such as war in OR states, ORs may bring in a larger percentage of annual revenue. (170) ORs certainly benefit vessel owners, (171) but environmental, labor, and safety standards plummet where OR states fail to enforce them. (172) While a "race to the bottom" (173) may benefit a small percentage of an OR states' government elite, (174) the economies of OR states can be negatively affected in the long run because the source and dynamics of OR registration fees lies outside of the OR state's economy. (175) This external reliance--or dependence, where the registry revenue comprises a large percent of a state's GNP or annual revenue--becomes a part of the manner in which the global capitalist market integrates less developed states. (176) Dependency conditions (177) cause developing states to develop differently than developed states did: OR states often do not enjoy wide distributions of income or political participation. (178) Because the source of a large part of the GNP lies outside the OR state's borders and economy, the state's internal economies do not develop accordingly. (179) Instead, the state makes weak and tenuous links with ephemeral foreign vessel owners--ties that fail to generate "spread effects" (180) because they benefit only an elite minority (181) and derive from an external source. (182) Dependency can result in undesirable results for OR states, such as uneven growth and an undiversified economy. (183) Because developing OR states can become dependent on the business of private, non-resident vessel owners, they often do not cultivate their own maritime industry. (184) Instead, they cater to other states' maritime development, and foreign vessel owners take advantage of cheap labor wherever they can find it. (185) FOCs affect developing OR states' ability to compete, import, export, and stabilize wages afforded their nationals. (186) In addition to these negative economic and social effects in the OR flag state itself, FOCs harm individuals and states beyond political borders through general maritime labor violations. 2. Labor and Safety Violations In general, FOC safety standards fall far below those of traditional national registries. (187) Organized labor through the ITF has opposed FOCs since the 1930s in the United States (188) and adopted its first resolution boycotting OR FOC ships in 1958. (189) The ITF periodically publishes a blacklist of known or suspected FOC shipowners. (190) The ITF FOC Blacklist includes the owning company's name, state, reason for listing, and details of the abuse. (191) The ITF takes several factors into account when determining whether to designate a registry as an FOC, including the degree to which foreign owned vessels dominate the registry. (192) If the majority of a state's registered vessels are foreign owned and lack a genuine link to the flag state, the registry automatically qualifies to be designated an FOC. (193) If vessels registered in listed FOC states can demonstrate that they are genuinely owned in that country, the ITF does not treat them as FOCs. (194) The ITF, nongovernmental organizations (NGOs), and international news organizations report work-related deficiencies on FOCs. (195) Unregulated FOC fishing operations both deplete fish stocks (196) and endanger the lives of crews. (197) Crews are among the victims of FOC trade, (198) and FOC vessel casualty rates exceed rates of traditional registries. (199) However, the ITF lists have no legal effect, and have apparently done little to decrease FOC use; rather, FOCs have steadily increased into the 21st century. (200) III. THE LEGAL FRAMEWORK IN WHICH FOC-IUU VESSELS OPERATE A. International Law and the Law of the Flag 1. Flag State Exclusivity International law grants flag states exclusive jurisdiction over vessels on the high seas. (201) Persons enjoy the right to fish on the high seas subject to the flag state's treaty obligations and the rights, duties, and interests of coastal states, if applicable. (202) When vessel owners register in an OR, they may choose to retain total anonymity through the use of shell corporations (203) and remain essentially unregulated while fishing on the high seas so long as the flag state fails to fulfill its obligations. (204) OR flag states typically dedicate few resources toward regulating their fleet. (205) Whether the flag state is a party to an international treaty or an RFMO matters little if the flag state chooses not to exercise enforcement authority. (206) The existence of FOCs thereby makes effective management and conservation of fish stocks impossible. (207) UNCLOS requires that each state "fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag." (208) Once registered, "[s]hips have the nationality of the state whose flag they are entitled to fly. (209) Some commentators claim that this exclusivity rule "avoid[s] regulatory chaos" by keeping authority within one state. (210) However, with respect to FOCs and FOC-IUU fishing in particular, flag state exclusivity has resulted in no regulatory enforcement. (211) It allows FOCs to undermine conservation efforts, and when a flag state fails to control its vessels, the exclusivity rule leaves non-flag states with no recourse to combat fishing on the high seas conducted in violation of RFMO agreements. (212) 2. Customary International Law and Agreements Addressing FOC-IUU Fishing International conventions post-UNCLOS gave rise to state practice, typically by RFMO parties, discouraging the use of FOG vessels out of a sense of legal obligation not to undermine RFMO rules and conservation agreements. (213) This obligation, or opinio juris, is clear in the Code of Conduct, which requires states ensure "vessels do not undermine the effectiveness of conservation and management measures taken in accordance with international law and adopted at the national ... level." (214) This specific provision derives from the general duties which agreements like UNCLOS impose on all states: to cooperate to manage and conserve fish stocks, protect the environment on the high seas, and ensure compliance with international law regarding environmental damage. (215) In the context of high seas fisheries, the required elements for a rule to become customary international law, state practice and opinio juris, may have already been met: The FAO agreements proscribe FOC-IUU fishing, and such provisions are widely accepted by RFSs. (216) The FAO agreements demonstrate general consensus among the international community that FOCs used for IUU fishing should be eliminated. (217) The requisite state practice to establish customary international law need not be universal, but must include states affected by the norm, and states must treat conduct inconsistent with a customary practice as a breach of a rule. (218) International fisheries regulation consistently requires flag state enforcement of vessels that undermine conservation agreements. (219) In the context of high seas fishing, FOC-IUU vessels are defined in large part by their operation in contravention of such agreements. (220) Customary international law may therefore prohibit FOCs. That prohibition has not yet been recognized, however. If and until it is, international and domestic regulatory provisions govern FOCs, which remain technically legal under international law. (221) a. Vessel Registration In 1986, many hoped that the United Nations Conference on Trade and Development (UNCTAD), a precursor to UNCCORS, (222) would phase out FOCs entirely. (223) UNCCORS did not achieve anything close to a phase out of FOCs, and instead "re-affirmed the flag state's supremacy and institutionalized the status quo." (224) Still, UNCCORS does use language encouraging responsibility. It requires, inter alia, the following: that ORs have 1) adequate administrations capable of ensuring safety, (225) 2) the ability to identify operators of their ships, (226) and 3) the capacity to ensure that the operator has adequate third party liability insurance in the event of oil spills or other events. (227) These requirements will come into effect if UNCCORS is ratified. (228) The FAO drafted the voluntary Code of Conduct after the 1992 International Conference on Responsible Fishing provided the impetus for its creation. (229) The Code of Conduct is consistent with Agenda 21, (230) which calls for deterrence of FOCs as a "means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas." (231) The Code of Conduct is also consistent with several multilateral U.N. agreements adopted by many states, (232) including the results of the 1992 FAO Technical Consultation on High Seas Fishing, (233) the Fish Stocks Treaty, (234) and the Compliance Agreement. (235) The Code of Conduct directs flag states to "ensure that no fishing vessels entitled to fly their flag fish on the high seas or in waters under the jurisdiction of other states unless such vessels have been issued with a Certificate of Registry and have been authorized to fish by the competent authorities." (236) If adopted and followed, this provision alone would drastically decrease the amount of FOC-IUU fishing. (237) Unfortunately, the provision has not been adopted, and RFSs must encourage flag states to require such authorization prior to granting a vessel its flag. (238) The Compliance Agreement mirrors some of the language in UNCLES and the Code of Conduct, but also goes beyond both of those agreements. (239) It actually attempts to change the laws governing registration of ships by flag states: No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel. (240) The Compliance Agreement also prohibits parties from issuing flags to a fishing vessel that has undermined conservation or management measures while flying the flag of another party unless certain conditions are met. (241) These relatively strong provisions turn on a flag state's willingness to act responsibly; therefore, the international community must provide incentives for such responsibility. (242) Though tightening registration requirements may be the simplest method to phase out FOCs, (243) there are many reasons it would backfire. First, widespread acceptance of strict registration requirements is unlikely, so it could widen the "competitive spread" between states continuing their OR practice and those moving toward traditional national registry provisions. (244) Second, vessel owners have created and will continue to create subsidiary companies in OR states to hold legal ownership of a vessel, and thereby comply with stricter registry requirements while retaining their FOC status and remaining insulated from scrutiny by a diligent flag state. (245) b. Domestic Legislation Controlling Nationals on the High Seas Among other duties, the Code of Conduct encourages states not party to the Compliance Agreement to accept it and adopt consistent domestic laws. (246) The Code of Conduct envisions that those domestic laws will make contravention of conservation measures an offense carrying sanctions severe enough to ensure compliance and deter future violations. (247) RFSs should pursue this idea as part of flag state responsibility as a whole. (248) c. Enforcement Unfortunately, the Compliance Agreement merely duplicates the language of the Code of Conduct with respect to enforcement, as it directs flag states to implement legislation consistent with the Compliance Agreement and suggests no sanctions beyond withdrawal of fishing authorization. (249) The Compliance Agreement directs a port state which suspects a vessel of a violation to "promptly notify the flag state accordingly," leaving enforcement again in the hands of the flag state. (250) This typical enforcement provision--typical because of the flag state exclusivity rule--could be stronger. (251) If a flag state lacks the resources to adequately patrol its fleet or prosecute its vessel owners, agreements could encourage the state to cede enforcement authority to an RFMO. (252) B. Attempts by the Fish Stocks Treaty and RFMOs to Control FOC-IUU Fishing By allowing coastal states to extend regulatory control up to 200 nautical miles from coastlines, UNCLOS effectively shrank the high seas. (253) Unfortunately, this designation failed to address overfishing and overcapacity issues. (254) Subsequent treaties attempt to fill gaps left by UNCLOS. If a fish stock exists on the high seas, straddles (255) EEZs of two or more coastal states, or migrates between the high seas and one more EEZs, the Fish Stocks Treaty governs fishing regulations for that stock. (256) The Fish Stocks Treaty obligates states to cooperate through RFMOs to conserve these stocks. (257) RFMOs perform many functions in fisheries management, (258) including the following: determining participatory rights (which include allowable catch and fishing effort levels); (259) adopting and applying standards for responsible conduct; (260) establishing measures to monitor, control, survey and enforce fishing regulations; (261) and ensuring national agencies comply with RFMO decisions. (262) 1. Using Enforcement Provisions in the Fish Stocks Treaty to Patrol FOCs The Fish Stocks Treaty requires that states fishing for a straddling or highly migratory fish stock "give effect to their duty to cooperate" by becoming parties to the governing RFMO and/or agreeing to implement conservation measures. (263) Non-cooperating states will not have access to the fish stock to which the RFMO measures apply. (264) The Fish Stocks Treaty does not excuse non-parties from cooperating with RFMO conventions and the Fish Stocks Treaty in pursuit of fish stock conservation and management. (265) This provision presumably gives Fish Stocks Treaty parties and RFMO members the ability to exclude vessels from non-member states from high seas areas governed by RFMOs. (266) The Fish Stocks Treaty further directs RFMO states to deter activities of vessels flying flags of states that are not RFMO members which undermine the effectiveness of RFMO management measures. (267) Articles 21 and 22, governing enforcement, are among the most aggressive provisions in the Fish Stocks Treaty. (268) In any high seas area covered by an RFMO, an RFMO member may board and inspect fishing vessels if there are clear grounds for believing the vessel has committed a serious violation, whether or not those vessels fly the flag of a state that is also a party to the RFMO. (269) Still, even if there are clear grounds for suspecting a vessel of activity in violation of RFMO measures, the inspecting state must secure evidence and notify the flag state. (270) By allowing enforcement for violations occurring on the high seas, the Fish Stocks Treaty breaks new ground. Moreover, unlike earlier agreements--which gave inspecting states no recourse should the flag state fail to act--the Fish Stocks Treaty allows the inspecting state to pursue an enforcement action if the flag state fails to take effective action against a vessel for committing a serious violation. (271) The inspecting state may take the vessel to the nearest port and pursue sanctions, (272) but only with the permission of the flag state or upon failure of the flag state to respond to a report of its vessel's violation. (273) The flag state may still exercise its rights at any time and order the return of its vessel. (274) If it does not, the inspecting state may take action "proportional to the seriousness of the violation." (275) Nevertheless, if the flag state assumes responsibility over its vessel, inspecting states have little enforcement authority. Acceptance of RFMO and FAO agreements, like all international agreements, is voluntary; (276) UNCCORS and the FAO agreements addressing FOC-IUU are not yet in force. (277) International law directs a non-flag state inspecting a vessel on the high seas to return the offending vessel to the flag state. (278) Therefore, RFMOs alone cannot be expected to effectively patrol the high seas without stronger authority and wider support. (279) The Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR), (280) governing toothfish, bears the brunt of criticism for failures not entirely its own and provides an example of the difficulty of high-seas monitoring. (281) 2. CCAMLR's Attempts to Control FOC-IUU Fishing The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (282) was created to implement the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR Convention). (283) The CCAMLR Convention entered into force in 1982 as part of the Antarctic Treaty System. (284) It serves to "conserve marine life of the Southern Ocean ... not exclud[ing] harvesting carried out in a rational manner." (285) CCAMLR manages those marine resources. (286) Relying on advice from its Scientific Committee, (287) CCAMLR determines species catch levels and tries to minimize fishing impacts on non-target species and IUU fishing. (288) To accomplish these tasks, CCAMLR annually adopts numerous conservation measures. (289) CCAMLR's 2004 conservation measures (290) include, among many others, the following: monitoring, control, and surveillance through international inspection and observance schemes; (291) marking of fishing vessels and gear; (292) licensing and inspection; port inspections of vessels that carry toothfish; (293) automatic satellite-linked vessel monitoring systems (VMSs); (294) and a Catch Documentation Scheme (CDS) (295) to control tooth_fish trade. (296) CDS is a method that attempts to control IUU fishing by requiring all landings, transshipments, and importations of toothfish into territories of contracting parties (297) to be accompanied by a completed catch document. (298) Monitoring agencies disagree on CDS's impact on IUU fishing, (299) but it is nevertheless a key component of CCAMLR's manifold conservation measures. Illegal fishers "comply" with requirements such as the CDS, however, by transmitting arbitrary figures to CCAMLR with no basis in reality--that is, numbers which are never verified. (300) Because of rampant falsification of fishing logbooks and CDS, VMS is a critical and affordable complement to the CDS reporting system. (301) Some commentators describe the CDS as ineffective and "[rife] with fraud." (302) To combat this fraud, improve reliability of fishing statistics, and decrease IUU fishing, commentators often recommend the use of neutral observers to ensure accurate reporting of locations and catches. (303) Although some scholars argue that observer coverage is too expensive for implementation, (304) the cost of one extra person on board is not excessive relative to overall operation costs. (305) This affordability may account for the growing number of fisheries' observers employed (306)--a statistic that could improve the accountability of both VMS (assuming ship operators are less likely to scramble their actual positions) and CDS (where the observer can serve as a check on the reported catch amounts and locations). (307) Additional mechanisms could further safeguard regulatory compliance with systems like the CDS. For instance, Australia, with support from the United States and New Zealand, recently proposed a central ship monitoring system to deal with illegal toothfish poaching. (308) But the proposal, like many others in this area, failed due to political discord. (309) Despite CCAMLR's conservation strategies, some watchdog groups allege that many of the vessels engaging in FOC-IUU fishing are "flagged, owned, operated or controlled by Members of [CCAMLR]." (310) Within CCAMLR's regulatory region, the RFMO members themselves are apparently falling to perform their flag state duties. (311) NGOs such as the Antarctic and Southern Ocean Coalition (ASOC) (312) explain that, when CCAMLR members' vessels are apprehended by another state, these Commission members and FOC operators deny ownership, assert state sovereignty, insist ignorance, or claim there is an insufficient legal basis to take any action. (313) In addition to these insider violations, ASOC and Australia's National Crime Commission allege that international organized crime syndicates run sophisticated toothfish operations in both CCAMLR waters and coastal state EEZs. (314) In the midst of such corruption and misrepresentation, law-abiding RFMOs must ultimately rely on flag states to provide accurate catch data for their vessels operating in fisheries subject to conservation and management measures. (315) This is precisely the type of information that FOC-IUU fishing operators either misrepresent or do not represent at all. Because of the ease with which illegal operators evade RFMO measures like the CDS, scholars have described CCAMLR and other RFMOs as "uniformly unsuccessful in achieving ... sustainability." (316) In 2003, CCAMLR XXII did little to change this sentiment; in 2004, CCAMLR XXIII approved some new measures against IUU fishing operations, including a centralized VMS. (317) Environmental groups derided the Commission's 2003 meeting for its failure to address pirate fishing of Patagonian toothfish, attributing this failure to CCAMLR member states' "vested interest" in IUU fishing. (318) Toothfish industry members described the Commission's outcome as a "complete farce" that "did nothing to prevent or deter illegal operators from stealing Australian toothfish and plundering our waters." (319) Instead, CCAMLR only agreed to continue their list of FOC-IUU and IUU vessels and expand VMS use. (320) The failure to accept proposals for tighter controls left "organized crime's grip on the rich trade largely unchanged." (321) This regulatory mess shows that sole reliance on flag states does not work. (322) The Fish Stocks Treaty gives some power to non-flag states that are parties to RFMOs, but flag states can always cut other states' enforcement action short. (323) Because FOC vessels could simply "flag hop" and diminish the flag state's OR revenue, flag states will probably take protective action to keep their customers. (324) Therefore, the logical economic response of a flag state in this position would be to respond to an inspecting state's complaint about its vessel (325) and pursue a lax enforcement action against the vessel (326) rather than abandon its vessel and allow the inspecting state to investigate. (327) Because the Fish Stocks Treaty provides no enforcement action against a passive flag state, the chances are slight that the flag state would suffer any consequences (other than potential political backlash). (328) It could thereby retain its lucrative reputation in the fishing and shipping community as an OR flag state that will effectively shield its vessels from regulatory compliance. C. Gaps in the Law: General Shortcomings in Existing FOC Enforcement Mechanisms International fisheries management agreements have failed to prevent overfishing, (329) and international law fails to reach OR states registering FOC vessels. (330) Although this Comment focuses on FOCs in IUU fishing on the high seas, one shortcoming of available enforcement mechanisms plagues RFSs combating FOC problems generally: Most enforcement targets the wrong party. In the case of the Viarsa, Australia charged the crew and its captain with illegal fishing on October 31, 2003. (331) All formally denied the charges; an Australian jury failed to reach a verdict by December 2004, so the fishermen could face a long wait for a retrial. (332) Australian fisheries officers captured the Maya V, another Uruguayan-flagged vessel, with 202 tons of illegally caught toothfish within Australia's EEZ on January 31, 2004. (333) The Commonwealth charged and convicted 35 crew members, who pleaded guilty, of using a foreign fishing vessel without a license in Australia's fishing zone under the Fisheries Management Act. (334) Each member faced a $27,500 fine, but the district court instead fined each $1,000, with the warning that additional fishing offenses in Australia's waters within the next five years would bring higher monetary penalties. (335) The court fined the ship's two senior officers $30,000 total after they pleaded guilty. (336) The vessel's owner, registry, and flag state were not and win not be penalized, (337) other than by the negative publicity surrounding the incident (338) and possible diplomatic fallout. (339) No civil penalties, trade measures, or flagging restrictions will follow. Punishing crew members--who may or may not even be aware of what is and is not allowed under the elaborate CCAMLR fisheries regime and Australian domestic fisheries management--may bring public attention to IUU fishing, but penalizes the wrong people. (340) Fisheries management scientist John Gulland explained that "[f]ishermen are probably no greater law breakers than any other group of people. However, fishing does encourage the independent view and reluctance to accept, without proper explanation, rules and regulations, especially if they come from bureaucrats in a distant capital." (341) If a flag state chooses not to regulate its nationals who fish on the high seas, another state's prosecution of those fishers fails to reach the source of the problem. This enforcement is better than nothing, but does little to curb FOC-IUU fishing in the long run. For example, even if the Viarsa's crew members are punished and are more careful in selecting the next ship they work on, their prosecution may not result in the Uruguayan registry changing its standards. (342) In addition, seafarers cannot realistically be selective when seeking work that is sparse, difficult, and low-paying. (343) Further, past experience shows that arrest and conviction of crews guilty of other high seas violations--such as piracy--fails to reach the source of such problems. (344) Though the trials of crew members may be proclaimed publicly as evidence of a state's intolerance for high seas chaos, crew members declared pirates under international law "kn[o]w the ocean better than most," and remain "unrepentant and undeterred" by judicial prosecution. (345) The global fisheries regime must reach the bigger fish: the corporation running the OR, owners of the FOC vessels, or the flag state itself. IV. POTENTIAL NEW RULES FOR CONTROLLING FOC-IUU FISHING The problem of FOCs is not simple, nor does it lend itself to an easy solution through domestic legislation or international framework treaties encouraging cessation of FOC use. Reflagging through FOCs is one reason for the change in competitive structures among fishing states (346)--this change is reflected in economic pressure that has "weakened regulatory programs and ... produce[d] an international 'race to the bottom.'" (347) While blacklists of FOC vessels generate awareness of the problem, FOC vessel operators have responded with characteristic resourcefulness. (348) In a practice known as "flag hopping," operators change their registry from an FOC state to a state that may be an RFMO party, but does not regulate its vessels closely. (349) As RFMOs and states pass stricter regulations, FOC-IUU fishing operators become more creative. Examples include reflagging, repainting, and reregistering vessels after they have been blacklisted as FOCs, and either misreporting or failing to report catches at all. (350) Thus, the FOCs persist in their international free riding, constantly adapting to new FOC control mechanisms in an "exact reversal of sovereignty's intent ... a perfect mockery of national conceits." (351) FOCs often negatively affect the maritime economies of both OR and traditional national registry states, and FOCs may have effectively driven the maritime industry out of advanced industrialized democracies of RFSs because they simply can not afford to compete with FOCs. (352) Because FOC operators often do what they do just to maximize profits, some of the most effective measures to combat FOCs could be financial in nature. (353) These include independent audits, trade sanctions, and market measures. In addition, states should encourage quality flag states through a "white list" of preferred, quality registries to discourage a race to the bottom. Finally, RFMOs should diligently pursue conservation-minded inspection and surveillance with the support of member states, and the international community should encourage flag states to fulfill their associated responsibilities. A. Promoting Flag State Responsibility 1. Goals of Responsible Flag States In a perfect ocean, all flag states would patrol and control their vessels as they do their terrestrial territory, since vessels were traditionally viewed as a floating piece of state territory. (354) If they did, they would fulfill the obligations set forth in international agreements. (355) David Balton, director of the U.S. State Department's Office of Marine Conservation, (356) summarized flag states' core obligations in three rules: 1) ensure that their vessels do not undermine conservation rules, whether or not the flag state is a member of the RFMO that adopted those measures; 2) ensure that vessels are not used for high seas fishing unless authorized by the flag state; and 3) refuse to grant such authority to a vessel unless the flag state can adequately control it. (357) Key to these rules is the notion that flag states "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." (358) Because negligent OR states that issue FOCs by definition do not fulfill these duties, other states must work to bring irresponsible flag states into compliance. 