Right of Visit on the High Seas and Its New Developments: International Fisheries Management Practices

Abstract: The right of visit means the right to approach, board and inspect a ship on the high seas that is reasonably suspected to be guilty of an international crime, or any other violation of international law. In the traditional law of the sea,this right does not apply to fishing vessels solely for the purpose of harvesting fish on the high seas. The Agreement for the Implementation of the Provisions of the United Nations 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, also called FSA, developed the concept of the right of visit on the high seas. This was done via expanding its application scope to include fishing vessels on the high seas, and by increasing the purpose and means of boarding, the objects subject to inspection and the responsibilities of the flag State in this regard. It is worth noting that the regional fisheries conventions and the practice of regional fisheries management organizations spearheaded and sustained the development of this very concept. Boarding and inspecting fishing vessels on the high seas has proved to be an effective measure to ensure compliance with conservation and management measures for high seas fisheries resources. After analyzing the progression of the right of visit on the high seas, this paper argues that the enforcement of boarding and inspection of foreign-f l agged fishing vessels on the high seas by a State is likely to constitute a rule of customary international law. Based on that, the paper puts forward some suggestions for China to exercise the right to board foreign-f l agged fishing vessels on the high seas.

Key Words: Law of the sea; High seas; Right of visit; Fishing vessel;Regional fisheries organization

Before the 20th century, the law of the sea limited coastal States " jurisdiction over marine fisheries to the narrow width of territorial waters; and every State enjoyed the freedom of fishing on the high seas. When the 20th century began,people gradually realized that marine living resources were limited, and any failure to curb human fishing activities would eventually lead to the decline and depletion of such resources. The international community, through a series of negotiations,signed many international conventions relating to the conservation and management of marine living resources. These include the International Convention for the Regulation of Whaling signed in 1946 and the Convention on the High Seas and the Convention on Fishing and Conservation of the Living Resources of the High Seas concluded at the First United Nations Conference on the Law of the Sea,1958. Such conventions contain restrictive provisions on the conservation and utilization of living resources of the high seas, and make it clear that freedom of fishing on the high seas is subject to the rules of international law. The 1982 United Nations Convention on the Law of the Sea, also known as the UNCLOS, laid down further restrictive provisions on the right to fish on the high seas, which were followed by more stringent and specific requirements in the 1995 Agreement for the Implementation of the Provisions of the United Nations 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 (hereinafter referred to as the “FSA”). The FSA expanded the content of the right of visit on the high seas,with respect to the objects of the fishing vessels subject to inspection. In addition,the practice of boarding and inspection of fishing vessels on the high seas by relevant regional fisheries organizations has enriched and developed the concept of the right of visit on the high seas in international law.

I. The Concept of Right of Visit on the High Seas

Article 1 of the 1958 Convention on the High Seas defines “high seas” as all parts of the sea that are not included in the territorial sea or in the internal waters of a State.1International Law Teaching and Research Office of the Department of Law, Peiking University ed., A Compilation of Data on the Law of the Sea, Beijing: People "s Publishing House, 1974, p. 218. (in Chinese)It means that the high seas include all the sea areas beyond the territorial seas of coastal States. The 1982 UNCLOS failed to give an express definition to“high seas”, but its Article 86 provides that “The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”2UNCLOS Article 86.According to the UNCLOS, the territorial sea, the internal water, the exclusive economic zone (EEZ) and the archipelagic waters are excluded from the geographic scope of the high seas, which include all parts of the sea beyond the outer limits of EEZ.

Vessels on the high seas are, in most cases, subject solely to the exclusive jurisdiction of the fl ag State and the relevant rules of international law, but not to the jurisdiction and control of any other States. Article 6 of the 1958 Convention on the High Seas states, “Ships shall sail under the fl ag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas.”3International Law Teaching and Research Office of the Department of Law, Peiking University ed., A Compilation of Data on the Law of the Sea, Beijing: People "s Publishing House, 1974, p. 220. (in Chinese)UNCLOS Article 92 also articulates: “Ships shall sail under the fl ag of one State only and,save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”4UNCLOS Article 92.Flag State jurisdiction is the cardinal rule governing vessels sailing on the high seas, and has always played a dominant role in international law.

