I. INTRODUCTION
Illegal, Unreported and Unregulated (IUU) fishing poses one of the most significant global threats to fish stocks and undermines measures taken for their protection. Combatting IUU fishing has been a major challenge for the international community, and numerous cooperative global and regional measures have been taken to this end. One of these initiatives is IUU vessel ‘blacklists’, established by Regional Fisheries Management Organizations (RFMOs), which include vessels presumed to have engaged in IUU fishing, and against whom flag States have not imposed adequate sanctions. Listings are highly publicized and significant punitive measures are taken against listed vessels by many States and other actors across the international community (including some not directly involved in the listing process), which frustrate listed vessels’ ability to operate.
These punitive measures are directed principally at the vessel, rather than its flag State, thus the practical impacts on individuals associated with the vessel such as owners and operators are significant. Despite this, however, there are relatively limited due process features within these listing processes. In these circumstances, there is a risk that doubts may emerge as to the rigour and fairness of listing processes. Such doubts could prompt queries from actors not directly involved in listing processes as to whether all listings are warranted, thus diminishing their perceived legitimacy. This could, in turn, discourage such actors from taking punitive measures against listed vessels in some circumstances. A critical strength of IUU lists is the large number of actors now required or encouraged to impose punitive measures; creating an important mechanism to collectively sanction IUU vessels, which also circumvents some traditional doctrinal challenges in combatting IUU fishing. In this respect, IUU lists are a key tool in the global fight against IUU fishing and it is imperative that their effectiveness is upheld.
Such concerns are not unique to the vessel listing context. As international organizations across the international sphere have taken on expanded functions and increasingly make decisions that directly impact on individuals rather than States, many have built increased due process features into decision-making processes to ensure rigour, fairness and sound decisions. Similarly, in the RFMO vessel listing context, even minor adjustments may help ensure listings are consistently perceived as legitimate and that consequently, punitive measures are always imposed against listed vessels.
Section II of this article details the procedures for IUU listings, punitive measures taken against listed vessels and their practical effects. Section III outlines potential concerns with listing procedures including those arising from their limited due process features. It considers the possibility that the perceived legitimacy of IUU listings could diminish, and, if consequent reluctance to take punitive measures emerges, their effectiveness. Section IV considers the broader context, canvassing changes made in other international organizations to enhance due process in decision-making where individuals are directly affected. Section V considers options for enhancing due process in IUU listing procedures, concluding that even minor changes may assist in safeguarding the perceived legitimacy and effectiveness of listings and ultimately could contribute to improving protections for global fish stocks.
II. RFMOS AND IUU VESSEL LISTS
A. Background: RFMOs and the Fight against IUU Fishing
RFMOs were established to sustainably manage fish stocks collaboratively between their Member States within particular areas of ocean. They are comprised of Members who convene periodically and make collective management decisions in respect of fish stocks within an area of competence. RFMOs also play an important role in combatting IUU fishing.
IUU fishing poses a direct and substantial threat to the effective conservation and management of fish stocks and marine biodiversity, and has negative effects on food security and the environment.Footnote 1 Combatting IUU fishing is extremely challenging due to the difficulty of effectively monitoring large areas of ocean, the increasingly sophisticated tactics of IUU fishers, technological advances that facilitate such tactics, and the ability of IUU fishers to move to new areas without being caught.Footnote 2 It has increasingly been recognized that to effectively combat IUU fishing, improved cooperation and coordination between States is necessary.Footnote 3
Additionally, the fundamental doctrine that a vessel's flag State has the exclusive right to exercise jurisdiction over that vessel on the high seasFootnote 4 has meant the strength of regulation over each vessel necessarily rests on the flag State. However, inadequate flag State controlFootnote 5 has demonstrated that collective action or increased regulation by other States (eg port, coastal and market States) is necessary to effectively combat IUU fishing. Many ‘non-flag State enforcement’ initiatives have accordingly been developed, including the establishment of RFMO IUU lists. They play a critical role in combatting IUU fishing as they remove reliance on effective flag State control by requiring all Members of the listing RFMO (and in some cases, other States) to take action against non-compliant vessels when the flag State has not adequately done so.
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was the first body to establish an IUU list in 2000.Footnote 6 Today, 12 RFMOs have IUU lists,Footnote 7 which combined, means well over 100 States are involved in decision-making for at least one list.Footnote 8
B. IUU Listing Procedures
Although there are some differences, on the whole, IUU listing processes across RFMOs are relatively similar.Footnote 9 Vessels that are ‘presumed’ by the relevant RFMO Commission to have carried out IUU activities in that RFMO's area are placed on an IUU list which is updated each year through a listing process. The legal framework and procedures for IUU listing processes are set out in specific legal instruments adopted by the relevant RFMO.Footnote 10 These instruments outline a definition of IUU activities, the procedure through which vessels are added to and removed from lists, and Members’ obligations to take punitive measures against listed vessels.
The definition of ‘IUU activities’ is broad and includes an enumerated list of activities. These include: fishing without being on the RFMO's registered vessel list, fishing without remaining allocated quota, not reporting catch, fishing in a closed area, transhipping or supplying a vessel on the IUU list or using prohibited fishing gear, for example. A catch-all provision generally also encapsulates any other fishing activity contrary to that RFMO's measures.Footnote 11
The secretariat compiles a draft IUU list comprising all vessels whose names have been transmitted by a Member who has presumedFootnote 12 the vessel to be carrying out IUU activities, with supporting evidence. There is no strict evidentiary standard for nomination of a vessel, and the form of accompanying evidence envisaged differs between RFMOs. Secretariats do not exercise a screening function, thus all nominated vessels and accompanying evidence are included in the draft IUU list.
The secretariat then circulates the draft IUU list and accompanying evidence to Members and the flag States of listed vessels.Footnote 13 Flag States are generally requested to inform the vessel owner of the proposed listing and its consequences.Footnote 14 There is generally then an opportunity for flag States to submit evidence that the vessel did not engage in IUU fishing or of punitive measures taken,Footnote 15 although this is not explicitly extended to RFMO non-Member flag States in all cases.Footnote 16 Most processes then allow Members or cooperating non-Members to provide additional relevant information at any time, although again, this is not always explicitly extended to non-Member flag States.Footnote 17
At the annual meeting of a subsidiary body of the RFMO—usually a Compliance Committee (or equivalent) the draft IUU list is considered and the Committee determines which vessels to include (or in some cases, not remove) in a Provisional IUU list. At that point, although not explicit in the legal frameworks, Members may have the opportunity to question the relevant flag State on the evidence or measures taken to address the misconduct, and flag States may have the opportunity to defend the vessel's conduct.