2. Moving Toward a "White List" of Responsible Registries a. Encouraging Effective Monitoring and Enforcement by Flag States Through Independent Audits of ORs Corporate executives who run OR state registries occasionally acknowledge the public's disdain for their operation, and are not entirely unresponsive to international criticism. For example, Clay Maitland, managing partner of International Registries, Inc., conceded the "not-entirely-inaccurate image" of ORs as "'bottom feeders' who focus to the exclusion of almost all else on the bottom line." (359) Maitland explained that prevailing market pressures work against registries willing to improve their enforcement standards, and that, if unchanged, "will always work against the quality-conscious [registry]." (360) The market today welcomes, and may in fact create, "bottom line" operators who are unconcerned with crew safety or environmental regulations, because FOC vessels drive responsible operators out of business. (361) If FOC operators are motivated solely by profit, then public listing by environmental NGOs and labor unions probably has little effect unless that listing decreases ORs' and flag states' revenue. (362) One of the only solutions to combat FOCs appears to be in negatively impacting the bottom lines of registries and vessel owners rather than appealing to a moral conscience that may not exist. Several barriers must be overcome in order to fine FOC vessel operators and registries. On the high seas, not only does the vast expanse of the ocean render location and identification of FOCs extremely difficult, but the current legal structure precludes meaningful punishment of FOCs. (363) Flag states possess exclusive responsibility absent relinquishment of that authority--such relinquishment is unlikely, because future vessel owners would simply reflag or rename their company or ship if a flag state gave a registered vessel over to another state, thus decreasing the original flag state's profits. (364) Measures that could affect the economic dynamics driving the continuing operation of ORs and FOCs include, inter alia, independent audits of ORs. (365) Maitland outlined a 20-point model registry administration which, in part, encourages a different competition structure than what exists today. (366) The model emphasizes the proper destination of registration fees and tonnage taxes (367)--administration of registries that enforce acceptable labor, safety, and environmental standards. (368) Rather than perpetuating the race to the bottom, Maitland's system would promote competition based on "white list" standards of quality performance rather than the current black list system. (369) Maitland's key proposal--backed by his registry's flag state, the Marshall Islands--requires all registry administrations to undergo independent audits to determine whether the registry comports with standards such as anti-IUU fishing regulations. A fairly independent body, such as the U.N. International Maritime Organisation (IMO), could hypothetically conduct such an audit. (370) A recommended "white list" of good registries would publicize the results of these audits. (371) This method would presumably do more than "target fictitious administrations," which has little effect on FPC use; (372) registries would seek recognition rather than evade it. Such an audit, so long as those who conduct it remain politically independent, could provide a useful check on ORs issuing flags to IUU fishing vessels under FOCs. In 2003, the IMO Council approved objectives for an independent audit to assess flag state performance, based upon the following guidelines: 1) whether the member state enacted legislation implementing IMO instruments; 2) whether the member state monitored the execution of statutory responsibilities; 3) the effectiveness of the member state's surveillance and certification processes; and 4) the member state's capacity-building and the ability to provide related technical assistance. (373) Through audits, roundtable members claim, law-abiding shipping companies that operate under FOCs may face more stringent port inspections and longer delays if they fly the flag of a state listed as suspect under these guidelines. (374) Hence, FOC registration in suspect ORs that do not fulfill their flag state duties would theoretically decline. Allowing FOCs to abide by rules imposed by ORs of flag states that, by design, do not enforce those rules may be "tantamount to placing arsonists in charge of the fire brigade." (375) However, other states, RFMOs, or other international bodies cannot replace a state's standards with their own. (376) But if every state is subject to uniform scrutiny by an independent auditor, this audit could potentially limit reflagging without impinging on the flag state's sovereign right to decide its ship registry standards. In addition to Maitland's audit, which focuses on financial factors, the U.S. Coast Guard (USCG) implements QUALSHIP 21, (377) a list of "quality vessels" which pass the USCG's inspections of physical structures and detention records. (378) Though QUALSHIP 21 focuses on elimination of substandard shipping, (379) port states frequented by FOC-IUU fishing vessels could implement a similar system. (380) QUALSHIP 21 plans to introduce reduced port fees, available to QUALSHIP 21-certified vessels meeting "additional quality standards acceptable to participating ports." (381) But no such reductions yet exist, and both Maitland's and the USCG's lists rely on the hope that a positive listing will provide flag states with enough incentive to fulfill their responsibilities. Whether this incentive exists remains to be seen. b. Ceding Authority: Where Flag States Lack Resources to Fulfill Their Obligations Flag states violate international law when they fail to exercise enforcement over rogue FOC-IUU fishing vessels. (382) This could create a cause of action against the flag state (383) as well as encourage a shift in enforcement to states which are members of the RFMO governing the high seas areas in which FOC-IUU vessels fish. (384) Because of state sovereignty principles, (385) this shift can only occur if the vessel is declared stateless, or if a flag state cedes authority to the RFMO party. If a flag state cannot patrol and sanction its vessels, it should cede its authority to retain a good reputation. If a state ceded this authority, it would not be blacklisted as an OR. This acknowledges both a good faith attempt at responsible action, and the difficulty of patrolling all vessels a state registers. However, a flag state should also be discouraged from registering as many vessels as it can, so should be fined if its vessels are apprehended too often. Such fines should be significant enough to cause flag states to think twice before registering vessels whose owners have no genuine link to their state, and possibly even tighten their registration requirements. The remaining question is whether the lack of a blacklisting, or the presence of a whitelisting, would be worth enough to the flag state to forego exclusive authority, abandon their vessels, and lose corresponding registry profits. (386) 3. Encouraging Flag States to Control Their Nationals Through Domestic Legislation The IPOA-IUU advises all states to ensure that nationals subject to their jurisdiction do not engage in IUU fishing. (387) In the United States, domestic legislation provides serious penalties for wildlife violations. (388) For instance, nationals who interfere with enforcement officers, (389) submit false information to fishery councils, (390) or fish for salmon in unauthorized areas (391) face a $200,000 maximum fine and between six months and ten years in prison. (392) To deter crews from engaging in IUU fishing on FOC vessels, states should adopt and enforce similarly severe laws. (393) Though these laws could deter crews from engaging in IUU fishing or trade, they will not affect beneficial owners of FOC-IUU vessels who remain anonymous and virtually untouchable through OR registration. (394) B. Reaching the Shipowners The IPOA-IUU advises states to identify nationals who are operators or beneficial owners of IUU fishing vessels. (395) In addition, it advises states to discourage their nationals from flagging fishing vessels under a flag state that does not meet its responsibilities. (396) At the end of 1979, U.S. citizens constituted the largest percentage of FOC vessel owners. (397) While the Magnuson-Stevens Fishery Conservation Management Act (398) and other wildlife and resource protection laws presumably deter U.S. nationals from engaging in IUU fishing or importation of illegal catch, (399) no domestic law deters vessel owners from flagging in an OR state. With so many economic reasons not to register a vessel in the United States, (400) it is not surprising that savvy U.S. vessel owners avoid their own flag. In order to achieve transparency in registration and the ability to enforce domestic laws on nationals operating under the cloak of FOC paperwork, the media should continue to publicize FOC use until legislatures address this issue. 1. Methods to Encourage Flagging in States to Which Shipowners Have a Genuine Link IUU vessels--whether flagged in a national flag or an FOC--cause political discord among states. (401) The Viarsa incident highlights the severe diplomatic tensions created by IUU: Uruguay's Agriculture, Livestock, and Fisheries Minister Martin Aguirrezabala rejected claims from his fellow parliamentarians (whose arguments mirror those of Australia and other RFSs)--that Uruguay's Fisheries Department does not effectively monitor maritime resources, and allows overfishing. (402) Aguirrezabala insists that Uruguay complies with international law in this area, and objects to other states' intervention through fine imposition. (403) The Maya V incident, also involving a Uruguayan-flagged trawler fishing for toothfish illegally in Australia's waters, caused similar disagreement, with Uruguay demanding that Australia return its detained crew and observer. (404) In addition, FOC use alone causes diplomatic and political tension. For instance, Canadians expressed outrage at the choice of their new Prime Minister, Paul Martin, in his prior capacity as a corporate executive for Canadian Steamship Lines (CSL), to flag his vessels in FOCs. (405) Canadians allege that Martin chose not to fly his own flag to avoid taxes, and injured maritime workers and the environment by doing so. (406) Though Martin certainly had, at minimum, economic reasons for his choice, (407) his critics' descriptions of FOCs are accurate. (408) This sort of media campaign brings needed attention to the problems FOCs cause. (409) By monitoring vessel owners and CEOs, NGOs and concerned citizens can sometimes shine a light on the previously anonymous FOC vessel owner. This unwanted attention will hopefully discourage FOC use by other vessel owners. 2. Blacklisting: Use by RFMOs and Port States In addition to identifying FOC-IUU vessel owners and encouraging flag states and RFMOs to enforce sanctions against them, (410) blacklists may provide some political incentive to comply with RFMOs and avoid OR registration. In addition to the ITF's list of FOC vessels, (411) several NGOs publish lists of known IUU and FOC operators. (412) These lists can help RFMOs and NGOs combat FOC-IUU fishing. ITF approaches and documentary evidence of FOC problems in labor violations may help RFMOs when implementing measures to combat FOC-IUU fishing, as the ITF has already done the research, monitoring, investigating, and reporting of FOC vessels operating under substandard conditions. Essentially, ITF lists that are specific to an RFMO's region could serve as starting points for the RFMO investigating FOC-IUU fishing, thus saving resources and time. Port states should also use these lists to ban FOC-IUU fishing vessels from their ports and limit the ships from which they accept toothfish for market introduction. (413) Port states have the right to control all activities within their borders and ensure compliance with international conventions. (414) Diligent port state control is essential in the context of controlling FOC-IUU fishing, because it protects legitimate operators from FOCs who force unfair competition by evading international and domestic regulations. (415) However, because the actions a port state can take often fail to reach the vessel owner, (416) they also fail to deter future abuse of the FOC system. (417) Mechanisms like CCAMLR's CDS, (418) if cleaned up and enforced strictly by the RFMO, could work in conjunction with port state control. Theoretically, CDS systems monitor the fish from catch to market, requiring a completed catch document to accompany each landing and toothfish, ensuring the legality of the catch. (419) However, given the loopholes in the CDS system, states and RFMOs must take additional measures such as neutral observer coverage, VMSs, and consumer boycotts to reach FOC-IUU fishing operators. (420) C. Financial Methods to Discourage FOCs To reach the flag state, NGOs have looked to multilateral financial institutions like the World Bank, requesting they condition loans to states on environmental compliance. (421) Though the World Bank claims to be responsive to such pleas, its loan record tells a different story. (422) Therefore, financial means through channels other than international financing must be utilized. (423) 1. Trade Sanctions Trade measures consistent with agreements administered by the World Trade Organization (WTO), (424) such as the General Agreement on Tariffs and Trade (GATT), (425) could be used to combat FOC-IUU fishing by encouraging flag states to enforce international environmental standards. If RFSs could 1) tax or regulate fish products based on the method of capture, or 2) impose trade restrictions based on a vessel's ownership rather than some characteristic of the fish product, then RFSs could pressure fishers and FOC states to operate according to certain guidelines. (426) Unfortunately, the WTO may not permit such actions: Article XI of GATT prohibits regulation of products based on factors unrelated to the product, (427) and rulings in the tuna/dolphin disputes (428) held that states cannot tax or regulate products differently based on factors unrelated to the product itself, such as the method of harvest. (429) In addition, some unilateral trade sanctions may violate GATT provisions (430) unless they meet an article XX exception. (431) Though the give and take between WTO membership and environmental issues is crucial to understanding the limits of a WTO-member state's ability to impose trade measures on another state, conflicts and synthesis between trade interests and protection of global commons resources are beyond the scope of this Comment. (432) Rather, this Comment simply suggests states should implement trade measures using WTO Appellate Body reports as blueprints. For example, the recent Shrimp/Turtle ruling (433) provides a framework for states to impose unilateral trade measures that fit within a GATT article XX(g) exception. (434) The WTO trade regime sometimes disfavors unilateral trade embargoes not associated with multilateral environmental agreements (MEAs). (435) The Shrimp/Turtle dispute, however, expressly allows unilateral trade sanctions without the umbrella of an MEA (436)--like the Tuna/Dolphin disputes, however, it prohibits attempts to force states to adopt identical regulatory policies through the use of trade restrictions. (437) RFMOs like CCAMLR have used methods similar to, but not characterized as, sanctions on trade in goods under GATT--landing and transshipment bans. (438) So long as these methods and other port and trade measures remain transparent and non-discriminatory, analyses of the WTO Agreements, GATT articles XI and XX, and the foregoing panel decisions indicate that WTO parties may use such measures. (439) Therefore, states should implement internationally agreed upon, market-related measures, (440) focusing on market transparency (441) to foster fish and fish product traceability. (442) Such tools depend on the associated recommendation that states inform all "importers, transshippers, buyers, consumers, equipment suppliers, bankers, insurers, other services suppliers and the public ... of the detrimental effects of doing business with vessels identified as engaged in IUU fishing." (443) 2. Market Measures Though some RFMO parties may be required to carry VMSs and participate in CDSs, these requirements have proven too easy for FOC operators to evade. (444) Framework treaties and nonbinding, voluntary international agreements contain valuable strategies, but lack "teeth" (445) and stand powerless in the face of FOC fishing fleets unregulated by their flag states. (446) Therefore, market measures may be the most effective means to combat the FOC element in IUU fishing--they could take effect quickly, potentially endure long-term, and change market forces behind FOCs. a. Consumer Boycotts Because of the CDS system's failure, (447) there is no way to determine whether a toothfish was caught legally once it enters the United States. (448) Some estimates conclude that approximately 90 percent of the toothfish consumed in the United States is caught illegally. (449) Responding to NGO publicity on the issue of illegally caught toothfish and its possible extinction, the National Environmental Trust (450) worked with chefs and restaurants to organize a toothfish ban in 2002. (451) As of 2003, 1,500 restaurants across the United States agreed not to serve toothfish, (452) and industry representatives estimate that this dropped demand by 40 percent in just one year. (453) This method reaches the root of the problem--it seeks to decrease demand and eliminate the market forces that drive FOC-IUU fishers to supply illegally caught toothfish. However, only a small percentage of restaurants implemented the ban, and it lacks widespread media attention. (454) To complement this effort, eco-labeling could increase public awareness of the pressures--such as FOC-IUU fishing--driving the toothfish to extinction. (455) b. Eco-labeling Legally Caught Fish The difficulty of implementing the goals of international agreements to conserve fish stocks led states like the United States to use extra-political measures such as eco-labeling (456) to achieve those goals. (457) Scholars and conservationists give weight to this innovation in light of the difficulties faced by states and parties to international conventions in protecting global commons resources. (458) This weight is especially appropriate in the regulatory tangle surrounding FOC-IUU fishing. (459) The World Wildlife Fund (460) and Unilever, (461) an Anglo-Dutch company that sells fish through its frozen food subsidiaries, (462) established the Marine Stewardship Council (MSC) (463) in 1996 to implement an eco-labeling system for seafood. Unilever's eco-labeling encompasses four basic types, (464) all of which profess to help consumers choose products that have minimal impacts on the environment. (465) Independent certification companies certify fisheries qualified to carry the MSC label. (466) Other market players recently began emulating MSC's market-based initiatives and creating their own standards and labeling systems for responsible fisheries. (467) This could create confusion and dilution of standards among competing industries asserting their responsible fishing practices. It could also, however, lead to Congressional intervention, as occurred with dolphin-safe tuna labeling. (468) This would bring uniformity to the eco-labeling scheme, ensure credible standards, and publicize problems faced by the toothfish industry--a goal that the chefs ban probably could not achieve on its own. (469) Internationally, critics of eco-labeling fear that it could act as a trade barrier, (470) and small-scale fisheries in developing countries have expressed concern that the costs to qualify as a responsible fishery could be too high to sustain the growth of eco-labeling in the developing world. (471) Because the eco-labeling process is relatively new, it is too early to comment on such speculative fears, much less allow them to impede development of the eco-labeling system to conserve fish stocks. (472) Eco-labeling could provide a disincentive for FOC registration and FOC-IUU fishing: If consumers stopped purchasing pirated fish as a result of an effective labeling scheme, FOC-IUU operators could not sell their product. On the other hand, eco-labeling may have a minute impact on FOC-IUU fishing and fail to decrease demand, as consumers often look first to price rather than environmental context. (473) Either way, eco-labeling remains a complement to multiple necessary control methods. c. New Taxes to Enforce RFMO Quotas RFMOs have used various technology restrictions, limited entry and seasonal restrictions to fisheries, and catch limits to combat IUU fishing generally. (474) Obviously, FOC-IUU fishers disregard such measures entirely and, not being party to CCAMLR's CDS, their catch--sometimes caught using illegal gear and technology during a restricted-access season--is not monitored from catch to market as CCAMLR envisioned. To take away profits received by fishermen who overfish using FOCs, a landings tax should be imposed on all fish brought to market. Such a tax would force fishing operators to bear the additional cost of catching fish, which could hypothetically do away with any reason to fish past the optimal catch level as determined by RFMOs. (475) Through these market measures, states and citizens can work against FOC-IUU fishing economically, while states can encourage shifts in enforcement methods via political means. D. Enforcement: Diligent Surveillance and Inspection by RFMO Parties and Litigation Against Negligent Flag States States must continue to encourage adoption of FAO's IPOA-IUU, Code of Conduct, and Compliance Agreement, as well as the U.N. Fish Stocks Treaty. David Balton explained that if all states signed those agreements and "fully implemented their commitments under these instruments, there would be virtually no IUU fishing." (476) However, states must implement broader measures that reach further than the Compliance and Fish Stocks Treaty to truly control FOC-IUU fishing because most of the flag states whose vessels contribute to IUU fishing are not parties to conservation treaties. (477) Exclusive flag state control remains a key problem to stopping FOC-IUU operators. RFMOs only regulate certain discrete zones of the high seas, and states have no authority to subject any part of the high seas to their sovereignty. (478) Under the existing laws of the sea, coastal states cannot unilaterally expand their jurisdiction. (479) Further, existing customary international law, codified in multiple international agreements, vests authority over vessels sailing on the high seas in their flag states. (480) Even the Fish Stocks Treaty, one of the most aggressive treaties dealing with high seas jurisdiction, assigns primary enforcement responsibility to flag states, albeit with some qualification. (481) The existing freedom of the high seas may be restricted only through states' consent (482)--a concession unlikely to be granted by ORs registering FOC-IUU vessels. FOC-IUU fishing is a global problem, and one enforcement action by a responsible state--though it may cost millions of dollars--makes little impact on FOC-IUU practices overall. (483) Therefore, surveillance cooperation between states needs to increase. (484) IUU fishing investigation on the high seas is even more difficult than within EEZs, (485) and enforcement authority on the high seas is vested in the state least likely to monitor or sanction its vessels. (486) 1. Strengthening Existing Conventions with International Agreements In addition to cooperative efforts, existing conventions may be strengthened with supporting international agreements, such as MEAs. Fisheries management officials have proposed bilateral agreements between states with adjacent fishing zones that include mutual powers of arrest. (487) This would greatly strengthen the existing provisions, namely articles 21 and 22 of the Fish Stocks Treaty, which only permit inspection by reporting to the flag state. (488) Australia and France recently agreed to such a treaty, which would allow a French warship, for instance, to enter Australian waters and arrest a pirate FOC-IUU toothfish vessel, and allow an Australian boat to do the same in French waters. (489) Neither this treaty nor other nascent agreements have entered into force at the time of tiffs writing, however, and the treaty could violate principles of customary international law such as freedom to fish on the high seas and flag state exclusivity. In the meantime, therefore, litigation may be necessary to put flag states on notice that responsible fishing states will not tolerate pirate fishing. 