However, in order to maintain the regime of high seas navigation and the normal legal order of the high seas, States have the right to exercise jurisdiction over international crimes against the common interests of mankind and certain violations of international law committed on the high seas. Right of visit means the right to approach, board and inspect a ship on the high seas that is reasonably suspected to be guilty of an international crime, or any other violation of international law.5HUANG Shuolin and TANG Yi, Fisheries Regulation and Fisheries Management, Beijing:China Agriculture Press, 2010, p. 56. (in Chinese)

II. Provisions Relating to the Right of Visit on the High Seas Under UNCLOS

UNCLOS Part VII - High Seas details on the right of visit. A foreign ship on the high seas should not be boarded unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c)the ship is engaged in unauthorized broadcasting and the fl ag State of the vessel attempting a boarding has jurisdiction; (d) the ship is without nationality; or (e)through fl ying a foreign fl ag or refusing to show its fl ag, the ship is, in reality, of the same nationality as the vessel attempting a boarding.6UNCLOS Article 110.

The exercise of the right of visit should be also in compliance with relevant international rules and customs, which could be described mainly as follows:

(1) The right of visit shall be exercised by warships. The provisions regarding the exercise of the right of visit applymutatis mutandisto military aircraft, and also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service;7UNCLOS Article 110.

(2) Warships on the high seas have complete immunity from the jurisdiction of any State other than the fl ag State;8UNCLOS Article 95.and ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State;9UNCLOS Article 96.such ships shall not be boarded by any foreign States on the high seas;

(3) Boarding shall be carried out on reasonable ground. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.10UNCLOS Article 110(3).

(4) Boarding shall be carried out in the way as provided, and examination must be carried out with all possible consideration.11UNCLOS Article 110(2).

The provisions above and the manner in which the articles of the UNCLOS relating to the right of visit are drafted show that international law imposes a very strict limit on the exercise of the right of visit. This right could be exercised only in cases of piracy, slave traきcking, unauthorized broadcasting and ships without nationality, among others. However, the fishing activities of vessels on the high seas have complete immunity from the jurisdiction of any State other than the fl ag State.

III. Provisions in Respect to the Right of Visit on the High Seas Under FSA

The FSA, adopted at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks on 4 August 1995, is a supplementary agreement for the implementation of UNCLOS. This agreement, consisting of 50 articles divided into 13 parts, in addition to two annexes, entered into force on 11 December 2001.12Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 3～28. (in Chinese)As of 11 July 2018, a total of 59 States or international organizations had signed the FSA, and 89 States or international organizations had ratified or acceded to the agreement.13United Nations Treaty Collection, Status of treaty, at https://treaties.un.org/, 13 September 2018.The Chinese government signed the agreement on 6 November 1996, but has not yet ratified it as at 11 July 2018.14United Nations Treaty Collection, Agreement for the Implementation of the Provisions of the United Nations 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, at https://treaties.un.org/pages/UNTSOnline.aspx?=2&clang=_en, 13 September 2018.At the time of signing, the Chinese government filed a declaration regarding the provisions of Articles 21(7)and 22(1).

FSA, Article 21 (subregional and regional cooperation in enforcement)stipulates that,

1. In any high seas area covered by a subregional or regional fisheries management organization or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly authorized inspectors, board and inspect, in accordance with paragraph 2,fishing vessels fl ying the fl ag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement, for the purpose of ensuring compliance with conservationand management measures for straddling fish stocks and highly migratory fish stocks established by that organization or arrangement.15 Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 13～15. (in Chinese)

Article 21, paragraphs 2 and 3, provides for the establishment of the procedures for boarding and inspection. Paragraph 4 expresses that inspecting States shall inform all States whose vessels fish on the high seas of the form of identification issued to their duly authorized inspectors and the vessels used for inspection shall be clearly marked. Paragraph 5 provides for the securing of evidence supporting an alleged violation and notification of the fl ag State concerned. Paragraph 6 stipulates that the fl ag State shall respond to the notification within three working days of its receipt, or such other period as may be prescribed in procedures, and shall fulfill,without delay, its obligations to investigate and take further actions.16Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 13～15. (in Chinese)Inter alia,paragraph 8 articulates that where, following boarding and inspection, there are clear grounds for believing that a vessel has committed a serious violation, and the fl ag State has either failed to respond or failed to take action as required, the inspectors may remain on board and secure evidence and may require the master to assist in further investigation including, where appropriate, by bringing the vessel without delay to the nearest appropriate port, or to such other port as may be specified in procedures.17Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 13～15. (in Chinese)

According to FSA Article 21(11), a serious violation means: (a) fishing without a valid license, authorization or permit issued by the fl ag State; (b) failing to maintain accurate records of catch and catch-related data as required, or serious misreporting of catch, contrary to the catch reporting requirements of relevant subregional or regional fisheries management organization or arrangement; (c)fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota; (d) fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing,tampering with or disposing of evidence relating to an investigation; (h) multiple violations; or (i) such other violations as may be specified by the relevant fisheries management organization.18Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 14～15. (in Chinese)