The standard against which the decision whether or not to list a vessel must be made varies slightly between RFMOs. Most commonly, a vessel should not be included on the Provisional list if, inter alia, the vessel's flag State can demonstrate or prove that the vessel did not take part in any listed IUU activity, or, if ‘effective action’ has been taken in response to the IUU fishing activities in question, including prosecution and/or imposition of sanctions of adequate severity.Footnote 18 In some RFMOs, there are additional scenarios that would justify a vessel not being listed. These include being able to comply with all of the RFMO's legal instruments,Footnote 19 where the ‘case has been settled’ to the satisfaction of the flag State and the nominating State,Footnote 20 where the flag State has taken measures to prevent the vessel engaging in further IUU fishing, where the vessel has been sunk or reassigned for non-fishing purposes, or changed ownership and the new owner has no involvement in IUU fishing,Footnote 21 or where the nomination process requirements (such as providing evidence) have not been met.Footnote 22
Once the Provisional list is agreed, the Compliance Committee refers it to the RFMO's main decision-making body (often, a Commission) along with any recommendations on adding or removing vessels from the list. The Commission will consider the Provisional IUU list, the supporting evidence, the recommendations of the Compliance Committee and any relevant new information, and will adopt a Final IUU list.Footnote 23
There is provision for a flag State to request the removal of its vessel from an IUU list, which should be accompanied by evidence that it has addressed the IUU conduct, broadly in the same ways that it would be required to when defending a vessel from a listing.Footnote 24
C. The Consequences of an IUU Listing and their Increasingly Widespread Nature
The consequences of an IUU listing are numerous and severe. Once listed, RFMO Members are required through their legal frameworks to take certain punitive measures against listed vessels.Footnote 25 These measures vary slightly between RFMOs but generally include at a minimum: to withdraw fishing authorization and not grant further licences; to ensure other vessels do not assist for example by processing catch; to refuse authorization to land or tranship catch, refuel, resupply or any other commercial transactions in their ports; to prohibit transhipment with listed vessels; to prohibit chartering of the vessel; to refuse to grant their flag (except where the vessel has changed owner, in some circumstances); to prohibit import and to encourage importers, transporters and other sectors to refrain from transactions, transhipment and processing of species covered by the RFMO's Convention that are caught by listed vessels.Footnote 26
There has been increasing appreciation of the impossibility of one State combatting IUU fishing alone, and accordingly, the necessity of cooperation and information-sharing to effectively address the problem. IUU lists are now shared widely across the international community. They are circulated to Members, listed vessels’ flag States, other RFMOs and/or the United Nations Food and Agriculture Organization (FAO), published on RFMO websites, and are sometimes provided to other actors as well.Footnote 27 A combined IUU list has been independently established and published.Footnote 28
Some IUU lists ‘cross-list’ (ie automatically incorporate all vessels on other RFMOs’ lists),Footnote 29 or require Members to take measures against vessels on other RFMO lists in particular circumstances.Footnote 30 Such arrangements have been encouraged, noting that their absence ‘can limit the effectiveness of the IUU vessel list as a tool, given that fishing vessels are capable of moving across ocean basins, even within a single year’.Footnote 31 Several do so unless there is an objection from a Member, in which case those vessels are placed on a draft or Provisional list and the evidence against the vessel is considered by the cross-listing RFMO.Footnote 32 This cross-listing is significant as it increases the number of actors that are obliged or encouraged to take measures against a listed vessel to a much wider group, well beyond just the Members of the listing RFMO. Such cross-listing is only likely to increase as RFMOs are increasingly sharing and coordinating such information to render their efforts more effective, and are increasingly encouraged to do so.Footnote 33
Beyond RFMOs, IUU listings also have broader impacts. Other international instruments also require or encourage action to be taken against IUU listed vessels. The Port State Measures Agreement (PSMA) requires State Parties to deny a vessel entry into port (or allow entry only to inspect and take actions against the vessel at least as effective as denial of port entry) where a Party has ‘sufficient proof’ of IUU fishing, ‘in particular the inclusion of a vessel [on an RFMO IUU list]’.Footnote 34 The FAO Flag State Guidelines encourage flag States to follow certain vessel registration procedures including instituting a ground for refusal to register a vessel ‘to the extent possible that it is on an IUU fishing vessel list’.Footnote 35 The IPOA-IUU provides that States should take all steps necessary to prevent fish caught by IUU listed vessels being traded or imported.Footnote 36 The United Nations General Assembly (UNGA) Sustainable Fisheries Resolution consistently urges States to exercise effective control over their vessels and nationals, specifically including IUU listed vessels.Footnote 37 It urges States and RFMOs to strengthen or establish vessel lists, to coordinate and share them,Footnote 38 to develop a common IUU list and to recognize each other's lists.Footnote 39 The Global Record of Fishing Vessels, developed by FAO, is a global public database of information on fishing vessels.Footnote 40 It allows States to conduct risk assessments and make informed decisions on particular vessels, including, for example, whether to register a vessel or allow a vessel to enter its port or use port services. The Global Record indicates whether each vessel is IUU listed to assist States in making those decisions.
Negotiations are ongoing within the World Trade Organization (WTO) with the aim of adopting a new binding agreement to clarify and improve WTO disciplines on fishing subsidies. Specifically, this agreement would include ‘comprehensive and effective disciplines that prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing’, and would ‘eliminate subsidies that contribute to IUU fishing.’Footnote 41 This demonstrates a commitment to delivering on Sustainable Development Goal 14.6 which calls for the prohibition and elimination, by 2020, of fisheries subsidies that contribute to IUU fishing and to overcapacity and overfishing.Footnote 42 Several submissions have proposed prohibitions on paying subsidies in respect of any vessel on an RFMO IUU list, or in some cases, in respect of any vessel operated by an individual who also operates a listed vessel.Footnote 43
D. Practical Impacts of IUU Listings
These cross-listing and associated arrangements illustrate the breadth and severity of consequences of listings. IUU listings have come to represent a kind of ‘reference point’ relied on by actors across the international community not directly involved in the listing process, to indicate a vessel's IUU status. The reach of an IUU listing thus now extends well beyond the listing RFMO, to a multitude of international actors then legally obliged or strongly encouraged to also take measures against a listed vessel. This extensive sharing and cross-listing enhances the potential that IUU listings hold in preventing IUU fishing vessels from operating. The potential for measures to be taken by a broad range of actors ought to prove an effective mechanism for circumventing the problems associated with exclusive flag state jurisdiction where flag State control is inadequate.
