15/06/2007 - Confusing rules may allow pirates to sail away

WEEKEND FEATURE: Confusing rules may allow pirates to sail away
EUROPEAN UNIONFriday, June 15, 2007, 23:50 (GMT + 9)
A report drafted as a result of a meeting of the Permanent Committee on Control and Enforcement (PECCOE) of the North East Atlantic Fisheries Commission (NEAFC) held in Bergen in April, was tabled during the extraordinary annual general meeting of the NEAFC taking place in London Wednesday and Thursday this past week.
The PECCOE report points to a number of weaknesses in the legislation, which hinder the different NEAFC member countries when enforcing Port State Controls over landings or transhipments (in ports of NEAFCs Contracting Parties) of frozen fish caught in the NEAFC Convention Area by foreign vessels. These weak points make it difficult when trying to sanction fishing vessels operating illegally.
Russia, despite being a contracting party, does not have national legislation making it possible to comply with the NEAFC convention, according to the report. A new legislation will come, but until than vessels blacklisted by NEAFC can still change from any other flag to a Russian flag. This has happened with three vessels.
The PECCOE report from the meeting describes the problem this way:
“The Chair [Martin Newman] described the case of the Cephey (a reefer that left the NEAFC area at the end of October 2006 and has been observed in Ghana, Africa in March this year), the Pavlovsk in Tallinn and St. Nicolas in the port of Kristiansund, and a representative of the Russian Federation added the Dolphin, which had been granted a Russian flag last year in the port of Murmansk. Even if these vessels had been granted Russian flags, they are held back in port and have not received licences or permission to fish. Legislation has now been introduced to bring Russian regulations in line with international legislation on illegal unregulated, unreported (IUU) fishing.
The European Union (EU) representative asked what would happen with the vessels that have acquired Russian flags. The representative of the Russian Federation informed that the authorities were still investigating the three vessels Dolphin, Pavlovsk, and St. Nicolas. If it is found that they have not violated fisheries legislation, the Russian Federation will propose that the vessels be taken off the NEAFC lists for IUU fishery. Russia had the means to control vessels under their flag. The EU representative noted that under the Scheme a Contracting Party is not allowed to grant a flag to vessels on the B-list.
The representative of the Russian Federation informed that they were not happy with the situation, but new legislation would prevent repetition of such cases.”
To further illustrate the problems facing the member countries the report describes the situation of five vessels called the "Rostock Five":
“The Chair informed, that according to reliable information, the “Rostock Five” in Kaliningrad have been granted Cyprus flags and been hauled by a Polish tug for scrapping in Latvia. The Ulla that has also resided in that port will be sent to India for scrapping. He thought this was a tremendous outcome although the procedures bringing them to scrapping were in contravention of the Scheme on all accounts, for example entering a port of a Contracting Party, granting of a Contracting Party flag and services by a Contracting Party."
This was an example where the operation of the Scheme had been adapted to match reality.
"There was no doubt that scrapping of these pirate vessels was a very good result of the NEAFC Scheme and its system of blacklisting vessels that undermine NEAFC regulations. The EU representative felt that introducing special rules for the scrapping of IUU vessels could formally amend the Scheme. The Norwegian representative suggested that the rebuilding of vessels was another possibility if an IUU vessel was effectively rebuilt for a quite different us, for example an inspection vessel, it would also be a tremendous outcome”.
The position taken by the Norwegian representative was a surprise. The Norwegian Directorate of Fisheries has their own blacklist of vessel. Many of these vessels are listed because they have been blacklisted by NEAFC.
According to the directorate is there is no opening for de-listing. A denial of licence based on appearance on the list will consequently be perpetual. But in the NEAFC meeting is Norway opening up for de-listing, which will be convenient for the country that now has the Nicolay Chudodvorets (Ex. St. Nicolas) laying in Kristiansund, denied any and all supplies. At the moment nobody is taking responsibility for the vessel, not Norway, not Russia and not the NEAFC. At one stage the vessel be an environmental hazard, if the vessel is not confiscated for other reasons other than being blacklisted.
In fact, despite Norway's own clause, not making de-listing possible, the NEAFC has an opening for de-listing of vessels. But it is far from clear. A number of vessels are now slowly turning in to a environmental problem because of unclear rules.
"The Chair referred to Article 44.4 c. setting out the rules on new owners. If a vessel is sold and it is re-flagged with a new owner, which fulfills all requirements, can the new flag state (which can now only be a non-Contracting Party) then give the assurances required?
There seems to be a conflict between Articles 44 and 45, especially with respect to transport vessels. The Norwegian representative was not in a position at this stage to discuss this in more detail. More time was needed for reflection. The EU representative pointed out that it was ultimately for NEAFC to decide that the requirements of Article 44 and 45 were fulfilled.
The Norwegian representative saw more problems than solutions for the moment. The question of ownership is not easily investigated because of the difference in transparency between flag states.
The Chair noted that it might simply be too difficult to find answers, but that was a decision for the NEAFC. He then went on to the question of whether legislation allowed the impounding of vessels in ports, which were left to rot by the quayside."
There are at present no exit strategies. There are vessels in Spanish and Portuguese ports, which may sink in the harbour. He invited delegations to reflect and come back with ideas addressing practical problems. The EU representative was not aware of any EU law dealing with this problem, but there might be Member State laws. The Norwegian representative found that these were questions of national law. It should be possible as a matter of insurance to bring the vessels from point A to B in national waters.
If a vessel is held back in a harbour, who can make the decision to scrap the vessel? The report clearly shows how unclear the situation is:
“The EU representative asked who was going to make decisions on scrapping? If the vessel owner had disappeared, should the flag state be involved? He found it an interesting but open question as to whether the port state has legislation in place.
The Norwegian representative noted that there may be national laws on payment or environmental risk in ports that allow the port state to get rid of a vessel, but initially it was a decision for the owner.
The Chair reminded the meeting of the situation of the Rostock Five in the winter of 2005. They received services and were allowed to leave later because of the safety of the port traffic. There should be a difference if they were allowed to leave for scrapping. The EU representative did not think that the present rules prohibited the vessel from leaving a harbour, if it was able to do so on its own.”
In other words, if an owner uses a tugboat, can a vessel, which is denied services in theory leave any European harbour? It was not clear when this was written whether the Extraordinary General Meeting of the NEAFC had any solutions to the problems presented.
But it is for sure a burning issue to have different national legislations changed and if possible streamlined so they not allow international agreements to be breached or circumvented. Until than the owners of vessels deemed to be blacklisted pirates will arm themselves with legal representation to find new ways to survive in what could be deemed a cat and mouse game being played out on the high seas.
Related articles:
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By Terje Engoewww.fis.com