FSA, Article 22 “Basic procedures for boarding and inspection pursuant to article 21”, provides for the actions of inspectors, scope of examination, actions of the master of the vessel under inspection, and the obligations of the fl ag State in the event that its vessel refuses to accept inspection. In line with the provisions, the inspectors boarding a ship on the high seas shall have the authority to inspect the vessel, its license, gear, equipment, records, facilities, fish and fish products and any relevant documents necessary.19Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 15～16. (in Chinese)At the meanwhile, Article 22(1)(f) states that the inspectors shall “avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances”.20Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 15～16. (in Chinese)When signing FSA, the Chinese government made the following declaration with respect to the clause above:

The understanding of the Chinese Government on this provision is that only when the personal safety of the authorized inspectors whose authorization has been duly verified is endangered and their normal inspecting activities are obstructed by violence committed by crew members or fishermen of the fishing vessel under inspection, may the inspectors take appropriate compulsory measures necessary to stop such violence. It should be emphasized that the action of force by the inspectors shall only be taken against those crew members or fishermen committing the violence and must never be taken against the vessel as a whole or other crew members or fishermen.21 Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, p. 28. (in Chinese)

The FSA expanded the scope of vessels subject to boarding on the high seas, the purpose and ways of high seas boarding, the matters that inspectors are authorized to inspect and the responsibilities of flag States in this regard. With regards to the vessels subject to boarding, the FSA expanded the scope of such vessels as those under the five circumstances specified in UNCLOS Article 110,to include vessels fishing on the high seas. A State Party may, through its duly authorized inspectors, board the fishing vessels on the high seas, whether or not the flag State of the vessels is a member of a regional fisheries organization or a participant in a regional fisheries arrangement. In addition, the FSA increased the purpose of boarding, by adding the purpose of ensuring compliance with conservation and management measures to the initial one of proving suspicions.In other words, an authorized inspecting vessel may, at any time, board a fishing vessel on the high seas, whether or not there is reasonable ground for suspecting the fishing vessel is operating illegally. Furthermore, the FSA changed the ways of boarding and inspection from inspection with all possible consideration under UNCLOS to allowing use of force. While the agreement emphasizes the avoidance of the use of force, it does, after all, provide that the right of high seas visit may be exercised by using force. This provision greatly reinforced the deterrent eあect of high seas boarding. Under the UNCLOS, the inspecting boat has the authority to examine the documents of the suspected vessel, and if suspicion remains after such examination, it may proceed to a further examination. However, the FSA augmented such authority to include those to inspect the vessel, its license, gear,equipment, records, facilities, fish and fish products and any relevant documents necessary. In the opinion of the authors, for the fishing vessels that are boarded on the high seas, all but the personal belongings of the crew or fishermen may be included in the list subject to inspection.

Apart from those above, the responsibilities of the flag State of the fishing vessel, with respect to the right of visit on the high seas, have been increased.FSA, Article 22, paragraphs 3 and 4, stipulates that the fl ag State shall ensure the vessel masters: (a) accept and facilitate prompt and safe boarding by the inspectors;(b) cooperate with and assist in the inspection of the vessel; (c) do not obstruct,intimidate or interfere with the inspectors; (d) allow the inspectors to communicate with the authorities of the fl ag State and the inspecting State; (e) provide reasonable facilities, including, where appropriate, food and accommodation, to the inspectors;and (f) facilitate safe disembarkation by the inspectors. In the case that the master of a vessel refuses to accept boarding and inspection, the fl ag State shall direct the master to submit to boarding and inspection and, if the master does not comply with such direction, it shall impose penalty against the vessel.22Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 15～16. (in Chinese)

The FSA provisions concerning the right of visit on the high seas represent an important development of the same right under the UNCLOS. After the entry into force of the agreement, the practice of regional fisheries management organizations with respect to high seas fisheries management has stimulated and sustained the development of the right.

IV. The Practice of Regional Fisheries Management Organizations

A. Northwest Atlantic Fisheries Organization (NAFO)

NAFO was founded in 1979 in accordance with the NAFO Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, as a successor to International Commission of the Northwest Atlantic Fisheries (ICNAF). The organization has its headquarters in Dartmouth, Nova Scotia, Canada.

The objective of NAFO is to ensure reasonable management, conservation and optimum utilization of the fishery resources in the Convention Area by negotiations and cooperation. The NAFO is primarily responsible for, among others, the assessment of the biological resources in its regulatory area and the adoption of management measures based on the advice provided by the Scientific Council,including managing fishing quota, and imposing restrictions on fishing gear and methods. Currently NAFO has 12 contracting parties: Canada, Cuba, Denmark(with respect to the Faroe Islands and Greenland), EU, France (with respect to St. Pierre et Miquelon), Iceland, Japan, Norway, Republic of Korea, Russian Federation, Ukraine and the USA.23NAFO, About us, at http://www.nafo.int/, 13 September 2018.