These punitive measures have a direct impact on the vessel owner and often, the vessel operator. If all States comply with these obligations, in theory, it should be very difficult for listed vessels to operate, as many States will not grant a licence to fish, permit landing, processing or transhipping catch, port entry, refuelling or trade of catch, or agree to register the vessel. As such measures restrict operational capacity and thus potential profit, there are significant financial consequencesFootnote 44 and, if catch cannot be sold, transhipped or brought into port, a fishing business can be rendered unworkable.Footnote 45 A listing can also reduce a vessel's resale value.Footnote 46 With this system working at its peak, Calley argues that theoretically, a listed vessel should effectively be stranded at sea with no way to land or tranship catch and without viable trade routes.Footnote 47
Further, there are clear reputational impacts. IUU vessel lists are often referred to as ‘black lists’,Footnote 48 and listings are sometimes reported in the media.Footnote 49 For example, in the high-profile bankruptcy of a large ‘beleaguered’ fishing company's subsidiaries associated with a listed vessel, ’the fact that it continue[d] to be on the IUU list’ was cited as an obstacle to its sale.Footnote 50 This impact might even persist once a vessel is removed from a list. Many legal frameworks specifically emphasize that sanctions must not be taken against vessels merely on draft or provisional lists or those that have been removed from lists—a clear implication of this risk and the significance with which IUU listings are viewed.Footnote 51
Clearly, therefore, for the owner and operator of the vessel, the impacts of an IUU listing are significant. However, there are also undoubtedly impacts on the crews, who may be left without work and could potentially be stranded in ports or at sea. In certain circumstances the impact of a listing may also be significant for the flag State. This might include where a vessel supplies large amounts of seafood product to its flag State, where a flag State's fleet is highly reliant on a listed vessel, or where listings could potentially contribute to bilateral issues potentially including trade restrictions. However, on the whole, it can be said that in most cases, the impacts of a listing would have a more significant immediate impact on individuals associated with the vessel.
III. CONCERNS WITH RFMO IUU LISTING PROCESSES
IUU listing procedures are relatively simpleFootnote 52 and are published online. Although there is nothing to indicate that RFMO lists contain vessels whose listings are unwarranted, and most cases will involve non-compliant vessels deliberately seeking to gain an advantage over legitimate fishers by breaking the rules, whose listings are robust, appropriate decisions, some aspects of these procedures potentially raise concerns.
Nonetheless, it must be acknowledged at the outset that a number of inherent safeguards against unwarranted listings exist in RFMO decision-making structures and processes. One key safeguard is the number of Members’ support required for a listing. Usually all Members’ agreement is required to list a vessel, or at least a significant majority.Footnote 53 The number of Members in each RFMO varies significantly,Footnote 54 however the fact that a listing necessitates universal or near universal agreement suggests compelling evidence will be required to secure the agreement of so many Members. This may mean that doubt on the part of only one State that a listing is warranted can prevent a listing.
The role of the flag State in RFMO listing processes also provides a significant safeguard for two reasons. First, flag States have the right to defend their vessels’ conduct. A responsible flag State should investigate, seek evidence from a vessel owner and raise defences on behalf of that vessel. Under public international law, the relationship of the individual to the State is generally defined by coerciveness, as one does not usually choose the State to whose laws one is subject.Footnote 55 However, in the law of the sea context, while there is a risk of an irresponsible flag State unwilling to defend vessel action, it must also be acknowledged that vessel owners choose their flag State.Footnote 56 In doing so, it might be argued that consideration should be given at that point to how responsible a flag State is likely to be in carrying out its various rights and duties, including defending that vessel's conduct from an IUU listing.
Second, RFMO frameworks provide that vessels should not be listed where the vessel's flag State has adequately sanctioned the conduct (generally, where it has taken ‘effective action’.)Footnote 57 This ought to ensure that where a flag State has sanctioned a vessel's misconduct adequately, that vessel will not be listed. Flag States are already required to do thisFootnote 58 and in theory, where effective flag State action has been taken, this removes the need to sanction the vessel collectively.
Finally, an RFMO listing requires the approval of two bodies – a Compliance Committee and a Commission. Opportunities to raise evidentiary issues or points of defence therefore exist at two key points in the process. Nonetheless, as with any decision-making process, the possibility of an unwarranted decision, or at the least the perception of an unwarranted decision, still exists. First, this might include problems relating to inadequate evidence such as fraudulent or incorrect evidence, a misunderstanding of events, or an absence of evidence to disprove wrongdoing. This is especially true since in many cases, the onus of proof can be said to effectively lie with the vessel's flag State.Footnote 59 It is also possible that an unwarranted listing decision could be reached for political reasons, or without adequate justification. Increasingly vessels have been nominated in response to failed bilateral negotiations between flag State and nominating State, or, in an attempt to prompt bilateral negotiations.Footnote 60 Often, folios of evidence are voluminous and for States with limited resources, investing time in detailed evidential analysis where a listing will not directly affect that State may not be the highest priority.
Second, an unwarranted listing could result from flag State negligence. The nomination could result from flag State misconduct, such as failing to submit vessel data or submit a vessel to a registered vessel list resulting in a vessel's non-compliance with a CMM, for example. Further, the quality of defence advanced by a flag State may vary significantly and could result in a listing. Some flag States may not attend the listing procedure, thereby forfeiting the opportunity to defend the conduct. They may decline to defend the conduct, or do so poorly, either by not presenting a persuasive defence or failing to submit relevant evidence or information. Furthermore, administrative delay in sanctioning the vessel within domestic systems could result in listing.Footnote 61
However, despite this, as outlined above, the risk of an unwarranted listing appears relatively low. Notably, for many, a more pressing issue in this context may be the difficulty in listing vessels. In particular, many RFMOs employ consensus-based decision-making, thus if a vessel flagged to a Member of that RFMO is proposed for listing, the flag State has the opportunity to effectively ‘veto’ the vessel's listing, even where all other Members have supported the listing. This creates the potential for vessels that ought to be listed to avoid listing. Notably, some RFMO IUU lists almost singularly contain vessels flagged to non-Members, or vessels without nationality.
