REVIEW OF POLICY, LEGAL, AND INSTITUTIONAL ARRANGEMENTS FOR PHILIPPINE COMPLIANCE WITH THE WCPF CONVENTION Jay L. Batongbacal TABLE OF CONTENTS 1. INTRODUCTION 1 2. THE WCPF CONVENTION 3 2.1 General Background 3 2.1.1 The Commission 4 2.1.2 The Secretariat and Subsidiary Bodies 5 A. Secretariat 5 B. Other Subsidiary Bodies 6 B.1 Scientific Committee 6 B.2 Technical and Compliance Committee 6 B.3 Northern Committee 7 2.1.3 Decision-making 7 2.1.4 Cooperation with Other Organizations 8 2.1.5 Financial Arrangements 8 2.2 Management Policy in the Convention Area 8 2.2.1 Precautionary Approach 8 2.2.2 Ecosystem-based Approach 9 2.2.3 Compatibility of Measures 10 2.2.4 Due Regard for Disadvantaged and Good Faith 11 2.2.5 Management Actions 11 2.3 Member's Obligations 12 2.3.1 General Obligations 12 2.3.2 Compliance and Enforcement Obligations 13 A. Flag State Obligations 13 B. Boarding and Inspection 14 C. Investigation 15 D. Punitive Measures 17 E. Port State Measures 17 2.4 Conservation and Management Measures 18 2.4.1 Fishing Vessel Registry Standards 18 A. Vessel Marking and Identification 18 B. Authorization to Fish 19 C. Record of Authorized Fishing Vessels 20 D. Commission Vessel Monitoring System 21 E. IUU Vessel 'Blacklisting' 21 F. Charter Notification Scheme 22 G. Vessel Without Nationality 22 2.4.2 Fishing Operation Regulations 23 A. Transhipment 23 B. Gear Restrictions 24 C. Catch Retention 25 D. Area/Season Closures 25 E. Mitigation Measures 26 2.4.3 Species-specific Restrictions 27 2.5 Other 'Soft' Obligations 28 2.6 Peaceful Settlement of Disputes 29 3. PHILIPPINE NATIONAL POLICY AND LEGAL ARRANGEMENTS 30 CONCERNING HMS FISHERIES 3.1 General Policy 30 3.2 Institutional Arrangements 31 3.3 Regulations 33 3.3.1 Fishing Vessel Registry 33 3.3.2 Operational Regulations 35 3.3.3 Gear Restrictions 35 3.3.4 IUU Fishing Measures 36 4. REVIEW OF NATIONAL POLICY, LEGAL AND INSTITUTIONAL 37 ARRANGEMENTS IN LINE WITH WCPFC REQUIREMENTS 4.1 CMMs That May Be Inapplicable 37 4.2 Internal Actions by BFAR 38 4.2.1 Information 38 4.2.2 Investigation 40 4.2.3 Other Activities 40 4.3 Amendments to Existing FAO on Fishing Vessel/Gear Licensing 41 4.4 Obligation Related to/Affected by Existing Regulations 42 4.5 Obligations Requiring New Regulations 43 4.6 Obligations Requiring New Legislation 43 5. IMPROVEMENT NEEDS 44 5.1 Administrative Adjustment 44 5.2 Fishing Vessel Registry Reform 44 5.3 Review of Philippine International Fishing Fleet Operations 45 5.4 Review and Harmonization of Data-gathering and Reporting Procedures 45 5.5 A “One-Stop Shop” FAO for International Fishing 46 5.6 A Manual of Operations for the Philippine International Fishing Fleet 46 Operating in the WCP 5.7 Coordination with Other Maritime Agencies 46 5.8 Institutional Arrangements 47 5.9 Suggested Agenda for Action 50 6. CONCLUSION 50 ATTACHMENTS A. Related Tables Comparative Matrix of WCPFC Member Obligations with Philippine Policy/Law/Institutional Arrangements – including comments of stakeholders at the November 16-18 Workshop Institutional Arrangements – comments of stakeholders at the November 16-17 Workshop B. Laws Republic Act No. 8550. The Philippine Fisheries Code of 1998 Republic Act No. 8435. The Agriculture and Fisheries Modernization Act of 1997. Presidential Decree No. 704. The Philippine Fisheries Decree of 1975 Executive Order No. 209. Incentives for Commercial Fishing (including Annexes) C. Regulations FAO 183, s. 1992. Prohibiting importation of tuna from certain countries. FAO 188, s. 1993. Regulations on fishing operations with use of tuna purse seine nets. FAO 191, s. 1995. Employment of foreign crew onboard specialized fishing vessels. FAO 198, s. 2000. Rules and regulations on commercial fishing (licensing) FAO 199, s. 2000. Transhipment. FAO 200, s. 2000. Poaching in Philippine waters. FAO 222, s. 2003. Regulations on fishing operations with use of Danish seine. FAO 223, s. 2003. Moratorium on issuance of new CFVGL. FAO 223-1, s. 2004. Extension of moratorium. FAO 224, s. 2004. Tuna Productivity Project. FAO 226, s. 2008. Regulation on mesh size of tuna purse seine nets and trade in small tuna FAO 236, s. 2010. Regulation on operations of purse seine and ring net vessels using FADs, as compatible measures to WCPFC CMM 2008-01. REVIEW OF POLICY, LEGAL, AND INSTITUTIONAL ARRANGEMENTS FOR PHILIPPINE COMPLIANCE WITH THE WCPF CONVENTION Jay L. Batongbacal* 1. INTRODUCTION The 1982 UN Convention on the Law of the Sea (LOSC)1 and the 1995 UN Fish Stocks Agreement (UNFSA)2 mark important milestones in an evolutionary effort by the international community sought to establish some means of controlling fishing in what used to be considered the 'high seas' adjacent to their coasts. Agreement on what became Part III of the LOSC on the establishment of the exclusive economic zone (EEZ) extending coastal State jurisdiction seaward to 200M from shore in matters such as fishing represents the earliest mutual recognition of the legitimacy of coastal State interests and jurisdiction extending beyond the limits of the territorial sovereignty, both actual and ancillary. 