The NAFO Convention Area encompasses a large portion of the Atlantic Ocean and includes the 200-nautical-mile zones under the jurisdiction of its four coastal State members. The organization is responsible for the management of most fishery resources of the Northwest Atlantic except salmon, tunas, whales, and sedentary species. It utilizes the following measures to manage fishery resources:total allowable catch, quotas, area and time restrictions, coral protection zones,minimum fish size requirements, bycatch management, and conservation and management of sharks. NAFO has also developed an integrated set of monitoring,control and surveillance measures.

Since 2005, NAFO has allowed the inspectors duly authorized by a contracting party to visit the vessels of another contracting party in its regulatory area,including the high seas. Such boarding and inspection shall be conducted on a fair basis and shall avoid inspecting for inappropriate times. NAFO has developed detailed procedures for boarding and inspection, and the obligations of the master of a fishing vessel during inspection. The NAFO Conservation and Enforcement Measures (2018) states that the inspectors shall: (a) prior to boarding, notify the fishing vessel of the name of the inspection vessel; (b) display, on the inspection vessel and boarding vessel, the pennant as required; (c) ensure that during boarding,the inspection vessel remains at a safe distance from fishing vessels; (d) do not require the fishing vessel to stop or manoeuvre when towing, shooting or hauling;(e) limit each inspection team to a maximum of four inspectors; (f) present to the master their NAFO documents of identity issued by the Executive Secretary; and(g) limit inspections to four hours, or the time required for the net to be hauled in and both the net and the catch to be inspected, except in the case of a serious infringement.24NAFO, Conservation and Enforcement Measures (2018), Article 34.

In accordance with NAFO regulations, the inspectors may board a fishing vessel of non-contracting parties in the NAFO regulatory area, based on two conditions: (a) the vessel is engaged in fishing activities in the NAFO regulatory area or is suspected of IUU fishing, and (b) the master of the vessel has consented to the boarding. Compared to the FSA provisions in this regard, NAFO regulations seem to have taken a step back. Nevertheless, NAFO also stresses that all these regulations shall not be construed to aあect the right of any contracting party to take additional measures as may be consistent with international law to prevent, deter and eliminate IUU fishing by non-contracting party vessels.25NAFO, Conservation and Enforcement Measures (2018), Article 48.

B. South Pacific Regional Fisheries Management Organization(SPRFMO)

SPRFMO, an intergovernmental regional fisheries management organization,was founded in accordance with the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean(SPRFMO Convention) signed in Auckland, New Zealand, on 14 November 2009.The SPRFMO Secretariat is seated in Wellington, New Zealand. As of 1 July 2017,SPRFMO had 15 members: Australia, Republic of Chile, People "s Republic of China, Cook Islands, Republic of Cuba, Republic of Ecuador, European Union,Kingdom of Denmark in respect of the Faroe Islands, Republic of Korea, New Zealand, Republic of Peru, Russian Federation, the United States of America,Republic of Vanuatu, and Chinese Taiwan as a fishing entity. Republic of Liberia and Republic of Panama are the cooperating non-contracting parties of SPRFMO.26SPRFMO, About SPRFMO, at http://sprfmo.superstarwebsites.co.nz, 13 September 2018.China signed the SPRFMO Convention on 19 August 2010 and ratified it on 6 June 2013. On 6 July 2013, the Convention became eあective for China, and China became a member of the SPRFMO established under the Convention.27Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 442～501. (in Chinese)

The regulatory area of SPRFMO covers the waters of the South Pacific Ocean beyond areas of national jurisdiction. The organization aims to ensure the long-term conservation and sustainable use of fishery resources and in so doing, safeguard the marine ecosystems in which the resources occur, through the application of the precautionary approach and an ecosystem approach to fisheries management. It enforces fishery management measures like setting catch quotas, monitoring vessel position, sending scientific observers on board, imposing requirements on data collection and reporting, and establishing a vessel registration system.28SPRFMO, Management measures, at http://sprfmo.superstarwebsites.co.nz, 13 September 2018.

The boarding and inspection measures, since 24 August 2015, are allowed to be carried out in respect to the fishing vessels of contracting parties and cooperating non-contracting parties in SPRFMO regulatory area. However, as SPRFMO boarding and inspection procedures have not been in place, boarding and inspection may be conducted following the procedures contained in Articles 21 and 22 of the FAS. This practice shall be followed until such time when the SPRFMO adopts and implements a specific boarding and inspection regime.29SPRFMO, CMM 11-20151 Conservation and Management Measure Relating to Boarding and Inspection Procedures in the SPRFMO Convention Area.

