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SAFEGUARDING THE LEGITIMACY OF ILLEGAL, UNREPORTED AND UNREGULATED FISHING VESSEL LISTINGS

Published online by Cambridge University Press:  17 April 2019

Zoe Scanlon Open the ORCID record for Zoe Scanlon [Opens in a new window]
Zoe Scanlon*
Affiliation:
Centre for International Law, National University of Singapore, [email protected].
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Abstract

Punitive measures taken against vessels listed on RFMO IUU vessel lists often have very direct effects on the individuals associated with those vessels, such as the owner or operator. With developments such as cross-listing mechanisms and cross-references in international agreements, the number of actors that are encouraged or obliged to take measures against listed vessels now extends to a much wider group, well beyond just the Members of the listing RFMO. The impacts of these punitive measures on such individuals are accordingly very significant. Despite this, however, these listing procedures contain relatively limited due process features. This article considers whether this could contribute to diminishing the perceived legitimacy of IUU listings and generate a risk of reluctance by some actors within the international community to impose punitive measures on listed vessels.

Movement towards enhanced due process in decision-making processes appears to be emerging within many international organizations in recognition of the fact that increasingly, individuals are directly affected by decisions of international organizations. Examining such developments in other fora, this article considers possible adjustments to listing procedures, which might assist in safeguarding the legitimacy and effectiveness of IUU vessel lists. IUU lists play a significant role in international efforts to combat IUU fishing, and upholding their effectiveness is accordingly of critical importance.

Keywords

public international lawUNCLOSlaw of the seaRFMOillegal fishingfisherieslegitimacy
Type
Articles
Information
International & Comparative Law Quarterly , Volume 68 , Issue 2 , April 2019 , pp. 369 - 398
Copyright
Copyright © British Institute of International and Comparative Law 2019 

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References

1 C Schmidt, ‘Addressing Illegal, Unreported and Unregulated Fishing’ (International Fisheries Compliance 2004 Conference, Brussels, September 2004).

2 ibid.

3 This is acknowledged in a number of international and national instruments. See eg Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA) (adopted 22 November 2009, entered into force 5 June 2016), Preamble, which provides that States Parties are ‘aware of the need for increasing coordination at the regional and interregional levels to combat illegal, unreported and unregulated fishing through Port State measures’. EC Reg 1005/2008 To Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing: International Cooperation Note, para 1. See also Kuruc, M, ‘Monitoring, Control and Surveillance Tools to Detect IUU Fishing and Related Activities’ in Vidas, D (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 107Google Scholar. It has also been recognized more generally that decision-making authority appears to be gravitating from the national to the international level, often on account of the inability of States acting individually to deal with relevant problems; see Ulfstein, G, ‘Institutions and Competences’ in Klabbers, J, Peters, A and Ulfstein, G, The Constitutionalization of International Law (Oxford 2009) 74Google Scholar.

4 United Nations Convention on the Law of the Sea (UNCLOS) (open for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 art 92; RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Juris Publishing 1999) 208; D Guilfoyle, ‘Chapter 10: The High Seas’ in D Rothwell et al., The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 209.

5 See further R Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Martinus Nijhoff 2004) 24.

6 In 2001, the International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing (IPOA-IUU) specifically recommended the establishment of information on, and the maintenance of records of IUU vessels, IPOA-IUU para 80.4, 90.5.

7 These RFMOs are: General Fisheries Commission for the Mediterranean (GFCM), Inter-American Tropical Tuna Commission (IATTC), International Commission for the Conservation of Atlantic Tuna (ICCAT), Indian Ocean Tuna Commission (IOTC), Northwest Atlantic Fisheries Organization (NAFO), Northwest Pacific Fisheries Commission (NPFC), North East Atlantic Fisheries Commission (NEAFC), Southern Indian Ocean Fisheries Agreement (SIOFA), South East Atlantic Fisheries Organization (SEAFO), South Pacific Regional Fisheries Management Organisation (SPRFMO),Western and Central Pacific Fisheries Commission (WCPFC) and Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (CCAMLR is not an RFMO, but takes measures for the conservation and management of fish stocks). The EU has also established an IUU list.