However, any risk that does exist can be said to be augmented by the significant and wide-reaching consequences of a listing. Although the most significant impacts will often affect the individuals associated with the vessel more directly than the flag State, individuals impacted by these decisions are not afforded many due process rights in these processes. There has generally been little acknowledgement of the limited due process in IUU listing processes, however its importance has been alluded to in some contexts. The IPOA-IUU provides that listings should be ‘through agreed procedures in a fair, transparent and non-discriminatory manner’.Footnote 62 The PSMA only requires State Parties to deny port entry or inspect and take measures against a vessel where it is IUU listed ‘in accordance with the rules and procedures [of the RFMO] and in conformity with international law’.Footnote 63 The US National Plan under the IPOA-IUU states that reliance on ‘blacklists’, especially those created unilaterally, raises ‘issues of due process’,Footnote 64 but suggests implementing public education and business restrictions on the basis of multilateral RFMO lists may be possible.Footnote 65 The UNGA Sustainable Fisheries Resolution urges the establishment and strengthening of IUU lists but only consistently ‘with national and international law’.Footnote 66 At a joint meeting of tuna RFMOs, it was recommended that cross-listing principles be developed and compatible listing criteria and procedures be prioritized.Footnote 67 These principles included unifying procedures and criteria, allowing a cross-listing RFMO the option to decline to list a vessel, and improved information sharing.Footnote 68
A. The Perceived Legitimacy of IUU Listings
Although it is not suggested that IUU lists contain vessels whose listings are not warranted, the relatively limited due process elements in these processes—despite the significant consequences for affected individuals—may pose risks to the perceived legitimacy of listings and, as a result, their effectiveness.
For international organizations, legitimacy is highly important in justifying authority to govern. It is said that legitimacy underpins an authority's justification to prescribe legal rules or to decide cases,Footnote 69 thus, an organization with legitimacy holds a strong argument that it and the rules it creates ought to be obeyed.Footnote 70 Buchanan emphasizes that one important element of legitimacy is that those towards whom the rules are directed have substantial, content-independent moral reasons for compliance, and others have the same reasons for supporting (or at least not interfering with) the institution's efforts to secure compliance.Footnote 71 In this sense, while it is important that Members of RFMOs involved in listing decisions have such reasons to take punitive measures, it is also important that those actors not involved in listing decisions that are also required or encouraged to take such actions have reasons to comply with these requirements, based on a perception of the legitimacy of the listing organization's decisions.
The role of due process in generating this legitimacy should be seen as important. Franck suggests that legitimacy can be understood to mean the quality of a rule ‘which derives from a perception on the part of those to whom it is addressed that it has come into being in accordance with the right process’.Footnote 72 In this sense, it might be seen that the legitimacy of RFMO IUU listings would be generated from the satisfaction of those actors required to or encouraged to apply punitive measures, of the quality of RFMO listing decisions, on the basis of a sound process. Arguably, this is precisely where the perception of legitimacy is important, as punitive measures are now imposed by actors well beyond the listing RFMO, and these may expand even further in the future. If a listing procedure is not perceived as fair or rigorous by actors outside the RFMO, or there are doubts as to whether listing decisions are warranted, this carries a risk that listing processes and thereby, listings themselves, may not be perceived as legitimate.
This may particularly be so since listings have such severe consequences for affected individuals. Due process mechanisms improve the fairness of processes that affect individuals directly (for example, by providing reasons, outlining legal standards, or even providing a right to be heard or of review). However, they may also signal to those not involved in the decision-making process that decision-makers have considered evidence from both sides, have applied a consistent standard and have adequately justified their decision.
In light of these considerations, legitimacy appears an important element in fostering the continued imposition of measures against listed vessels and thereby the effectiveness of RFMO lists. This is particularly important in the context of the international system. Franck suggests that in the international system, States’ compliance is secured at least in part by the perception that a rule is legitimate by those to whom it is addressed.Footnote 73 Accordingly, in the international system, legitimacy should be seen as a crucial factor given the lack of other compliance-inducing mechanisms.Footnote 74 Indeed, many of the instruments seeking that States take punitive measures against listed vessels are non-binding, and even for binding measures, there are not always immediate consequences for a State that does not comply with international legal obligations.
Considering this, it seems providing robust due process mechanisms in IUU listing procedures may assist in upholding the perceived legitimacy of listings and help to ensure that actors required to take punitive measures against listed vessels are consistently willing to do so based on a perception that listing decisions are always made fairly and robustly. This is particularly important in the international system where in many circumstances there may not be any direct consequences for non-compliance.
IV. THE EXPANDING FUNCTIONS OF INTERNATIONAL ORGANIZATIONS AND INCREASING DUE PROCESS MECHANISMS
The question of due process and perceived legitimacy is not unique to RFMOs. Just as RFMOs’ functions have expanded, so too have those of many other international organizations, prompting questions about due process. Although in the context of RFMO listings there has been little consideration of these questions in surrounding literature, such concerns have been explored in respect of other international organizations and their decision-making processes. Such organizations have often made changes to enhance due process.
A. The Expanding Functions of International Organizations
As the number of international organizations has grown exponentially in recent decades, so too has the variety of measures they take, which now have a ‘pervasive impact’ on international law.Footnote 75 In some contexts, where problems cannot be resolved individually by States,Footnote 76 decision-making authority appears to have gravitated to the international level.Footnote 77 International organizations have thereby increasingly taken on ‘quasi State-like’ functionsFootnote 78 and their roles and responsibilities have expanded dramatically.Footnote 79 Although traditionally, international organizations’ activities have been directed only towards States,Footnote 80 as roles have expanded, they are increasingly empowered to make decisions that also affect individuals directly.Footnote 81 These include ‘law-making’ decisions but also extend in some cases to activities that resemble judicial or administrative decision-making.Footnote 82
It might be assumed such changes would impact the operation of such organizations, as, with increased decision-making power, the need for adequate controls on such powers increases.Footnote 83 However, the checks, balances and oversight that commonly exist in decision-making processes domestically have only partially been effected in most international organizations.Footnote 84 In some cases, therefore, in response to claims that decision-making is not subject to adequate control or legal standards, organizations have made changes to internal procedural mechanisms to better address this. However these changes were not immediate. In many different contexts, international organizations have suffered from bad reputationsFootnote 85 or faced domestic court claims about dissatisfaction with internal processesFootnote 86 and it increasingly seemed international organizations would suffer a ‘legitimacy crisis’ without improving internal accountability mechanisms.Footnote 87 In response, some improved self-regulation emerged.Footnote 88 The examples below highlight instances in which international organizations’ expanded powers impacted directly on individuals, generating pressure to improve due process mechanisms.