2. Possible Litigation Strategies Because RFMOs have not controlled FOC-IUU fishing, inter-state litigation may be necessary. (490) If a flag state is a party to a treaty such as the Fish Stocks Treaty or RFMO regulations, a breach thereof is a wrongful act that entails a duty to afford reparation. (491) In the case of FOCs exploiting high seas fisheries, many flag states are not parties to the agreements, and injured states lack a cause of action. To meet the injury element of standing, a state's legal rights or interests must be violated. (492) This test may be difficult to meet where violations affect the global commons and thus affect the international community at large rather than individual states' interests. (493) A state could claim that FOC-IUU fishing reduced its fishing quota; the state could also invoke the duty not to cause environmental harm. (494) It remains to be seen whether the ICJ would recognize a generalized grievance against an OR state as sufficient to confer standing. (495) If an injured state could establish standing and pursue a claim against an OR state, then a claim in the ICJ could presumably proceed if it meets all other procedural requirements. (496) Basic principles of international law, when viewed under the general rule sic utere tuo ut alienum non laedas, (497) also forbid FOCs. States are responsible for actions within their own jurisdiction or control that affect other states adversely: The U.N. Survey of International Law provides a "general recognition" of this rule "that a State must not permit the use of its territory for purposes injurious to the interests of other States in a manner contrary to international law." (498) UNCLOS requires states to adopt measures for conservation of high seas living resources applicable to their nationals; states must also cooperate in conserving those resources. (499) FOC-IUU overfishing undermines the effectiveness of RFMO regimes and decimates fish populations. (500) FOCs are under flag state control and adversely affect other states who would fish legally within their quotas. Hence, a state could bring a claim alleging that FOC use undermines the effectiveness of conservation measures--including fishing on the high seas--under the duty not to cause environmental harm. UNCLOS imposes liability provisions when states fail to fulfill their duty to protect the marine environment. (501) The Fish Stocks Treaty extended UNCLOS's dispute provisions to disputes arising under any regional fisheries treaty; this may put all disputes concerning high seas fisheries between parties to UNCLOS and the Fish Stocks Treaty in the International Court of Justice (ICJ) or International Tribunal for the Law of the Sea (ITLOS) jurisdiction. These fora could benefit fisheries conservation because ITLOS can issue binding measures to protect living resources. (502) If the flag states of rogue FOC operators are not party to either agreement, however, this jurisdictional provision would not apply. (503) In theory, states could be held liable for damage done to fisheries resources by FOC operators as actors under their control. (504) Scholars argue that this could lead to better oversight by states (505)--an oversight that is direly needed in a world of deficient flag state control. However, even the highly publicized Viarsa dispute failed to generate the political will in CCAMLR XXII's negotiations to enact measures considered strict enough to control FOC-IUU fishing. (506) In addition, many factors may discourage states from using judicial institutions to resolve international environmental law conflicts, including the following: the cost, time, and complexity of a trial; the technical nature and difficulties of proof; and the fact that judicial tribunals like the ICJ often lack the expertise to provide an adequate solution to environmental disputes. (507) Still, a claim in the ICJ or ITLOS, given the proper circumstances, could succeed and simultaneously publicize the plight of toothfish in the Southern Ocean. (508) V. CONCLUSION The current state of the law fails to address FOC-IUU fishing in any meaningful way, and flag state exclusivity incentivizes FOC use. To prevent the worldwide decimation of fish species like the toothfish in the Southern Ocean, responsible states must test new methods to combat FOC-IUU. This effort should combine financial, diplomatic, and litigious efforts. States should implement financial and market measures including independent audits of ORs, multilateral trade sanctions, blacklisting of FOC-IUU vessels, consumer boycotts, eco-labeling, and varying tax structures to enforce quotas set by RFMOs. Furthermore, diplomatic measures should urge acceptance of the FAO agreements, standardized flag issuance rules, and responsible ship registration. Though uncharted waters in the FOC-IUU context, states should also pursue litigation in the ICJ or ITLOS against negligent flag states or their ORs. Pirate fishers exploit porous international law, maximizing profits at the expense of conservation, in large part through the use of FOCs. Under the weak and contradictory regulatory system in which FOC vessels operate so profitably, they can forever "run and hide" by simply reflagging under another OR. (509) To end FOC-IUU fishing, states must implement the foregoing methods immediately. Eliminating FOCs would dispose of a primary means by which illegal fishing operators take far more than their share of the finite resources of the sea. (510) (1) The Patagonian toothfish is a predatory, sub-Antarctic species that grows up to 6.5 feet in length, lives up to 50 years, and inhabits ocean depths down to 9,842 feet. Dissostichus eleginoides--Patagonian Tootfish, in FISHBASE (R. Froese & D. Pauly eds., 2005), at http://www.fishbase.org/Summary/SpeciesSummary.cfm?genusname=Dissostichus& speciesname=eleginoides (last modified Apr. 3, 2005). (2) John Yeld, The Green Scene--Vessels May Have to Carry 'Black Boxes' to Curb Illegal Fishing, CAPE ARGUS, Nov. 3, 2003, http://allafrica.com/stories/200311031041.html (subscription required for access). This was the longest chase in Australian maritime history. Id. See infra Part III.C for details on the Viarsa pursuit, capture, and political aftermath; for particulars on the Viarsa vessel itself, see Coalition of Legal Toothfish Operators (COLTO), Tootfish Vessels: Viarsa I, at http://www.colto.org/Vessels/vess_Viarsal.htm (last visited Apr. 10, 2005). (3) IUU fishing includes illegal fishing in contravention of national and international laws governing fisheries, unreported fishing (failure to report or misreporting the amount of catch to the relevant authority), and unregulated fishing (fishing conducted by vessels without nationality or flying FOCs whose flag states are not a party to the regional fishing management organization governing the fishing area). FAO, INTERNATIONAL PLAN OF ACTION TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING, pts. 3.1-3.3 (2001) [hereinafter IPOA-IUU], http://www.fao.org/documents/show_cdr.asp?url_file=/DOCREP/003/ y1224e/y1224e00.htm; Action Plan on Illegal, Unreported and Unregulated Fishing, COM(02)180 final at 1-2, http://www.ieep.org.uk/PDFfiles/PUBLICATIONS/CFPBriefings/ CFP%20Briefing%205%20-%20IUU%20-%20formatted.pdf. IUU fishing generally is a broad topic beyond the scope of this Comment. (4) See Ransom A. Myers & Boris Worm, Rapid Worldwide Depletion of Predatory Fish Communities, 423 NATURE 280, 283 (2003) (explaining that industrialized fishing reduced community fishery biomass by 80% in 15 years, and calling for an "attempt restoration on a global scale"); David A. Balton, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, 27 OCEAN DEV. & INT'L L. 125, 130 (1996) (remarking on the collapse of high seas fisheries and marine resources in the 20th century); DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 673 (2d ed. 2002) (explaining the huge increase in fishing activity over the past 50 years and the resulting imminence of world fishery collapse). (5) Progress Report on the Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing, U.N. Food & Agric. Org., 32d Sess. Conf. (Dec. 10, 2003), http://www.fao.org/docrep/meeting/007/J0403e.htm (citing FAO, THE STATE OF WORLD FISHERIES AND AQUACULTURE 2002 [hereinafter STATE OF WORLD FISHERIES], ftp://ftp.fao.org/docrep/fao/005/y7300e/y7300e01.pdf). (6) STATE OF WORLD FISHERIES, supra note 5, at 23. (7) Myers & Worm, supra note 4, at 280. Myers and Worm constructed trajectories charting community biomass and composition of predatory fish in several systems over the past 40 years. Using a meta-analytic approach, Myers and Worm estimated that large predatory fish biomass is about 10% of "pre-industrial" (defined as the 1960s in this study's time trend charts) levels. Id. (8) See, e.g., Suzanne Iudicello & Margaret Lytle, Marine Biodiversity and International Law Instruments and Institutions That Can be Used to Conserve Marine Biological Diversity Internationally, 8 TUL. ENVTL. L.J. 123, 128 (1994) (describing overexploitation of the world's fish stocks as "one of the greatest threats to marine biological diversity" and attributing the exploitation to technological development, food demand, and increasing numbers of distant water fleets); Janet Larsen, Other Fish in the Sea, But for How Long?, at http://www.earthpolicy.org/Updates/Update25.htm (July 16, 2003) (commenting on the study conducted by Myers & Worm, supra note 4, and ascribing fish stock collapse in part to overfishing perpetrated by large vessels with on-deck processing facilities and advanced fish-finding technology). (9) Greenpeace, Pirate Fishing: Patagonian Toothfish (Antarctic Sea Bass), at http://archive.greenpeace.org/ oceans/piratefishing/toothfishing.html (last visited Apr. 10, 2005); SA Joins Aussie Hunt for 'White Gold' Pirates, INDEP. ONLINE, Aug. 18, 2003, at http://www.iol.co.za/index.php? set_id=1&click_id=3&art_id=qw106119738254R221. In September 2002, overseas markets sold toothfish for up to $100 per kilogram and $1,000 per fish. Fishermen Threaten to Arm Against Pirates, INDEP. ONLINE, Sept. 30, 2002, at http://www.iol.co. za/index.php?set_id=l&click_id=3& art_id=qw1033360740758B223. The 2003 value of toothfish in its normal markets, Japan and the United States, ranges from $19 to $25 per pound. Id.; SA Joins Aussie Hunt for 'White Gold' Pirates, supra. (10) D. Agnew et al., Inclusion of Patagonian Toothfish Dissostichus eleginoides and Antarctic Toothfish Dissostichus mawsoni in Appendix II Proponent: Australia 1, IUCN/Traffic Analyses of Proposals to Amend the CITES Appendices, Prepared for the 12th meeting of the Conference of the Parties (CoP12) Santiago, Chile, (Nov. 13-15, 2002), http://www.iucn.org/webfiles/doc/ SSC/CoP12/Analyses/1239.pdf. (11) M. Lack & G. Sant, Patagonian Toothfish: Are Conservation and Trade Measures Working?, 19 TRAFFIC BULL. 1, 15 & tbl.9 (2001), http://www.traffic.org/toothfish/toothfish.pdf. Lack and Sant explain that, though this figure is conservative, it is four times the amount of IUU catch estimated by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). Id. at 15. Over 90% of harvested toothfish enter international trade. TRAFFIC, A CITES PRIORITY: PATAGONIA TOOTHFISH AND ANTARCTIC TOOTHFISH AT THE TWELFTH MEETING OF THE CONFERENCE OF PARTIES TO CITES, SANTIAGO, CHILE 2002, at 1 (Oct. 2002), http://www.traffic.org/cop12/toothfish.pdf. There is an estimated $220 million annual illegal trade in toothfish. Andrew Darby, Moves on Fish Pirates Scuppered, THE AGE, Nov. 9, 2003, http://www.theage.com.au/articles/2003/11/08/1068243304039.html. Other sources put the annual amount of toothfish poached at 26,000 tons, worth up to approximately $375 million. COLTO, ROGUES GALLERY: THE NEW FACE OF IUU FISHING FOR TOOTHFISH 2 (2003), http://www.colto.org/PDFs/RoguesGallery.pdf. (12) Jen Karentnick, Antarctic and Southern Ocean Coalition, Long Live Chilean Sea Bass! Stop Eating That Endangered Fish!, at http://www2.asoc.org/Long%20Live%20Chilean%20Sea%20Bass.htm (May 22, 2003). Between 1994 and 2003, CCAMLR reported an annual catch of toothfish between 9,000 and nearly 15,000 tons. 16 CCAMLR, Statistical Bulletin, at tbl. 8.1 (2004), http://www.ccamlr.org/pu/e/e_pubs/sb/ CCAMLR%20Statistical%20Bulletin%20eVolume%2016.xls. Toothfish catch did not exceed 2,800 tons annually until 1983; prior to that year, annual catch was usually reported to CCAMLR in amounts under 500 tons per state. Id. tbl. 2. Until 1991, the Union of Soviet Socialist Republics (USSR) dominated fishing in CCAMLR's jurisdiction, bringing in an annual catch between 150,030 and 600,000 tons of all species. Id. tbl. 3.1. Since 1991, Japan has filled the USSR's spot in highest catch of all species, reporting between 56,000 and over 80,030 tons annually between 1991 and 2003. Id. tbl. 2. The USSR also caught the most toothfish until 1991; since 2000, however, France and Australia have reported the highest toothfish catches of all CCAMLR parties. Id tbl. 8.1. France reported between 4,030 to over 6,800 tons from 2000 to 2003; Australia reported between 2,750 and 2,980 tons in those years. Id. By 2003, the annual reported catch of toothfish reached almost 15,000 tons in annual catch. Id. In 2002, the annual catch may have actually stood at a figure over four times higher. The National Environmental Trust reported that, by CCAMLR's 2003 estimate, of 62,643 tons of toothfish caught in the Southern Ocean, only 29,497 tons--less than 50%--were caught legally. Ed Stoddard, Reuters, More Protection Urged for Rare Toothfish at CITES (Oct. 8, 2004), available at http://www.planetark.com/ dailynewsstory.cfm/newsid/27582/newsDate/08-Oct-2004/story.htm. (13) Belinda Goldsmith, Armed Men Ready for Action on the High Seas, INDEP. ONLINE, Aug. 27, 2003, at http://www.iol.co.za/ index.php?set_id=1&click_id=3&art_id=qw106195698164B251; SA Joins Aussie Hunt for 'White Gold' Pirates, supra note 9. (14) 1982 United Nations Convention on the Law of the Sea, Dec. 10, 1982, Part V., arts. 55-75, 1833 U.N.T.S. 3, 418-28, 21 I.L.M. 1261, 1279-84, [hereinafter UNCLOS], available at http://www.un.org/Depts/ los/convention_agreements/texts/unclos/closindx.htm. For national legislation and treaties delimiting the ocean differently than UNCLOS's method, see U.N. Division for Ocean Affairs and Law of the Sea, Countries, at http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/regionslist.htm (last visited Apr. 10, 2005). (15) UNCLOS, supra note 14, arts. 55-75, 21 I.L.M. at 1279--84. If the illegal act occurs in an EEZ, the coastal state has the full range of enforcement options under UNCLOS and does not have to defer to the flag state. Id. art. 73, 21 I.L.M. at 1284. (16) A ship that sails under no flag or the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other state, and may be assimilated to a ship without nationality. Id art. 92(1), 21 I.L.M. at 1287. A ship with no nationality is not protected by international law. N.P. READY, SHIP REGISTRATION 1 (1991). For examples of situations where a vessel is considered stateless under international law, see R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 213-14 (3d ed. 1999); READY, supra, at 321-23 (describing foreign ownership as a common feature of all flags of convenience). UNCLOS focused on designation of EEZs and did not provide any useful conservation measures with respect to high seas fish stocks. Rudiger Wolfrum, Fisheries, International Regulation, in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 383, 385-86 (Rudolf Bernhardt et al. eds., 1995). (17) Registration determines, inter alia, vessel ownership, type, distinguishing marks, and encumbrances. I.M. Sinan, UNCTAD and Flags of Convenience, 18 J. WORLD TRADE L. 95, 96 (1984). (18) See UNCLOS, supra note 14, arts. 94, 111, 21 I.L.M. at 1287, 1290 (discussing jurisdiction and duties of flag states); infra Part III.A.1, (discussing flag state exclusivity). (19) Convention on the High Seas, opened for signature Apr. 29, 1958, art. 5, 13 U.S.T. 2312, 2313, 450 U.N.T.S. 11, 12 [hereinafter Geneva Convention on the High Seas]; UNCLOS, supra note 14, art. 91(1), 21 I.L.M. at 1287; see infra Part II.A (discussing the genuine link requirement). (20) The United Nations Convention on the Conditions for Registration of Ships, done Feb. 7, 1986, 26 I.L.M. 1229 (not yet in force) [hereinafter UNCCORS], tried to clarify the definition of genuine link by describing it as simply an economic connection between the vessel's owner and the registering state. Id art. 10, 26 I.L.M. at 1240-41. Despite this attempt, the term remains "nebulous and controversial." GEORGE C. KASOULIDES, PORT STATE CONTROL AND JURISDICTION: EVOLUTION OF THE PORT STATE REGIME 185 (1993). Commentators note that "no consensus [exists] among either States or writers as to what is meant by a genuine link or as to the consequences that follow from its absence." ROBIN R. CHURCHILL & CHRISTOPHER HEDLEY, THE MEANING OF THE "GENUINE LINK" REQUIREMENT IN RELATION TO THE NATIONALITY OF SHIPS 4 (Oct. 2000), http://www.oceanlaw.net/hedley/pubs/ITF-Oct2000.pdf; see infra Part II.A (discussing the genuine link requirement). (21) See infra Part II.A. (22) The U.N. Food and Agriculture Organization (FAO) deems a state that accepts vessels owned by nationals of another state and allows them to fly their flag an OR state. JUDITH SWAN, FISHING VESSELS OPERATING UNDER OPEN REGISTERS AND THE EXERCISE OF FLAG STATE RESPONSIBILITIES: INFORMATION AND OPTIONS 2 (FAO, Fisheries Circular No. 980, 2002), ftp://ftp.fao.org/fi/document/Ec-OpenRegistries/Swan-OpenRegister.pdf; H. Edwin Anderson, III, The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives, 21 TUL. MAR. L.J. 139, 151 (1996). See infra Part II.A for distinctions between open, traditional (also known as closed), and international (also known as compromise) registries. ORs interpret the genuine link requirement loosely. CARLOS RIPOLL I MARTINEZ BEDOYA, OPINION OF THE COMMITTEE ON REGIONAL POLICY, TRANSPORT AND TOURISM FOR THE COMMITTEE ON FISHERIES ON THE ROLE OF FLAGS OF CONVENIENCE IN THE FISHERIES SECTOR 5 (Oct. 15, 2001), http://www.europarl.eu.int/ meetdocs/committees/pech/20011119/451165en.pdf. (23) BEDOYA, supra note 22, at 5. (24) HUNTER ET AL., supra note 4, at 724-26; READY, supra note 16, at 21-36; Anderson, supra note 22, at 156-57; ELIZABETH R. DESOMBRE, CONVENIENT FISHING: PARTICIPATION IN INTERNATIONAL FISHERY MANAGEMENT 1 (March 2002), available at http://www.isanet.org/ noarchive/desombre.html; see also infra Part II.A. (25) S. Bergstrand & R. Doganis, The Impact of Flags of Convenience (Open Registries), in THE LAW OF THE SEA AND INTERNATIONAL SHIPPING: ANGLO-SOVIET POST-UNCLOS PERSPECTIVES 413, 415--16 (W.E. Butler ed., 1985). (26) See infra Part II.C.1. (27) SWAN, supra note 22, at 3; see infra Part II.A for historical FOC use. (28) UNCLOS, supra note 14, arts. 55, 56, 58, 73(1), 21 I.L.M. at 1279-80. (29) Id art. 94, 21 I.L.M. at 1287 (listing duties the flag state is to exercise in control of its vessels); see also CHURCHILL & LOWE, supra note 16, at 208 (providing examples of flag states' exclusive legislative and enforcement jurisdiction over its ships on the high seas); infra Part III.A. 1. (30) See infra Part III.C; see also Francisco Orrego Vicuna, The International Law of High Seas Fisheries: From Freedom of Fishing to Sustainable Use, in GOVERNING HIGH SEAS FISHERIES: THE INTERPLAY OF GLOBAL AND REGIONAL REGIMES 23, 23-53 (Olav Schram Stokke, ed. 2001) (providing a full history of developments in high seas fisheries management, from freedom of the high seas to modern conservation agreements). (31) UNCLOS, supra note 14, arts. 55-75, 21 I.L.M. at 1280-84. (32) Id. arts. 86-115, 21 I.L.M. at 1286-90. (33) HUNTER ET AL., supra note 4, at 661-62. (34) See infra Part II.A. (35) For a list of regional fisheries bodies, see FAO, Statutory Bodies, at http://www.fao.org/ fi/body/body.asp (last visited Apr. 10, 2005). CCAMLR governs toothfish in the Southern Ocean. CCAMLR, General Introduction, at http://www.ccamlr.org/pu/e/gen-intro.htm (last visited Apr. 10, 2005). (36) Agnew et al., supra note 10, at 1. (37) IPOA-IUU, supra note 3. The IPOA-IUU includes several framework provisions encouraging very general actions. The 24th Session of the U.N. Committee on Fisheries adopted the IPOA-IUU by consensus on March 2, 2001, and the 120th Session of the U.N. FAO Council endorsed it on June 23, 2001. Id; FAO, International Plans of Action, at http://www.fao.org/fi/ ipa/ipae.asp (last visited Apr. 10, 2005). It encourages all states to give effect to the provisions of international instruments such as UNCLOS, the FAO's Compliance Agreement, Code of Conduct, and relevant IPOAs. IPOA-IUU, supra note 3, pts. 10-15. (38) FAO, Code of Conduct For Responsible Fisheries (1995) [hereinafter Code of Conduct], http://www.fao.org/ documents/show_cdr.asp?url_file=/DOCREP/005/v9878e/v9878e00.htm. (39) FAO, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1995) [hereinafter Compliance Agreement], http://www.fao.org/legal/treaties/012T-e.htm. (40) IPOA-IUU, supra note 3, pt. 4; Code of Conduct, supra note 38, art 1.1; Compliance Agreement, supra note 39, art. X. (41) David A. Balton, Recent Developments in International Law Related to Marine Conservation, SG056 ALI-ABA CLE 169, 176 (April 4-5, 2002); see infra Part III.A (discussing specific provisions of these agreements). (42) Code of Conduct, supra note 38, art. 7.1-7.8. (43) Id art. 7.1.1. (44) Id art. 7.8.1. This provision is important because many banks (especially U.S. financial institutions) sometimes exhibit a preference to Liberian-flagged vessels when providing mortgages because Liberian law on mortgages and liens meets lender needs. S. Bergstrand & R. Doganis, supra note 25, at 417. See infra Part IV.C for a discussion of financial methods to phase out FOC-IUU fishing. (45) IPOA-IUU, supra note 3, pt. 16. (46) See infra Part III.B. (47) IPOA-IUU, supra note 3, pt. 21. (48) Id. pt. 23. (49) Id. pt. 24. (50) Id. pts. 124-27. (51) Id. pt. 32. (52) Id. pts. 34-64. (53) See infra Part III.A.2. (54) Agreement for the Implementation of the Provisions of the U.N. 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, Dec. 4, 1995, 2167 U.N.T.S. 88, 34 I.L.M. 1542 [hereinafter Fish Stocks Treaty], available at http://www.oceanlaw.net/texts/unfsa.htm. (55) The Fish Stocks Treaty allows states other than the flag state to board and inspect fishing vessels on the high seas under limited circumstances, and only where the flag state is a party to the RFMO agreement that the non-flag state (and RFMO party) believes the vessel is violating. Id. art. 21(1). (56) Id. arts. 18, 21. See infra Part III.B.1 for specifics on the Fish Stocks Treaty. (57) See infra Part III.C. (58) See infra Part III.A.2. (59) See id. (60) See supra Part I and Vicuna, supra note 30, at 33 (discussing the principle of preventive action and its importance to eliminate excess fishing capacity and overfishing, which have "haunted the law of the sea for the best part of the twentieth century"). (61) See infra Part IV.A.2.b. (62) See infra Part IV.A.2 and IV.B.1. (63) STEPHEN SLOAN, OCEAN BANKRUPTCY, at xii (2003); see also Myers & Worm, supra note 4, at 4; HUNTER ET AL., supra note 4, at 673-80; LESTER R. BROWN ET AL., VITAL SIGNS 2000, at 40-41 (2000); JAMES R. McGOODWIN, CRISIS IN THE WORLD'S FISHERIES: PEOPLE, PROBLEMS AND POLICIES (51) (1990) (all documenting massive fish stock decline). (64) See infra Part IV. (65) See infra Part IV.A. (66) See infra Part IV.A.3. (67) See infra Part IV.B.1. (69) See infra Part IV.B.2. (69) See infra Part IV.C. (70) See infra Part IV.C.2.b. (71) See infra Part IV.C.2.c. (72) See infra Part IV.C.2.a. (73) See infra Part IV.D.2. (74) FOCs accounted for 58% of vessel losses and 63% of tonnage losses in 2001. Toby Shelley, Union Queries Role of Flags of Convenience, FINANCIAL TIMES, Dec. 5, 2002, http://www.globalpolicy.org/ nations/flags/2002/1205itwf.htm. According to the office of the Paris Memorandum of Understanding, 57% of 1,699 detentions in the North Atlantic region in 2001 were of FOCs. Id. (75) See infra Part II.D.2. (76) Paul Stephen Dempsey & Lisa L. Helling, Oil Pollution By Ocean Vessels--An Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions, and Coastal States, 10 DEN. J. INT'L L. & POL'Y 37, 40, 51, 86-87 (Fall 1980). (77) Id.; DESOMBRE, supra note 24, at 1; Anderson, supra note 22, at 162. (78) William Langeweische, Anarchy at Sea, ATLANTIC MONTHLY, Sept. 2003, at 52. (79) Martin Whitfield, Plunder of the Seas, 3 TRANSPORT INT'L 1 (2000) (on file with author). (80) Id. (81) Id. (82) Id. For instance, Australian Fisheries officers witnessed the crew of the Maya V, suspected of IUU fishing, throw unknown objects overboard before the officers rappelled from a helicopter to capture the illegal fishers. Tim Clarke, Alleged Toothfish Crew in Court THE ADVERTISER, Feb. 12, 2004, http://www.theadvertiser.news.com.au/common/story_page/ 0,5936,8662230%5E1702,00.html. The observer later revealed that he tossed his reports and computer into the sea before the arrest. "Maya V" Observer "Dumped Computer Into the Sea," MERCOPRESS, Mar. 17, 2004, http://www.mercopress.com/Detalle.asp?NUM=3408. See infra Part III.C for accounts of pursuits of Uruguayan-flagged vessels fishing illegally in Australia's fishing zone. (83) Flangini: "Toothfish Fishing is Not Restricted," MERCOPRESS, Feb. 13, 2004, http://www.mercopress.com/detalle.asp?num=3263. (84) Id. (85) Langeweische, supra note 78, at 52. (86) Myers & Worm, supra note 4; SLOAN, supra note 63, at xi-xvii; Dick Russell, Vacuuming the Seas: Where Countries Collide, E MAG., July 1996, at 28; see also SUZANNE IUDICELLO ET AL., FISH, MARKETS, AND FISHERMEN: THE ECONOMICS OF OVERFISHING 162-63 (1999) (addressing failing fisheries management policies in the United states, and relating overfishing to overcapitalization, or excess fishing capacity). (87) For distinctions between legitimate (such as wartime and political flagging) and illegitimate reasons for FOC use, see infra Part II.A. (88) BOLESLAW ADAM BOCZEK, FLAGS OF CONVENIENCE 6-7 (1962). See generally id. (providing a comprehensive study of historical FOC use); Budislav Vukas & Davor Vidas, Flags of Convenience and High Seas Fishing: The Emergence eta Legal Framework, in GOVERNING HIGH SEAS FISHERIES: THE INTERPLAY OF GLOBAL AND REGIONAL REGIMES 53, 54-55 (Olav Schram Stokke ed., 2001) (providing a brief summary of historical FOC use). (89) READY, supra note 16, at 8-9. (90) Sinan, supra note 17, at 96-7. (91) READY, supra note 16, at 4. For instance, the U.K Merchant Shipping Act of 1894 defined a ship in terms of its ownership, regardless of its registration, id., and Brazil requires the owner to be a Brazilian-born national for a vessel to fly the Brazilian flag, id. at 5. (92) Id. (93) Id. at 5-6. (94) Id. For examples of widely varying domestic legislation interpreting the genuine link requirement, see READY, supra note 16, at 1-19. See also, e.g., 46 U.S.C. [section] 12102 (2000), amended by Pub. L. No. 108-136 (2003); Canada Shipping Act, R.S.C. ch. S-9, [subsection] 3-10 (1985), available at http://laws.justice.gc.ca/ en/S-9/SOR-2000-70/53122.html; Malta Maritime Authority, Ship Registration Legislative Framework, at http://www.mma.gov.mt/ship_registration_legislslative_framework.htm (last visited Apr. 10, 2005). Some states, such as Mongolia, make no mention of any connection, much less a genuine link, required between vessels and owners, crew, or shareholders of the vessel for registration. REGULATIONS FOR THE REGISTRATION OF SHIPS IN THE SHIP REGISTRY OF MONGOLIA--ANNEX TO THE DECISION NUMBER 3 OF MONGOLIAN GOVERNMENT (Jan. 8, 2003), http://www.maritimechain.com/ship_registry/msr/ documents/ShipRegRegulation.pdf. Others, such as Switzerland and the United States, impose strict domicile and nationality requirement on owners and financial investors in ships. OECD Study on Flags of Convenience, 4 J. MAR. L. & COMM. 231, 247 (1973). (95) Geneva Convention on the High Seas, supra note 19, art. 5, 450 U.N.T.S. at 84. "There must exist a genuine link between the State and the ship." Id. (96) UNCCORS, supra note 20. UNCCORS will enter into force 12 months after at least 40 states, the combined tonnage of which constitutes at least 25% of world tonnage, have become contracting parties. Id. art. 19, 26 I.L.M. at 1244. (97) Id. art. 10, 26 I.L.M. at 1240-41; see READY, supra note 16, at 17 (explaining the economic link required by UNCCORS, which emphasizes the requirement that a certain percentage of officers and crew be nationals of the registering state). In both 1995 and 2000, nationals owned no ships in the registries of Panama, Liberia, or Vanuatu. INTERNATIONAL LABOUR ORGANIZATION (ILO), MEETING OF EXPERTS ON WORKING AND LIVING CONDITIONS ON SEAFARERS ON BOARD SHIPS IN INTERNATIONAL REGISTERS 2 (2002), http://www.ilo.org/public/english/dialogue/sector/ techmeet/mewlcs02/mewlcs-r-supp.pdf. (98) SWAN, supra note 22, at 2. See generally READY, supra note 16, at 196-299 (providing extensive history on the genuine link requirement, including evolving legislative interpretations, legal problems surrounding the requirement throughout the first and second Conferences on the Law of the Sea, and various maritime labor organizations' recommendations on the requirement). (99) See William Tetley, The Law of the Flag, "Flag Shopping," and Choice of Law, 17 TUL. MAR. L.J. 139, 176 (1993) (describing the UNCCORS approach--strengthening the genuine link--as indicative of the "sentiments of certain (if not the majority of) nations of the world"). (100) See, e.g., ALEX G. OUDE ELFERINK, THE GENUINE LINK CONCEPT; TIME FOR A POSTMORTEM? 