8 See T Lobach, ‘Combatting IUU Fishing: Interaction of Global and regional Initiatives’ in in D Vidas (ed) Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 122, calculating in 2010.

9 For an analysis of listing process differences among tuna RFMOs see C Van der Geest, ‘Combatting IUU Fishing: Continual Improvement and Best Practices for IUU Vessel Listing Measures in Tuna RFMOs’ ISSF Technical Report (2014).

10 See eg CMM 04-2017 Conservation and Management Measure Establishing a List of Vessels Presumed to Have Carried Out Illegal, Unreported and Unregulated Fishing Activities in the SPRFMO Convention Area (SPRFMO CMM 04-2017); Res 18/03 establishing a List of Vessels Presumed to Have Carried Out Illegal, Unreported and Unregulated Fishing in the IOTC Area of Competence (IOTC Res 18/03); CMM 2017-02 To Establish a List of Vessels Presumed to Have Carried Out IUU Activities in the NPFC Convention Area (NPFC CMM 2017-02); Conservation and Management Measure on the Listing of IUU Vessels (SIOFA CMM 2018/06).

11 The scope of these provisions is discussed further below.

12 This is generally the relevant standard, for example see SPRFMO CMM 04-2017 para 2, Conservation and Management Measure to Establish a list of Vessels Presumed to have Carried Out Illegal, Unreported and Unregulated Fishing Activities in the WCPO (WCPFC CMM 2010-06) para 4, Northwest Atlantic Fisheries Organization Conservation and Enforcement Measures 2018 (NAFO Measures) art 52, para 3(a); SIOFA CMM 2016/06 para 1.

13 See eg WCPFC CMM 2010-06; NPFC CMM 2017-02 para 7.

14 eg ICCAT Recommendation 11-18 para 3; SPRFMO CMM 04-2017 para 5, NPFC CMM 2017-02 para 8; IOTC Res 18/03 para 9(a).

15 eg WCPFC CMM 2010-06 para 9; NPFC CMM 2017-02 paras 11, 13, 17.

16 eg SPRFMO CMM 04-2017 para 5.

17 eg IATTC Res C-05-07; ICCAT Recommendation 11–18 para 5.

18 eg see IATTC Res C-05-07 para 6; NPFC CMM 2017-02 para 17; SPRFMO CMM 04-2017 para 10.

19 SIOFA CMM 2016/06 para 14(c).

20 WCPFC CMM 2010-06 para 15.

21 NAFO Measures art 53(2), NEAFC Scheme of Control and Enforcement art 44. NEAFC includes one further option: that the vessel only had on board unregulated resources caught in the regulatory area at the time it was engaged in the fishing activities which led to its placement on the IUU list in art 44(e). CCAMLR has a similar provision on vessels that have changed ownership, or that the measures taken are sufficient to ensure that flagging the vessel will not result in IUU fishing, CCAMLR CMM 10-06 (2016) para 14 and CCAMLR CMM 10-07 (2016) para 18.

22 IOTC Res 18/03 para 14.

23 See eg SPRFMO CMM 04-2017 para 12; IOTC Res 18/03 para 18.

24 See eg WCPFC CMM 2010-06 para 25.

25 However, in ICCAT, Members are not strictly legally obliged to do so, as the IUU listing framework is a recommendation (although notably, the term ‘shall’ is used, which is generally understood as binding treaty language).

26 See eg NAFO Measures art 54, North East Atlantic Fisheries Commission Scheme of Control and Enforcement (NEAFC Scheme of Control and Enforcement) art 45, SIOFA CMM 2016/06 para 18(i).

27 eg SPRFMO CMM 04-2017 para 14, Council Reg (EC) No 1005/2008 (29 September 2008) establishing a Community System to Prevent Deter and Eliminate Illegal, Unreported and Unregulated Fishing, amending Regs (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regs (EC) No 1093/94 and (EC) No 1447/199, art 27(1) (EU IUU Regulation) art 29(3).

28 See ‘Combined IUU Vessel List’ at <http://iuu-vessels.org/iuu>.’ A combined Tuna RFMO IUU vessel list has also been established, see <http://www.tuna-org.org/vesselneg.htm>.