C. Western and Central Pacific Fisheries Commission (WCPFC)

The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention) was adopted in Hawaii, the United States, on 5 September 2000, and came into force on 19 June 2004. In line with Article 9 of the WCPF Convention, the WCPFC was established to implement the convention. On 9 December 2004, WCPFC was formally established, with its secretariat in Ponape, the Federated States of Micronesia. As of 27 May 2015, the Commission had 26 members, 7 participating territories and 8 cooperating non-members. China ratified the WCPF Convention on 2 November 2004, which became eあective for China on 2 December 2004, and China became a member of WCPFC thereafter.30Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, p. 280. (in Chinese)

The conservation and management measures adopted by WCPFC are legally binding on all members and cooperating non-members. Such measures primarily include: WCPFC members " authorization of their nationals to fish, WCPFC record of fishing vessels, specifications for the marking and identification of fishing vessels, fish catch or effort reporting and restrictions, closed seasons (areas),prohibiting the use of large scale driftnets, the regional observer programme, vessel monitoring system, high seas boarding and inspection, port State control, regulation of transhipment, establishing IUU vessel lists as well as imposing sanctions.31WCPFC, Conservation and management measures, at https://www.wcpfc.int/, 13 September 2018.

Article 26 of WCPF Convention provides,

For the purposes of ensuring compliance with conservation and management measures, the Commission shall establish procedures for boarding and inspection of fishing vessels on the high seas in the Convention Area. Each member of the Commission shall ensure that fishing vessels flying its flag accept boarding by duly authorized inspectors in accordance with such procedures. Such duly authorized inspectors shall comply with the procedures for boarding and inspection.32 Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 294～295. (in Chinese)

The WCPFC, upon negotiations, unanimously adopted the Western and Central Pacific Fisheries Commission Boarding and Inspection Procedures (hereinafter referred to as the “Procedures”) in December 2006. The Procedures emphasizes that high seas boarding and inspection shall be conducted for the purpose of ensuring compliance with the provisions of the WCPF Convention and conservation and management measures adopted by the WCPFC and in force. Inspectors should not board the fishing vessels on the high seas for other purposes. These procedures for boarding and inspection shall be implemented pursuant to Article 26 and Annex III,Article 6(2), of the WCPF Convention, and in a transparent and non-discriminatory manner. Priority for boarding and inspection eあort may be given to unsupervised vessels or vessels with massive destruction to resources, such as fishing vessels without nationality, fishing vessels without observers on board and large-scale fishing vessels. The Procedures also laid some requirements on the persons or vessels participating in the boarding and inspection effort on the high seas. For example, only vessels and inspectors listed on the WCPFC "s register are authorized to board and inspect fishing vessels on the high seas within the Convention Area;each contracting party that intends to carry out boarding and inspection activities shall so notify the WCPFC; inspection vessels and inspectors should be arranged with due respect to the requirements under the Procedures.33WCPFC, Western and Central Pacific Fisheries Commission Boarding and Inspection Procedures, at https://www.wcpfc.int/doc/cmm-2006-08/western-and-central-pacificfisheries-commission-boarding-and-inspection-procedures, 13 September 2018.

Pursuant to the Procedures, authorized inspectors shall prepare a full report on each boarding and inspection they carry out in accordance with a format that may be specified by the WCPFC. The authorities of the inspection vessel from which the boarding and inspection was carried out shall transmit a copy of the boarding and inspection report to the authorities of the fishing vessel being inspected, as well as the WCPFC, within three full working days of the completion of the boarding and inspection. Such report shall include the names and authority of the inspectors,clearly identify any suspected violation of the WCPF Convention or conservation and management measures in force, and indicate the factual evidence and the nature of such violation.34WCPFC, Western and Central Pacific Fisheries Commission Boarding and Inspection Procedures, at https://www.wcpfc.int/doc/cmm-2006-08/western-and-central-pacificfisheries-commission-boarding-and-inspection-procedures, 13 September 2018.