14 (March 1999) (comparing detention rates of Liberian and Panamanian ships (OR states without such requirements) and traditional maritime registries (non-OR states) including former Soviet bloc states, the Netherlands, and Norway, which impose nationality requirements), http://www.uu.nl/content/genuine%20link.pdf. Between 1994 and 1996, Liberia and Panama had detention rates of 6.93% and 9.31%, respectively. Id. The Netherlands' figure was 6.6296, Norway 6.84%, and the former Soviet bloc "significantly higher." Id at 14 n.62. Oude Elferink concludes that detailing a definition of genuine link "serves little purpose." Id. at 14. He also points out that defining genuine link requirements by nationality belies a questionable underlying objective--impeding reflagging under ORs--that contravenes free market policies. Id. (101) Id. The British government attempted to stop reflagging and quota-hopping through the Merchant Shipping Act of 1988, which restricted vessel registration under the British flag to ensure a genuine link between the vessel and Britain. Merchant Shipping Act, 1988, c. 12, pt. I(3) (Eng.) (listing seven limited categories of persons or corporations entitled to own British ships), available at http://www.hmso.gov.uk/acts/ acts1988/Ukpga_19880012_en_2.htm. Still, many British-owned ships fly FOCs. Geoff Meade, Euro Flag Plan Dropped, SCOTSMAN.COM, Jan. 13, 2004, at http://news.scotsman.com/latest.cfm?id=2405190. Deputy Prime Minister John Prescott is currently working to provide incentives for British vessels to fly their own flag. Id. (102) Such a case could be brought, for example, in the International Court of Justice (ICJ) or International Tribunal for the Law of the Sea (ITLOS). CHURCHILL & HEDLEY, supra note 20; see also infra Part IV.D.2 (detailing such a claim). (103) CHURCHILL & HEDLEY, supra note 20, at 68. (104) For details of and differences between traditional, open, and international (second) registries, see Julie A. Perkins, Ship Registers: An International Update, 22 TUL. MAR. L.J. 197 (1997). For specifics on open registries and advantages they afford to vessel owners choosing to register in an OR, see Jane Marc Wells, Vessel Registration in Selected Open Registries, 6 MAR. LAW. 221 (1981). For a comparison of open (Liberia and Panama), closed (United States and United Kingdom), and compromise (Luxembourg) registries, see Anderson, supra note 22, at 151-56. See also Sinan, supra note 17, at 97 (describing three groups of national laws governing vessel registration as "[n]ationalist," "[c]onvenience," and "[b]alanced"); David F. Matlin, Comment, Re-evaluating the Status of Flags of Convenience Under International Law, 23 VAND. J. TRANSNAT'L L. 1017, 1039-43 (detailing registration requirements of closed and open states). There is also a distinction between FOC territories (ORs) and "tax haven" territories. See OECD Study on Flags of Convenience, supra note 94, at 233 (distinguishing between the two because strips registered in tax haven territories enjoy considerable tax breaks, but are still subject to, for instance, local manning and safety regulations). (105) BEDOYA, supra note 22, at 5. Traditional registries are also referred to as closed registries because they will not register vessels owned by foreign nationals. Anderson, supra note 22, at 151. (106) Merchant Shipping Act, 1988, c. 12, pt. I-II (Eng.), available at http://www.hmso.gov.uk/ acts/acts1988/Ukpga_19880012_en_2.htm. (107) READY, supra note 16, at 5-6. (108) BEDOYA, supra note 22, at 5. (109) Id. (110) See The Muscat Dhows Case (Fr. v. Gr. Brit.), Hague Ct. Rep. (Scott) 93, 96 (Perm. Ct. Arb. 1916) (holding that every sovereign decides "to whom he will accord the right to fly his flag and to prescribe the rules governing such grants"); see also Lauritzen v. Larsen, 345 U.S. 571, 584 (1953) (holding that each state decides the conditions under which it will grant its flag, so accepts responsibility for and has authority over that ship). (111) Bedoya, supra note 22, at 5. (112) Id. (113) P.W. BIRNIE & A.E. BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 360 (2d ed. 2002). The United Kingdom's 1970 Rochdale Report set forth six criteria to determine whether a vessel operates under an FOC: 1) if the country of registry allows ownership or control of its merchant vessels by non-citizens, 2) if the registry is easily accessed (i.e., if a ship may be registered at a consulate abroad, and if transfer from the registry by the owner is not restricted, 3) if taxes on ship income are not levied locally, are very low, or the registry gives a guarantee of future freedom from any taxation (i.e., a registry and annual fee based on tonnage normally being the only charges made), 4) if the country of registry is a small power with no national requirement for shipping registration but receipts from very small charges on its high-tonnage fleet may substantially increase its national income, 5) if ships may almost always be manned by nonnationals, and 6) if the country of registry has neither the power nor the means to regulate its vessels. B.N. METAXAS, FLAGS OF CONVENIENCE 14-15 (1985) (citing COMMITTEE OF INQUIRY INTO SHIPPING, 1970, CMND. 4337). If all of these characteristics apply, the report labels the state of registry an OR state issuing FOCs. Id. at 15. (114) BOCZEK, supra note 88, at 6-11. Vessel owners have used FOCs for much darker reasons as well: When the Napoleonic Wars ended in 1815, British diplomats sought to end the transatlantic slave trade, engaging British naval ships to capture illegal slave ships along the African coast. To evade capture, slave ships carried FOCs on board. Many European and American-owned slave vessels used FOCs and sailed under Spanish-Cuban registration until the trade ended in the 1860s. Stephen Behrendt, Transatlantic Slave Trade, in MICROSOFT ENCARTA REFERENCE LIBRARY (2005). (115) BOCZEK, supra note 88, at 6. (116) Id. at 10. (117) Id at 10-11. (118) Id. at 11. (119) Id. For a condensed history of FOC use, see Anderson, supra note 22, at 158-61. (120) UNCLOS, supra note 14, art. 17, 21 I.L.M. at 1273. (121) If a vessel flies a flag of a state in political or diplomatic turmoil, vessel owners can reflag in a neutral state to avoid suffering the brunt of, for instance, trade sanctions imposed on the vessel owner's state of nationality. J. Michael Taylor, Evaluating the Continuing GATS Negotiations Concerning International Maritime Transport Services, 27 TUL. MAR. L.J. 129, 155 (2002); see also GEORGE P. SMITH II, RESTRICTING THE CONCEPT OF FREE SEAS: MODERN MARITIME LAW RE-EVALUATED 32-45 (1980) (explaining the historical development of the concept of innocent passage on the seas in international law). (122) Anderson, supra note 22, at 158; see, e.g., KASOULIDES, supra note 20, at 185 (arguing that ORs attract "unscrupulous shipowners" with no interest in exercising control over their operations). (123) SLOAN, supra note 63, at 97; see also Toby Shelley, Union Queries Role of Flags of Convenience, supra note 74 (quoting William O'Neill, Secretary-General of the U.N.'s International Maritime Organisation (IMO), explaining that in the world of FOCs, a "substandard ship is the norm rather than the exception"). (124) See generally Nina Berglund, Shipowners Under Fire for Liberian Flags, AFTENPOSTEN NETTUTGAVER, Oct. 6, 2003 (showing controversy over continued Norwegian shipping under Liberian flags), http://www.aftenposten.no/english/business/article641215.ece. (125) See supra notes 4-13 and accompanying text. Australian fisherman Dave Williams is one of many legal toothfish operators driven from the industry by illegal poachers. Andrew Darby, Fishing Pioneer Says Pirates 'Strip Mining' Toothfish, THE AGE, Jan. 29, 2004, http://www.theage.com.au/articles/2004/01/28/1075088087869.html. Williams describes illegal fishing of high Antarctic toothfish as "an international tragedy happening at the moment ]about which] no one's that concerned." Id (126) Christel Heideloff & Richard Monden, Total Merchant Fleet by Country of Domicile, in SHIPPING STATISTICS AND MARKET REVIEW NO. 4 (2004), available at http://www.isl.org/products_services/ publications/sampless/COMMENT_4-2004-short.shtml.en. "Flagging out" is a term often used synonymously with FOC use. For historical statistics on FOC fleet vessel tonnage and numbers, vessel types, average size and age by state, casualty records, and registration fees (initial and annual) from 1950-1970, see OECD Study on Flags of Convenience, supra note 94, at 234, 236, 238-39, 241-43. (127) Tony Alderton & Nik Winchester, Regulation, Representation and the Flag Market, J. MAR. RES. (Sept. 2002), at http://www.jmr.nmm.ac.uk/ server/show/conJmrArticle.53/setPaginate/No. (128) Founded in 1896, the ITF is a federation of over 600 unions worldwide in 140 countries, and represents over 5 million workers. ITF, About the ITF, at http://www.itfglobal.org/aboutus/index.cfm (last visited Apr. 10, 2005). (129) The ITF defines FOCs as vessels whose beneficial ownership and control lie in a state other than that under whose flag the vessel flies. ITF, Flags of Convenience Campaign, at http://www.itfglobal.org/flags-convenience/index.cfm (last visited Apr. 9, 2005). In addition, if the identity of the beneficial owner is not clear, the ITF considers any vessel lacking a genuine link between the owner (whoever effectively controls the vessel's operation) and the flag state to be sailing under an FOC. ITF, COMPREHENSIVE REVIEW OF THE ITF FOC CAMPAIGN: FROM OSLO TO DELHI 54 (1998) [hereinafter ITF, FROM OSLO TO DELHI], http://www.itfglobal.org/files/ seealsodocs/492/oslo%5Fto%Fdelhi.pdf. (130) Heideloff & Monden, supra note 126, ITF, FOC Countries, at http://www.itfglobal.org/ flags-convenience/flags-convenien-183.cfm (last visited Apr. 10, 2005). (131) Heideloff & Monden, supra note 126, at 3. Several other states are developing ORs of their own to issue FOCs, including land-locked Mongolia. See Mongolia Ship Registry, at http://www.maritimechain.com/ship_registry/MSR/default.asp (last visited Apr. 10, 2005); for more information on Mongolia's registry, see James Brooke, Landlocked Mongolia's Seafaring Tradition, N.Y. TIMES, July 2, 2004, at W1. (132) Flag of Convenience, MICROSOFT ENCARTA REFERENCE LIBRARY (2005). (133) Jim Morris, 'Flags of Convenience' Give Owners a Paper Refuge, HOUSTON CHRON., Aug. 21, 1996, http://www.chron.com/content/interactive/special/maritime/96/08/22/part5.html. In 1998, Panama's FOC fishing fleet alone consisted of 374 vessels, over 337,000 GT, its total catch estimated at 219,000 metric tons (MT). Whitfield, supra note 79. (134) Morris, supra note 133. (135) Liberian International Ship & Corporate Registry (LISCR), at http://www.liscr.com/(last visited Apr. 10, 2005). LISCR runs the Liberian registry from offices around the world. Former U.S. Secretary of State Edward Stettinius, Jr. founded Stettinius Associates, a profit-sharing arrangement with the Liberian government, in 1948. Stettinius Associates--the Liberian ship registry--was originally based in New York City. READY, supra note 16, at 27; Anderson, supra note 22, at 159. Today, 55 years after its creation, the LISCR has offices in eight international cities, including two in Virginia and New York. See LISCR, supra It claims that it "[leads] the world in introducing new standards of safety and in implementing new international codes and conventions," its flag is recognized as premier of OR states, and that it has "a reputation for quality, efficiency, safety, and service." Id. Additionally, and at the heart of its success, the Liberian Registry boasts it possesses one of the "most convenient, efficient, and tax effective offshore corporate registries in the world." Id.; see also RODNEY CARLISLE, SOVEREIGNTY FOR SALE: THE ORIGINS AND EVOLUTION OF THE PANAMANIAN AND LIBERIAN FLAGS OF CONVENIENCE 115-33 (1981) (documenting Stettinius's efforts towards private development in Liberia through the ship registry). Other ORs make similar sales pitches in online advertising. The Panamanian shipping registry, for example, is advertised as one of the oldest ORs, established in 1925. Molino & Mulino, Panama Shipping Registry, at http://www.moliasoc.com/maritime.htm (last visited Apr. 10, 2005). International Ship Registries, Inc. (ISRI) offers registration in 102 countries' offshore and onshore jurisdictions, and promises excitedly that "[u]nder no circumstances are we offering service to all those 'rust buckets' polluting our oceans and seas! We are here to extend service to all those responsible and legitimate parties that have respect for our planet! After all, this planet is the only property we actually have!" ISRI, International Ship Registries, at http://www.flagsofconvenience.com/page.php?pID=25 (last visited Apr. 10, 2005). (136) Lowtax.net, Liberia: Off Shore Business Sectors, at http://www.lowtax.net/lowtax/html/ liberia/jlaobs.html (last visited Apr. 10, 2005). In 1998, Liberia's FOC fishing fleet consisted of ten vessels weighing over 71,000 GT, with an annual catch exceeding 10,000 MT. Whitfield, supra note 79. (137) Heideloff & Monden, supra note 126. The Heidelhoff & Monden study excluded over 4,000 vessels for which parent company information was not available. Id. For historical statistics documenting the estimated size of the world FOC fleet from 1939-82, see METAXAS, supra note 113, at 17. (138) Jonathan S. Ignarski, Flags of Convenience, in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 404 (Rudolf Bernhardt et al. eds., 1995). (139) Shelley, supra note 74 (estimating an FOC registration percentage of 53%); Heideloff & Monden, supra note 126 (estimating an FOC registration percentage of 64% as of January 1, 2004). (140) Lloyd's Register-Fairplay provides shipping information on a fee-based electronic system. Lloyd's Register, Shipping Information, at http://www.lr.org/ services_overview/shipping_information/(last visited Apr. 10, 2005). (141) Heideloff & Monden, supra note 126 (estimating that over 70% of tankers and over 80% of bulk carriers were controlled by only ten states at the beginning of 2004, and that those vessels were registered primarily under foreign flags). (142) SWAN, supra note 22, at 3; Standard Schaefer, Interview with Michael Hudson: An Insider Spills the Beans on Offshore Banking Centers, COUNTERPUNCH, Mar. 25, 2004, http://www.counterpunch.org/schaefer03252004.html. (143) The International Hydrographic Organization designated the Southern Ocean as the fifth world ocean in 2000. The Southern Ocean borders Antarctica and the Atlantic, Indian, and Pacific Oceans. U.S. CENTRAL INTELLIGENCE AGENCY, Southern Ocean, in WORLD FACTBOOK, at http://www.cia.gov/ cia/publications/factbook/print/oo.html (last updated Feb. 10, 2005). (144) Disappointing End to Illegal Fishing Debate, MERCOPRESS, Nov. 11, 2003, http://www.mercopress.com/Detalle.asp?NUM=2841. The current blacklist of vessels caught illegally fishing toothfish (with which all 24 CCAMLR members agreed not to deal) includes only ten ships, an unrealistically low number. Id This may be due to The Russian Federation's refusal to allow any of its vessels to be formally blacklisted. Id; Darby, supra note 11. The Southern Ocean covers 20.3 million square kilometers (slightly more than twice the size of the United States). BBC Nature, Major World Oceans--Facts and Figures, at http://www.bbc.co.uk/ nature/blueplanet/blue/world_oceans.shtml (last visited Apr. 10, 2005). Any estimates of the number of illegal vessels operating at a given time over this vast expanse are rough, given the difficulty of monitoring, investigating, and confirming IUU fishing by FOCs or other vessels. Shelley, supra note 74. (145) Greenpeace, Factory Fishing and Flags of Convenience, at http://archive.greenpeace.org/ oceans/southernoceans/expedition2000/moreinfo/bg_foc.html (last visited Apr. 10, 2005). (146) Id. (147) See supra notes 4-13 and accompanying text. (148) Jim Lobe, 'Consumer Demand' Threatens More Species, INTER PRESS SERVICE, Oct. 24, 2002, http://www.commondreams.org/headlines02/1024-06.htm; see also COLTO, The Alphabet Boats: A Case Study of Toothfish Poaching in the Southern Ocean, at http://www.colto.org/Case_Study.htm (last modified Apr. 5, 2005) (summarizing toothfish poaching in the Southern Ocean and documenting IUU fishing by both small-time rogue fishermen from traditional deep sea fishing nations and vessels backed by large corporations, like the Hong Kong-based global fish trading company Pacific Andes). Pacific Andes, accused by legal toothfish operators of engaging in IUU fishing, expanded into deep-ocean fishing in 2004 through a joint venture with China International Fisheries Hong Kong (CIFHK). Greenpeace, Case Studies on IUU Vessels No. 2: Chang Xing 2, 6 (March 2005), http://www.savethehighseas.org/publicdocs/ChangXing.pdf. CIFHK's parent company, CNFC International Fisheries Corporation, is the largest multi-national fishing enterprise in China, with over 220 trawlers, long-liners, and other vessels operating around the world. Id. at 6. Such massive IUU conglomerates supply rapidly increasing market demand and create major obstacles for those who would sustainably manage toothfish stocks. COLTO, supra (149) See supra notes 11-12 and accompanying text. (150) Ian J. Popick, Are There Really Plenty of Fish in the Sea? The World Trade Organization's Presence is Effectively Frustrating the International Community's Attempts to Conserve the Chilean Sea Bass, 50 EMORY L.J. 939, 943 (2001). (151) Press Release, Antarctic and Southern Ocean Coalition, Environmental Coalition Applauds Fishing Industry Initiative Against Illegal Antarctic Fishing (June 7, 2003), http://www.asoc.org/COLTO%20press%20release.htm. (152) Myers & Worm, supra note 4. (153) Karentnick, supra note 12. (154) Id (155) Id. (156) In 2003, illegal fishing fleets killed between 14,400 and 46,940 seabirds. Kristan Hutchison, Fighting Over Fish: Antarctic Research Used to Defend Fish in the Southern Ocean, ANTARCTIC SUN, Feb. 2, 2004, http://www.polar.org/antsun/oldissues2003-2004/Sun020104/ fightingOverFish.htm. See also CCAMLR, FISH THE SEA NOT THE SKY, http://www.ccamlr.org/ pu/e/e_pubs/ftsnts.pdf (discussing seabird by-catch and listing ways fishers can avoid seabird by-catch when using longlines). (157) Karentnick, supra note 12. About 200,000 albatrosses and other seabirds are killed this way each year. Id. Over the past six years, at least 700,000 seabirds, including albatrosses and white-chinned petrels, have been killed in this manner. Press Release, National Environmental Trust, New Regulations Attempt to Control Illegal Fishing for Chilean Sea Bass, But Chefs Still Encouraged to Take a Pass on Chilean Sea Bass (May 1, 2003), http://environet.policy.net/ proactive/newsroom/release.vtml? id=27199&PROACTIVE-ID=cecfcccec7cccac8ccc5cecfcfcfc5 cececccfcccec8cbcecdc5cf. Some attribute the imminence of petrel and albatross extinction to illegal toothfish poaching. Don Pinnock, Our One Big Mistake, ENVIRONMENTAL NEWS NETWORK, Jan. 23, 2004, http://www.pinnock.co.za/art-longline.htm; Phil Mercer, Australia Deploys Armed Surveillance Ship to Deter Fish Poachers, VOICE OF AMERICA, Jan. 23, 2004 (quoting Nicola Beynon of Humane Society International), http://www.voanews.com/ article.efm?objectID=37205BE4-6B8C-422D-8FE644139E04DCDB. Depletion of toothfish stocks also harms marine species that feed on the fish, such as sperm whales, Weddell seals, and elephant seals. Id.; Hutchison, supra note 156. (158) See supra Part II.B. (159) This Comment refers to states as RFSs if they are informally recognized by the international community as a quality flag state--a reputation earned if a state possesses a majority of the following characteristics: 1) RFMO membership; 2) FAO agreement signatory; 3) UNCLOS signatory; 4) domestic ship registration legislation requiring that nationals constitute a majority of the crew and/or ownership for registration and flagging; 5) if domestic registration does not require ownership, then registration requirements otherwise comport with the genuine link requirement of UNCLOS in the opinion of the FAO, IMO, and ITF; 6) domestic legislation of the flag state prescribes a living maritime wage in accordance with IMO standards; 7) active patrolling of the state's EEZ for illegal fishing; and 8) consistent record of sanctioning nationals found fishing illegally in the state's own or another's EEZ or the high seas. For elaboration on these characteristics and other administrative capabilities of a state's registry required for RFS categorization, see similar "white list" registry elements described in Clay Maitland, Competition, the Bottom Line, and the Flag State: The Desirability of Marketing and its Consequences for Quality, Presentation at the Mare Forum (Sept. 19-20, 2002), http://www.register-iri.com/ content/artspeeche/CompetitionandtheFlagState.cfm. Some states wishing to be regarded as RFSs, pressured by publicity of rampant IUU fishing in the Southern Ocean, have recently expressed willingness to refuse port accessibility to boats without proper licensing, accurate CDS documentation, or effective flag state control. Media Release, Senator the Honorable Ian MacDonald, Mauritius Vows to Close its Port to Illegal Fishers (Jan. 27, 2004), http://www.mffc.gov.au/releases/2004/04016m.html. Some states, like Mauritius, may also be willing to allow other states, perhaps better equipped to manage fisheries and vessels, to step in to support its efforts. Id. (160) Elizabeth DeSombre, Anchors Away (CBC Corporate Radio Canada broadcast, April 1, 2003), http://www.cbc.ca/disclosure/archives/030401_csl/flags.html. (161) Taxation, depreciation rules, and investment grants typically determine the fiscal regime for a state's shipping industry. Sinan, supra note 17, at 103-04. Accelerated depreciation allowances and operation subsidies, for instance, can make one state's fiscal package more favorable to shipowners than another's. Id at 104. However, fiscal regimes are not usually a major determinant for shipowners, especially compared with crew costs. Id Crew costs are a factor that often drives decisions to register in an OR and fly an FOC. See infra Part III.C. (162) Ignarski, supra note 138, at 404. For operating cost differentials between FOCs, Northern European tanker fleets, and Greek-flagged vessels, see METAXAS, supra note 113, at 79-81. (163) Such registries include the following states: the United States, Switzerland, Brazil, and the United Kingdom. See supra notes 91, 94 and accompanying text. (164) Id. See infra Part III.C. (165) Chantal Hebert, Shipping Past Dogs Martin, TORONTO STAR, Nov. 26, 2003, http://www.thestar.com/NASApp/ cs/ContentServer?pagename=thestar/Layout/Article-Type1&c =Article&cid=1069801807603&call_pageid=968256290204&col=968350116795 (fee required for access). This competitive disadvantage drives many ship operators away from traditional national registries run by RFSs. Ignarski, supra note 138, at 404. RFSs must undertake costly measures to compete with FOCs. For instance, EU states commonly provide tax incentives to help their nationals compete. See Transportation Institute, Maritime Aid Policies of Select Countries, at http://www.trans-inst.org/EuropeanMaritimePolicies.htm (last visited Apr. 9, 2005) (providing examples of tax incentives and subsidies offered to shipping companies by various European and Asian state governments). The Vancouver-based International Shipowners Association of Canada (ISAC) wants the Canadian government to revive Canada's standing as a trading state by establishing a second registry. Alex Binkley, Vancouver Group Pushing Plan for Second Shipping Registry in Canada, CANADIAN SAILINGS, Dec. 22, 2003, http://www.canadiansailings.com/ full_story.cfm?articleid=0001&issue=0538&origin=arc_art&cfi d=2838593&cftoken=63682694. ISAC's proposal seeks to change the current registration statistics reflecting $160 billion of cargo moving in and out of Canadian ports, with only 0.1% of it in Canadian-registered vessels. Id. (166) Anderson, supra note 22, at 160 n.137. (167) Whitfield, supra note 79; Shipowners Under Fire for Liberian Flags, AFTENPOSTEN NETTUTGAVEN, June 10, 2003, http://www.aftenposten.no/english/business/article641215.ece; David Ljunggren, Ban Ships with Flags of Convenience, Says Canada, ENN, Nov. 21, 2002, http://www.enn.com/arch.html?id=279. (168) OECD Study on Flags of Convenience, supra note 94, at 240-41. (169) Id. FAO data shows that fishing vessels contribute a fairly low percentage of OR states' revenue, but that revenue from all vessels registered in OR states is "not insignificant." SWAN, supra note 22, at 2. See supra Part II.B for world FOC fleet statistics. From 1951-1970, Liberia's dues income as a percentage of its gross national product (GNP) amounted to 1.4-1.9%. OECD Study on Flags of Convenience, supra note 94, at 241. This percentage of Panama's GNP was consistently 0.1% during the same years. Id The revenue for smaller fleets such as Cyprus is even less significant. Id. at 240. (170) U.S. Congressman Frank Wolf asserts that, according to an October 2001 U.N. report, the Liberian flag registry now accounts for approximately 50-75% of Liberia's annual revenue. U.S. Congressman Calls for Financial Pressure on Liberia, THE PERSPECTIVE, June 14, 2002, http://www.theperspective.org/ wolf.html; see also 1977: Ships and Shipping, MICROSOFT ENCARTA REFERENCE LIBRARY (2005) (citing COLLIER'S YEAR BOOK) (stating that a substantial portion of Liberia's national revenue comes from tonnage taxes and registration fees); Milan Vesely, Liberia's Flag of 'Inconvenience; AFRICAN BUS., Apr. 2004, at 24 (estimating that vessel registration in Liberia produced between $15 and 20 million in 2003). (171) See OECD Study on Flags of Convenience, supra note 94, at 243-47; Bergstrand & Doganis, supra note 25, at 416-19 (listing advantages afforded shipowners by FOCs, including, inter alia, lower registration fees and avoidance of political restrictions, instability, labor, and environmental regulations). (172) See INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU) ET AL., MORE TROUBLED WATERS: FISHING, POLLUTION, AND FOCS: MAJOR GROUP SUBMISSION FOR THE 2002 WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT IN JOHANNESBURG 9-11 (AUGUST 2002), http://www.itfglobal.org/files/seealsodocs/225/moretroubledwaters.pdf (discussing high levels of maritime casualties, labor problems, and pollution for FOCs). (173) The "race to the bottom" refers to competition effects that result from increased international competition in free markets. Greg Block, Trade and Environment in the Western Hemisphere: Expanding the North American Agreement on Environmental Cooperation into the Americas, 33 ENVTL. L. 3, 512 (2003). The term refers to companies and governments that lower environmental standards, decrease regulations, and minimize monitoring and enforcement in order to attract industry players who wish to avoid such regulations. Id. at 512. (174) This holds especially true in the case of Liberia: The United Nations believes that the Liberian ship registry financed black-market arms trade in Liberia and the brutality that resulted. Berglund, supra note 124. These "financing atrocities," id., led to a U.N. examination in the fall of 2001. U.N. SECURITY COUNCIL, REPORT OF THE PANEL OF EXPERTS PURSUANT TO SECURITY COUNCIL RESOLUTION 1343 (2001), PARAGRAPH 19, CONCERNING LIBERIA, U.N. Dec. S/2001/1015 (Oct. 26, 2001), http://www.un.org/docs/sc/committees/Liberia2/1015e.pdf. The investigation found that two of the four payments the registry made in 2000 to nongovernmental accounts were used to buy arms and transportation in violation of a U.N. weapons embargo on Liberia. Id. at 17. In addition to the audit, a U.N.