Fraudulent Flags in Illegal Fishing: State Risks and Obligations

 

Open-source vessel tracking would indicate that there are at least six Bermuda-flagged fishing vessels operating in jurisdictions outside of Bermuda – one in Canada, one in Brazil, one in Iran, and three in China. Not one of those vessels is actually registered in Bermuda. In fact, a similar phenomenon is plaguing almost every CARICOM Member and Associate Member State. Foreign fishing vessels, often in areas far from the Caribbean, are using the flag states of the Caribbean region, but none of those vessels are actually registered in the Caribbean. This fraudulent use of the region’s flags is not just about optics – it degrades the reputation of those states, undermines the rule of law, and raises questions of state responsibility. It also means that perpetrators of illegal fishing in other parts of the world may be trading on the reputation of the Caribbean states in order to carry out their activities with impunity.

The preponderance of these illegitimately flagged vessels is in East Asia, with the overwhelming majority in China, and secondarily, Vietnam. In recent months, maritime news has been filled with stories of the “Dark Fleet” or “Shadow Fleet,” and now the unregistered “Renegade Fleet.” There are countless stories about sanctioned vessels and their flag-hopping to avoid accountability. However, this is a different phenomenon altogether. Fishing vessels are usually administered by the ministry that governs fishing, but if the state allows for foreign fishing vessels to be flagged into their jurisdiction, the ships are legally required to appear in the state’s flag registry, as well. With different state departments overseeing the grant and registration of fishing licenses and the registration of ships, often with little coordination, it seems that bad actors are taking advantage of a blind spot between two governmental entities that are involved in fishing and ship registration.

Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS) provides that every state in the world – whether coastal or landlocked – the right to determine which vessels are allowed to fly its flag. With that, however, comes a variety of responsibilities to enforce the laws of the flag state onboard that vessel, regardless of where it sails. Outside of port and coastal state jurisdiction, the flag state has exclusive jurisdiction over that vessel, and thus considerable responsibility to ensure that its flagged vessel complies with the provisions of law in its operation and shows due regard to other states at sea. It is for reason of efficiency in enforcement and control by the flag state that Article 91 further clarifies that there must be a “genuine link” between the flag state and the vessel. What we see, in reality, is that there are dozens of vessels appearing to be flying the flag of a state to which they have no link at all and whose laws and responsibilities they have no plan to commit to or comply with. This raises a series of problems.

For the states whose flags are being exploited in this fashion, there is a need to be proactive in clarifying to the world that they are not taking responsibility for these vessels, as they are not legitimately registered. There is considerable reputational risk to the Caribbean flag states – and any other states around the world experiencing a similar phenomenon. The optics of association with bad actors, high-risk fishing operators and sanctioned entities may make it look like they are condoning such illicit behavior. States need to make it clear that these vessels – even if they are using mobile maritime service indicator (MMSI) numbers stolen from scrapped vessels that were once legitimately flagged – are not registered and are thus without nationality. Doing so proactively and regularly, rather than after an illegal incident has been announced, makes it easier for flag states to distance themselves from fraudulently flagged vessels undertaking illegal activities early on. The sanction of five tankers fraudulently flagged to Guyana in 2024 by the United States - leading to Guyana’s subsequent denial in defense of its shipping registry - demonstrates the impact of fraudulent flags on innocent flag states if not preemptively rejected. Recently, Saint Maarten has warned against fraudulent flag representations in order to preserve the integrity of its registry. Following this example, more states need to preemptively distance themselves from the vessels fraudulently flying their flag.

If the apparent flag of the vessel is not actually the flag state, there is a chance the vessels could conduct illegal operations with impunity. Vessels without nationality have a loose treatment under international law, requiring states to exercise the right of visit for verification purposes only, with no clear enforcement obligation. The silence on enforcement against such vessels trickle down to coastal states’ policies and laws. Thus, many coastal states around the world, lack legal processes for dealing with vessels without nationality and, at a minimum, are hesitant to take on such cases. This can not only undermine the rule of law, but increase the concerns around open registries - even though this is not an issue of open or closed registries, but the fraudulent appearance of being affiliated with a registry.

Since this issue among fishing vessels is occurring against the backdrop of similarly challenging flagging issues with the shipping industry, several new concerns may also arise. First, the response to this sort of behavior by coastal states may be an attempt to conduct more inspections to confirm registration, and, in so doing, hamper the freedom of navigation in violation of Article 58 of the UNCLOS. This is visible in the Baltic where safety inspections are being used as an antidote to the dark fleet and its propensity for cable-cutting. Fishing vessels transiting to other countries may therefore be stopped more regularly by coastal state navies and coast guards.

Second, the issue of fraudulent flagging may soon present a camouflaged combination of illicit activities - bad actors broadcasting identities as fishing vessels, using registries with which they have no affiliation, while actually operating as cargo vessels, carrying sanctioned or illicit cargo. The layers of confusion around the entities responsible for fishing as distinct from vessel registration and cargo transport may further complicate the situation, giving room for bad actors to avoid detection and interdiction. This further muddies the picture for legitimate maritime activities at a time when they are already under question thanks to the dark, shadow and renegade fleets, as well as the activities of fishing fleets associated with illegal, unreported and unregulated fishing.

Finally, it may lead to registries starting to impose more stringent restrictions on vessels, thereby increasing the regulatory burden on fishing vessels to be cross-listed within both the fishing vessel registries and shipping vessel registries of the flag state. From a procedural standpoint, this may signify a regression to more bureaucratic and rigid registration and verification processes, thereby causing administrative delays. Procedural bottlenecks are also likely to have significant economic effects in the long run, especially in regions like the Caribbean, where fishing produces a major part of the economic returns of states in the region. Overall, a ripple effect of distrust and stringency may impact the region’s economy and sustainability.

Ultimately, the maintenance of the rule of law at sea – and thus our global maritime system – requires the collaborative participation of all legitimate actors. The flag state regime on which we rely is under threat, and steps are needed to safeguard its effectiveness. To that end, regional bodies, such as the Caribbean Community’s Implementation Agency for Crime and Security (CARICOM IMPACS), may wish to publish regional guidance on this matter, combined with offering a regional statement on behalf of member states to help distance them from the vessels that are fraudulently flying their flag. At the same time, templates of statements should be offered to enable member States make similar public statements that expressly disavow the erring vessels and distance themselves from responsibility for such vessels. In the absence of a clear mechanism for addressing this issue, clear, transparent and unequivocal communication is the only way to try to guard against the harm that can come from high-risk fishing operators fraudulently availing themselves of the flags of Caribbean States.

Dr. Ian Ralby is founder and CEO of I.R. Consilium, a family firm that provides leading advice and assistance on maritime and resource security, as well as a Senior Fellow at the Global Energy Center of the Atlantic Council and an Adjunct or Affiliate of several institutions including the US Naval War College, the Defense Institute of International Legal Studies, and the Institute for Security Governance.