B. The United Nations Sanctions Regime
The UN Security Council (UNSC) sanctions regime required all UN Member States to freeze financial resources of persons or entities appearing on a list compiled by a UN Sanctions Committee.Footnote 89 This had a significant impact on those listed,Footnote 90 and as the UNSC's role expanded, questions were raised around the legal parameters of its powers.Footnote 91
The process was diplomatic and did not involve an independent arbiter,Footnote 92 or formal review,Footnote 93 and the listed individual could not access the evidence.Footnote 94 Individuals could petition their governments to request review from the Sanctions Committee, but neither States nor the Committee were obliged to act on petitions. The process attracted significant criticism. States called on the UNSC to ensure ‘fair and clear procedures’ for these listings.Footnote 95 Then UN Secretary General Kofi Annan stated that the sanctions were only useful where seen to be legitimate, which was dependent on due process. He listed as minimum standards: the right to be informed of a case, to be heard, to effective review, and periodic review of all sanctions.Footnote 96 It was recommended that the UNSC ensure transparency, consistency, equality, due process and proportionality.Footnote 97
The system was subsequently improved. A mechanism for delisting requests, notification of listings, and criteria for removal were established.Footnote 98 An ombudsperson was established to receive complaints from individuals, consider evidence and make recommendations on delisting.Footnote 99 However, this has not, in all cases, proved sufficient and subsequent domestic court decisions also found the system inadequate to uphold the UN's immunity from domestic courts’ consideration of these cases.Footnote 100
C. Interpol: Red Notices
Interpol facilitates a system of ‘Red Notices’—international wanted person alerts—circulated at the request of a Member State.Footnote 101 Red Notices can result in arrest, detention, restricted freedom of movement, employment problems, and reputational and financial harm,Footnote 102 and can have a significant impact on the individuals to whom they pertain.
Concerns emerged that some information circulated by Interpol had been received from ‘foreign governments fabricating criminal charges against opposition activists’ seeking their arrest in countries providing asylum.Footnote 103 Media reporting emerged on misuse of the system,Footnote 104 numerous organizations raised concernsFootnote 105 and confidence in the system appeared to be undermined.Footnote 106
Changes were made, including review of Red Notices before circulation,Footnote 107 yet it was considered that more time, resources and diligence was necessary in those reviews, as well as more transparency on their nature and extent.Footnote 108 An absence of equality of arms was alleged, as ‘one side [was] not able to comment on the observations and evidence of the other’,Footnote 109 reasons were not providedFootnote 110 and the decision-maker's expertise was, at times, considered problematic.Footnote 111 It was also seen as vital that an effective avenue of redress was available.Footnote 112 It was suggested these problems could be addressed by creating a body to hear complaints with strong procedural rights, reasonable time frames, binding reasoned decisions and an appeal mechanism.Footnote 113
In 2016 Interpol adopted major reforms to its internal complaints mechanism.Footnote 114 The review system had been much criticized, for lengthy proceedings, insufficient expertise of members and insufficient reasons for decisions. The reformed system includes a separate requests chamber, restricted timeframes, binding decisions with sufficient reasoning, panels constituted of lawyers with relevant expertise, a clearer basis for interim remedies and mutual access to evidence.Footnote 115
D. The EU Commission IUU List
The EU Commission IUU List resembles RFMO IUU lists.Footnote 116 It is part of the package of measures attempting to enhance the EU's action against IUU fishing.Footnote 117 Vessels are included on the EU list when information ‘establishes they are engaged in IUU fishing’ and their flag State has not complied with requests to take investigatory and enforcement measures.Footnote 118 Before listing, the owner and operator are provided with detailed reasons and evidence,Footnote 119 a right to seek or provide informationFootnote 120 and, where appropriate, a right to defend their case (and adequate time and facilities to do so).Footnote 121
There is an explicit requirement for a flag State to investigate the vessel's conduct and report back, and to take ‘immediate/timely enforcement action’ if allegations are proven founded.Footnote 122 If a vessel is listed, the owner/operator is notified and provided reasons.Footnote 123 A vessel can be removed if its flag State demonstrates it did not commit IUU activities or that ‘proportionate dissuasive and effective sanctions’ have been applied.Footnote 124 In the case of flag State failure, the owner/operator can seek review from the CommissionFootnote 125 but removal is only possible if the owner/operator provides evidence that the vessel is no longer engaged in IUU fishing,Footnote 126 is fully legally compliant, the owner/operator have no links to others engaged in IUU fishing, or, if two years have passed without reports of alleged IUU fishing.Footnote 127 The list is public, and is provided to Member States, RFMOs, FAO and any requesting individual.Footnote 128
Finally, the Regulation outlines action to be taken against listed vessels. These are similar to those measures outlined by RFMOsFootnote 129 but also require that member States ensure their nationals do not work on or operate listed vessels or sell or export a vessel to individuals involved in the operation, management or ownership of a listed vessel.Footnote 130
This regime differs in certain respects from RFMO listing processes. The provisions are more detailed and contain more extensive due process elements. The vessel owner and operator are notified directly, provided reasons, and have a right to be heard. In circumstances of flag State inaction, they may request review and provide evidence. There is also a higher evidential standard: the evidence needs to ‘establish’ that the vessel is engaged in IUU fishing and that the flag State has not investigated and sanctioned the conduct.Footnote 131 However, while RFMO frameworks require ‘effective’ action to sanction a vessel to avoid a listing, here, ‘timely’ or ‘immediate’ flag State sanctions are required, but the degree of severity is not mandated.