29 This includes: the EU, whose IUU list automatically incorporates all vessels listed in all RFMO IUU vessel lists, EU IUU Reg art 30(1); NEAFC Scheme of Control and Enforcement (n 45) art 44(6) (only vessels on CCAMLR, NAFO and SEAFOs’ lists); NAFO Measures art 53(4)(d)(only in respect of NEAFC's list), SEAFO (in respect of CCAMLR, NAFO and NEAFCs’ lists) South East Atlantic Fisheries Organisation System of Observation, Inspection, Compliance and Enforcement (2017) (SEAFO System 2017) art 27(19), ICCAT Res 14-11 (in respect of other RFMOs managing tuna or tuna- like species), IOTC Res 18/03 para 35 (in respect of CCAMLR, CCSBT, ICCAT, SEAFO, SIOFA, SPRFMO and WCPFC; SIOFA CMM 2018/06 para 25 (in respect of CCAMLR, CCSBT, ICCAT, IOTC, IATTC, GFCM, NAFO, NEAFC, NPFC, SEAFO, SPRFMO, WCPFC); in CCSBT, the extended commission ‘may consider’ cross-listing on a case-by-case basis as agreed by the Commission in Resolution on Establishing a List of Vessels Presumed to have Carried Out Illegal Unreported and Unregulated Fishing Activities for Southern Bluefin Tuna (CCSBT IUU List Res) art 20.

30 See eg SPRFMO CMM 04-2017 art 16, where a vessel is operating in the SPRFMO Area.

31 Background for Agenda item VII.c.i, Chair's Report of the Third Meeting of the Tuna Regional Fisheries Organizations (Kobe III), La Jolla USA 12–14 July 2011, 19.

32 eg SEAFO System art 27(20); Res 14-11 Establishing Guidelines for the Cross-Listing of Vessels Contained on IUU Vessel Lists of Other Tuna RFMOs on the ICCAT IUU Vessel List in Accordance with Recommendation 11-18 (ICCAT Res 14-11); NAFO Measures art 53(4)(d)(i) and(ii); SIOFA CMM 2018/06 para 25-26; IOTC Res 18/03 paras 35–36.

33 eg information-sharing Memorandums of Understanding (MOUs) between RFMOs have been developed, observer status within RFMOs is extended to representatives from other RFMOs and a Regional Fishery Body Secretariat Network has been established, with the objective of the ongoing exchange of information among RFMO Secretariats.

34 Provided the decision of that RFMO was taken in accordance with the RFMO's rules and procedures and international law PSMA art 9(4).

35 FAO Voluntary Guidelines for Flag State Performance (2014), para 16(b).

36 IPOA-IUU para 66.

37 UNGA Res A/RES/71/123 para 69.

38 ibid para 99.

39 ibid para 75.

40 See UN FAO, ‘Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels’ <http://www.fao.org/global-record/en/>.

41 WTO, Negotiations on Fisheries Subsidies <https://www.wto.org/english/tratop_e/rulesneg_e/fish_e/fish_e.htm>.

42 ibid.

43 WTO, Introduction to Fisheries Subsidies in the WTO <https://www.wto.org/english/tratop_e/rulesneg_e/fish_e/fish_intro_e.htm>.

44 DG Miller, N Slicer and EN Sabourekov, ‘IUU Fishing in Antarctic Waters: CCAMLR Actions and Regulations’ in D Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 188.

45 eg Lobach noted in 2010 that eight vessels listed by NEAFC had been scrapped (n 4) 127.

46 Miller et al. (n 44) 188.

47 DS Calley, Market Denial and International Fisheries Regulation: The Targeted and Effective Use of Trade Measures Against the Flag of Convenience Fishing Industry (Martinus Nijhoff 2012) 118.

48 Pacific Island Forum Fisheries Agency, ‘IUU Tuna Blacklist from Six to Two after FSM Settles with Philippines’ (28 November 2015) <http://www.ffa.int/node/1609>; Lobach (n 8) 121. Listed vessels have also been characterized as ‘pirate ships’, see M Field, ‘‘‘Super-Fishing’’ Boat Damanzaihao Declared a Pirate Ship’ (Stuff 9 February 2015). <http://www.stuff.co.nz/world/south-pacific/65962131/superfishing-boat-damanzaihao-declared-a-pirate-ship>.

