Environmental Justice Foundation – Written evidence (UNC0036)

Is UNCLOS fit for purpose in the 21st century? Submission by the Environmental Justice Foundation

The Environmental Justice Foundation (EJF) is an international not for profit organisation working globally to combat illegal, unreported and unregulated (IUU) fishing. EJF promotes and encourages international information-sharing to enhance transparency in the fisheries sector.

How does UNCLOS need changing?

1)   UNCLOS must make explicit reference to climate change, engaging principles of justice

It is now clear beyond doubt that global heating is fundamentally changing both terrestrial and marine ecosystems - often to the detriment of communities in less economically developed countries. The harms that fall disproportionately to such communities are myriad - however fishing communities are particularly vulnerable to multiple and compounding stressors that drive poverty, food insecurity and conflict.

The challenges posed to ocean governance (both within and beyond national jurisdiction) are many – including the disappearance of island states; new shipping routes; access to resources emerging from melting ice; boundary disputes and issues of pollution and greenhouse gas emissions[1]. It is very clear that there is currently no sufficient international framework (be it UNCLOS or the UNFCCC) that pays sufficient attention to these concerns.

Take, for example, the UNCLOS dispute resolution mechanism – which does not currently consider in detail disputes that may arise from changing fish population distributions and changing marine boundaries. We can look to West Africa to see a clear example of how climate can lead directly to complex conflicts. Research suggests that as ocean temperatures increase, fish populations will move away from tropical regions (such as West Africa) in search of cooler waters, which will inevitably reduce the catch of fishers in the region. Fishers are already travelling further and for longer periods than in the past in response to dwindling returns on their excursions. This poses, and will continue to pose, significant challenges to transboundary disputes as fishers cross rigid national or institutional jurisdictions, either legally or illegally,  to maintain their livelihoods.

Beyond merely acknowledging and adjusting for changes resulting from global heating, any revisions that are made to UNCLOS must be done through the lens of climate and environmental justice – recognising that those impacted first and worst by the changing climate have contributed the least to the problem, and are often worst prepared to adapt due to structural and historical inequalities.  At the very least, any changes made to the convention must not exacerbate existing injustices, and where possible they should alleviate them. This will require participatory decision-making for any amendments, in which the voices of indigenous and marginalised communities are foregrounded and the inherent power imbalances that exist between nations and sectors of the fisheries industry (specifically, industrial vessels and artisanal fishers) are taken into account.

2)   Clearer definition of the ‘Genuine link’ required by a vessel and its flag

Article 91 of UNCLOS, under the heading ‘Nationality of ships’ states that: “Every State shall 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. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship”.

The contemporary fishing industry is replete with instances in which there is no clear or genuine link between a vessel and the flag state that it represents. For example, in Ghana, an estimated 90% of the trawl fleet is thought to be beneficially owned by Chinese state or corporate actors. However, these vessels are flagged to Ghana in their entirety, using local front companies in order to capitalise on a loophole in Ghanaian Fisheries Laws[2].

The widespread use of flags with which a vessel has no genuine connection creates a veil under which unscrupulous actors can circumvent taxes, conservation and management measures, fines and other punitive actions and ultimately avoid accountability for the operations of their vessels. There are considerable links to vessels using these ‘flags of convenience’ and high instances of illegal, unreported and unregulated (IUU) fishing – a phenomenon that jeapoardises the sustainability of ocean ecosystems and the communities that rely on it[3]. For example, a 2018 study found that 70% of vessels involved in IUU fishing were, or had been, flagged in a ‘tax haven’ jurisdiction[4].

In light of the above loopholes, legislation must ensure a genuine link exists between the flag state and the beneficial owner of a vessel, i.e. the natural body who ultimately owns the vessel. Often, the beneficial owner of a vessel is many times removed from the vessel - hidden behind complex corporate structures in order to reduce accountability and scrutiny. The concealment of beneficial ownership can also be costly to coastal states. EJF have found that sanctions imposed by the Ghanaian Fisheries Authority were disproportionately small - with the beneficial owners often being considerably larger entities than the registered owners[5]. Insufficient penalties fail to act as sufficient deterrents for IUU fishing, which can be highly profitable and can all too often be low risk. Opaque beneficial ownership also serves to hide economic concentration and aid actors in evading taxes[6].

That these practices continue seemingly unabated in global fisheries indicates that Article 91 is not being adhered to, at least in the spirit of the law. Providing a robust and unambiguous definition of what is meant by ‘genuine link’ – especially with regards to beneficial ownership – is the first step to providing a legislative framework which addresses the crippling lack of transparency that blights the fisheries industry.

Received 12 November 2021

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