Although in theory, this all sounds like good news – In practice, these schemes are difficult to implement. Although they may appear to be a shark on paper, the boarding and inspection schemes have very few teeth to deter violations.
Key issues include the restriction on RMFO’s boarding and inspecting vessels at sea without legal authority and justification. It is true that a man’s boat is also his floating castle. In addition the high level of training required, lack of funding and the constant risk for damages for illegal boarding make the process rather ineffective.
There are actually two types of boarding and inspection schemes: one reciprocal boarding between members of the RFMO on the high seas and the other, boarding of non RFMO member fishing vessels on the high seas.
Reciprocal Boarding between members of the RFMO
This is often used to share the cost burden and also to set aside doubts as to the independence of national inspection. It gives the RMFO’s legal power to conduct reciprocal boarding of vessels who hold membership by the State to the RFMO agreement. In high seas fisheries context, this duty to cooperate includes the establishment of regional and sub-regional fisheries organizations (LOSC Article 118).
Each member of the RFMO has the obligation to ensure that vessels flagged do accept boarding and inspection according to the procedures established by that RFMO.
However, although it is good news that they have the power to board and inspect, it is not as straightforward in the area of evidence and prosecution. The reason for this is that any violations discovered, are still the responsibility of the flag state to investigate and prosecute (unless the RFMO agreement specifically states otherwise). Therefore, in many cases, prosecution is carried with no effective monitoring of prosecution or punishments by the flag state. The level of sanctions imposed against the vessel also depends on the legislation of the flag state and in many instances, they have lesser punishments for the fisheries offence committed than those specified by the boarding state.
Therefore, ultimately, the boarding process in is not seen to be particularly effective due to the often lower the penalty not being viewed as a real deterrent.
Boarding of non-RFMO member fishing vessels
These schemes are costly and provide fertile ground for disputes over topics such as participation, cost recovery, objectivity of inspectors, interference with fishing activity and economic loss.
There is also the issue of the evidentiary value of surveillance information and inspectors reports. For this scheme to be effective, it really requires a level of co-operation between national enforcement agencies which currently does not exist.
Several regional fisheries arrangements, such as the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (1982), and the Convention on the Conservation and Management of Pollock Resources (1992) in the Central Bering Sea (1992), include a joint enforcement scheme allowing for boarding, inspection and subsequent investigation by inspectors of States other than the Flag State on the high seas. It is, however; also appropriate to note that Article 21(15) of the Agreement allows for an alternative mechanism, other than boarding and inspection.
However, there are also a number of legal impediments which include the fact that only fishing vessels can be boarded, the timeframe for responses from the flag state, the lack of prosecutions by the flag state and the need to establish reasonable belief led to a limited number of boarding and inspections being conducted at sea.