49 See eg E Talleksen, ‘Pacific Andes factory vessel lands on illegal fishing list’ (Undercurrent News 6 February 2015): Field (n 48).

50 J Smith, ‘Pacific Andes Touts Sale of China Fishery Fleet to Saudi Fund: Proposes $300m Venture’ (Undercurrent News 23 August 2016).

51 eg SIOFA CMM 2018-06 para 27; IOTC Res 18/03 para 39; SPRFMO CMM 04-2017 para 17.

52 Calley (n 47).

53 This will depend on the specific decision-making procedures of each RFMO. Some RFMOs require the consensus of all Members to take a decision, while others allow resort to a vote where consensus cannot be reached.

54 For example, the Extended Commission of CCSBT is comprised of only 8 Members while ICCAT has 52 Members.

55 S Chesterman, ‘An International Rule of Law?’ (2008) 56(2) New York University Public Law and Legal Theory Working Papers 70, 360.

56 Further, ITLOS jurisprudence has emphasized there is no ‘established criteria’ through which a vessel must flag to particular States. The requisite ‘genuine link’ between a flag State and vessel referred to in art 91 of UNCLOS has been held not to establish criteria by reference to which the validity of that vessel's registrations could be challenged by other States, but rather to refer to effective flag State duties , see the Saiga No 2 Case (St Vincent and the Grenadines/Guinea)) paras 82–83 and the M/V Virginia G Case (Panama/Guinea-Bissau) (14 April 2014) International Tribunal for the Law of the Sea, para 113.

57 See eg WCPFC CMM 2010-06 para 15; SPRFMO CMM 04-2017 para 9.

58 See UNFSA art 19, UNCLOS art 94(6), Compliance Agreement, art 3(8). These obligations are also often found in RFMO Conventions, see eg SPRFMO Convention art 25, especially arts 25(3)(d) and (e).

59 Usually to place a vessel on a final IUU list involves a decision as to whether to remove that vessel from the Provisional list.

60 Van der Geest (n 9) 17.

61 For example, domestic court delays in hearing the case or issuing a fine could result in a vessel being listed on the grounds that ‘effective action’ has not yet been taken.

62 IPOA-IUU para 66.

63 PSMA para 9.4.

64 National Plan of Action of the United States of America to Prevent, Deter and Eliminate Illegal, Unregulated and Unreported Fishing <http://extwprlegs1.fao.org/docs/pdf/usa163039.pdf> 27.

65 ibid.

66 UNGA Res A/RES/71/123.

67 Chair's Report of the Third Meeting of the Tuna Regional Fisheries Organizations (Kobe III), La Jolla USA 12–14 July 2011, 8 and 24. These arrangements have been implemented into some of the cross-listing arrangements of some RFMOs.

68 ibid 24.

69 D Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93(3) AJIL 596, 601.

70 J Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford University Press 2009) 41–2.

71 A Buchanan, ‘The Legitimacy of International Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010) 85.

72 See T Franck, ‘Legitimacy in the International System’ (1988) 82(4) AJIL 705, 706. Bodansky has also argued that trust that an institution will make decisions appropriately can also play a role in generating legitimacy while such trust can be lost by several factors in a decision-making process, see D Bodansky, ‘Legitimacy’ in D Bodansky, J Brunnee and E Hey (eds), Oxford Handbook on International Environmental Law (Oxford University Press 2007) 721–2. This might, for example, include a lack of due process.

73 Franck (n 72) 706.

74 ibid.

75 JE Alvarez, International Organizations as Law-Makers (Oxford University Press 2005) xi.

76 G Ulfstein, ‘Institutions and Competences’ in J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford University Press 2009) 74.

