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REFLAGGING AGREEMENT
Circumstances Surrounding International DiscussionDespite measures intended to ensure the viability of fish populations in international waters, the health of certain fish stocks has continued to decline. Although states willingly entered into conservation and management agreements, some members took actions to circumvent restrictions that international organizations placed on fishing fleets.
Fishing vessels formerly flying the flag of a state(8) participating in an international fishery organization increasingly reflagged, or re-registered, with non-member states. This action permitted a fishing vessel to evade international fishing restrictions as soon as the vessel transferred to operate under the authority of a country not bound by the measures. For example, to avoid the regulations of the North Atlantic Salmon Conservation Organization (NASCO), some European vessel owners went to flag-of-convenience states such as Poland (since Poland was not a member of NASCO), reflagged their vessels, and participated in regulated fisheries contrary to the provisions of the 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean. Fishing vessels from several Asian nations also sought reflagging as a means to avoid regulation. Additionally, newly built fishing vessels were flagged directly under nations that were not party to multilateral fishery organizations. Also, flagless vessels fished in international waters without authorization from any state. These activities diminished the effectiveness of international fishery management organizations.
Intended Goals of the Agreement
The Agreement to Promote Compliance With International Conservation and Management Measures by Fishing Vessels on the High Seas -- the Reflagging Agreement -- was adopted in Rome by consensus of the FAO Conference on November 24, 1993. This Agreement is based on Article 91 of UNCLOS, which obligates flag states to ensure that a genuine link exists between themselves and the vessels they register. The UNCLOS Article was intended to prevent reflagging or unjustified registration with non-member states, but has not achieved this result. The 1993 Agreement strengthens the general strictures of UNCLOS to improve the effectiveness of multilateral fishing organizations. The Agreement is designed to bring fisheries in international waters under greater control. In addition to assuring flag states' compliance with vessel registration duties, the Agreement dictates that party states maintain records of their fishing vessels operating in international waters and report pertinent information regarding the activities of their registered vessels to FAO. Such reporting will increase public knowledge of fishing in international waters. Yet, while Article 3(8) of the Agreement charges the Parties to assume enforcement responsibilities, it lacks clear guidelines. The Agreement will enter into force on the date that the Director-General of FAO receives the twenty-fifth instrument of acceptance. As of December 21, 1995, FAO had received eight instruments of acceptance.
Implications
The Reflagging Agreement establishes the basis on which fishing in international waters is to be conducted, promoting the goal of conserving and managing living marine resources. The United States, as a member of many international fishery organizations, could benefit significantly from the Agreement. The relatively well-regulated U.S. commercial fishing industry supports the Agreement, since it perceives its foreign counterparts as poorly governed. The Agreement supports and complements existing regional agreements to which the United States is a Party, making them more effective by discouraging circumvention by other member states. Although the Agreement cannot assure compliance by non-member states, it encourages their submission. Concern remains that some states will refuse to comply with the Agreement, and that flagless vessels may continue to plague management efforts .
President Clinton transmitted the Reflagging Agreement to the Senate on April 15, 1994, for advice and consent. The Senate approved the Agreement on October 6, 1994. (9) on November 3, 1995, President Clinton signed the Fisheries Act of 1995 (H.R. 716) as P.L. 104-43, with Title I containing provisions to implement the Reflagging Agreement. With implementing legislation enacted, the United States can formally ratify the Agreement.
The Reflagging Agreement may have little budgetary impact for the United States. The Congressional Budget Office (CBO) estimated that implementing the Reflagging Agreement will not require any additional financial expenditures for the United States. The costs of reporting U.S. fishing activities in international waters to the FAO are considered part of the normal operations of the Department of State. (10) The enforcement costs of the Agreement similarly will be part of the standard operating budget of the U.S. Coast Guard. (11) The National Marine Fisheries Service (NMFS) will be the Federal agency responsible for licensing U.S. fishing vessels operating in international waters (beyond U.S. jurisdiction). Despite the CBO cost estimate, NMFS might anticipate new expenses associated with the additional permitting requirements and responsibilities for monitoring fishing in international waters.
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