Abstract
AbstractGlobal common concerns – including combating illegal, unreported and unregulated (IUU) fishing – necessitate effective global action to avoid displacing illegal practices to under-regulated jurisdictions. The response in international law has therefore included the obligation upon all states to exercise jurisdiction, albeit with varying clarity regarding the existence and scope of duties for each jurisdictional basis. This article argues that, through its non-cooperating third country identification procedure, the European Union (EU) has sought unilaterally to crystalize and promote the implementation of an obligation upon states to exercise extraterritorial active personality-based jurisdiction over their own nationals engaged in IUU fishing. This is demonstrated through an analysis of EU practice relating to Asian states and remains true despite the EU's non-cooperating third country identification procedure only formally targeting flag, port, coastal, and market states. The EU and Asian states have improved their laws governing nationals engaged in IUU fishing, but concerns over legal certainty arise.
Highlights
Combating the environmental, economic, and social scourge of illegal, unreported and unregulated (IUU) fishing is – as described in the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing
This article argues that, through its non-cooperating third country identification procedure, the European Union (EU) has sought unilaterally to crystalize and promote the implementation of an obligation upon states to exercise extraterritorial active personality-based jurisdiction over their own nationals engaged in IUU fishing
The EU and Asian states have improved their laws governing nationals engaged in IUU fishing, but concerns over legal certainty arise
Summary
European Commission, Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 as regards Fisheries Control, COM(2018) 368 final, 30 May 2018 (Commission Proposal), Recital 1. The question of due diligence obligations upon the state of nationality to address IUU fishing is certainly less clear, and is in a greater state of flux, than the more established duties of flag states, coastal states, and port states Much of this historic overview mirrors the evolution of port state responsibilities.[43] This suggests that a dedicated instrument covering the state of nationality may be necessary to develop the limited treaty-based obligations of contracting parties into generally accepted global standards.[44] This instrument would bolster the multilateral system and add credibility to the task of identifying non-cooperating states of nationality. As both results would serve the interests of the EU, the EU should pursue the development of such an instrument
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