77 Bodansky (n 69) 596.

78 C Ferstman, International Organizations and the Fight for Accountability (Oxford University Press 2017) 1.

79 See eg International Law Commission, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’ (2011).

80 Ulfstein (n 76) 77.

81 Ferstman (n 78) 1; Ulfstein (n 76) 51, 80. Ulfstein notes that decisions now often target individuals directly, eg sanctions on individuals and counterterrorist measures. Often these measures are formally directed at States but are in reality aimed at private actors, see Alvarez (n 75) 245.

82 S Chesterman, ‘“I'll Take Manhattan”: The International Rule of Law and the United Nations Security Council’ (2009) 1 Hague Journal on the Rule of Law 67, 67.

83 Ulfstein (n 76) 60. Some consider that as they increasingly exercise power over individuals, international organizations should also be subject to human rights standards, see Ulfstein (n 76) 80. The ILC has also acknowledged that there are now a number of international organizations with ‘ever increasing functions’, thus their responsibility for wrongful acts appears to be of particular importance, see ILC (n 79) 2.

84 Ferstman (n 78) 1. Some have highlighted a reluctance among some such organizations to acknowledge their responsibility in the protection of human rights; see Ulfstein (n 76) 77.

85 C De Cooker (ed), Accountability, Investigation and Due Process in International Organizations (Martinus Nijhoff 2006) preface, xii.

86 For example by individuals who had lost property in UN operations, or international civil servants denied promotions or permanent contracts; see J Klabbers, Advanced Introduction to the Law of International Organizations (Edward Elgar 2015) 84–5.

87 ibid 85.

88 J Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press 2009) 293. For example, auditing of financial activities, compliance officers, boards of oversight, inspection units and similar mechanisms to provide internal scrutiny. For example, within the UN, internal tribunals were developed and a broader range of claims were considered, see Klabbers (n 86) 84–5. It was often seen that internal management would be preferable to being held accountable by others later, see Klabbers (n 88) 293.

89 UNSC Res 1267/1999 (19 October 1999).

90 Chesterman (n 82) 70.

91 ibid 69.

92 Kadi and Al Barakaat International Foundation v Council of the European Union, Joined case C-402/05 P and C-415/05 ECLI: EU: C: 2008: 461 (Kadi v EU) paras 322–326.

93 Chesterman (n 82) 70.

94 Kadi v EU paras 322–326.

95 UNGA Res 60/1 (2005) para 109.

96 Letter from the Secretary General of 15 June 2006 referred to in Security Council debate on 22 June 2006: UN Doc S/PV. 5474 (2006) 5 in Chesterman (n 82) 71.

97 At the 2005 World Summit, see S Chesterman, ‘The UN Security Council and the Rule of Law’ (2008) New York University School of Law, Public Law and Legal Theory Research Paper Series, Working Paper No 08-57 (Recommendation 11) in Ulfstein (n 76) 62.

98 UNSC Res 1730 (2006); UNSC Res 1732 (2006); UNSC Res 1735 (2006).

99 UNSC Res 1904/2009 (17 December 2009).

100 See eg Nada v Switzerland App No 10593/07 (Judgment of 12 September 2012) ECHR 1691, IHRL 2059 (ECHR 2012) para 211; Commission v Yassin Abdullah Kadi, Joined Cases C-584/10 P, C-593/10 P & C595/10 P (Kadi II) paras 133–134.

101 Fair Trials International, ‘Strengthening Respect for Human Rights, Strengthening INTERPOL’ (November 2013) 4. Their function is ‘to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender or similar lawful action’ Interpol's Rules on the Processing of Data, III/IRPD/GA/2011 (2016) (Interpol Data Rules) art 82.

102 Fair Trials International, ‘Written Submission to INTERPOL's Working Group on the Processing of Information’ (Fair Trials International Submission) (10 June 2015) 5.

103 US Congressional Appropriations Committee 2013, in Fair Trials International Submission (n 102) 2.

104 Fair Trials International Submission (n 102) 2.

105 eg UNHCR, OSCE, the European Union institutions, the Parliamentary Assembly of the Council of Europe and Fair Trials International in Fair Trials International Submission (n 102) 2.