It is worth noting that the WCPFC has established a relatively complete system of boarding and inspection of fishing vessels operating on the high seas, which grants its members the right to conduct such boarding and inspection activities.35TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)In order to ensure that boarding and inspection of vessels on the high seas is carried out in accordance with the requirements under the WCPF Convention,WCPFC established the member participation mechanism, specified the procedures for boarding and inspection, defined the term “serious violation”, and created the reporting mechanism and the dispute resolution mechanism with respect to boarding and inspection. By doing so, it specified and detailed each step of the procedures to board and inspect the vessels on the high seas.36TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)

Notably, WCPFC regulatory area is the place where boarding and inspection procedures are implemented most often. The WCPFC members concerned,since the adoption of the Procedures in 2006, have been constantly boarding and inspecting the fishing vessels operating in the Western and Central Pacific waters.From 2008 to 2016, such members had carried out boarding and inspection of fishing vessels for 446 times on the high seas, covering the entire operating area of the Western and Central Pacific.37HUANG Shuolin and SHAO Huabin, Development Trends and Features of Global Marine Fisheries Governance, Pacific Journal, No. 4, 2018, pp. 65～78. (in Chinese)Illegal fishing operations, through the implementation of the high seas boarding and inspection regime, have been eあectively curbed. The implementation of the regime urges the WCPFC members to follow and carry out the conservation and management measures, which will further improve the conservation and management level of the fishery resources in the Western and Central Pacific.38TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)

At present, WCPFC has been increasing its efforts to board and inspect the fishing vessels on the high seas. The members participating in such eあorts in the Western and Central Pacific primarily include: the United States (184 times),France (141 times on behalf of its overseas territory French Polynesia), New Zealand, and Chinese Taipei. In addition, the Cook Islands, Japan, South Korea and other countries have also joined in such boarding and inspection eあorts. Table 1 shows the general information about the high seas boarding and inspection conducted by WCPFC from 2008 to July 2013.

Table 1 High Seas Boarding and Inspection Conducted by WCPFC from 2008 to July 201339 TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)

According to the data provided by China Overseas Fisheries Association,ever since December 2010 when the first Chinese fishing vessel was boarded and inspected by the United States in the Western and Central Pacific waters, Chinese fishing vessels had received such inspections for more than 140 times as of May 2017, of which 40 were conducted by the United States. The areas where Chinese vessels were visited are mainly the high seas adjacent to the EEZs of coastal States and those surrounded by the EEZs of relevant coastal States.40TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)Based on the statistics about the Chinese fishing vessels that had been boarded and inspected in WCPFC regulatory area from 2011 to 2016, as shown in Table 2, we can see that 2～3 Chinese fishing vessels, approximately, were found to have committed serious violations each year. China "s fishery management authorities strictly abides by the relevant provisions of WCPFC, and would impose penalties, as the case may be,on Chinese fishing boats that were found to have violated the relevant rules upon boarding and inspection by other members. The authorities would punish serious oあenders by revoking their fishing license, removing the oあending vessels from the WCPFC vessel registration system, and ordering them to return home for further inspection and punishment.41TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)

Table 2 Boarding and Inspection of Chinese Fishing Vessels (2011-2016)

V. Prospect for the Right of Visit on the High Seas

Prior to the 21st century, international law and State practice strictly limited the application of the right of visit on the high seas to cases like piracy, slave trafficking, unauthorized broadcasting, and vessels without nationality. Fishing vessels on the high seas, except engaging in activities in the five cases described above, are under the exclusive jurisdiction of the fl ag State; no other State has the right to conduct boarding and inspection unless authorized by the fl ag State.

After the entry into force of the FSA on 11 December 2001, the concept of the right of visit on the high seas has been considerably developed. In accordance with the provisions relating to high seas boarding and inspection under the FSA,as well as the procedures for boarding and inspection established by some regional fisheries organizations, the right of visit is increasingly applied to fishing vessels operating on the high seas. The initial purpose of boarding, i.e., to prove suspicions,has been revised to include the purpose of ensuring compliance with the measures to conserve and manage the fishery resources. Apart from the conventional documents of the suspected vessel, the vessel and its license, including fishing license, equipment, facilities, fish, fishing and sailing logs and fish products, are added to the list of the objects subject to examination. With regards to the boarding and inspection of fishing vessels on the high seas, the flag State of the fishing vessel is required to give further cooperation and response to the inspecting State than before, including to impose corresponding penalties for vessels found guilty of violations. Such boarding of fishing vessels on the high seas has, in regional fisheries management practice, also been accepted by a growing number of flag States.