1. Due process and particularities of the EU legal framework
Particularities of the EU legal framework appear to have influenced the extensive due process elements in the EU listing regime. The preamble provides the Regulation does not go beyond what is necessary to achieve its objectivesFootnote 132 and that the measures are necessary and appropriate for the objective of eliminating IUU fishing.Footnote 133
The Charter of Fundamental Rights of the European Union provides that ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.’ The right includes ‘(a) the right of every person to be heard, before any individual measure which could affect him or her adversely is taken’ and ‘the obligation of the administration to have reasons for its decisions’Footnote 134 thus ensuring these individual rights are upheld within decision-making processes.
Furthermore, the annulment of an EU institution's act can be sought at the Court of Justice of the European Union (CJEU)Footnote 135 if of ‘direct and individual concern of that individual or entity.’Footnote 136 Review is available for rights of process including the provision of reasons, the right to a hearing where one's interests are restricted, the protection of one's rights of defence in the case of a possible sanction, and the right to due care by EU institutions.Footnote 137 Without adequate due process, there is therefore a risk that an EU Commission listing could face an annulment challenge by an affected vessel owner. It is likely in part for this reasonFootnote 138 that significant due process features exist.
The EU IUU listing process does not yet appear to have been used to list a vessel, but has automatically incorporated every vessel on every RFMO list. Notably, however, those RFMO listings are not subject to equivalent due process. In 2010 a fishing company sought annulment of the EU listing Regulation,Footnote 139 and the Regulation establishing the IUU list and associated punitive measuresFootnote 140 in so far as it established a listing procedure that did not respect the principle of audi alteram partem and gave rise to discrimination.Footnote 141 Its complaint was that the Marta Lucia R, a Colombian-flagged vessel, had been automatically incorporated into the EU IUU list by virtue of its Inter-American Tropical Tuna Commission (IATTC) listing. The claimant argued the vessel had been listed without the owner's right to be heard, and in violation of the principle of non-discrimination because, while EU listed vessels are listed through a process comprising a right to be heard, the Marta Lucia R had been denied that procedural right.Footnote 142 The case was withdrawn before judgmentFootnote 143 but nonetheless illustrates the potential for challenges on grounds of lack of due process in RFMO processes.
V. POSSIBILITES FOR ENHANCING DUE PROCESS IN RFMO IUU LISTING PROCESSES
Some other international organizations have built additional due process features into their decision-making processes to address perceived legitimacy concerns. Similar mechanisms may also help safeguard the perceived legitimacy of RFMO IUU listing decisions. However, comparisons between other international organizations and RFMOs and the appropriateness of such due process features require further scrutiny. When considering whether and which additional due process elements might be appropriate, the unique features of RFMO listing procedures outlined in Section III above, which act, to some degree, as safeguards against unwarranted listings, must be acknowledged. On account of these features, a ‘gold standard’ of due process is arguably not necessary in this context, and, given the existing difficulties in securing listings, any additions must not unnecessarily hinder the effective functioning of listing processes.
A. Potential Measures to Enhance Due Process in IUU Vessel Listing Processes
1. The provision of more extensive reasons
One mechanism to enhance due process in listing procedures would be to provide consistently clear and detailed reasons for listings. Judicial mechanisms (as opposed to purely political decisions) usually involve an obligation to provide convincing reasonsFootnote 144 to demonstrate the decision is not arbitrary, but rather, has a sound basis. While IUU listing processes more closely resemble administrative than judicial decisions, the same rationale is arguably relevant. Measures to provide more extensive reasons for decisions were taken both in the UN Sanctions Committee and Interpol. Aside from clarifying for associated individuals the precise justification for a listing, clearer and more detailed reasons may assist flag States in taking appropriate action to sanction a vessel prior to seeking delisting, and crucially, would also justify the basis of the listing to the broader international community, including those actors not directly involved in decision-making who nonetheless apply consequential punitive measures to listed vessels.Footnote 145
RFMOs take varied approaches to justifying and reporting on IUU listings, however most publish relatively limited reasons. Some IUU lists contain one sentence summarizing the IUU activity,Footnote 146 others list the CMM found to have been violatedFootnote 147 but often, not the specific paragraph, thus the precise misconduct is not clear, some list only a sighting locationFootnote 148 and others do not include reasons at all.Footnote 149 Some lists provide more detail or information which can include, for example, the coordinates and dates where the vessel was sighted,Footnote 150 the absence of a fishing authorization,Footnote 151 photos of listed vesselsFootnote 152 and in the most extensive cases, the type of evidence and the State that provided it.Footnote 153
RFMO meeting reports generally do not expand much beyond this. Some, for example, simply report whether or not each nominated vessel was listed,Footnote 154 without providing reasons or summarizing deliberations.Footnote 155 Others provide very brief, high-level reasons, such as the inadequacy of a fine issued by a flag State.Footnote 156 Others provide more detail in some cases, noting the adequacy of flag State sanctions and their value as a deterrent.Footnote 157 Some RFMO reports appear to have included increasing detail on IUU listings in recent years, although this may not necessarily include reasons. These include updates on flag State actions taken against listed vessels.Footnote 158
On the whole, it appears that providing clear, relatively detailed reasons for each listing, ideally within the IUU list itself, and doing so consistently for all vessel listings would be a positive development. Developing guidelines on providing adequate reasons might also be useful.
2. Evidential standards and publication
It is not clear what standard of evidence would justify a listing or what weight different types of evidence are given when listing decisions are made. Outlining a clearer evidential standard for listings and, to the extent possible, describing, providing or publishing supporting evidence for each listing may also increase due process in this context. This would arguably make clear to individuals associated with the vessel the basis on which the decision was reached but also demonstrate to the international community that a particular standard of evidence is consistently required to satisfy RFMO Members that each listing is warranted.
