SUBSTANDARD VESSELS AND PREDATION ON THE HIGH SEAS… WHERE DID THE RESPONSIBILITY OF FLAG STATES REMAIN?
For a very long time, the international community has been experiencing some problems that are difficult to solve, among them, the existence of substandard vessels and the depredation of living resources in international waters. The difficulty lies in the fact that since the flag States are responsible for implementing international rules and for controlling that the owners or operators of vessels flying their flag comply with such rules, when such States do not carry out such implementation or control, or do so insufficiently, complex scenarios arise.
On the one hand, with regard to substandard ships, i.e., those that do not comply with the minimum standards established in various instruments adopted by the International Maritime Organization, the international community opted to design a "safety net", i.e., a mechanism to detect and correct deficiencies not detected or corrected in time by flag States. This is port State control.
In an ideal world in which flag States had the will and the resources to carry out implementation and control under their responsibility, the role of the port State would lose its raison d'être. Of course, such an ideal world does not exist, and port State control is a key tool for the eradication of substandard ships that can lead to loss of life and environmental disasters, among others.
On the other hand, predation on the high seas is perhaps an even more complex issue, given that, in that maritime space, except in exceptional cases, vessels are subject to the exclusive jurisdiction of the flag State, as provided for by the United Nations Convention on the Law of the Sea in article 92, paragraph 1. Therefore, in cases where the flag State does not comply with its obligations, control may become practically non-existent.
This is clearly seen in the case of distant water fishing fleet operations in the area adjacent to the outer limit of the exclusive economic zone (EEZ). In these cases, the coastal State may detect third flag vessels fishing without any limitation or sustainable practice under the control of the flag State, even for straddling or highly migratory species in its EEZ. Coastal States are aware of such activity that undermines the conservation of living resources, but they can do little about it since the operations are carried out on the high seas, where there is freedom of fishing.
However, the fact that there is freedom of fishing on the high seas and that the resources of this maritime space are not under the jurisdiction of any State, in accordance with articles 87, paragraph 1 e) and 89 of the aforementioned Convention, does not enable predation. It is the international community as a whole that is responsible for ensuring the conservation of resources on the high seas, in accordance with articles 116 to 120 of the Convention.
The problems briefly described in the preceding paragraphs seem to be unrelated, but they have a common denominator: the failure of flag States to comply with their duties. The power of States to grant the right to fly their flag is one side of the coin, but this power has as a counterpart a series of duties, as established in Article 94 of the Convention. Unfortunately, in many cases this responsibility succumbs to commercial interests, generating at least unfair competition and, most seriously, damage to the marine ecosystem that may be irreversible.
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