-backed team of investigators obtained a search warrant through the Liberian Ministry of Justice in March 2004 to investigate properties held by former Liberia dictator Charles Taylor, who has been indicted by the Sierra Leonean Special Court for war crimes. U.N. Office for the Coordination of Humanitarian Affairs, Sierra Leonean War Crime Investigators Begin Searching Taylor's Properties, U.N. INTEGRATED REGIONAL INFORMATION NETWORKS, Mar. 8, 2004, http://www.globalsecurity.org/military/library/news/ 2004/03/mil-040308-irin05.htm. The investigation targets, among other bureaus, the Liberian Bureau of Maritime Affairs--formerly closely controlled by Taylor. Id. For more information on the Liberian ship registry, see Republic of Liberia v. Int'l Registries, Inc., 45 Va. Cir. 393, 1998 WL 972178 (Apr. 23, 1998), the only case involving the Liberian registry in the United States, brought by the Liberian government against the corporation that ran the Liberian registry in 1998, International Registries, Inc. (IRI) of Reston, Virginia. For more information on IRI, Maritime and Corporate Administrator for the Republic of the Marshall Islands, see http://www.register-iri.com (last visited Apr. 10, 2005). See also Tim Shorrock, Lawsuit Reawakens Hostility To Flags of Convenience, INTER PRESS SERVICE, Apr. 17, 1998 (summarizing the Liberian government's claim that IRI intentionally decreased Liberia's ship registry revenues, using the Liberian civil war to convince shipowners to register their vessels in the Marshall Islands rather than under Liberia's flag), http://www.globalpolicy.org/nations/ flags2.htm. Liberia asked the court to enjoin IRI and its owners from operating the competing Marshall island program and pay Liberia $700 million in compensatory and punitive damages for loss of business revenues. Id. At the time of the suit, IRI ran the shipping registries of both Liberia and the Marshall Islands. Id. (175) James A. Caporaso & Behrouz Zare, Interpretation and Evaluation of Dependency Theory, in FROM DEPENDENCY TO DEVELOPMENT: STRATEGIES TO OVERCOME UNDERDEVELOPMENT AND INEQUALITY 43, 53 (Heraldo Munoz ed., 1981). (176) Id. at 44. (177) E.g., "external reliance, internal fragmentation, [and] concentration of external linkages." Id. at 47. Dependency theory is a topic beyond the scope of this Comment. For further information, see id at 43-56; Vincent Ferraro, Dependency Theory: An Introduction (July 1996), at http://www.mtholyoke.edu/acad/intrel/depend.htm (providing a general overview of dependency theory); FERNANDO HENRIQUE CARDOSO & ENZO FALETTO, DEPENDENCY AND DEVELOPMENT IN LATIN AMERICA (1979). (178) Caporaso & Zare, supra note 175, at 53. (179) Id. (180) Id. at 54. (181) See supra note 174 and accompanying text. (182) Caporaso & Zare, supra note 175, at 54. (183) Id. See Anderson, supra note 22, at 158 for an explanation of the dependency model in the context of FOCs. (184) Anderson, supra note 22, at 158. For a political and economic analysis of reasons for the growth of FOCs in the Marshall Islands and Vanuatu, see ANTHONY B. VAN FOSSEN, THE INTERNATIONAL POLITICAL ECONOMY OF PACIFIC ISLANDS FLAGS OF CONVENIENCE (1992). Some OR states are land-locked and less likely to cultivate a strong maritime industry anyway, were it not for their ship registries. For information on the position of land-locked states in terms of access to marine fisheries, see S.C. VASCIANNIE, LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES IN THE INTERNATIONAL LAW OF THE SEA 34-78 (1990); DAVID JOSEPH ATTARD, EXCLUSIVE ECONOMIC ZONE IN INTERNATIONAL LAW 192-95 (1987). (185) See infra Part III. C. (186) Anderson, supra note 22, at 161. (187) See, e.g., Mick Hamer, Time to Run Tighter Ships on the High Seas, NEW SCIENTIST, Jan. 16, 1993, at 4, 5 (analyzing the dangers of old tankers flying FOCs that are owned by secondhand shipping companies hired by oil companies); KASOULIDES, supra note 20, at 185 (describing FOC conditions as "inhuman" and responsible for "catastrophic consequences [to] the marine environment"); John A. Torres, Immigrants are Dominant Work Force on Cruise Ships, FLORIDA TODAY, Mar. 10, 2004 (explaining that some FOC vessels' working conditions are "illegal on land"), http://www.usatoday.com/travel/news/2004-03-10-workers-cruise_x.htm. (188) One of the ITF's concerns is the disproportionately high share of losses attributed to FOCs--FOCs accounted for 58% of vessel losses and 63% of tonnage losses in 2001. Shelley, supra note 74. According to the office of the Paris Memorandum of Understanding, FOCs constituted 57% of 1,699 detentions in the North Atlantic region in 2001. Id. (189) READY, supra note 16, at 30-31. (190) ITF, FOC BLACKLIST, http://www.itfglobal.org/files/seealsodocs/144/FOC%20Blacklist.pdf (last visited Apr. 10, 2005); see also ITF, FOC Blacklist (explaining the origins of the Blacklist at the 1995 Fair Practice Committee), at http://www.itfglobal.org/flags-convenience/flagsconvenien-186.cfm (last visited Apr. 9, 2005). (191) The 2000 ITF blacklist documented numerous incidents of abuse. Most common are violations of seafarers' individual rights. ITF, Blacklist, supra note 190; see also Robert D. McFadden, Crew of Ukrainian Freighter Stranded in New York Harbor, N.Y. TIMES, Aug. 3, 1999, at B1, B5; ICFTU ET AL., supra note 172 (reporting labor violations). (192) ITF, What are Flags of Convenience?, at http://www.itfglobal.org/flags-convenience/sub_ page.cfm (last visited Apr. 10, 2005). (193) Id. Due to the Delhi Policy on Minimum Conditions on Merchant Ships, the ITF now analyzes the following criteria: "ability and willingness of the flag state to enforce international minimum social standards on their vessels, including respect for basic human and trade union rights, freedom of association and the right to collective bargaining with bona fide trade unions[;] social record as determined by the degree of ratification and enforcement of ILO Conventions and Recommendations[; and] [t]he safety and environmental record as revealed by the ratification, and enforcement, of IMO Conventions and ... port state control inspections, deficiencies and detentions." ITF, FROM OSLO TO DELHI, supra note 129 at 54. Deficiencies in those criteria can result in an FOC listing. Id. (194) FOCs are a common practice employed by American, Norwegian, German, and other developed country vessel owners, and not all FOC vessels suffer from the issues or perpetrate the transgressions mentioned in this Comment. See Matlin, supra note 104, at 1017, 1055 (arguing that general censure of FOCs is "outdated and unrealistic" in modern international maritime law). For a journalistic account of an apparently responsible vessel operating under an FOC, see Charlotte Phillips, Freighter Fantasy, HONOLULU STAR-BULLETIN, Nov. 9, 2003 (describing a German-owned, Filipino-crewed, Antigua- and Barbuda-flagged cargo vessel as well-kept, with an impeccable safety and regulatory record), http://starbulletin.com/2003/11/09/ travel.story2.html. For information on the difficulty of determining the "good [ship] registers from the not-so-good," see Suzanne Starbuck, Ship Registers, MARITIME ADVOCATE.COM, Jan. 2002, at http://www.maritimeadvocate.com/il7_shipr.php (arguing that a network of "quality" registries is a good idea in theory, but difficult to implement in practice). Starbuck argues that this implementation could be affected by the following factors: urging class societies to exercise selective judgment; forcing poor quality registries out of the market; encouraging banks and lenders to play a larger role in influencing shipowners' registry selections, taking into account factors including standards of administrative procedures and detention rates before approving a loan; and urging insurers to exert similar influence over registry choice by punishing registries with poor quality records with taxing rate schedules. Id. (195) See, e.g., ITF, FOC Blacklist, supra note 190; James Brewer, Court Allows Ships Boycott in Germany, LLOYD'S LIST, May 16, 1997 (reporting a German employment court's holding giving German trade unionists the right to boycott FOC vessels); see also Russell Working, Flags of Inconvenience: Union Campaigns Against Some Foreign Ship Registry, N.Y. TIMES, May 22, 1999, at C1 (reporting conditions on the Russian-owned, Belize-flagged Lakhta, where crews were starved, threatened, and denied wages). (196) See supra notes 4-13 and accompanying text. (197) See supra note 187 and accompanying text. (198) Whitfield, supra note 79. (199) Hamer, supra note 187, at 5. The Marine Accident Investigators' International Forum (MAIIF) defines a "serious casualty" as one involving "a fire, explosion, grounding, contact, heavy weather damage, ice damage, hull cracking or suspected hull defect resulting in: structural damage[;] pollution in any quantity; and/or a breakdown necessitating towage or shore assistance." MAIIF, INVESTIGATOR'S MANUAL, at ch. 3, http://www.malif.net/pdf/Chapter1-3.pdf. MAIFF defines a "very serious casualty" as one that "involves the total loss of the ship, loss of life or severe pollution." Id. In 2003, the following states' vessels reported at least four serious and/or very serious casualties to the IMO: Antigua and Barbuda, the Bahamas, Belize, Cambodia, the People's Republic of China, Cyprus, Greece, Indonesia, Japan, Malta, the Netherlands, Panama, Saint Vincent and the Grenadines, Turkey, and the United Kingdom. IMO, CASUALTY STATISTICS AND INVESTIGATIONS: VERY SERIOUS AND SERIOUS CASUALTIES FOR THE YEAR 2003, at 3-27 (Feb. 23, 2005), http://www.imo.org/includes/blastDataOnly.asp/ data_id%3D11540/6.pdf. Panama had the highest casualty rate in 2003, reporting fifteen serious or very serious casualties. Id. at 18-20. Of the foregoing states, ITF considers all of them FOCs except the People's Republic of China, Indonesia, Japan, the Netherlands, Turkey, and the United Kingdom. ITF, FOC Countries, at http://www.itfglobal.org/flags-convenience/flagsconvenien-183.cfm (last visited Apr. 9, 2005). More specifically, IMO reports that fishing vessels flagged by the Russian Federation, the United Kingdom, and the United States reported the most serious and very serious casualties in 2000 and 2001. IMO, CASUALTIES OF FISHING VESSELS AND FISHERMEN: VERY SERIOUS AND SERIOUS CASUALTIES FOR THE YEAR 2000, at 1, 6-12 (Feb. 26, 2004), http://www.imo.org/includes/blastDataOnly.asp/data-id%3D8933/3.pdf; IMO, CASUALTIES OF FISHING VESSELS AND FISHERMEN: VERY SERIOUS AND SERIOUS CASUALTIES FOR THE YEAR 2001, at 1, 8-13 (March 2, 2004), http://www.imo.org/includes/blastDataOnly.asp/ data_id%3D9119/4.pdf. (200) See supra Parts II.A-B. (201) UNCLOS, supra note 14, art. 92, 21 I.L.M. at 1287; CHURCHILL & LOWE, supra note 16, at 215. (202) UNCLOS, supra note 14, art. 116, 21 I.L.M. at 1290. Coastal states' rights affect another state's freedom to fish on the high seas if fish stocks occur within the EEZs of two or both coastal states, or both within the EEZ and in the adjacent high seas. Id. art. 63, 21 I.L.M. at 1282. They also come into play with respect to highly migratory species, marine mammals, anadromous stocks, and catadromous species. Id. arts. 64-67, 21 I.L.M. at 1282-83. (203) Owners can retain anonymity in Liberia, for instance, because all corporate members (including directors, officers, and shareholders) may be of any nationality and reside anywhere, and the Liberian registry does not require the disclosure of names of corporate members. Global Money Consultants, Offshore Corporations, at http://www.global-money.com/ item.php?id=94 (last visited Feb. 9, 2005). In addition, Liberia does not require any annual reports, tax forms or audit statements, has no minimum capital requirement, and does not require reporting or recording of share issuance. Id. The anonymity enabled by such lenient corporate obligations is considered one of the main advantages of FOCs. Sinan, supra note 17, at 102. (204) See UNCLOS, supra note 14, art. 94, 21 I.L.M. at 1287 (listing duties the flag state is to exercise over of its vessels). (205) See SWAN, supra note 22, at 3 (explaining that, for many states, ORs are just a way to make money so they do not exercise their flag state responsibilities, while other OR states uphold their duties). (206) In fact, fishing vessels often register in states that are parties to RFMOs yet fail to enforce them, or else register in non-signatory states--an arrangement that allows those vessels on the high seas to "ignore those agreements under cover of the flag of a non-signatory [and] make a mockery of the agreement." SWAN, supra note 22 at 3 (internal quotation and citation omitted). (207) See infra Part III.C. (208) UNCLOS, supra note 14, art. 91(1), 21 I.L.M. at 1287. (209) Id. (210) HUSNU AL-SUOOD, PORT STATE CONTROL--WITH SPECIAL EMPHASIS ON THE MALDIVES (n.d.) (advocating a shift from flag to port state control to maintain safety and pollution prevention of world fleets), available at http://www.msc.com.mv/documents/researchdoc3.pdf. (211) Id. Flag states' failure to enforce makes RFMO management impossible. Vicuna, supra note 30, at 41. Vicuna explains that, if fishing vessels register in states that aren't members of a management organization or, if a member, the flag state doesn't supervise its vessels, "the whole effort to prevent overfishing and ensure conservation will have failed." Id.; see also David A. Balton, IUU Fishing and State Control Over Nationals, Presentation at the International Conference Against Illegal, Unreported and Unregulated Fishing in Santiago de Compostela, Spain (Nov. 25-26, 2002), http://www.state.gov/g/oes/ocns/16099.htm. (212) See Balton, Strengthening the Law of the Sea, supra note 4, at 132 (criticizing flag state exclusivity on similar grounds, and explaining that the traditional rule impedes effective management of marine fisheries). Multilateral conventions formally recognized the exclusivity of flag state jurisdiction on the high seas. See, e.g., International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation, 439 U.N.T.S. 233 (1952), available at http://www.justice.gov.hk/doc/multi_909.pdf. The Permanent Court of International Justice explained that vessels on the high seas are subject to "no authority except that of the state whose flag they fly." S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 25 (Sept. 7). Articles 6(1) and 13 of the Geneva Convention on the High Seas codified this principle, supra note 19, 450 U.N.T.S. at 86, 90, as did article 92(1) of UNCLOS, supra note 14, 21 I.L.M. at 1287. The U.S. Supreme Court confirmed it in Lauritzen v. Larsen, 345 U.S. 571, 585 (1953). So long as the vessel flies only one flag, the flag state holds exclusive jurisdiction over the vessel for actions taken while on the high seas. UNCLOS, supra note 14, art. 92(1), 21 I.L.M. at 1287. For a detailed examination of conflicts of maritime law and law of the flag, see Tetley, supra note 99. (213) Customary international law results from a "general and consistent practice of states followed ... from a sense of legal obligation," and "[i]nternational agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted." RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 102(2)-(3) (2003). In general, customary international law is created when state practice is consistent with the rule at issue and the state acts in accordance with that rule from a sense of legal obligation known as opinio juris. HUNTER ET AL., supra note 4, at 311. Once state practice and opinio juris are established to prove the existence of a customary rule of international law, that rule is binding on all states, "not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct." The Paquete Habana, 175 U.S. 677, 711 (1900). (214) Code of Conduct, supra note 38, art. 6.11. (215) "All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources on the high seas." UNCLOS, supra note 14, art. 117, 21 I.L.M. at 1291. Article 217(1) directs flag states ensure compliance by vessels flying their flag and enforce international rules and standards. Id. art. 217(1), 21 I.L.M. at 1315. (216) See supra Part I; supra note 159 and accompanying text. (217) Code of Conduct, supra note 38; Compliance Agreement, supra note 39; IPOA-IUU, supra note 3. (218) HUNTER ET AL., supra note 4, at 312. (219) Code of Conduct, supra note 38, arts. 6.12, 8.2.1-8.2.10; Compliance Agreement, supra note 39, at pmbl., art. Ill; IPOA-IUU, supra note 3, pts. 10-19. (220) See supra Part II.A. (221) See Berglund, supra note 124; supra Part II.A. (222) UNCCORS, supra note 20. (223) Ignarski, supra note 138, at 405. (224) KASOULIDES, supra note 20, at 185 (emphasis in original). (225) UNCCORS, supra note 20, art. 5, 26 I.L.M. at 1238. (226) Id. art. 6, 26 I.L.M. at 1238-1239. (227) Id. art. 10, 26 I.L.M. at 1240-41. (228) UNCCORS requires 40 signatures to enter into force. Id. art. 19, 26 I.L.M. at 1244. As of February 7, 2005, 14 states had signed, and 11 were parties. United Nations, United Nations Convention on Conditions for Registration of Ships, at http://untreaty.un.org/English/sample/ EnglishInternetBible/partI/chapterXII/treaty15.htm (last visited Apr. 10, 2005). (229) Code of Conduct, supra note 38, art 1.1, Annex I. See also FAO, Focus: Fisheries and Food Security, at http://www.fao.org/focus/e/fisheries/codecond.htm (last visited Apr. 10, 2005) (summarizing the background of the Code of Conduct). (230) Report of the United Nations on the Environment and Development (UNCED), U.N. GAOR, 46th Sess., Annex U, Agenda Item 21, 17.49, U.N. Doe. A/CONF. 151/26 (1992) [hereinafter Agenda 21]; see also Code of Conduct, supra note 38, art. 3.2(c) (asserting this consistency). (231) Agenda 21, supra note 230, at 17.52. (232) Code of Conduct, supra note 38, art. 3.2(a)-(c); FAO, supra note 229. (233) FAO, REPORT OF THE TECHNICAL CONSULTATION ON HIGH SEAS FISHING (1992). (234) Fish Stocks Treaty, supra note 54. (235) Compliance Agreement, supra note 39. (236) Code of Conduct, supra note 38, art. 8.2.2. (237) If all states implemented the commitments the FAO agreements set forth, experts argue "there would be virtually no IUU fishing." Atlantic Fisheries Sanctions: Hearing Before the House Subcomm. on Fisheries Conservation, Wildlife and Oceans, 108th Cong. (2003) (statement of David A. Balton, Deputy Assistant Secretary of State for Oceans Fisheries, Department of State) [hereinafter Balton statement]. (238) See infra Part IV.A. (239) For example, similar to art. 8.2.2 of the Code of Conduct, supra note 38, art. III(2) of the Compliance Agreement asserts that "no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party," Compliance Agreement, supra note 39, art. III(2). Art. III(1)(b) directs flag states to take appropriate measures against any of its vessels acting so as to "undermin[e] the effectiveness of international conservation and management measures," id. art. III(1)(b), reiterating this principle of customary international law codified originally in UNCLES, supra note 14, art. 117, 21 I.L.M. at 1291. (240) Compliance Agreement, supra note 39, art. III(3). (241) Id. art. III(5)(a). To flag a vessel, the flag state must be satisfied that any suspension of authorization by the previous flag state has expired, and that another party has not withdrawn high seas fishing authorization for the vessel within the past three years. Id. art. III(5)(a)(i)-(ii). The Compliance Agreement also covers reflagging by requiring parties make available to the FAO specific information regarding its vessels, including the previous names and flags of the vessel and the name and address of the owners. Id. arts. VI(1)(a), (b), (d). This provision may contradict flag state laws that allow owners to retain anonymity, and thus help create transparency in registries, open the door to direct owner liability, and thereby deter FOCs. (242) See infra Part IV.A. (243) NANCY K. JONES, FLAGS OF CONVENIENCE IN THE PACIFIC 21 (1975). (244) Id. (245) Id. Throughout the 1970s, companies located in Liberia owned over 60% of Liberian-registered vessels, the beneficial owners of which were mainly Italian, German, Norwegian, and American nationals. Id. (246) Code of Conduct, supra note 38, art. 8.2.2. (247) The Code of Conduct suggests that flag states sanction "serious violat[ors]" with "refusal, withdrawal or suspension of the authorization to fish." Id. art. 8.2.7. This assumes that adequately communicated consequences of significant severity deter serious crimes. David Crump & Susan Waite Crump, /n Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB. POL'Y 359, 369-71 (1985). In the context of FOCs, such consequences do not yet exist for vessel owners who remain anonymous through OR registration, flag states, and ORs. See infra Part III.C. The Code of Conduct provides few suggestions, and does not list fines, criminal sanctions, or other penalties severe enough to actually deter vessel operators or crew members from fishing illegally on an FOC vessel in the future. It fails to deal with the fact that operators of FOC-IUU boats can easily reflag, repaint, and otherwise conceal the boat's identity. See Christopher J. Carr & Harry N. Scheiber, Dealing with a Resource Crisis: Regulatory Regime for Managing the World's Marine Fisheries, 21 STAN. ENVTL. L.J. 45, 61 (2002) (explaining that vessels reflag from a closed registry state to an OR to obtain an FOC, and referring to "third generation" FOCs--flags acquired when a vessel changes from a closed registry to an OR known to issue FOCs, and then to a third OR that is not marked as an FOC OR, but is still less than diligent in regulating its vessels). By continuing to rely on the flag state to sanction the vessel, the Code of Conduct reveals a short-sighted view of how FOCs actually work, and for that reason fails as a comprehensive model for serious enforcement provisions. (248) U.S. federal wildlife statutes prohibiting and penalizing violations provide useful guidance in this area. See infra Part IV.A.3. Once laws are in place, however, the international community must pressure states to enforce such laws. Spain's Royal Decree 1134/2002, for instance, sanctions nationals fishing illegally aboard FOC vessels, Fisheries News: Spain's Strong Ties with Illegal Fishing, MERCOPRESS, Apr. 20, 2004, http://www.mercopress.com/ Detalle.asp?NUM=3549. But the international marine protection organization Oceana alleges that Spain continuously fails to enforce its own law. Id. See Oceana, at http://www.oceana.org/ (last visited Apr. 10, 2005), for more information about the organization making this claim. (249) Compliance Agreement, supra note 39, art. III(8). (250) Id. art. V(2). (251) See supra Part III.A.1. (252) See infra Part IV.A.2.b. (253) HUNTER ET AL., supra note 4, at 661-62. For details of coastal states' duties generally and the specificity to protect the marine environment in their EEZs, see BARBARA KWIAKOWSKA, THE 200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW LAW OF THE SEA 1-46, 160-188 (1989); ATTARD, supra note 184, at 146-190 (1987); see also id. at 1-67 (tracing the historical development of EEZs). (254) For statistics on the persistence of overfishing and decimation of fish stocks, see Myers & Worm, supra note 4. Though EEZ demarcation could have resulted in better regulation of coastal state resources, EEZ expansion has also had the opposite effect where states overexploited their "new" natural resource areas. HUNTER ET AL., supra note 4, at 661-62. Increased availability of short term economic benefits sometimes eclipsed coastal states' conservation concerns. Id. Coastal states' complete sovereignty over their territorial seas, combined with potential to reserve fishery resources in their EEZs for their own use, also limit the effectiveness of UNCLOS jurisdictional zones for fisheries management. Id. Coastal states have duties to both conserve living marine resources, UNCLOS, supra note 14, art. 61, 21 I.L.M. at 1281, mad to ensure optimum utilization of marine resources. Id. art. 62(1)-(2), 21 I.L.M. at 1281. The latter provision requires the coastal state to "determine its capacity to harvest the living resources" within its EEZ. Id. art. 62(2). Where the coastal state cannot harvest its "entire allowable catch, it shall ... give other States access to the surplus of the allowable catch." [d Coastal states can avoid this "sharing" of EEZ resources, however, by setting their allowable catch at a level low enough to correspond to their fishing capacity, and effectively shut other states out of their EEZs. This is often not an option for developing states that lack the resources to monitor or patrol their EEZs, so FOCs can take advantage of this and fish illegally in such waters without sanction by the flag or coastal states. See, e.g., Robert Seward, Small Island States Project, Regional Security in the Pacific Islands, pt. 3, at http://www.meijigakuin.ac.jp/ ~iism/sisp/security03.htm (June 4, 2002) (explaining that most Pacific EEZs are not patrolled, and describing efforts made by Kiribati and Palau to control foreign vessels fishing illegally in their EEZs through impoundment and legislation providing for penalties up to $1 million USD). Some diplomats continue to lobby for EEZ expansion to create larger fishing zones governed by coastal states. See Franz Fischler, Cooperating for a Sustainable Fishing Future for the Mediterranean, Opening Speech to the Ministerial Conference on the Sustainable Development of Fisheries in the Mediterranean (Nov. 25, 2003), in THIRD MINISTERIAL CONFERENCE ON THEH SUSTAINABLE DEVELOPMENT OF FISHERIES IN THE MEDITERRANEAN, PROCEEDINGS OF THE CONFERENCE 3 (2004) (arguing that there can be no improvements in fisheries control schemes as long as Mediterranean waters remain subject to the high seas regime), http://europa.eu.int/ comm/fisheries/news_corner/autres/conference251103.pdf. However, overfishing and lack of enforcement by coastal states remain potential problems. HUNTER ET AL., supra note 4, at 661-62; Seward, supra Since no one "owns" the high seas or the fish in the ocean, fishers cannot be excluded from a high seas fishery because there are no enforceable property rights. IUDICELLO ET AL., supra note 86, at 35. What one fisher does not catch another presumably will. So the natural economic incentive is to fish as efficiently and quickly as possible to maximize profits and prevent others from doing so. Id. (255) The FAO defines a straddling stock as one "which occurs both within the EEZ and in an area beyond and adjacent to [an] EEZ" or migrates between the high seas and EEZs. FAO, Fisheries Glossy, at http://www.fao.org/fi/glossary/default.asp (last visited Apr. 10, 2005). (256) Fish Stocks Treaty, supra note 54. For a close textual analysis and explanation of the Fish Stocks Treaty's political context, see Balton, supra note 4. (257) Fish Stocks Treaty, supra note 54, art. 10(a). (258) See id. art. 10(a)-(m) for an exhaustive list of RFMO responsibilities. (259) Id. art. 100a). (260) Id. art. 10(e). (261) Id. art. 10(h). (262) Id. art. 10(1). (263) Id. art. 8(3). (264) Id. art. 8(4). (265) Id. art. 17(1). (266) Julie R. Mack, International Fisheries Management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks Changes the Law of Fishing on the High Seas, 26 CAL. W. INT'L L.J. 313, 329 (1996). (267) Fish Stocks Treaty, supra note 54, art. 17(4). (268) Id. arts. 21-22. (269) Id. art. 21(1). Serious violations include the following: fishing without authorization from the flag state; failing to maintain accurate catch data; fishing in a closed area, during a closed season, or beyond an RFMO-set quota; fishing for a stock subject to a moratorium; using illegal gear; concealing the identity of a fishing vessel; impeding an investigation by tampering with evidence; multiple violations which, in the aggregate, constitute disregard of conservation regulations; and other violations specified by RFMOs. Id. art. 21(11)(a)-(i). The Fish Stocks Treaty's boarding and inspection provisions are still relatively new and controversial due to the infringement on flag state exclusivity. Balton, supra note 41, at 178; see also SIMON UPTON & VANGELIS VITALIS, STOPPING THE HIGH SEAS ROBBERS: COMING TO TERMS WITH ILLEGAL, UNREPORTED AND UNREGULATED FISHERIES ON THE HIGH SEAS 6 (June 6, 2003) (explaining that the "radical" boarding and inspection provisions come "as close as international law gets to curbing the otherwise sacrosanct rights of flag states and ... starts to place illegal fishing on a par with ... slavery and piracy."), http://www.oecd.org/dataoecd/46/45/21018775.PDF. However, even more authority than that is necessary to have any effect on FOC-IUU fishing; therefore, this Comment recommends encouraging flag states to cede enforcement authority voluntarily in order to maintain or regain a favorable international reputation, rather than recommending RFMO parties attempt to take it from flag states and violate state sovereignty principles. See infra Part IV.A.2.b. (270) Fish Stocks Treaty, supra note 54, art. 21(5). The flag state must respond within three days of receipt and either fulfill its article 19 obligations to inspect and sanction the vessel (the results of which must be communicated to the inspecting state) or "authorize the inspecting State to investigate." Id. art. 21(6)(a)-(b). (271) Id. 21(8); see supra note 269 (listing "serious violations" under the Fish Stocks Treaty). Although not listed in the Fish Stocks Treaty, carrying weapons of mass destruction aboard a fishing vessel would presumably suffice as grounds for an inspection. In February 2004, Liberia signed a bilateral agreement with the United States allowing the U.S. Navy to board and search any of its commercial ships in international waters to search for weapons of mass destruction. US. Signs Ship Boarding Pact With Liberia, MARINELOG.COM, Feb. 12, 2004, at http://www.marinelog.com/DOCS/NEWSMMIV/MMIVFeb12d.html. This agreement is unrelated to conservation agreements and will not likely have any effect on IUU fishing due to the nature of the vessels the U.S. Navy will inspect. Presumably, this agreement could affect the size of the Liberian registry or inspire vessel owners with something to hide to simply reflag in another FOC OR that has not signed an agreement affording another state inspection rights. For additional information on the "U.S.