There is no requisite standard of evidence identified in listing processes and varied guidance exists on what forms of evidence might be appropriate. While some listing processes note simply that nominations will be considered when accompanied by ‘evidence’,Footnote 159 others provide more detail, suggesting this would include reports, reliable trade statistics and ‘suitably documented’ evidence from ports and fishing grounds.Footnote 160 In some cases the vessel must simply be ‘sighted or by other means identified’ fishing or engaging in support activities in the relevant area.Footnote 161 The evidence upon which a listing is based is not published and is rarely referred to in any reasons provided for a listing. Accordingly, actors not directly involved in listing decisions have very little appreciation as to how much and what kinds of evidence a listing is based on, and thereby, whether a listing is warranted. In this regard, outlining a clearer and more consistent evidential standard and/or guidelines on evidence that would justify a listing would make clearer to the international community that particular forms of evidence are sighted and relied on by Members when deciding to list a vessel. Here, a relatively low threshold arguably ought to be sufficient given the difficulty of detecting IUU fishing and obtaining evidence in broad expanses of ocean.
Similarly, including a description of the core evidence relied on in reaching a listing decision when providing reasons would assist in illustrating why a Commission was satisfied IUU fishing had occurred. A further option would be to publish some documentary evidence in reasons, where to do so would be appropriate. This would also help illustrate to individuals associated with the vessel the basis for its listing and additionally, satisfy the international community of the sound basis for the listing.
3. A clearer purpose and standard for IUU listing
Vessels can be nominated for listing based on a wide range of activities as the definition of ‘IUU activities’ is broad. It is defined by a long list including ‘catch-all’ provisions encapsulating fishing activity in violation of any legal measure of that RFMO. Accordingly, a vessel could theoretically be listed for very grave misconduct or relatively minor misconduct. This could include activities such as fishing with very minor inconsistency with gear or equipment specifications, late notification of transhipment activity or misreporting or non-reporting of data (if this were understood as ‘fishing activity.’) At the same time, it could include very severe conduct such as knowingly, deceptively and repeatedly fishing without a license, fishing in a closed area, with prohibited gear or for a protected species, for example.
The relevant legal frameworks understandably cast the net wide, to capture many types of harmful conduct and provide flexibility as to when IUU activity can be nominated and listed. However, despite this breadth, these frameworks rarely provide any indication of purpose or standard; that is, the objective of listing a vessel, and which conduct is considered severe enough to warrant listing. These two considerations appear inherently linked. Presumably, it is not intended that vessels be listed for all instances of very minor misconduct, and there is nothing to indicate that this occurs in practice. However, there may be different views among RFMO Members as to what conduct would warrant listing, and what listings should achieve.Footnote 162 It is not clear whether IUU listings are intended to punish the individuals and company associated with the vessel, to prevent financial gain from IUU activities, to ensure the vessel cannot repeat the IUU conduct, to act as a deterrent to others, to put pressure on the flag State to sanction vessel misconduct and improve control over flagged vessels, or a combination of these. Indeed, Members may use IUU lists for different purposes.
Some may consider that listing is a severe measure reserved only for grave breaches, while others may see an IUU list as a comprehensive list that ought to include vessels that have committed any non-compliance. Similarly, it is not clear how severe a flag State's sanctions should be to validly prevent a listing and whether IUU lists should capture any cases in which a flag State's response is seen as inadequate. Although the way these standards are applied falls within the discretion of each Member this effectively means that the relevant standard, beyond the very broad language of the legal framework, may not be uniform and is not transparent. This means this standard is not clear to the vessel owner or operator or the flag State, whose conduct will be judged against it. However, for the broader international community, including those who impose punitive measures on those vessels, it is also unclear what kind of conduct would have occurred to justify a listing and therefore how grave a listed vessel's misconduct necessarily was.
WCPFC includes a purpose statement for its IUU listing process: to create a list of vessels that have fished ‘in a manner which has undermined the effectiveness’ of the WCPFC Convention and/or measures. Yet given the conduct these measures include are so varied, this doesn't provide much guidance. The EU IUU list is described as ‘a measure of last resort to hinder the vessel from continuing to benefit from its IUU activities’,Footnote 163 noting that a vessel will only be listed if its flag State has failed to sanction it appropriately as this ensures such vessels are prevented from selling products in the EU and thereby profiting from those activities.Footnote 164 This statement seems to suggest that vessels should not be listed for any and every form of IUU conduct, although the legal framework appears to allow this.
Arguably, a clear, unified statement outlining in more detail the appropriate standard for listing and the purpose of IUU listing in each RFMO would be beneficial.Footnote 165 This would help to ensure Members use listing processes for a unified, identifiable purpose, and makes it less likely that IUU listings could be used to address minor domestic enforcement issues, for political reasons, and that proportionate action is taken against IUU fishing conduct. A clearer standard might help ensure that the severe consequences of a listing are not ultimately imposed on a vessel and associated individuals as a result of minimal misconduct or mishandling by the flag State, provided this is not the intention. It would ensure individuals associated with the vessel could understand what conduct would warrant a listing. It would also make clear to the international community, especially those that apply punitive measures based on a listing; the kinds of conduct that listed vessels have necessarily engaged in and demonstrate that vessels are not listed frivolously.
4. Allowing a vessel owner to be heard
In circumstances where a flag State fails to defend a vessel's conduct, or does so inadequately, a vessel owner is left without a genuine avenue of defence, even though the severe consequences of listings significantly impact those individuals. One manner of enhancing due process in this respect, which may be considered somewhat more radical, would be to allow a vessel owner or operator to be heard in certain circumstances.