The current practice of high seas boarding and inspection tells that, such measures have effectively cracked down on the violations by fishing vessels on the high seas and significantly boosted the compliance of conservation and management measures. Since the high seas fisheries management system has not been complied or implemented for a long duration, boarding and inspection of shipping vessels has become an effective measure to address this longstanding problem, which would be adopted by a growing number of regional fisheries organizations. In addition to the three regional fisheries organizations mentioned above, the International Commission for the Conservation of Atlantic Tunas(ICCAT), on 2 August 2015, also began to implement the measure to board and inspect the vessels harvesting bluefin tuna fisheries in the Eastern Atlantic and Mediterranean.42ICCAT, Recommendation 14-04 by ICCAT Amending the Recommendation 13-07 by ICCAT to Establish a Multi-annual Recovery Plan for Bluefin Tuna in the Eastern Atlantic and Mediterranean, Part V and Annex 7.Since 2016, ICCAT has also taken this measure to conserve and manage swordfish fisheries in the Mediterranean.43ICCAT, Recommendation 16-05 by ICCAT Amending the Recommendation 13-04 by ICCAT to Establish a Multi-annual Recovery Plan for Mediterranean Swordfish, Part IV and Annex 1.It can be expected that in the near future, the measure of high seas boarding and inspection will be extended to the high seas and all fish species falling under the jurisdiction of ICCAT. The North Pacific Fisheries Commission (NPFC), which was founded in accordance with the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean (came into effect on 19 July 2015), also implemented this measure in its regulatory area on 19 July 2018.44Editorial Committee for Selections of International Fisheries Treaties and Documents ed.,Selections of International Fisheries Treaties and Documents, Beijing: China Ocean Press,2015, pp. 508～544. (in Chinese)

The right of visit of fishing vessels on the high seas is being performed towards the direction of doing so in line with detailed and standardized procedures.45HUANG Shuolin and SHAO Huabin, Development Trends and Features of Global Marine Fisheries Governance, Paci fic Journal, No. 4, 2018, pp. 65～78. (in Chinese)The provisions promulgated by regional fisheries organizations with respect to the exercise of this right include: all inspectors and inspection vessels shall be duly authorized and listed on the register of the regional fisheries organization concerned; the inspection vessel and the boat used to board the fishing vessel shall fl y the inspection fl ag; the inspectors shall present credentials to the master of the fishing vessel at the time of boarding; following the completion of the inspection,the inspectors shall provide a copy of the report on the boarding and inspection to the fl ag State of the fishing vessel and the regional fisheries organization, noting therein the names of the inspection vessel and inspectors, time of boarding and inspection, longitude and latitude of the boarding site, name of the vessel boarded,serious violation found, if any, and factual evidence of such violation, and methods of dispute settlement.46WCPFC, Western and Central Pacific Fisheries Commission Boarding and Inspection Procedures, at https://www.wcpfc.int/doc/cmm-2006-08/western-and-central-pacificfisheries-commission-boarding-and-inspection-procedures, 13 September 2018.Nearly all regional fisheries organizations that enforce the boarding measure on the high seas have defined the term “serious violation”, which is basically consistent with the FSA provisions.

A growing number of States are participating in the boarding and inspection of fishing vessels on the high seas, and such activities are carried out in a more and more frequent manner. It is not only the law enforcement vessels of some developed States, such as the United States, France and New Zealand, that are participating in the boarding and inspection of fishing vessels on the high seas,but also the law enforcement vessels of some island States in the South Pacific,including Kiribati, Tuvalu, Marshall Islands and Cook Islands.47TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)In some States,like France, both fisheries law enforcement vessels and the navy take part in the boarding and inspection of fishing vessels on the high seas.48TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)Some traditional distant-water fishing States, such as Japan and South Korea, also participated in such boarding and inspection eあort. Taiwan became a member of several regional fisheries organizations as a fishing entity, and has also participated in the boarding and inspection of fishing vessels on the high seas.49TENG Yunlu, DAI Xiaojie and TIAN Siquan, Analysis of Western and Central Pacific Fisheries Commission High Seas Boarding and Inspection Procedures, Journal of Shanghai Ocean University, No. 1, 2015, pp. 115～120. (in Chinese)

The developing trend in this regard could be described as follows: with the purpose of ensuring compliance with conservation and management measures for fisheries resources on the high seas, boarding and inspection of fishing vessels on the high seas will become one of the principal measures taken by regional or sub-regional fisheries management organizations to manage high seas fisheries;boarding and inspection of fishing vessels of a State on the high seas by another State will become the most common and widely applied international practice with respect to high seas boarding, as well as a generally accepted rule of international law.50HUANG Shuolin and SHAO Huabin, Development Trends and Features of Global Marine Fisheries Governance, Pacific Journal, No. 4, 2018, pp. 65～78. (in Chinese)