3 Recognition of such a vast jurisdictional zone generated new challenges for coastal and fishing States: effective monitoring, control and surveillance; scientific stock assessment and allocation; and control of fishing effort by vessels and entities not under coastal State jurisdiction to ensure compliance with and success of national fishery management measures. Despite the fact that most commercial fishing activities in the 1970s were considered to be comprehended within the EEZ, the mere extension of State control even up to that distance could not address the impact of fishing activities beyond, in the high seas beyond any national jurisdiction. The interconnection and interaction between fish stocks in the EEZ and high seas areas was an ecological fact that could not be adequately faced by any kind of national fishery management system. Alarming data on high rates of depletion of fish stocks worldwide, and actual observation of collapses of commercial fish stocks in the final decades of the 20th century, spurred the international community to negotiate and agree on the * BA, LLB, MMM, JSD. Assistant Professor V, University of the Philippines College of Law. The author acknowledges the contributions of the participants in the WPEA Workshop held in 16-17 November 2010, at which the initial framework and substance of this study was introduced for comments and reactions. Their contributions are more specifically documented in the Annexes. 1 United Nations Convention on the Law of the Sea. Montego Bay, Jamaica. 10 December 1982. 21 I.L.M. 1261. Entered into force, 28 July 1994. 2 United Nations Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Entered into force, 11 December 2001. 3 Traditionally, territorial sovereignty was equated with the land territory mainly, and for hundreds of years extended seaward only to a distance that coastal States considered as being subject to the exercise of such sovereignty and full control by such coastal State. The adjacent band of sovereignty was considered to be 'territorial waters' subject only to one easement in favor of other States: the right of innocent passage in favor of foreign vessels. 1 UNFSA which currently forms the foundation document for international regulation of fishing activities in the high seas. Through the UNFSA, the international community agreed upon the Regional Fisheries Management Organization (RFMO) as the institutional mechanism of choice for attempting to moderate and regulate international fishing activities. Essentially, the RFMO system establishes international organizations comprised of coastal and fishing States with interests in a fishery area or fish stock/s to promote mutual cooperation in the management of fishing effort. The international organization so established, however does not supplant, but in fact seeks to strengthen, coastal State and flag State jurisdiction. It is by working through its members as coastal States with jurisdiction over the fishing areas, and flag States with jurisdiction over fishing vessels, that RFMOs are intended to achieve more effective control over all activities that impact on the fishery. There is also sufficient room for the use of innovations such as port State control and any other mechanisms that may be agreed upon between States. This leaves the issue of dealing with non-members of the RFMOs as the more difficult jurisdictional issue in regulation, but recent practices have attempted new ways of encouraging non-member compliance with RFMO measures and conventions. RFMO coverage of the world's oceans and commercially-valuable stocks is presently nearly global in scope,4 although there are many overlaps in terms of areas and species. To be sure, international fisheries management still has a long way to go in terms of developing effective and universally acceptable means and methods. But the shift in assumptions from open- access high seas fisheries to RFMO-managed areas are seen by some observers as evidence that fishing is no longer considered as among the 'sacred' high seas freedoms enjoyed by all States. Indeed, with the global coverage of the world's oceans and commercially-valuable species by RFMO jurisdictions of some kind, it is becoming difficult for any country to claim any right of unilateral and unrestricted freedom of fishing in what used to be considered as seas open to all. This has serious implications to a developing country like the Philippines that is both a coastal State with significant fisheries jurisdiction and at the same time a distant-water fishing nation with fishery interests extending beyond its own waters.