106 Fair Trials International Submission (n 102). See German Chancellor Angela Merkel's criticism of Turkey's ‘misuse’ of red notices and shared concern among EU leaders that some States systematically use the system to target political opponents in A Ayasun, ‘Turkey's Latest Red Notice Highlights Abuse of Interpol System’ (The Globe Post 24 August 2017). See also Reuters staff, ‘Merkel Attacks Turkey's ‘Misuse’ of Interpol Warrants’ (Reuters 20 August 2017). Interpol was urged to impose sanctions for such abuse of the system, see Ayasun ibid.

107 Interpol Data Rules (n 101) art 86.

108 Fair Trials International Submission (n 102) 5. For example, the review guidelines were not public and there were concerns about compliance with Interpol's legal framework. Interpol's Constitution's aims include ensuring and promoting mutual assistance in ‘the spirit of the Universal Declaration of Human Rights’ Constitution of the ICPO-INTERPOL, I/CONS/GA/1956 (2008) art 2. Its Rules on the Processing of Data echo this commitment and aim to facilitate international cooperation with ‘due respect’ for individuals’ basic rights and require no intervention of a political, military, religious or racial character. Interpol's Data Rules (n 101) art 2.

109 This is the ECtHR's basic definition of ‘equality of arms’ in Fair Trials International Submission (n 117) 5.

110 ibid 6.

111 ibid 7.

112 ibid 5.

113 ibid 8.

114 In particular by establishing the Commission for the Control of Interpol's Files (CCF), Statute of the Commission for the Control of INTERPOL's Files [ii.E/RCIA/GA/2016].

115 A Tinsley, ‘Echoes of Kadi: Reforms to Internal Remedies at INTERPOL’ (EJIL: Talk! 20 January 2017) <https://www.ejiltalk.org/echoes-of-kadi-reforms-to-internal-remedies-at-interpol/>.

116 EU IUU Reg art 27(1).

117 ibid preamble, para 5.

118 EU IUU Reg (n 47) art 27(1), arts 26(2)(b) and (c) and arts 26 (3)(b) and (c).

119 ibid art 27(2). The term ‘elements’ appears to refer to evidence.

120 ibid art 27(2).

121 ibid art 27(2).

122 ibid arts 26(2)(b)–(c) and arts 26(3)(b)–(c).

123 ibid arts 27(5) and 6(a).

124 ibid art 28.

125 ibid art 28(2).

126 ibid art 28(2).

127 ibid art 28(3).

128 ibid art 29.

129 ibid art 37.

130 ibid arts 39 and 40.

131 ibid art 27(1). In accordance with art 5(3) of the Treaty of the Functioning of the European Union (Treaty) and the principle of proportionality.

132 ibid art 39.

133 ibid, preamble, art 39.

134 Charter of Fundamental Rights of the European Union art 41(1)(a) (the right to good administration).

135 Treaty of the Functioning of the European Union (Treaty of Rome) art 263.

136 ibid art 263(4).

137 D Chalmers, G Davies and G Monti, The Law of the European Union (2nd edn, Cambridge University Press 2010) 397. It was through this channel that the Kadi claims were brought.

138 In addition to the guiding principles in the EU Charter and Treaty of Rome.

139 Commission Reg No 468/2010 of 28 May 2010.

140 EU IUU Reg (n 47).

141 Suatech International and Others v Council and Commission (Case T-337/10) (2010/C 288/88), action brought on 17 August 2010.

142 It was also argued that there were no facts supporting a finding of IUU fishing by that vessel.

143 Ordonnance du President de la Quatrieme Chambre du Tribunal, 4 Juin 2014, T-337/10.

144 For example, casting votes in a secret ballot on the location of a secretariat's headquarters would not involve an obligation to give reasons for the decision, see B Kingsbury, ‘Global Environmental Governance as Administration: Implications for International Law’ in D Bodansky, J Brunnée and E Hey (eds), Oxford Handbook on International Environmental Law (Oxford University Press 2008) 64, 67.

145 Brunnée also notes that increased transparency can allow broader public scrutiny which may help ensure reasonableness in law-making and compatibility with the regime's goals in J Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements (2002) 15 LJIL 1, 45.

146 eg WCPFC IUU Vessel List.

147 eg IOTC IUU Vessel List.

148 eg SEAFO Non-Contracting Party IUU Vessel List.