-Liberian accord," see Edward Harris, Pact Gives US. Search Rights Over Ships, KANSAS CITY STAR, Feb. 13, 2004, http://www.kansascity.com/ mld/kansascity/news/local/7947258.htm. For arguments that the U.S. "Proliferation Security Initiative" may be illegal under international law, see Augustine Anthuvan, US and its Allies Push On with Ship Interception Plan (Radio Singapore International broadcast, Sept. 3, 2003), http://www.channelnewsasia.com/cna/analysis/030905_interception.htm. The September 11, 2001 attacks on the United States alerted governments to potential use of FOCs to perpetrate terrorist attacks. See Brassed Off, ECONOMIST, May 16, 2002 (explaining that the war on terrorism could affect the shipping industry because intelligence sources reported that Osama Bin Laden owns a fleet of over 20 ships that fly FOCs), http://www.globalpolicy.org/nations/ flags/2002/0520osama.htm; see also Flags of Convenience: Hearing Before the House Armed Servs. Comm., 107th Cong. (2002) (statement by Paul J. Pluta, Rear Admiral, Department of Transportation, United States Coast Guard (emphasizing the importance of requiring seafarers to carry positive and legitimate identification, seeking out forged vessel documents, and maintaining transparency of information relating to shipowners and operators)), available at http://armedservices.house.gov/ openingstatementsandpressreleases/ 107thcongress/02-06-13pluta.html. The U.S. legislature responded with new security standards allowing the United States to reject any vessels not up to standard and also denying any vessel leaving a below-standard port access to American ports--effectively barring trade with the United States. Tim Weiner, U.S. Law Puts World Ports on Notice, N.Y. TIMES, Mar. 24, 2004, at A6. The United States has also announced its unwillingness to accept any toothfish imports not accompanied by an electronic catch document. Press Release, ASOC, CCAMLR Adopts New Measures Against Toothfish Illegal Fishing (Nov. 18, 2004) [hereinafter CCAMLR Adopts New Measures], http://www.asoc.org/Documents/XXIIICCAMLR/ asoc1118pr.pdf. Apparently despite trade implications, Rear Admiral Larry L. Hereth, director of port security for the Coast Guard, expressed willingness to ban ships and blacklist ports. Weiner, supra Although no security measures have tangibly affected FOC use in IUU fishing yet, a worldwide security crackdown--fomented by nonenvironmental concerns--may result in tightened OR registration requirements and an insistence on flag state responsibility. See, e.g., Gal Luft & Anne Korin, Terrorism Goes to Sea, FOREIGN AFFAIRS, Nov./Dec. 2004 (arguing that states must sanction third parties that "facilitate hijacking" by providing flags of convenience by blacklisting all vessels flying under a state's flag whenever that state is unable to ensure that the vessels it flags are legitimate), http://www.iags.org/fa2004.html. Beyond flag state enforcement, however, few nations other than the United States possess "the resources or the desire ... to board and inspect foreign flag vessels on the high seas." Balton, supra note 4, at 141. (272) Fish Stocks Treaty, supra note 54, arts. 21(8), 21(17). Action by non-flag states must be reasonable and taken in accord with international law. Id. art. 21(16)-(17). (273) Id. art. 21(7)-(8). (274) Id. art. 21(12). (275) Id. art. 21(16). This same result could occur if the flag state withdraws its flag or if the vessel flies two flags. UNCLES, supra note 14, art. 92(2), 21 I.L.M. at 1287. Ships may sail under the flag of only one state except in exceptional circumstances, and if they attempt to sail under two or more for convenience, they may not claim either nationality and may be "assimilated to a ship without nationality." Id. art. 92(1)-(2), 21 I.L.M. at 1287. In this situation, the vessel is declared without nationality, and a state may take action in accordance with international law. Fish Stocks Treaty, supra note 54, art. 21(17). (276) IPOA-IUU, supra note 3, pt. 4; Code of Conduct, supra note 38, art 1.1; Compliance Agreement, supra note 39, art. X. (277) UNCCORS will enter rote force 12 months after at least 40 states, the combined tonnage of which constitutes at least 25% of the world tonnage, have become contracting parties. UNCCORS, supra note 20, art. 19, 26 I.L.M. at 1244. (278) Fish Stocks Treaty, supra note 54, art. 21(1). (279) See infra Part IV.D.1 for examples of potential future alliances. (280) CCAMLR, General introduction, supra note 35. (281) See infra Part III.B.2. (282) See CCAMLR, General introduction, supra note 35. (283) Convention on the Conservation of Antarctic Marine Living Resources, Apr. 7, 1982, 33 U.S.T. 3476 [hereinafter CCAMLR Convention]. (284) CCAMLR, General Introduction, supra note 35. For a summary of CCAMLR's relationship with and attempts to implement the Protocol on Environmental Protection to the Antarctic Treaty, 30 I.L.M. 1416 (1991), see Richard A. Herr, CCAMLR and the Environmental Protocol: Relationships and Interactions 273, in IMPLEMENTING THE ENVIRONMENTAL PROTECTION REGIME FOR THE ANTARCTIC (Davor Vidas ed., 2000). (285) CCAMLR, General Introduction, supra note 35; CCAMLR is responsible for managing 12% of the surface of the world's oceans. Hutchison, supra note 156 (quoting CCAMLR Executive Secretary Denzil Miller). (286) CCAMLR, General Introduction, supra note 35; CCAMLR, Commission, at http://www.ccamlr.org/pu/e/cc/intro.htm (last visited Apr. 9, 2005). (287) See CCAMLR, Scientific Committee, at http://www.ccamlr.org/pu/e/sc/intro.htm (last visited Apr. 9, 2005) (explaining the committee's role as advising the commission on management measures such as harvesting levels, and advising use of the precautionary approach). (288) CCAMLR, Commission, supra note 286. (289) See CCAMLR, Conservation Measures Directory, at http://www.ccamlr.org/pu/e/e_pubs/ cm/drt.htm (last visited Apr. 10, 2005) (providing schedules of conservation measures in force from 1997 through 2005). (290) CCAMLR's 2004 conservation measures are too extensive to cover in this Comment. For comprehensive information about CCAMLR's 2004 conservation measures, see CCAMLR, Schedule of Conservation Measures in Force 2001/02, at http://www.ccamlr.org/pu/e/e_pubs/ cm/01-02/toc.htm (last visited Apr. 10, 2005). (291) CCAMLR, Monitoring Control, and Surveillance, at http://www.ccamlr.org/pu/e/cc/mcs/ intro.htm (last visited Apr. 10, 2005). (292) CCAMLR, Schedule of Conservation Measures in Force (2003/04), at http://www.ccamlr.org/pu/e/e_pubs/cm/03-04/toc.htm (last visited Apr. 10, 2005). (293) Id. (294) Id. A VMS uses electronic transmitters on fishing vessels that send information about the vessels' position to enforcement agencies via satellite. Pacific Fishery Management Council, Vessel Monitoring Systems (VMS), at http://www.pcouncil.org/groundfish/gfvms.html (Dec. 20, 2004). Australia, New Zealand, and the United States are currently pressuring fellow members to increase use of VMSs to combat the illegal fishing of toothfish. Australia, NZ, USA Allied to Fight Illegal Fishing, SCOOP, Aug. 6, 2004, http://www.scoop.co.nz/mason/stories/PO0408/ S00064.htm (295) CCAMLR, Schedule of Conservation Measures in Force (2003/04), supra note 292. (296) For general information on CCAMLR's Catch Document Scheme (CDS), see CCAMLR, Explanatory Memorandum on the Introduction Catch Documentation Scheme (CDS) for Toothfish (Dissostichus spp.), at http://www.ccamlr.org/pu/e/cds/p2.htm (last visited Apr. 10, 2005) [hereinafter CCAMLR, Explanatory Memorandum]. (297) Contracting parties to CCAMLR include official members and states that are parties to the Convention but not members of CCAMLR. For a list of these parties, see CCAMLR, Official Member Contacts, at http://www.ccamlr.org/pu/E/ms/contacts.htm (last visited Apr. 10, 2005). (298) The catch document contains information relating to the catch volume and location, the vessel's name and its flag state. CCAMLR, Explanatory Memorandum, supra note 296. CCAMLR's CDS became binding on all members on May 7, 2000. CCAMLR, Catch Documentation Scheme, at http://www.ccamlr.org/pu/e/cds/intro.htm (last visited Apr. 10, 2005). For detailed provisions of the CDS for toothfish, see CCAMLR, Conservation Measure 1005: Catch Documentation Scheme for Dissostichus spp. (2003) [hereinafter CCAMLR, Conservation Measure 10-05], http://www.ccamlr.org/pu/e/e_pubs/cm/03-04/l0-05.pdf. (299) Agnew, supra note 10, at 1. (300) Commission Not Up to the Task, ECO, Oct. 31, 2002, http://www2.asoc.org/Documents/ XXICCAMLR/xxiccamlreco5.htm. CDS systems are "notoriously subject to falsification." Carr & Scheiber, supra note 247, at 62. The penalty for failing to comply with the CDS is a ban on landing and transshipment. FOC and IUU vessels sometimes carry more than one logbook: one private book noting productive fishing areas for their own reference, and another for enforcement officials to inspect. Id According to Kim Dawson, a U.S. National Marine Fisheries Service (now NOAA Fisheries) fisheries biologist and CDS officer, the United States advocates use of a centralized computer documentation system instead of CDS because of widespread forgery practices employed by illegal fishermen. Hutchison, supra note 156. (301) VMSs allow regulatory bodies to monitor a ship's precise location at all times. A functioning VMS alerts regulators to ships sailing in closed areas. VMS units cost between $1,800 and $5,800, and transmission costs range from $1 to $5 per day. Pacific Fishery Management Council, supra note 294. NOAA Fisheries expects new VMS technologies currently being tested to decrease these costs even further. Id In some states, such as the United States, the government rather than the shipowner pays for purchase and installation of VMS units. Id (302) Commission Not Up to the Task, supra note 300. (303) STATE OF WORLD FISHERIES, supra note 5, at 62-63. To improve the reliability of fisheries statistics, FAO recommends use of inspectors and observers to monitor catch and effort, discard, dumping, transshipment, and IUU fishing. Id. When nationals of other states fish in a coastal state's EEZ, UNCLOS mandates use of observers on board such vessels where the coastal state's law includes such a provision. UNCLOS, supra note 14, art. 62, 21 I.L.M. at 1281. (304) Carr & Scheiber, supra note 247, at 62. (305) See infra Part II.C. (306) INT'L LABOUR OFFICE (ILO), REP. No. V(1), CONDITIONS OF WORK IN THE FISHING SECTOR: A COMPREHENSIVE STANDARD (A CONVENTION SUPPLEMENTED BY A RECOMMENDATION) ON WORK IN THE FISHING SECTOR 147 (2004), http://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/ rep-v-1.pdf. (307) Carr & Scheiber, supra note 247, at 62. (308) Mathew Loh Ho-Sang, Losing the War Against Poachers, DOMINION POST, Jan. 5, 2004, http://www.eurocbc.org/continuing_fight against poaching_illegal_fishing_05jan2004page1394. html. (309) Id. Britain and Argentina, according to New Zealand's Foreign Affairs and Trade Ministry Antarctic Policy official Trevor Hughes, disagreed over a provision and blocked the proposal's implementation. Id (310) Commission Not Up to the Task, supra note 300. (311) Id. (312) For information about ASOC, see ASOC, at http://www.asoc.org/ (last visited Apr. 10, 2005). (313) Commission Not Up to the Task, supra note 300. (314) ASOC, PRIORITIES ISSUES FOR THE XXI MEETING OF THE CONVENTION ON THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES (Oct. 2002), http://www.asoc.org/Documents/ XXICCAMLR/ASOC.Issues.htm. (315) Fish Stocks Treaty, supra note 54, art. 18, para. 3(i), 34 I.L.M. at 1560. (316) Carr & Scheiber, supra note 247, at 50. Critics of CCAMLR contend that the Fish Stocks Treaty, which lacks the support within the Commission that FAO agreements receive, pressures the Commission to perform its conservation role, and intensifies public perceptions of its failure in this role. Herr, supra note 284, at 282-83. (317) CCAMLR, Schedule of Meetings, at http://www.ccamlr.org/pu/E/sched-of-mtgs.htm (last visited Apr. 10, 2005); CCAMLR Adopts New Measures, supra note 271. CCAMLR XXIII adjourned on November 5, 2004, in Hobart, Australia. Id.; Australian Antarctic Data Center, Antarctic Events, at http://aadc-maps.aad.gov.au/aadc/events/display_event.cfm?event_id=1542 (last visited Apr. 10, 2005). At the time of this writing, official reports of CCAMLR XXIII, the 2004 annual commission meeting, were not yet available in print. See CCAMLR, Commission Reports Directory, at http://www.ccamlr.org/pu/e/e_pubs/cr/drt.htm (last visited Apr. 9, 2005). (318) Media Release, Greenpeace, CCAMLR Fails Again to End Pirate Fishing (Nov. 7, 2003), http://www.greenpeace.org.au/media/ press_details.php?site_id=8&news_id=1218. (319) Id. (quoting HIMI Longline Fishing, Ltd. spokesman David Williams). (320) Boats to be Tagged to Curb Illegal Fishing, INDEP. ONLINE, Nov. 10, 2003, at http://www.iol.co.za/index.php? click_id=3l&art_id=qw1068439502594B25l&set_id=1. These measures are nearly identical to those adopted in November 2002 at CCAMLR XI. See CCAMLR, CCAMLR XXI AGENDA ITEM 8, ILLEGAL, UNREGULATED AND UNREPORTED (IUU) FISHING IN THE CONVENTION AREA 6 (Nov. 2002), http://www.ccamlr.org/pu/e/e_pubs/cr/02/i8.pdf, for details of CCAMLR's FOC and IUU vessel fists. (321) Darby, supra note 11; see also Karen Quah, Organized Crime Muscles Into Australia's Fishing Industry, AUSTRALIAN, July 14, 2004 (describing the Australian Crime Commission's suspicious that organized crime is involved in illegal fishing), http://www.cdnn.info/eco/ e040714a/e040714a.html; Hutchison, supra note 156 (attributing pirate fishing to well-organized enterprises based in Spain, Norway, Indonesia, and China, all of which use "dummy companies within dummy companies within dummy companies" to poach toothfish in the Southern Ocean (quoting CCAMLR Executive Secretary Denzil Miller)). (322) See supra Part III.A.1. (323) Fish Stocks Treaty, supra note 54, arts. 21(7), 21(12). (324) If a flag state deregisters a rogue vessel, shipowners can simply change their ship and company name and reregister under another OR. Awni Behnam & Peter Faust, Twilight of Flag State Control, in OCEAN YEARBOOK 17, 172-73 (Elisabeth Mann Borgese et al. eds., 2003). (325) Inspecting states must promptly notify the flag state of its vessel's alleged violation following a boarding and inspection. Fish Stocks Treaty, supra note 54, art. 21(5). (326) If the flag state does not authorize an inspecting state to investigate, the Fish Stocks Treaty requires the flag state to fulfill its article 19 obligations to investigate and, if appropriate, take enforcement action. Id. art. 21(6)(a). (327) This is the second option afforded a flag state notified that one of its vessels has committed a serious violation. Id. art. 21(6)(b). (328) Article 18 of the Fish Stocks Treaty sets forth numerous flag state duties, id. art. 18, but other than provisions providing for peaceful settlement of dispute, id. arts. 27-31, the agreement provides only that a flag state's obligations shall be fulfilled in good faith and that it shall not abuse its rights, id. art. 35. The agreement provides for no tough sanctions that would deter a flag state from pursuing the theoretical lax enforcement method described in the text. See infra Part IV.B.1 for political consequences of flying FOCs and engaging in IUU fishing. (329) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. [section] 1859(a)(4) (2000). (330) See JONES, supra note 243, at 23 (noting the following reasons for international legal failures in this area: 1) conventions can bind only their signatories; 2) only flag states punish violations of those conventions by their vessels; and 3) the effectiveness of an international convention depends on the responsiveness of national administrators, who must again balance conflicts of interest and varying goals and cultures (after the international convention tried to do so at the drafting stage), which often ends in compromises too weak to affect FOCs). (331) Viarsa Crew Must Stay in Australia, Says Magistrate, MERCOPRESS, Nov. 4, 2003, http://www.mercopress.com/Detalle.asp?NUM=2813. For accounts of the Viarsa pursuit and trial of her crew, see South African Press Association (SAPA), Fish Poachers Warned After Viarsa Apprehension (Sept. 5, 2003) (on file with author) [hereinafter Fish Poachers Warned]; Sally Sara, Alleged Toothfish Poaching Vessel Under Guard Off South Africa (Australian Broadcasting Corporation radio broadcast, Sept. 6, 2003), http://www.abc.net.au/am/content/ 2003/s940449.htm; Alleged Toothfish Poachers Appear in Court, INDEP. ONLINE, Oct. 10, 2003, at http://www.iol.co.za/index.php? click_id=3&art_id=qw1065778201342B223&set_id=l; Goldsmith, supra note 13; SA Joins Aussie Hunt for 'White Gold' Pirates, supra note 9; AAP, Five on Viarsa Charged Over Toothfish, THE AGE, Oct. 10, 2003, http://www.theage.com.an/articles/2003/10/10/ 1065676146338.html; Five Held After Ocean Chase, TELEGRAPH, Oct. 11, 2003, at http://www.telegraph.co.uk/news/ main.jhtm?xml=/news/2003/10/11/wbul11.xml&sSheet=/news/ 2003/10/11/ixworld.html#top; "Maya V," Conflicting Versions, MERCOPRESS, Jan. 24, 2004, http://www.mercopress.com/Detalle.asp?NUM=3194. The full text of all Australian court judgments discussed in this Comment are available online from the Australasian Legal Information Institute, a joint project of the Faculties of Law of the University of Technology, Sydney and the University of New South Wales, at http://www.austlii.edu.au. See, e.g., The Ribot-Carbrera & ORS v. The Queen [2004] W.A.S.C.A. 101 (May 18, 2004) (granting the appeal of Roberto Reyes-Guerrero, a deckhand, and dismissing appeals by four other officers and senior crew members on the Viarsa), http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/wa/ WASCA/2004/101.html?query=%5e+volga. (332) Holly Nott, Australian Associated Press, Hung Jury in Costly Fish-Poaching Trial (Dec. 2, 2004), available at http://www.wag.co.za/News/ JANJUN05/hung_jury_in_costly_fish.htm. Because the jury in the nine-week Viarsa trial was unable to unanimously reach a verdict, all hut, one of the Uruguayan defendants must remain in Australia awaiting a new trial or dismissal. Id. For summaries of Australia's prosecutions from 2002 through the end of 2003 of illegal fishers operating in the Southern Ocean, see Michael White & Stephen Knight, Australian Maritime Law Update: 2003, 35 J. MAR. L. & COM. 313, 313-16 (July 2004). (333) Clarke, supra note 82. This amount of toothfish is worth between $2 and $3 million. Reuters, Australia Charges Five Over Toothfish Poaching (Feb. 10, 2004), available at http://www.flmnh.ufl.edu/fish/InNews/ toothfish2004.htm; Maya V: Uruguay and Australia Hold Talks, MERCOPRESS, Feb. 18, 2004, http://www.mercopress.com/Detalle.asp?NUM=3281. (334) Clarke, supra note 82. (335) Crew Convicted, Awaiting Deportation from Australia for Illegal Fishing CHINA POST, Feb. 4, 2004, http://www.chinapost.com.tw/ detail.asp?onNews=1&GRP=A&id=23527. The crew's lawyer equated the potential fine to "a custodial sentence." Clarke, supra note 82. Uruguayan diplomats vigorously objected to the crew's detention. Maya V: Uruguay and Australia Hold Talks, supra note 333. Australia released the crew on February 23, 2004, Peter Collins, Maya V Crew Out of Jail, MERCOPRESS, Feb. 26, 2004, http://www.mercopress.com/ Detalle.asp?NUM=3311, and plans to deport them. Crew Convicted, Awaiting Deportation from Australia for Illegal Fishing, supra. (336) Tim Clarke, Fishermen on Trial for 'Toothfish Poaching', SUNDAY TIMES, Nov. 16, 2004, http://www.sundaytimes.news.com.au/ printpage/0,5942,11401171.00.html. Three of the Uruguayan nationals appealed their conviction, and Perth's Court of Petty Sessions found that the sailors were onboard the Maya V when it was illegally operating and fishing in Australian waters. The court deported and freed each appellant $1,100 USD. Last Three "Maya V" Crewmembers Fined and Deported, MERCOPRESS, Nov. 18, 2004, http://www.mercopress.com/ Detalle.asp?NUM=4650. (337) See Clarke, supra note 82; supra notes 2, 331-36 and accompanying text; infra notes 340, 342, 404, 485 and accompanying text (detailing the chase, capture, and trials of participants in illegal toothfish operations in Australia's fishing zone). (338) See infra Part IV.B.1. In the event of an action by a coastal or port state, an owner can avoid prosecution or even public inquiry by ensuring they have no assets in the flag state, have never been there, and never go there. Sinan, supra note 17, at 103. Therefore, the owner can escape and is not deterred from FOC abuse by prosecution of a crew that he can quickly replace and to whom he owes no particular allegiance. Id. (339) See infra Part IV.B.1. Some commentators recommend that states enact laws punishing beneficial owners and operators of IUU vessels--along with aiders and abettors of IUU fishing--with prison time. KELLY RIGG ET AL., ENFORCING INTERNATIONAL FISHERIES AGREEMENTS 81 (Dec. 2003), http://europe.oceana.org/ downloads/Enforcing%20International%20Fisheries%20Agreements.pdf. (340) Officers, senior crew, and recidivists are usually the only individuals charged in IUU fishing cases. Collins, supra note 335. Some accounts claim the Maya V incident is the first to penalize low-ranking crew members as well. Id. The crew's lawyer describes their temporary incarceration by Australia, through high bail, as "a backhanded way for the Australian Government to send a warning message to other fishing crews internationally." Id. (341) John Gulland, Managing Fisheries in an Imperfect World, in GLOBAL FISHERIES: PERSPECTIVES FOR THE 1980s, 189 (Brian J. Rothschild ed., 1983). Scholars describe Gulland as a leading scientist in fisheries management "of the modern era." Carr & Scheiber, supra note 247, at 59. (342) Neither the Viarsa nor the Maya V flew under an FOC, but both engaged in IUU in Australia's EEZ. The Viarsa, for example--crewed by Uruguayans, Chileans, Spaniards, Portuguese, Peruvians, and one Romanian--flew under a Uruguayan flag. "Viarsa 1" Is Not a "Pirate Vessel", MERCOPRESS, Oct. 1, 2003, http://www.mercopress.com/Detalle.asp?NUM=2673. The prosecution of high-ranking crew members who are aware of the illegality of their actions, however, could cause Uruguay to change its registry and monitoring standards. See The Government Is Confidant It Can Revindicate the Uruguayan Flag Internationally, MERCOPRESS, Feb. 26, 2004 (reporting on Uruguay's National Directorate of Aquatic Resources' response to allegations by CCLAMR, Uruguayan ecology groups, and Uruguay's Centre for Naval Machinists that Uruguay protects "pirate" vessels under its flag), http://www.mercopress.com/ Detalle.asp?NUM=3312. (343) The ILO-recommended basic minimum wage of an able seaman remained at $465 USD per month until January 1, 2005, when it increased to $500 USD. Int'l Shipping Fed'n, Wage Rates and Manpower Developments, at http://www.marisec.org/ics-isfkeyissues2004/ yearinreviewtext.htm (last visited Apr. 10, 2005). If shipowners negotiate with trade unions and agree to ITF collective agreements, then seafarers on those owners' vessels earn much more. See ITF, Policies, at http://www.itfglobal.org/seafarers/policies.cfm (last visited Apr. 10, 2005) (providing finks to the latest collective agreements for crews on FOC ships). Under such agreements, seafarers can earn up to $1,300 USD per month on an FOC--a high wage that most workers would not earn on vessels flying the flag of their own state. Flags of Peace?, ECONOMIST, Sept. 13, 2003, at 73. Such wages are afforded only when vessel owners agree to these ITF wages, however. In reality, some argue that FOC crews are paid much less than aspirational union wages. David Bacon, Filipino Sailors Challenge Ocean-Going Colonialism (Dec. 25, 1996), at http://dbacon.igc.org/Phils/03Sail.html. Unless national laws differ, minimum maritime wages are not numerically defined by any international organization. The ILO explains that "'minimum wage' ... mean[s] the minimum sum payable to a worker ... which may be fixed in such a way as to cover the minimum needs of the worker ... [in] light of national economic and social conditions." ILO, CONDITIONS OF WORK IN THE FISHING SECTOR, supra note 306, at 59. According to a 1977 U.S. congressional report, a 32-man tanker crew of Americans would cost $1.7 million annually in wages. KASOULIDES, supra note 20, at 77, (citing Recent Tanker Accidents: Legislation for Improved Safety, Part 2: Hearing Before the Senate Comm. on Commerce, Science and Transp., 95th Congress (1977)). By using a Liberian flag, an American shipowner could hire non-American crews and instead pay a Chinese crew $325,500 or a Filipino crew $250,000 annually. Id. By using various nationalities, the cost would be further reduced. Id. Since FOCs enable low wages by evading union regulations, companies have "dumped their high-wage U.S. and European crews on the beach," replacing them with crews from Pacific Rim countries, especially the Philippines. Bacon, supra note 343. Some estimate that there are more Filipino sailors than any other nationality, with more than 250,000 sailing the high seas. Id. Filipino seamen employed on U.S. ships reflagged under foreign flags filed suit in Delaware in 1990, claiming coverage by the U.S. Fair Labor Standards Act (FLSA), but the Third Circuit held that seamen employed on vessels engaged in operations entirely outside the United States were not protected by the FLSA when the vessels were reflagged under the U.S. flag, transferred to a corporation formed in the United States, then leased back to a foreign operating company. Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 220 (3d Cir. 1991). This complex web of registrations, transitory allegiances, and unclear authority deprived seamen of living wages and provides one example of the many laws that FOCs regularly evade. (344) Langewelsche, supra note 78, at 80 (documenting the prosecution in Mumbal, India of Indonesian pirates, "insignificant players on a very large sea."). The pirates hijacked the Alondra Rainbow, a Panamanian ship owned by Japanese and crewed by Filipinos, off the shores of Indonesia in 1999. Id. UNCLES defines piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship" or "any act of voluntary participation in the operation of a ship ... with knowledge of facts making it a pirate ship." UNCLES, supra note 14, art. 101, 21 I.L.M. at 1288. For an account of modern piracy on the high seas, see WILLIAM LANGEWEISCHE, OUTLAW SEA 44--83 (2004). (345) Langeweische, supra note 78, at 45-46. (346) See supra Parts II.C.2, II.D. 1. (347) Carr & Scheiber, supra note 247, at 48; see supra note 173 and accompanying text (defining the race to the bottom). (348) See infra Part IV.B. (349) IPOA-IUU, supra note 3, pts. 39, 59. The IPOA-IUU defines this practice as "repeated and rapid changes of a vessel's flag for the purposes of circumventing conservation and management measures or provisions adopted at a national, regional or global level or of facilitating non-compliance with such measures or provisions." Id pt. 39. (350) Balton, supra note 41, at 176. (351) Langeweische, supra note 78, at 51. (352) DeSombre, supra note 160. See also E. Jane Rolling, Around the World on Eight Dollars a Day: The Binding Effect of Maintenance Rate Provisions in Collective Bargaining Agreements, 18 TUL. MAR. L.J. 317 (1994) (explaining that maritime unions settled for a lower maintenance rate to preserve jobs, because FOC vessels take business previously enjoyed by American vessels); supra Part II.DA (outlining effects of FOCs on competition in the international maritime industry). (353) Profit-seeking FOC operations include overfishing, in this Comment's context, which FOC-IUU fishing vessels perpetrate in contravention of RFMO hales and flag states fail to sanction in violation of customary international law. (354) Balton, supra note 41, at 178. (355) For delineation of flag state duties, see Compliance Agreement, supra note 39, art. III (1)-(8); Code of Conduct, supra note 38, arts. 6.10-6.12, 7.1.5, 8.1-8.4.8; IPOA-IUU, supra note 3, pts. 10-19, 23-84; READY, supra note 16, at 108-122. (356) See David Balton, International Instruments for International Fisheries, 8 ECON. PERSP. 