VI. Recommendations for China to Participate in the Boarding and Inspection of Fishing Vessels on the High Seas

By the end of 2016, China has nearly 2,900 ocean-going fishing vessels(including those under construction), with a total output of 1.99 million tons. Apart from the EEZs of 42 countries or regions, China "s pelagic fishing vessels also operate in the Pacific Ocean, Indian Ocean, Atlantic Ocean and Antarctic waters.5113th Five-year Plan for National Distant Water Fisheries Development, at http://jiuban.moa.gov.cn/zwllm/ghjh/201712/t20171221_5985078.htm, 14 September 2018. (in Chinese)Among them, 1,329 vessels fishing on the high seas produce 1.32 million tons,accounting for 12% of the world "s fishing output on the high seas; the number of Chinese vessels fishing on the high seas and their output are among the top in the world.5213th Five-year Plan for National Distant Water Fisheries Development, at http://jiuban.moa.gov.cn/zwllm/ghjh/201712/t20171221_5985078.htm, 14 September 2018. (in Chinese)Given the rapid development of China "s distant-water fisheries in recent years, the operational condition of its fishing boats has attracted the attention of many regional or sub-regional fisheries management organizations.

China is a member of many regional fisheries organizations that implement the measure of boarding and inspecting fishing vessels on the high seas, such as WCPFC, SPRFMO, ICCAT and NPFC. China has also accepted the boarding and inspection of its fishing vessels by vessels authorized by other States on the high seas, especially in the WCPFC regulatory area. China should consider how to eあectively strengthen the capacity of Chinese distant-water fishing enterprises to fulfill their contractual obligations and responsibilities, and make every effort to eliminate serious violations in high-seas fisheries and improve the image of China as a large, responsible fishing country. To this eあect the following suggestions are being made. Firstly, China should enhance training on international fishery laws and regulations for its distant-water fishing enterprises and the crew members.Particularly, it should make it clear what kinds of activities constitute serious violations and the consequences of such violations, aiming to raise their awareness to comply with international conservation measures for fishery resources. Secondly,China should strengthen the monitoring of its oceanic fishing vessels, especially those operating on the high seas, by taking measures such as urging vessels to install vessel monitoring system (VMS) as required, strictly implementing the fishing permit review system for fishing vessels on the high seas, and severely punishing those having committed serious violations while fishing on the high seas. In addition, we should also remind the masters of Chinese fishing vessels of discriminatory boarding and inspection or those not conducted in line with the boarding procedures; for such activities, masters should respond in a reasonable and prudent manner, to protect their legitimate rights and interests on the high seas.

China should also consider dispatching its coast guard vessels to participate in the boarding and inspection of foreign fl agged fishing vessels on the high seas.By doing so, China may exercise and protect its maritime rights and interests.It is worth noting that the China Fisheries Law Enforcement Command has been conducting joint law enforcement operations with the U.S. Coast Guard on the North Pacific high seas since 1994, for the purpose of examining the implementation of the United Nations General Assembly Resolution 46/215.53HUANG Shuolin and LIU Yanhong, International Cooperation in Fisheries Law Enforcement at Sea: China Mainland "s Practice, China Oceans Law Review, No. 1, 2009,pp. 230～247.The Command has consistently since 2002 sent its ships to supervise and inspect Chinese fishing vessels operating on the high seas of the North Pacific.54HUANG Shuolin and LIU Yanhong, International Cooperation in Fisheries Law Enforcement at Sea: China Mainland "s Practice, China Oceans Law Review, No. 1, 2009,pp. 230～247.This function was taken over by the China Coast Guard in 2013 upon its establishment.However, both agencies are recorded to have boarded and inspected only Chinese fishing vessels on the North Pacific high seas, but not those of other States.As a member of the WCPFC and many other regional fisheries management organizations, China also enjoys the right to board and inspect the fishing vessels of other States on the high seas. The China Coast Guard should consider exercising this right with keen interest and without delay, so as to balance China "s rights and obligations under these organizations.

The China Coast Guard is duly suggested to enlarge, as soon as possible, its capacity to participate in the boarding of foreign flagged fishing vessels on the high seas. To this end, the following points are suggested for consideration. First of all, it should obtain suきcient knowledge about distant-water fishery aあairs;inter alia, it should raise its competency to take cognizance of the major fish species,the principal operation modes and the main types of fishing ships in various areas of the high seas, as well as the ability to identify and examine the key protected marine wildlife species. Secondly, it should further its study on the law of the sea and the international fisheries law, in particular, deepen the understanding of the measures for the conservation and management of fishery resources and the procedures for the boarding and inspection of fishing vessels on the high seas made by regional or subregional fisheries management organizations. Thirdly, it should intensify the training concerning the ability to communicate with foreign fishermen or foreign fishery law enforcement personnel, so as to be fully prepared to conduct fishery cooperation with foreign States and handle fishery cases involving foreign parties. Last but not least, China Coast Guard, for the purpose of meeting the needs of fisheries law enforcement on the high seas, should be equipped with vessels necessary for carrying out such law enforcement activities and advanced positioning, communication and law enforcement facilities.