Such a proposition, however, does not sit neatly with traditional doctrines of international law. In most circumstances, under international law, individuals do not have a right to bring international claims against States.Footnote 166 Rather, the long-accepted doctrine of diplomatic protection provides that injury to an individual by a foreign State is actionable by that individual's State of nationality.Footnote 167 Accordingly, individuals generally rely on their State of nationality to bring claims on their behalf. In the law of the sea, an analogous notion exists. Each vessel must flag to a State to participate in the system, and flag States are required to control those vessels and enforce compliance with legal obligations.Footnote 168 The ‘ship-as-a-unit’ principle provides that every part of a vessel, including all individuals ‘involved or interested in’ its operations, are linked to the flag State for the purpose of bringing claims.Footnote 169 This emphasis on the flag State is reflected in the fact that individuals, including vessel owners or operators, do not have a direct right to be heard under the UNCLOS dispute settlement framework, although applications for the ‘prompt release’ of vessels may be made on a flag State's behalf, when accompanied by that State's authorization.Footnote 170
The UNCLOS travaux préparatoires reveal that although the absence of a direct individual right to be heard is the accepted position in the law of the sea, this was not always assumed. During the negotiation of Article 292 on prompt release, there was significant debate on whether ‘interested private entities’ (like shipowners) should be permitted to make prompt release applications.Footnote 171 An early proposal suggested that the owner or operator should have a right to bring their vessel's detention before ITLOS to secure its prompt release.Footnote 172 Permitting this would have acknowledged that in such scenarios it is principally the interests of the vessel owner, not those of the flag State, at stake.Footnote 173 This has, at times, also been reflected in practice where private lawyers, rather than a flag State, advocate on a vessel owner's behalf.Footnote 174 Ultimately, despite that debate, there were strong objections and no consensus that an individual right to be heard should be provided in this context.Footnote 175
Furthermore, under international law more broadly, there are mechanisms in which individuals have a right to be heard when an international organization's decision directly affects their rights, on the basis that such individuals should not be left to the mercy of their State.Footnote 176 The UN Sanctions and Interpol Red Notices regimes provide examples of this. In addition, the World Bank Inspection Panel hears individual claims from those who allege they have suffered or expect to suffer material adverse effects from the World Bank's failure to follow its policies and procedures.Footnote 177 This is said to acknowledge that international organizations have a ‘legally significant, non-contractual relationship with private parties that exists independently of either the organization or the private party's relationship with the State’.Footnote 178
Allowing a vessel owner or operator to be heard in some circumstances may therefore enhance due process in listing procedures. As a central concern in this context is that a flag State may not adequately defend a vessel's conduct, an unlimited opportunity to be heard may not be necessary. When performed satisfactorily, the flag State role would seem to effectively negate this need. In this regard, permitting an owner or operator to be heard only where the flag State has not defended the conduct might be an option as it would ensure an opportunity to raise a defence, even in cases of flag State inaction. It would also illustrate to the international community that Members would always hear evidence both against and in defence of vessel conduct, and that vessels listings occur after consideration of evidence from both sides.
5. Administrative review
Finally, although a flag State may request delisting,Footnote 179 there is no opportunity for independent review of a listing decision within existing procedures. Across many areas of international law, internal review mechanisms have emerged within international organizations whose decisions affect individual rights,Footnote 180 after growing external pressure.Footnote 181
Certainly, this presents a more radical option for increasing due process. If an independent arbiter concurred that a listing was justified there could be little doubt that a listing was fair and warranted. However, as argued above, given an unwarranted decision is unlikely, that a flag State may seek a delisting on a vessel's behalf and that securing listings is often already challenging, it is not clear that a review mechanism would be necessary in this context. That said, a carefully designed, relatively limited mechanism (potentially only where a flag State was unwilling to defend the misconduct) would extend greater due process to individuals associated with the vessel and might also assist in ensuring a broad perception of legitimacy of listing decisions within the international community.
6. Conclusions on due process mechanisms
Including enhanced due process in listing procedures would extend greater rights to individuals associated with nominated vessels and would likely assist in illustrating to non-Members and the broader international community that listing decisions are the product of rigorous processes resulting in warranted and legitimate decisions. This may help to uphold the confidence of the international community in taking measures against listed vessels on the basis of these decisions, despite not being involved in the listing process. The EU IUU listing process contains some of these due process elements and indeed, the broader practice of international organizations appears to be moving in this direction. More broadly, global environmental governance has increasingly encompassed efforts to build accountability to actors affected by decisions of international organizations.Footnote 182
At the same time, it must be acknowledged that there are a number of inherent safeguards in the RFMO system and measures included in some cross-listing mechanisms allow Members to carefully consider whether each cross-listing is appropriate. Considering these factors, it may be that only relatively limited additional due process elements would be necessary. Further, while ensuring fairness and sound decisions, due process elements should not be so extreme that they frustrate listing processes, create excessive delays or render IUU listing mechanisms—a cornerstone of the international community's fight against IUU fishing—ineffective. Therefore, although in some circumstances providing an opportunity to be heard or a right of review may be considered excessive, it appears that the provision of clear consistent reasons, a clear purpose and standard, evidential standards and publication where appropriate would assist in upholding IUU lists’ perceived legitimacy.
VI. CONCLUSION
IUU lists play an important role in international efforts to combat IUU fishing. They are important mechanisms, whose influence and impacts have spread exponentially, and which circumvent some of the traditional legal constraints on effective action in this area. It has increasingly been understood that alone, individual States will struggle to effectively address IUU fishing and that information-sharing and collective measures are necessary to effectively combat the problem.
In the IUU listing context, significant progress has been made in recent decades in improving collaboration in the international fisheries sphere to render conservation and management more effective. Initially, IUU lists were not even shared among RFMOs.Footnote 183 They are now publicized in various ways, are widely shared, may feature cross-listing mechanisms and are referred to in international instruments which require or encourage a much wider range of actors to take punitive action against listed vessels. These are positive developments that should be supported as they render IUU lists more effective through their broader reach. Yet as such developments are introduced, appropriate safeguards should also accompany them.
Any doubt as to the perceived legitimacy of listings, even by a few actors, could jeopardize the unified resolve of the rest of the international community to take punitive measures against IUU vessels to frustrate their ability to operate. It is therefore important that IUU listings are uniformly perceived as legitimate—including by those not directly involved in listing decisions.
In this regard, given the direct impacts on individuals associated with listed vessels, enhancing due process in listing procedures would likely augment the perceived legitimacy of listings, and thereby, the effectiveness of IUU lists. Measures such as providing more detailed reasons, publishing or citing evidence for listings, clarifying the purpose of and standard for listings, or even conceivably allowing a vessel owner to be heard or limited administrative review, for example, might assist. However, given the existing safeguards as well as the challenges in listing vessels, any additional due process elements should not unnecessarily frustrate listing processes.
Movement towards enhanced due process in decision-making processes appears to be emerging within many international organizations across the international sphere. Seemingly, the traditional State-based system of public international law has transitioned towards a regime in which increasingly, individuals are directly affected by decisions of international organizations. As this has occurred, doubt has been cast on the assumption that States will always act responsibly and effectively in the representation and protection of their nationals or flagged vessels. With this expansion of international organizations’ functions and powers, many such organizations are making changes to increase due process in their decision-making. IUU listings have direct impacts on individuals and in light of this, strengthening due process would likely enhance their perceived legitimacy, as well as adhere to this broader movement in the future direction of the practice of international organizations.