1 (Jan. 2003), available at http://usinfo.state.gov/journals/ites/0103/ijee/balton.htm. (357) Balton, supra note 41, at 178. (358) Id. (359) Maitland, supra note 159. (360) Id. (361) See supra note 176 and accompanying text. (362) OR and flag state revenues must be distinguished because the state often does not run its registry directly, but instead contracts this service out and shares in profits. See Anderson, supra note 22 (describing ORs as a business arrangement between the elite of developing states and entrepreneurs from developed states). For example, LISCR in Virginia runs Liberia's OR, LISCR, supra note 135, and Maitland's company, International Registries Inc., runs the Marshall Islands' OR. Corporate and Maritime Administrator for the Republic of the Marshall Islands, at http://www.register-iri.com (last visited Apr. 10, 2005). (363) Identification of FOC-IUU fishing vessels is especially difficult in the freezing Southern ocean, a "remote and bleak part of the world." Hutchison, supra note 156. (364) Vessel owners often operate through "brass plate" companies and dispel a negative reputation by such a simple change. Sinan, supra note 17, at 103. Similar to reflagging, if OR state A is pressured to tighten its registration standards and enforces them diligently, shipowners will logically withdraw registration in state A and move to state B, likely a developing state lacking resources to patrol vessels. Shipping industry pundits analogize vessel flags to the DMV, explaining that every one could be closed down and "[t]hey'd just shift. You'd have the Laotian registry." Jim Morris, 'Flags of Convenience" Give Owners a Paper Refuge, HOUSTON CHRON., Aug. 21, 1996, http://www.chron.com/content/interactive/special/maritime/ 96/08/22/part5.html. In this way, OR states and the shipowners perpetuating their existence drive the race to the bottom typified by negligent flag states whose vessels suffer from some of the lowest safety, human rights, and environmental standards in the industry. See supra Part II.D.2; France Bequette, Galley Slaves, at http://www.unesco.org/courier/1998_08/uk/dossier/ txt37.htm (last visited Apr. 10, 2005) (reporting on FOC conditions and explaining that "sailors leave their rights ashore"). (365) These dynamics, according to Maitland, engender a "spirit of 'free enterprise' that allows a North Korean diplomat to set up the Cambodian 'registry' in a one-room office in Singapore, run weekly advertisements in noted maritime publications, and sign up with ... the world's leading classification societies." Maitland, supra note 159. (366) Id. (367) States compute tonnage tax on shipping companies' income and the fleet's weight, and the tax is paid regardless of whether the company profits or loses annually. S. Ravindran, Tonnage Tax May Come With a Catch, Bus. STANDARD, Feb. 9, 2004, http://www.businessstandard.com/search/storypage_new.php? leftnm=Imnu2&leftindx=2&1select=1&autono=149425; Shippers See Big Gains from New Tax, Bus. STANDARD, Feb. 4, 2004, http://www.businessstandard.com/search/ storypage_new.php?leftnm=1mnu2&leftindx=2&1select=1&autono=149027. Some in the industry advocate imposition of a tonnage tax to level the playing field because shipping companies pay either no tax or a maximum 2% tax by flying FOCs. Id. (368) Maitland, supra note 159. (369) Id. Conditioning admission to other elite lists and organizations on fulfillment of environmental obligations and reasonable vessel registration policies operates on the same positivist lines as "white listing." See Chariot Zahra, European Parliament Report on Malta Welcomes New Political Consensus on EU Membership, DI-VE NEWS, Feb. 19, 2004, at http://www.di-ve.com/dive/portal/ portal.jhtml?id=126617&pid=null (reporting on a European Parliament report recommending that Malta address "the situation in the maritime sector in Cyprus and Malta," specifically maritime safety and FOCs, before Malta's accession to the EU on May l, 2004). For examples of various RFMOs' efforts at positive and negative vessel lists, see HIGH SEAS TASK FORCE, HOW TO GET BETTER INFORMATION ABOUT HIGH SEAS FISHING VESSELS, Annex at 2 (Feb. 25, 2005), http://www.high-seas.org/docs/HSTF_05_February_2005_Final.pdf. (370) The IMO adopted such an audit regime in 2003, but its efficacy in "the battle against substandard ships" remains untested, since the audit pilot program had not begun at the time of this writing. See IMO, Voluntary IMO Member State Audit Scheme, http://www.imo.org/ Safety/mainframe.asp?topic_id=841 (last visited Apr. 10, 2005). For information on the proposed IMO audit, the objectives of which were agreed upon in June 2003, see id Commentators point out that a quality flag state both ensures that international standards are met and encourages a culture of high quality and standards, using IMO standards as a floor. A. WINBOW, IMPLEMENTATION OF IMO CONVENTIONS--THE KEY TO THE QUALITY FLAG STATE 2 (2002), http://www.imo.org/includes/blastDataOnly.asp/ data_id%3D7014/awinbow1.doc. (371) Maitland, supra note 159. (372) Id. (373) IMO, Model Audit Scheme--Objectives Approved, at http://www.imo.org/Newsroom/ mainframe.asp?topic_id=l14&doc_id=2794 (June 20, 2003). Through audits, IMO council members claim, law-abiding shipping companies that operate under FOCs may face more stringent port inspections and longer delays if they fly the flag of a state listed as suspect under these guidelines. Id. (374) Id. (375) Behnam & Faust, supra note 324, at 190. (376) Scholars have proposed "vision[s] of world shipping sailing under a single international flag" through a "single international registry for ships." Id. at 192 (recalling Prof. Elisabeth Mann Borgese's 1976 proposal at the Algiers meeting on Reshaping the International Economic Order); see, e.g., Joseph DiMento, International Enviromnental Law: A Global Assessment, 33 Envtl. L. Rep. (Envtl. L. Inst.) 10,387, 10,425 n.358 (2003). Though arguments can be made for such a supranational authority in both maritime and environmental realms, no such body currently exists in either context, nor is one likely to be approved by the international community in the near future. John A. Barrett, Jr., The Global Environment and Free Trade: A Vexing Problem and a Taxing Solution, 76 IND. L.J. 829, 847 (2001); see also Catherine Tinker, Environmental Planet Management by the United Nations; An Idea Whose Time Has Not Yet Come?, 22 N.Y.U.J. INT'L L. & POL. 793, 797 (1991) (concluding that "highly centralized planet management" exceeds the U.N.'s capabilities). For critical discussion of proposals for a world environmental organization, see HUNTER ET AL., supra note 4, at 241-53. (377) U.S. COAST GUARD (USCG), QUALSHIP 21 (n.d.), available at http://www.useg.mil/hq/g-m/ pscweb/brochure.pdf. (378) Id. at 1. QUALSHIP 21 applies only to non-U.S. flagged ships, and a flag state wishing to be listed on the Qualship list must fill out a serf-assessment form. Id. To be listed as quality, a ship must have had no substandard vessel detentions, marine violations, serious casualties, or more than one ticket in the United States in the past 36 months. Id. It also may not be registered with a flag state with a detention ratio of 1% or higher. Id. The QUALSHIP 21 program is incentive-based, and does not independently enforce penalties if a vessel does not meet its standards. Id. (379) USCG, Qualship 21 Initiative, at http://www.uscg.mil/hq/gm/pscweb/qualship21.htm (last visited Apr. 10, 2005). (380) QUALSHIP 21 provides incentives for tank, freight, and passenger vessels. USCG, supra note 377, at 1. It makes no specific mention of fishing vessels. (381) Id. (382) See supra Part III.A.1 (explaining flag state exclusivity law). (383) See infra Part IV.D.2. (384) This shift would allow an RFMO party to patrol the high seas if it chose to shoulder that burden, board, inspect, and enforce RFMO provisions against vessels flagged in a different state than the enforcer, and pursue sanctions in the nearest port state. See Fish Stocks Treaty, supra note 54, arts. 21-22 (providing a framework for this boarding and inspection authority, but still directing return to the flag state). (385) See HUNTER ET AL., supra note 4, at 379-80 (explaining the importance of sovereignty as reflecting the "responsibilities, rights, authorities and powers that international law confers when if confers 'Statehood'"). (386) These profits, however, may not be that significant, and could be less significant than the political backlash that can accompany an OR listing. See supra Part II.D.1. (387) IPOA-IUU, supra note 3, pt. 18. (388) See generally SUSAN F. MANDIBERG & SUSAN L. SMITH, CRIMES AGAINST THE ENVIRONMENT 537-41 (1997 & Supp. 2001) (providing sentencing guidelines for wildlife and resource protection crimes). (389) 16 U.S.C. [section] 1857(1)(E) (2000). (390) Id [section] 1857(1)(I) (2000). (391) Salmon fishing is not permitted within 12 miles of the Atlantic coast north of 36[degrees] latitude. North Atlantic Salmon Fishing Act, 16 U.S.C. [section] 3606(a) (2000). (392) 16 U.S.C. [section] 1859(b) (2000). The ten year term is only applicable if the defendant used a dangerous weapon or caused bodily injury to an enforcement officer. Id. (393) Currently, the IPOA-IUU merely suggests that domestic legislation "address in an effective manner all aspects of IUU fishing ... [including] evidentiary standards and admissibility." IPOA-IUU, supra note 3, at. pts. 16-17. The High Seas Task Force (HSTF) provides a more specific model for such legislation--the Lacey Act Amendments of 1981, 16 U.S.C. [subsection] 3371-3378 (2000). HSTF, PROMOTING RESPONSIBLE PORTS 3 (Feb. 25, 2005), available at http://www.high-seas.org/docs/HSTF_06_February_2005_Final.pdf. The HSTF explains that states can use similar legislation to prosecute nationals who engage in IUU fishing and ultimately levy both civil and criminal penalties. Id. (394) See supra notes 203 and 247 and accompanying text. See also JONES, supra note 243, at 20 (noting the problems surrounding extraterritorial application of domestic laws, focusing on the controversial application of the U.S. Sherman Act to foreign enterprise). (395) IPOA-IUU, supra note 3, pt. 18. (396) Id at pt. 19. (397) Measured by foreign-flagged gross registered tonnage (GRT) as a percentage of the world fleet, METAXAS, supra note 113, at 38-9, U.S. citizens owned 27,147 GRT under FOC beneficial ownership abroad, which amounted to 6.57% of the world fleet. U.S. owners' 17,542 GRT registered under the U.S. flag constituted 4.25% of the world fleet. Hong Kong was second in terms of FOC ownership: its FOC-flagged GRT amounted to 6.26% of the world fleet. Id Greece ranked third, its FOC-flagged GRT constituting 3.77% of the world fleet. Id. Though Panama's registry was the second largest OR in the world in 1979, and remains so today, its citizens owned a mere 528 GRT, all of which was registered under Panama's flag. Id at 40. Statistics were not available for Liberian citizens, presumably because they own such a small percentage of world GRT, despite the state's status as the largest OR in terms of total GRT. Id.; see also CARLISLE, supra note 135, at 194, 197 (listing the corporate sources of Panamanian vessels under U.S. control in 1944 and the number of foreign-flagged vessels under U.S. control in 1945). (398) Magnuson-Stevens Fishery Conservation Management Act, 16 U.S.C. [subsection] 1801-1883 (2000). (399) See MANDIBERG & SMITH, supra note 388, at 538-41 (listing statutes and sentences). (400) See supra note 343 (estimating U.S. crew and operating costs compared to those for FOCs). (401) See "Viarsa 1" Is Not a "Pirate Vessel", supra note 342 (providing an example of political conflicts over a flag state's failure to monitor its boats on the high seas and in another state's coastal zone); see also HUNTER ET AL., supra note 4, at 690-93 (describing the dispute between Canada and Spain when Canada boarded and seized the Spanish trawler, the Estai, outside of Canada's EEZ and arrested the crew for various fishing offenses in violation of Canada's halibut conservation efforts). The ICJ held it lacked jurisdiction over the Estai dispute. Fisheries Jurisdiction case (Spain v. Can.), 1998 I.C.J. 96 (Dec. 4). (402) "Viarsa 1" Is Not a "Pirate Vessel", supra note 342. (403) Id. Captain Yamandu Flangini, director of Urugnay's National Directorate of Aquatic Resources, asserts that apprehensions of the Viarsa and Maya V were not in accord with the law, arguing that UNCLOS does not afford uninhabited islands an EEZ. Uruguay Drafting New Fisheries Law, MERCOPRESS, Mar. 25, 2004, http://www.mercopress.com/Detalle.asp?NUM=3439. Flangini calls states that claim sovereignty over such waters "expansionist colonialists." Id. (404) Flangini: "Toothfish Fishing is Not Restricted", supra note 83; see also Uruguay Questions Australian EEZ in Remote Islands, MERCO PRESS, Feb. 3, 2004 (reporting on Uruguayan fisheries officials questioning Australia's claims to EEZs around uninhabited remote islands), http://www.mercopress.com/Detalle.asp?NUM=3217; Maya V Crew Out of Jail, supra note 335 (reporting on the Maya V crew's release on bail on Feb. 20, 2004); see supra notes 82, 331, 333, 336 (explaining the circumstances surrounding the Maya V detention). (405) See Ted Schmidt, Who is Paul Martin?, CATHOLIC NEW TIMES, Feb. 29, 2003 (asking whether CSL still flies FOCs to avoid Canadian tax and labor laws), http://www.vivelecanada.ca/article.php?story=20040312173357566. (406) flyourflag.ca, Learn More About the Real Paul Martin, at http://www.flyourflag.ca/ (last visited Apr. 10, 2005); flyourflag.ca, Victims of Paul Martin's Refusal to Fly Our Flag, at http://www.flyourflag.ca/victims_paul_martin/ (last visited Apr. 10, 2005). The flyourflag.ca website describes these practices, as many commentators do, as a race to the bottom. Id. (407) paulmartintime, Canada's Sweatship Sweetheart, at http://paulmartintime.ca/story/000025.html (last visited Apr. 10, 2005) (quoting CSL president Pierre LaFontaine, who claims that reflagging and minimizing crew costs is "required in order to remain competitive in the international market"). (408) flyourflag.ca, Victims of Paul Martin's Refusal to Fly Our Flag, supra note 406. See supra Parts II.C-D (substantiating these allegations). (409) See supra Part II.D. (410) Encouragement such as that provided in mandatory language in the Fish Stocks Treaty, supra note 54, arts. 19-21. (411) ITF, FOC Blacklist, supra note 190. (412) See ASOC, IUU Vessel Red List, at http://www.asoc.org/RED%20LIST/redlistfeb04.htm (Feb. 2004) (listing the name, flag, call sign, owner, and history of vessels known to engage in IUU fishing in the Southern Ocean); COLTO, Toothfish Vessels, at http://www.colto.org/vessels.htm (last updated Apr. 10, 2005) (providing a list of IUU toothfish vessels suspected, known, wanted, or convicted of poaching in the Southern Ocean); Greenpeace, Greenpeaee Gallery of Toothfish Vessels, at http://archive.greenpeace.org/oceans/ southernoceans/expedition2000/gallery/pirates.html (last visited Apr. 10, 2005) (listing vessels not licensed by CCAMLR, many of which fly FOCs, that landed toothfish in Mauritius since March 1999). CCAMLR XXII recently adopted the blacklisting method, though only ten vessels are listed. See supra Parts I and III.B.1. (413) O. OZCAYIR, PORT STATE CONTROL 86 (2001). (414) Id. For explanation of port state controls generally and identification of conventions and national legislation implementing them, see AL-SUOOD, supra note 210; Patricia Birnie, Reflagging of Fishing Vessels on the High Seas, REV. OF EUROPEAN COMMUNITY & INT'L ENVTL. L. 270, 274-75 (1993); Behnam & Faust, supra note 324, at 184-86; Ademuni-Odeke, Port State Control and U.K. Law, 28 J. MAR. L. & COM. 657, 659-61 (1997). (415) AL-SUOOD, supra note 210, at 34. (416) See supra Part III.C. (417) Relying on IMO guidance documents, commentators assert that port state measures, though important, are not the primary method to attack FOCs, but complementary to national measures taken by flag states. Sinan, supra note 17, at 103. (418) See supra Part III.B.2. (419) CCAMLR, Conservation Measure 10-05, supra note 298, at 2. (420) See infra Part IV.C.2.a. (421) HUNTER ET AL., supra note 4, at 482. (422) Id. For general information on the relationship between conservation and international finance focusing on the World Bank, see id at 1474-1516. (423) In 2001, a report from the Global Conference on Oceans and Coasts at Rio+10, held at UNESCO, Paris, France December 3-7, 2001, discussed the problems of overfishing as intensified by IUU fishing, gear violations, and discarding. PATRICO BERNAL ET AL., TOWARD THE 2002 WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT: ENSURING THE SUSTAINABLE DEVELOPMENT OF OCEANS AND COASTS--A CALL TO ACTION 10 (Dec. 7, 2001), http://lnweb18.worldbank.org/ ESSD/essdext.nsf/42DocByUnid/ 6E84A2BCE4ECE3A385256B740050A592/$FILE/rio%2010%20d oc.pdf. The report explained that the problem is worsened where developing states lack the means to control fishing operators they register, and by the lack of rules to prevent the reflagging of vessels to avoid RFMO regulation. Id. The authors determined that the WTO should support RFMO efforts to eliminate IUU fishing, explaining that the foregoing factors "not only jeopardize the natural recovery of ... fish stocks, but also threaten the cultural heritage and cause extreme social and economic hardships on small fishing families, coastal people, and indigenous peoples in particular." Id. World Bank involvement with FOC-IUU fishing is a topic beyond the scope of this Comment, as is financial investigation of FOCs suspected of drug involvement. See James Brewer, War Declared on the FoC Money Launderers, LLOYD'S LIST, Aug. 4, 2000 (describing the Egmont Group, a "coalition of crack international finance intelligence units" that investigates white collar crime and proceeds from drugs, mafia operations, and other illicit affairs), http://www.globalpolicy.org/nations/flags/0425foc.htm. (424) In 1995, the World Trade Organization (WTO) succeeded the General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-3, T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter GATT]. WTO, WTO in Brief: Part I, at http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/ inbr01_e.htm (last visited Apr. 10, 2005). GATT set up and implemented a multilateral trading system after WWII through a series of trade rounds. Id Negotiation topics include tariffs, trade, the environment, trade facilitation, and more. Id. The WTO's stated objective is to ensure "trade flow[s] smoothly, freely, fairly and predictably." WTO, WTO /n Brief: Part II, at http://www.wto.org/english/thewto_e/ whatis_e/inbrief_e/inbr02_e.htm (last visited Apr. 10, 2005). For general information about the WTO, see WTO, What is the WTO?, at http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm (last visited Apr. 10, 2005). (425) GATT, supra note 424. (426) Different types of trade sanctions implicate different provisions of WTO agreements like GATT; for example, GATT may not prohibit port and transshipment bans, while states must follow WTO panel decisions to ensure compliance if they choose to ban importation of certain products based on factors unrelated to the product. See id. art. V(1), (4)-(6) (providing that all port and transshipment regulations affecting traffic and transit "shall be reasonable," the regulating WTO party "shall accord to traffic in transit to or from the territory of any other contracting party treatment no less favorable than the treatment accorded to traffic in transit to or from any third country," and each WTO party shall treat products the same no matter what route the products took to reach their destination). The application of different GATT provisions to different methods of trade sanctions is beyond the scope of this Comment. (427) Id. art. XI. Article XI provides in part, No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party. Id. art. XI(1). (428) GATT: Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna, Aug. 16, 1991, 30 I.L.M. 1594 [hereinafter Tuna/Dolphin I]; GATT: Dispute Settlement Panel Report on United States Restrictions on imports of Tuna, June 16, 1994, 33 I.L.M. 839 [hereinafter Tuna/Dolphin II]. These disputes concerned the United States' ban of tuna imported by foreign fishermen who used purse seine nets (which kill dolphins along with tuna) unless that fisherman's government showed that the kill rate and quality of its dolphin protection program was comparable to that of the United States. Tuna/Dolphin I, 30 I.L.M. at 1598; Tuna/Dolphin II, 33 I.L.M. at 849. In Tuna/Dolphin I, Mexico challenged this embargo on several grounds, including allegations that the United States violated GATT prohibitions against quantitative restrictions, established discriminatory and unfavorable conditions disadvantaging Mexico, and violated provisions of GATT articles XI and XIII. Tuna/Dolphin I, 30 I.L.M. at 1601. The United States argued for an exception under GATT article XX, which allows limited environmental exceptions for violations of articles I, HI, and XI. The panel concluded that the United States' regulation did not merit an article XX exception because multilateral options more consistent with GATT remained as possible solutions. Id. at 1620. For details on the facts of the tuna/dolphin disputes, see id.; Richard Skeen, Note, Will the WTO Turn Green? The Implications of Injecting Environmental Issues into the Multilateral Trading System, 17 GEO. INT'L ENVTL. L. REV. 161, 185-88 (2004). (429) Tuna/Dolphin I, supra note 428, at 1620; Tuna/Dolphin II, supra note 428, at 894, 898. Regardless of the method used to catch tuna, the end product is still tuna, and thus the same for purposes of GATT. Because GATT requires that parties treat products that are the same, or "like," in a nondiscriminatory manner, an importer may not discriminate against exporters based upon the methods used to catch the same product. Chris Wold, Multilateral Environmental Agreements and the GATe: Conflict and Resolution?, 26 ENVTL. L. 841, 850-51 (1996). See id. for elaboration on the definition of "like" products under GATT. See also Jeffrey L. Dunoff, Reconciling International Trade with Preservation of the Global Commons: Can We Prosper and Protect?, 49 WASH. & LEE L. REV. 1407, 1409-21 (1992) (describing the Tuna/Dolphin dispute and characterizing it as the first conflict between free trade and protection of a global commons resource reconciled by a GATT panel). (430) For arguments that unilateral trade measures violate GATT whenever a state is party to an agreement with a dispute settlement mechanism, see Iudicello & Lytle, supra note 8, at 143; Kevin C. Kennedy, The Illegality of Unilateral Trade Measures to Resolve Trade-Environment Disputes, 22 WM. & MARY ENVTL. L. & POL'Y REV. 375 (1998). See also Kristen Larson, Fishing for a Compatible Solution: Toothfish Conservation and the World Trade Organization, 7 ENVTL. L. 123 (2000); Ryan L. Winter, Reconciling the GAFf and WTO with Multilateral Environmental Agreements: Can We Have Our Cake and Eat It Too?, 11 COLO. J. INT'L ENVTL. L. & POL'Y 223 (2000); Ibrahim F.I. Shihata, Implementation, Enforcement, and Compliance with International Environmental Agreements--Practical Suggestions in Light of the World Bank's Experience, 9 GEO. INT'L ENVTL. L. REV. 37 (1996) (all detailing the history of GATT decisions on conflicts between green trade measures and free trade and the likelihood that GATT panels will continue prohibiting unilateral trade measures if reasonably characterized as discriminatory). But see Richard W. Parker, The Case for Environmental Trade Sanctions, 7 WIDENER L. SYMP. J. 21, 25-26 (2001) (arguing that behind almost every effective modern international environmental agreement, one is "likely to find ... the credible threat of unilateral or small group economic leverage"). (431) Article XX provides limited environmental exceptions to substantive GATT obligations for measures "necessary to protect human, animal or plant life or health" and "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption." GATT, supra note 424, art. XX [subsection] (b), (g). These and all other general exceptions are "[s]ubject to the requirement that ... measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." Id. art. XX. For elaboration on WTO panel and Appellate Body decisions interpreting the article XX exceptions, see HUNTER ET AL., supra note 4, at 1163-80; Wold, supra note 429, at 853-63. (432) For a recommended analytical framework in which these interests can be weighed against one another, see Dunoff, supra note 429, at 1409 (proposing a balancing test examining the following factors: "the nature and strength of the environmental interest being protected, whether the measure favors domestic over foreign products, or discriminates among foreign nations, and whether the measure is related to and proportionate to the environmental goal"). See also John H. Knox, Judicial Resolution of Conflicts Between Trade and the Environment, 28 HARV. ENVTL. L. REV. 1, 5-11 (2004) (analyzing conflicts between GATT and domestic environmental laws generally); Jose E. Alvarez, New Treaty Makers, 25 B.C. INT'L & COMP. L. REV. 213 (2002) (questioning whether globalization like the free trade agreements erodes state sovereignty); LINDA A. CHAVES, ILLEGAL, UNREPORTED AND UNREGULATED FISHING: WTO-CONSISTENT TRADE RELATED MEASURES TO ADDRESS IUU FISHING 8 (2000) (discussing conservation-oriented trade measures), http://www.fao.org/documents/show_cdr.asp?url_file=/ DOCREP/005/Y3274E/y3274e0i.htm. (433) WTO Appellate Body Report on U.S. Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, 38 I.L.M. 118 (1999) [hereinafter Shrimp/Turtle]. For a concise summary of the Appellate Body's reasoning in the Shrimp/Turtle ruling, see Chris Wold & Glenn Fullilove, International Environmental Law Project, Analysis of the WTO Appellate Body's Decision in Shrimp/Turtle (Feb. 24, 2000), at http://www.lclark.edu/org/ielp/turtlebriefing.html. (434) The measure deemed acceptable in the Shrimp/Turtle ruling--as in the Tuna/Dolphin disputes--was unilateral, unrelated to the product itself (instead related to method of capture), and not conducted under an MEA. Therefore, states may be able to justify trade restrictions based on vessel ownership and/or compliance with RFMO conservation measures so long as they adhere to the Shrimp/Turtle ruling. See Nancy L. Perkins, Introductory Note to the Shrimp/Turtle Ruling, 38 I.L.M. at 119 (explaining that the ruling indicates that the WTO "does not categorically disallow the use of trade restrictions that are based not on the characteristics of the product(s) to which they apply, but rather on the processes or production methodologies (PPM) from which the product(s) are derived ... signal[ing] a tolerance for PPM-based trade restrictions"). (435) See generally Bradly Condon, Multilateral Agreements and the WTO: Is the Sky Really Falling?, 9 TULSA J. COMP. & INT'L L. 533, 536-41 (2002) (summarizing GATT and WTO panel decisions on the consistency of U.S. unilateral trade bans used to protect marine mammals with GATT). Condon characterizes all of the U.S. measures at issue in the foregoing panel decisions as "unilateral, discriminatory, extraterritorial, and not taken pursuant to" MEAs. Id. at 540. For distinctions between unilateral measures and those taken pursuant to MEAs in light of GATT restrictions and exceptions, see id. at 545-50. (436) The Shrimp/Turtle ruling is especially relevant in light of shortcomings of MEAs as a method to protect global commons resources such as toothfish on the high seas. Examples of such weaknesses include the following: lack of membership, overlap with other MEAs, unanticipated changes in policies through amendments, and the inability to apply legal rules due to the absence of a unified dispute resolution system. J.D. WERKSMAN, FORMAL LINKAGES AND MULTILATERAL ENVIRONMENTAL AGREEMENTS 1-2 (1999), http://www.geic.or.jp/interlinkages/ docs/jake.PDF. (437) Shrimp/Turtle, supra note 433, at 150; Tuna/Dolphin II, supra note 428, at 839, 894, 897-98. For arguments that the GATT panels' rationales behind these decisions is an attempt to prohibit the use of trade restrictions in a manner that constitutes "national coercion," see David M. Driesen, What is Free Trade?: The Real Issue Lurking Behind the Trade and Environment Debate, 41 VA. J. INT'L L. 279, 300-01 (2001). (438) FAO, FAO TECHNICAL GUIDELINES FOR RESPONSIBLE FISHERIES NO. 9, IMPLEMENTATION OF THE INTERNATIONAL PLAN OF ACTION TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING 38-47 (2002), ftp://ftp.fao.org/docrep/fao/005/y3536e/y3536e00.pdf. See id. at 41-46 for examples of various port measures adopted so far in an attempt to stop IUU fishing. (439) Condon, supra note 435, at 550, 566. As of 2002, no trade measures taken under an MEA had been challenged before GATT or WTO panels. Id. at 535, 550; WERKSMAN, supra note 436, at 12. GATT articles I, III, V, and XI govern these methods. In addition, port sanctions may implicate the General Agreement on Trade in Services (GATS) should the use of port facilities be deemed a "service"--a potentiality beyond the scope of this Comment. GATS, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, LEGAL INSTRUMENTS--RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS vo1. 1, 33 I.L.M. 1167 (1994), available at http://www.wto.org/english/docs_e/legal_e/26-gats.pdf. (440) IPOA-IUU, supra note 3, pts. 65-76. (441) Transparency is a characteristic sorely lacking in most aspects of FOC use generally. See Vessel Operations Under [lags of Convenience and Their Implications on National Security: Hearing Before the Special Oversight Panel on the Merchant Marine of the House Comm. On Armed Servs., 107th Cong. (2002) (statement of David Heindel, Second Vice Chairman, Seafarer's, Fisheries and Inland Navigation Section of the International Transport Workers' Federation) (pointing to a lack of corporate transparency as "a facilitator of transnational criminal activities and terrorism"). (442) IPOA-IUU, supra note 3, pts. 65-76. (443) Id. pt. 73. (444) See supra Part III.B.2 (discussing CCAMLR). (445) See Colin James, Fishing Pirates Slice Through Seas of Toothless Treaties, NEW ZEALAND HERALD, Mar. 4, 2004 (explaining that both general and fishing piracy have increased over the past five years, despite a "'frenzied level of treaty-writing' to combat piracy and over-fishing" that produced over twenty regional conventions), http://www.nzherald.co.nz/ index.cfm?ObjectID=3552729. (446) See supra Parts II.B and II.C. (447) See supra Part III.B.2 (explaining CCAMLR's problems with CDS). (448) Karentnick, supra note 12. (449) National Environmental Trust (NET), The Threats to Chilean Sea Bass, at http://environet.policy.net/marine/csb/threats/ (last visited Apr. 10, 2005); see also Joshua Richert, No Matter How it's Cooked, Chilean Bass is Probably Poached, BALTIMORE SUN, July 20, 2000, at 15A (citing FAO statistics on toothfish populations, describing ongoing toothfish poaching issues, and concluding that no matter where one orders toothfish, it was most likely illegally caught), available at http://environet.policy.net/marine/conserve/seabassed.pdf. (450) NET, The Environmental Action Network for the 21st Century, at http://environet.policy.net/about/ (last visited Apr. 10, 2005). (451) NET, Take a Pass on Chilean Sea Bass, available at http://environet.policy.net/marine/csb/ (last visited Feb. 10, 2005). For media on the boycott, see Jennifer Wolcott, A Fish Story: Navigating Seafood Choices, CHRISTIAN SCI. MONITOR, Nov. 13, 2002, http://www.csmonitor.com/ 2002/1113/p15s02-lifo.html. (452) Karentnick, supra note 12. (453) Wolcott, supra note 451 (quoting Sam Wong, general manager of American Fish and Seafood). However, Wong noted that this drop could also have been due, in part, to an increase in toothfish market prices. Id. (454) Karentnick, supra note 12. (455) See infra Part IV.C.2.b. (456) Scholars divide eco-labels into the following four categories: 1) mandatory labeling with negative content, 2) mandatory labeling with neutral content, 3) voluntary "single issue" labeling, or 4) voluntary, "multi-criteria" labeling. Matthias Vogt, Environmental Labeling and Certification Schemes: A Modern Way to Green the World or GATT/WTO-Illegal Trade Barrier?, 33 Envtl. L. Rep. (Envtl. L. Inst.) 10,522, 10,523 (2003); see also id at 10,522-36 (discussing the place of eco-labels within the GATT-WTO trade regime and whether they conflict with the GATT's substantive obligations); see also WTO, CTE On: How Environmental Taxes and Other Requirements Fit In, at http://www.wto.org/english/tratop_e/envir_e/cte03_e.htm (last visited Apr. 10, 2005) (detailing types of eco-labels, the controversy surrounding eco-labeling, and emphasizing the distinction between products and processes for WTO treatment). (457) See Carr & Scheiber, supra note 247, at 63 (discussing unilateral enforcement standards implemented by the United States). (458) Id. at 74. (459) See supra Part II.A (explaining ship registration systems and defining FOCs and IUU fishing). (460) For information on the World Wildlife Fund's (WWF) program for creation of economic incentives for sustainable fishing, see WWF, Sustainable Fisheries, at http://panda.bluegecko.net:8080/about_wwf/what we do/marine/what we do/sustainable_fisheries/index.cfm (last visited Apr. 10, 2005). (461) See Unilever, at http://www.unilever.com (last visited Apr. 10, 2005) (providing general information about the company). (462) Carr & Scheiber, supra note 247, at 74. (463) See Marine Stewardship Council (MSC), About MSC, at http://eng.msc.org/(last visited Apr. 10, 2005) (summarizing MSC's mission and action plans). (464) These include ISO Types I-III and product-specific single issue labels. Unilever, Eco-Labeling at http://www.unilever.com/ourvalues/environmentandsociety/ issues/ecolabelling.asp (last visited Apr. 10, 2005). ISO Type I labels are granted to products subjected to a life cycle assessment mad are administered by an independent third party. Id. ISO Type II labels are self-declared claims made by manufacturers. Id ISO Type HI labels include statements about environmental performance endorsed by a third party. Id Product-specific labels cover, for example, timber, fish, and agriculture, and are each issued and endorsed by industry- or product-specific councils. Id (465) Id. (466) Carr & Scheiber, supra note 247, at 75. (467) For example, the National Fisheries Institute (NFI) developed its Responsible Fisheries Society after the MSC's initiative. Id Alternatives to the MSC label may be critical for the future of green fishery certification because critics of the MSC claim that without reform and support of environmental groups the MSC will collapse. Paul Brown, Crisis of Credibility for "Green" Fisheries, GUARDIAN, Feb. 21, 2004, http://www.guardian.co.uk/uk_news/story/ 0,3604,1152831,00.html; see also Monterey Bay Aquarium, Conservation and Research: Tuna Research & Conservation, at http://www.mbayaq.org/cr/trcc.asp (last visited Apr. 10, 2005) (providing a link to a "Seafood Watch" card, which identifies seafood caught in a manner that does not endanger ocean wildlife); National Audubon Society, Seafood Lover's Guide, at http://seafood.audubon.org/ (May 2004) (providing a similar card that lists species which conservation-conscious consumers should avoid). (468) Carr & Scheiber, supra note 247, at 76. NFI claims the market competition between itself and MCS could lead to such governmental intervention. Id (469) The MSC recently concluded a two and a half year scientific review of the South Georgia toothfish fishery against the MSC's Principles and Criteria for Sustainable Fishing. Press Release, MSC, Objections Panel Concludes Review of South Georgia Patagonian Toothfish Assessment (Mar. 17, 2004), http://www.ems.org/nws/2004/03/17/objections_panel. After reviewing an objection filed by environmentalists concerned about the sustainability of toothfish harvesting due to rampant poaching, MSC agreed to certify the small fishery (which only manages 4,420 MT of the global catch of toothfish, which is anywhere between 15,000 and 90,000 MT). Id. Ideally, the MSC logo will only appear on legally caught fish, and the fishery will remain well-managed. Id The certification lasts five years and subjects the fishery to annual audits, including inspection of compliance with chain of custody requirements. Id As the first toothfish fishery certified by the MSC, this could provide a useful test case for future eco-labeling. (470) ILO, supra note 306, at 7-8. (471) Id. at 8. (472) For further information on the trade implications of eco-labeling and methods to avoid GATT violations, see Samuel L. Lind, Eco-Labels and International Trade Law: Avoiding Trade Violations While Regulating the Environment, 8 INT'L LEGAL PERSP. 113 (1996). (473) But see HELEN PICKERING ET AL., SEAFOOD LABELING TRENDS 1-6 (n.d.), http://www.aquachallenge.org/workshop_materials/Pickering.PDF (describing current seafood eco-labeling schemes and summarizing recent studies regarding consumer preference). The authors explain that two recent studies conducted in the United Kingdom, Denmark, Norway, and the United States lacked consistency. Id. at 4. However, the studies did generally indicate that consumers prefer products certified as the product of a sustainably managed fishery over uncertified products, id at 5, and that, though Americans are less sensitive to price than Norwegians, the latter are more ecologically minded than the former, id. at 4-6. (474) IUDICELLO ET AL., supra note 86, at 75-81. International resolutions support or catalyze restrictions in some cases. See G.A. Res. 36/215, U.N. GAOR 79th plen. mtg., U.N. Doc. A/RES/46/215 (1991) (summarizing driftnet fishing and its impacts on ocean resources, and establishing a global moratorium on all large-scale pelagic driftnet fishing). (475) IUDICELLO ET AL., supra note 86, at 86-87. Such a tax would affect legitimate toothfish operators as well. See COLTO, About Us, at http://www.colto.org/About_Us.htm (last updated Apr. 5, 2005) (listing responsible toothfish operators). Though a less than perfect solution, the imminent threat of extinction merits serious actions that may temporarily affect all fishers, until IUU fishers can be targeted and stopped. (476) Balton statement, supra note 237. (477) Id. (478) UNCLES, supra note 14, art. 89, 21 I.L.M. at 1287. (479) Christopher P. Mooradian, Protecting "Sovereign Rights": The Case for Increased Coastal State Jurisdiction Over Vessel-Source Pollution in the Exclusive Economic Zone, 82 B.U.L. REV. 767, 816 (2002). (480) See supra Part III.A.1. (481) Fish Stocks Treaty, supra note 54, arts. 18-19. Article 18 lists multiple duties of flag states, including ensuring compliance with RFMO measures. Id art. 18. This ks qualified somewhat by article 17(4), which directs non-flag states to deter non-RFMO party vessels from violating RFMO measures. Id art. 17(4). See supra Part III.B.1 for specific rights and obligations of states fishing in zones regulated by the Fish Stocks Treaty. (482) A treaty creates neither rights nor obligations for non-party states unless they consent. U.N. Vienna Convention on the Law of Treaties, May 23, 1969, arts. 34-38, 115 U.N.T.S. 331, 341. Interestingly, the Fish Stocks Treaty subjects states that are not party to the RFMO and do not agree to conservation measures established by the RFMO to those measures, providing that such states are "not discharged from the obligation to cooperate ... in the conservation and management of ... straddling ... and highly migratory fish stocks." Fish Stocks Treaty, supra note 54, art. 17(1). (483) The Viarsa pursuit cost Australian taxpayers approximately $5 million. Louise Yaxley, Tough New Penalties for Illegal Fishing Operations (Australian Broadcasting Company Local Radio broadcast, Nov. 26, 2003), http://www.abc.net.au/worldtoday/content/2003/s997911.htm. For references to the possible cost of the Viarsa pursuit to South Africa, see Andrew Darby & Orietta Guerrera, Government Could Net $1.3M for Fish After Sea Chase Ends, THE AGE, Aug. 29, 2003, http://newsstore.fairfax.com.au/ apps/newsSearch.ac?page=1&sy=age&sp=nrm&so=relevance &dt=selectRange&kw=Fish+After+Sea +Chase+&dr=5years&pb=all_ffx&rc=10&sfx=h eadline&sfx=text&submit=Search (fee required for access). Australia plans to increase the maximum frees levied on IUU fishers, in part because of the large costs of enforcement actions by Australia in its capacity as a responsible coastal state. Fisheries News, MERCOPRESS, Nov. 30, 2004, http://www.mercopress.com/Detalle.asp?NUM=2925. In 2002, 111 vessels were apprehended for illegal fishing offenses in Australia's fishing zone. Australian Government Department of Agriculture, Fisheries and Forestry, Overview of Illegal Unreported and Unregulated Fishing, at http://www.affa.gov.au/ content/output.cfm?ObjectID=446232C4-D2A24D87-9FE743D39C47AFF9 (Sept. 17, 2003). Australian fisheries minister Ian McDonald pledged an $80 to $100 million commitment after the Viarsa chase to fund armed patrols to protect Australia's fisheries. Commonwealth of Australia, Australian Navy Catches Suspected Poacher, FALKLAND ISLAND NEWS NETWORK, Jan. 24, 2004, at http://www.falklandnews.com/public/ story.cfm?get=2589&source=3. The Australian government allocated over $84 million for the next two years toward a dedicated civil charter vessel (outfitted with twin deck-mounted .50 calibre machine guns), and salaries and training for 60 specialists to man armed patrols of the Southern Ocean. Media Release, Australian Customs Service, Customs Record-Breaking Year (Nov. 3, 2004), http://www.customs.gov.au/site/page.cfm?c=%204806. Just days after the Southern Supporter seized the Viarsa, Australian fisheries officers spotted the Ghanaian-flagged Alos in Australia's fishing zone, hauling longline fishing gear and suspected of fishing toothfish illegally. ENN, Australia Hunts Another Suspected Poaching Ship, http://www.flmnh.ufl.edu/ fish/innews/poachingship2003.htm (Oct. 8, 2003). The Royal Australian Navy recently captured the Maya V, flagged by Uruguay like the Viarsa, and suspected of fishing illegally within Australia's EEZ as well. Commonwealth of Australia, supra; "Maya V" Uruguay Waiting for Official Australian Report, MERCOPRESS, Jan. 27, 2004, http://www.mercopress.com/ Detalle.asp?NUM=3183; "Maya V" Crew Mostly Chilean, MERCOPRESS, Jan. 28, 2004, http://www.mercopress.com/Detalle.asp?NUM=3187; Suspected Toothfish Boat Under Escort to Australia, ABC NEWS, Feb. 1, 2004, http://www.abc.net.au/news/newsitems/s1035753.htm; Illegal Fishing Boat in Fremantle, THE AGE, Feb. 2, 2004, http://www.theage.com.an/articles/ 2004/02/02/1075570335102.html; Andrew Darby, Poachers Warned as Toothfish Vessel Brought In, THE AGE, Feb. 2, 2004, http://newsstore.fairfax.com.au/apps/newsSearch.ac? page=l&sy=age&sp=nrm&so=relevance&dt=selectRange&kw=Poachers +Warned+&dr=5years&pb=all_ffx& rc=10&sfx=headline&sfx=text&submit=Search (fee required for access). Accounts differ as to which company is behind the Viarsa and Maya V activities. See Flangini: "Toothfish Fishing is Not Restricted", supra note 83 (blaming Navalmar S.A.); Peter Collins, Fishers Challenge Australian Sovereigns: Commonwealth, SOUTH ATLANTIC REMOTE TERRITORIES MEDIA ASSOCIATION (SARTMA), Feb. 12, 2004, at http://www.sartma.com/ artd_711_02_2004_21.html (stating that the crew's employer was believed to be Alcimar S.A.). See also, e.g., COLTO Claims "Maya V," "Viarsa 1" Link, MERCOPRESS, Jan. 30, 2004 (listing companies linked to alleged illegal toothfish operators based in Spain, including Navalmar S.A.), http://www.mercopress.com/Detalle.asp?NUM=3203. This discrepancy shows the lack of transparency in vessel registration in ORs. In addition, several accounts associate both the Viarsa and Maya V with Spanish, Chilean, and Russian "[m]afia" that uses Montevideo as a port base for illegal toothfish trade. J. Brock, FINN (COM) Daily Record--Poaching, FALKLAND ISLANDS NEWS NETWORK, Feb. 12, 2004, at http://www.sartma.com/artd_711_02_2004 21.html. As the record of illegal fishing in Australia shows, Australia's efforts to control FOC-IUU fishing could prove ineffective without the support of other states. Australia's good faith efforts may also undermine its own ability to compete in the fishing industry due to the high costs attendant to actively fulfilling treaty and RFMO obligations that other states choose not to bear. Trade measures could reduce the effects of this comparative disadvantage. Dunoff, supra note 429, at 1437. See infra Part IV.C.1 for trade measures aimed at eliminating FOC-IUU fishing. In addition, Juanita Brock suggests a very different system to help states like Australia catch poachers: bounty hunters. Juanita Brock, Toothfish Pirates: There's Gold in Them There Thieves, SARTMA, Jan. 30, 2004, http://www.sartma.com/artd_672_01_2004 0.html. Brock's bounty hunter idea would authorize certain vessels and crews to actively hunt down poachers and receive a percentage of the free levied on the poachers. Id. But even tough enforcement policies like these are short term reactions, and must be complemented by trade restrictions on poached fish to reach the source of the problem. Tougher Laws for Illegal Fishers, WEST COAST SENTINEL, Feb. 19, 2004, http://ceduna.yourguide.com.au/detail.asp?class=news&subclass=local &category=general%20news&story_id=287006&y=2004&m=2. (484) The recent pact between India, Japan, and the United States provides an example of such cooperation. The pact, which covers shippIng lanes from the Indian Ocean to the western seaboard of the United States, aims to ensure "seamless scrutiny" of those areas. Indo-Asian News Service, Indian Coast Guard in Surveillance pact with US., Japan (Jan. 30, 2004), http://in.news.yahoo.com/040130/43/2b7v5.html. IUU fishing investigation on the high seas is even more difficult than in EEZs, requiring constant diligence on the part of RFSs since IUU "pirates" now conduct surveillance of their own--watching surveillance patrols and informing IUU vessel operators of Customs and Fisheries vessels' movement. Rare Fish Stocks Under Guard, NATIONAL NINE NEWS, Nov. 21, 2004, http://news.ninemsn.com.au/article.aspx?id=23048. (485) A coastal state with good reason to believe that a vessel has violated the laws and regulations of the coastal state has the right of hot pursuit. UNCLOS, supra note 14, art. 111(1), 21 I.L.M. at 1290. The pursuit must begin when the foreign vessel is "within the internal waters, the archipelagic waters, the territorial sea, or the contiguous zone of the pursuing state." Id If the pursuit is interrupted it cannot continue, and can begin only "after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship." Id. art. 111(4), 21 I.L.M. at 1290. Once the pursued vessel enters the territorial sea of its own state or that of another state, the right of hot pursuit ceases. Id. art. 111(3), 21 I.L.M. at 1290. Australia pursued the Viarsa under this right of hot pursuit, but the Viarsa escaped Australia's territorial sea and entered the sea of a third state, South Africa. Because South African authorities aided Australia, neither state's hot pursuit may have violated international law. For a discussion of the legal implications of the Viarsa pursuit, see E. Jaap Molenaar, Multilateral Hot Pulsuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi, 19 INT'L J. OF MARINE & COASTAL L. 1, 19-42 (2004). On March 12, 2004, an Australian federal district court dismissed a claim against the Commonwealth alleging it had unlawfully seized the Russian-flagged, toothfish-poaching vessel Volga in February 2002. Kemp Defends Toothfish Efforts, THE AGE, Mar. 13, 2004, http://www.theage.com.an/articles/ 2004/03/13/1078594610207.html. This ruling reiterates Australia's tough stance on illegal fishing in its EEZ, and does not bode well for Navalmar's challenge: The Volga judgment supports the Australian government's position that a foreign vessel that fishes illegally in Australia's fishing zone causes automatic forfeiture of vessel, equipment, and catch to the Commonwealth, and may be seized anywhere on earth by Australian officials. Media Release, Australian Fisheries, Forestry and Conservation, New Chapter in Maritime Law--Attempt to Claim Back the VOLGA Rejected (March 13, 2004), http://www.mffc.gov.au/releases/2004/04042m.html; see also Damien Carrick, The Law Report: Hot Pursuit on the High Seas (Radio National broadcast, Mar. 2, 2004) (discussing hot pursuit in maritime law, the Volga claim, and Australian precedent guiding the upcoming Navalmar trial), http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1055943.htm. For the Australian courts' judgments surrounding the Volga, see Olbers Co. v. Commonwealth of Australia, [2002] FCA 1269 (16 October 2002), http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/ cth/federal%5fct/2002/1269.html?query=%5e+volga; Lijo & ORS v. Commonwealth Director of Public Prosecutions, [2003] WASCA 4 (16 December 2002), http://www.austlii.edu.au/cgi-bin/ disp.pl/au/cases/wa/WASCA/2003/4.html?query=%5e+volga; Olbers Co. v. Commonwealth of Australia (No. 2), [2003] FCA 177 (11 March 2003), http://www.austlii.edu.an/cgi-bin/ disp.pl/au/cases/cth/federal%5fct/ 2003/177.html?query=%5e+volga; Olbers v. Commonwealth of Australia (No. 3), [2003] FCA 651 (26 June 2003), http://www.austlii.edu.an/cgi-bin/ disp.pl/au/cases/cth/federal%5fct/2003/651.html?query=%5e+volga. (486) See supra Part III.A.1 on flag state exclusivity. (487) Mick O'Donnell, Fishing Crews Do Battle With Toothfish Pirates (Australian Broadcasting Company 7:30 Report Broadcast, Nov. 17, 2003), http://www.abc.net.au/7.30/content/ 2003/s991128.htm. (488) See supra Part III.B. 1. (489) Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, Nov. 24, 2003, Austl.-Fr., available at http://www.austlii.edu.au/au/other/ dfat/nia/2004/9.html. At the time of this Comment's writing this treaty bad not entered into force. (490) In addition, one commentator has advocated pursuit of human rights claims under the Alien Tort Claims Act (ATCA), 28 U.S.C. [section] 1350 (2000), as a proxy for international environmental claims. See Natalie L. Bridgeman, Human Rights Litigation Under the ATCA as a Proxy for Environmental Claims, 6 YALE HUM. RTS. & DEV. L.J. 1, 1-2, 42 (2003) (arguing that ATCA suits with environmental claims arising from the same case or controversy are the best available method to achieve redress and corporate accountability for environmental abuse abroad). Using Bridgeman's model litigation strategy, a crew member-plaintiff could hypothetically bring suit under the ATCA against LISCR for its role in flagging an FOC-IUU fishing vessel, where the vessel owners or captains committed human rights abuses against the crew. See supra Part II.D.2, documenting labor violations on FOC vessels. This creative and complicated strategy is beyond the scope of this Comment. See Bridgeman, supra, for further details. (491) BIRNIE & BOYLE, supra note 113, at 194. (492) Id. at 195-96. (493) Id at 196. (494) See HUNTER ET AL., supra note 4, at 419-24 (describing this duty as central to international environmental law, part of customary international law, and the historical extension of the term "damage" to include environmental damage in 1941). CCAMLR's Executive Secretary Denzil Miller refers to acts by illegal fishermen as crimes against the environment. Hutchison, supra note 156. (495) BIRNIE & BOYLE, supra note 113, at 196. (496) See id. at 195-200 (explaining additional procedural requirements for standing in the ICJ). Australia would be a good candidate to pursue such a claim, due to IUU depletion of both EEZ and high seas toothfish stocks from which it harvests its RFMO-allotted quota. See supra notes 2, 82, 331-337, 340, 342, 404, 433, 485 and accompanying text (discussing IUU fishing in Australia's EEZ and the high seas area that borders it). (497) "So use your own as not to injure another's property." BLACK'S LAW DICTIONARY 1690 (7th ed. 1999). (498) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, pt. VI, [section] 1 (2003) (citing U.N. Doc.A/CN.4/1/Rev.1 (U.N. Pub. 1948, V.1(1)), at 34 (1949)). (499) UNCLOS, supra note 14, arts. 117, 118, 21 I.L.M. at 1291. (500) See supra Part II.C.1. (501) UNCLOS, supra note 14, arts. 139, 235, 21 I.L.M. at 1293, 1315. (502) Id art. 290, 21 I.L.M. at 1323. (503) As of February 25, 2005, 148 states were parties to UNCLOS. ITLOS, General Information-States Parties, at http://www.itlog.org/general_information/stat_parties/states-en.shtml (last updated Feb. 25, 2005). (504) Mary Elliott Rolle, Unraveling Accountability: Contesting Legal and Procedural Barriers in International Toxic Tort Cases, 15 GEO. INT'L ENVTL L. REV. 135, 193 (2003). (505) Id. (506) See Boats to be Tagged to Curb Illegal Fishing, supra note 320; O'Donnell, supra note 487; Darby, supra note 11 (reporting general dissatisfaction with COLTO XXII's minimal IUU measures adopted in November 2003). (507) BIRNIE & BOYLE, supra note 113, at 178-79. Scholars explain that it is even less likely that a willing plaintiff will emerge when the environmental harm is to common spaces, such as the high seas. Id at 199. However, rampant pirate fishing in the Southern Ocean directly burdens and sometimes bankrupts legal toothfish operators. COLTO, Alphabet Boats, supra note 148. States whose economies include a large fishing sector may be wilting to step up and overcome this common obstacle in international environmental claims. But in addition to the plaintiff problem, submitting to international tribunal jurisdiction is not obligatory, and the notion of state responsibility itself implicates uncertainty about the following: liability standards, identification of the parties who should bear costs of transboundary and common space violations, and the role that equitable balancing should play. BIRNIE & BOYLE, supra note 113, at 199. Therefore, international litigation over state responsibility can only supplement, not replace, environmental regulation. Id at 200. (508) Liberia did not ratify, accede, or succeed to UNCLES, the Agreement Relating to the Implementation of Part XI of UNCLES, or the Fish Stocks Treaty. U.N. Division for Ocean Affairs and the Law of the Sea, Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 1 February, 2005, at http://www.un.org/Depts/los/reference_files/ chronological_lists_of_ratifications.htm#The %20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea (last updated Feb. 1, 2005). Other IUU offenders, including Uruguay, Panama, and Mauritius ratified UNCLES and related agreements, thus submitting to ITLOS jurisdiction. Id (509) Fish Poachers Warned, supra note 331. (510) See STATE OF WORLD FISHERIES, supra note 5, at 23 (explaining that recovery of significantly depleted and overexploited fisheries resources requires "drastic and long-lasting reductions in fishing pressure"). JESSICA K. FERRELL * * [c] Jessica K. Ferrell, 2005. Current Materials Editor, Environmental Law, 2004-2005; Member, Environmental Law, 2003-2004; J.D. and Certificate in Environmental and Natural Resources Law expected May 2005, Lewis & Clark Law School; B.A. 1998, Cornell University (History). This Comment won the 2004 Davis Wright Tremaine International Law Writing Competition. The author would like to thank Professor Chris Wold for his generous substantive and editorial guidance, and former Environmental Law Notes & Comments Editor James Nelson for editorial assistance. |
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