149 eg IATTC, NAFO, NEAFC and GFCM IUU Vessel List.

150 eg NPFC IUU Vessel List.

151 eg SPRFMO IUU Vessel List, WCPFC IUU Vessel list.

152 eg SPRFMO IUU list, NPFC IUU list.

153 eg SPRFMO IUU list in some cases.

154 See eg IOTC Meeting Report (2017) IOTC-2017-S21-R[E].

155 See eg SEAFO Report of the 13th Annual Meeting of the Commission (2017) 4.

156 See eg SPRFMO Meeting Report (2017) SPRFMO-COMM-04(2017) 4.

157 WCPFC12 Summary Report (2016) 84.

158 See eg WCPFC13 Summary Report (issued 2 March 17) 30. Reports have arguably become more detailed in general, and there have been increasing calls generally for more transparency in RFMO dealings.

159 eg ICCAT Recommendation 11-18; Res C-15-01 Amendment to Res C-05-07 Establishing a List of Vessels Presumed to have Carried Out Illegal, Unreported and Unregulated Fishing Activities in the Eastern Pacific Ocean (IATTC Res C-15-01); SPRFMO CMM 04-2017 paras 1, 2.4; SIOFA CMM 2018/06 para 2.

160 eg WCPFC CMM 2010-06, para 2; SEAFO System art 28(3).

161 NAFO Measures art 49(1)(a).

162 For instance, Van der Geest suggests there is a strong argument that unauthorized fishing in national waters should be put through the IUU listing process, due to the potential impact on the management of the stock more broadly, to send a clear message that IUU fishing will not be tolerated (n 9) 17.

163 European Commission, Handbook to the Practical Application of Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing MARE A4/PS D(2009) A/12880 (EU Handbook on IUU Regulation) 80.

164 ibid.

165 Similarly, it has been argued that including a ‘context’ paragraph could assist in clarifying what severity of conduct should warrant IUU listing i.e. distinguishing between minor non-compliance and wilful and ongoing non-compliance. See Van der Geest (n 9) 10.

166 However, for a discussion of area of international law where this right is available to individuals, see Parlett, K, The Individual in the International Law System (Cambridge University Press 2011)CrossRefGoogle Scholar Ch 2.

167 ibid 47.

168 UNCLOS art 94.

169 Saiga No 2 Case [106].

170 UNCLOS, arts 292(2) and 110(1).

171 Treves, T ‘Article 292’ in Proelss, A (ed), United Nations Convention on the Law of the Sea (Hart Publishing 2017) 1883Google Scholar.

172 M Nordquist et al. (eds), United Nations Convention on the Law of the Sea 1982: A Commentary (1989) vol V, 67 (proposed by the United States).

173 C Brown, ‘‘‘Reasonableness” in the Law of the Sea: The Prompt Release of the Volga’ (2003) 16 LIJL 621, 629.

174 ibid.

175 Nordquist (n 172) vol V, 67.

176 H Correll, ‘Reforming the United Nations’ (2005) 2(2) IOLR 380 in Ulfstein (n 76) 67.

177 Bradlow, DD and Schlemmer-Schulte, S, ‘The World Bank's New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order’ (1994) 54(2) Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 392, 392–3Google Scholar.

178 ibid 395.

179 This will depend on the RFMO's legal framework.

180 It has been considered that such review mechanisms could increase the credibility of the UNSC's decisions, Martenczuk, B, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 (3) EJIL 517, 547CrossRefGoogle Scholar in Ulfstein (n 76) 66.

181 Fair Trials International Submission (n 102) 6. See eg Kadi v EU (n 92); Waite & Kennedy v Germany, App No 26083/94 European Court of Human Rights, 18 February 1999, Nada v Switzerland (n 100). The Fair Trials International Submission notes in particular that such internal mechanisms might be implemented to justify an organization's immunity from domestic courts but will also often also be for the same objectives as municipal systems—to promote fairness, justice, transparency and oversight, see Ferstman (n 78) 96.

182 Kingsbury (n 144) 66.

183 High Seas Taskforce, Closing the Net: Stopping Illegal Fishing on the High Seas (2006) 74.