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, |