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Just a Harmless Fishing Fad—or Does the Use of FADs Contravene International Marine Pollution Law?

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Abstract

Fish aggregating devices (FADs) are widely used in artisanal fisheries in the Mediterranean Sea and in tropical tuna fisheries. Thousands of FADs are lost or abandoned each year, with many causing environmental damage. This article examines whether such loss or abandonment contravenes international marine pollution law. It finds that abandonment probably constitutes “dumping” within the meaning of the international dumping regime and thus, depending on the material of which a FAD is made, is either prohibited or subject to a permit system, and that the nonaccidental loss of a FAD breaches Annex V of MARPOL. The article also considers what action may be taken against the flag states of vessels that have abandoned or lost FADs.
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Ocean Development & International Law
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Just a Harmless Fishing Fad—or Does the Use of
FADs Contravene International Marine Pollution
Law?
Robin Churchill
To cite this article: Robin Churchill (2021) Just a Harmless Fishing Fad—or Does the Use of FADs
Contravene International Marine Pollution Law?, Ocean Development & International Law, 52:2,
169-192, DOI: 10.1080/00908320.2021.1901342
To link to this article: https://doi.org/10.1080/00908320.2021.1901342
© 2021 The Author(s). Published with
license by Taylor & Francis Group, LLC.
Published online: 20 Apr 2021.
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Just a Harmless Fishing Fador Does the Use of FADs
Contravene International Marine Pollution Law?
Robin Churchill
Emeritus Professor of International Law, University of Dundee, Dundee, United Kingdom
ABSTRACT
Fish aggregating devices (FADs) are widely used in artisanal fisheries
in the Mediterranean Sea and in tropical tuna fisheries. Thousands of
FADs are lost or abandoned each year, with many causing environ-
mental damage. This article examines whether such loss or abandon-
ment contravenes international marine pollution law. It finds that
abandonment probably constitutes dumpingwithin the meaning of
the international dumping regime and thus, depending on the mater-
ial of which a FAD is made, is either prohibited or subject to a permit
system, and that the nonaccidental loss of a FAD breaches Annex V of
MARPOL. The article also considers what action may be taken against
the flag states of vessels that have abandoned or lost FADs.
KEYWORDS
dumping of waste; fish
aggregating devices (FADs);
garbage disposal; loss of
fishing gear; marine
pollution; MARPOL; regional
fisheries management
organizations; tuna
Introduction
Many wide-ranging pelagic species have a propensity to congregate around objects floating
in the sea, such as logs, dead whales, or seaweed, and remain there for days or even weeks.
For many years that propensity has been exploited to a significant degree by fishers using
man-made floating devices to attract fish. Such devices are known as fish aggregating (or
aggregation) devices (FADs).
1
Once the number of target species around a FAD increases,
catching them becomes cheaper (because less time and fuel are required) and operationally
easier than pursuing free-swimming fish, and catch rates are higher.
2
FADs are of two types: those that are anchored to the seabed (aFADs) and those
that are free-floating and drift with ocean currents, often for weeks or months
(dFADs). aFADs are used in both industrial fisheries (particularly in the Indian and
Pacific Oceans) and artisanal fisheries (particularly in the Mediterranean and western
ß2021 The Author(s). Published with license by Taylor & Francis Group, LLC.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License
(http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium,
provided the original work is properly cited, and is not altered, transformed, or built upon in any way.
CONTACT Robin Churchill R.R.Churchill@dundee.ac.uk University of Dundee, United Kingdom.
1
The Food and Agriculture Organization (FAO) Voluntary Guidelines on the Marking of Fishing Gear, available at: http://
www.fao.org/3/ca3546t/ca3546t.pdf (accessed 19 May 2020), define a FAD, in para. 16(c), as a permanent, semi-
permanent or temporary object, structure or device of any material, man-made or natural, which is deployed and/or
tracked and used to aggregate fish for subsequent capture.The International Commission for the Conservation of
Atlantic Tunas (ICCAT) uses the same definition; see Rec. 19-02, [26(ii)], available at: https://www.iccat.int/Documents/
Recs/COMPENDIUM_ACTIVE_ENG.pdf (accessed 2 December 2020).
2
Marine Resources Assessment Group (MRAG), PNA FAD Management Scheme. Phase 1 Report (2018) 1, available at
https://www.pnatuna.com/sites/default/files/ZN2469%20-%20PNA%20FAD%20Reports%20Consolidated.pdf (accessed 4
December 2020).
OCEAN DEVELOPMENT & INTERNATIONAL LAW
2021, VOL. 52, NO. 2, 169192
https://doi.org/10.1080/00908320.2021.1901342
Pacific).
3
In industrial fisheries aFADs are usually made of steel, aluminium, or fiber-
glass and are equipped with radar reflectors and solar-powered lights; they are often
moored in deep water offshore.
4
In artisanal fisheries aFADs are usually made of
simpler materials, such as cork, plastic bottles, the inner tubes of car tires, or poly-
styrene slabs, and are usually anchored close to the coast.
5
There are tens of thou-
sands of aFAds deployed in the oceans. In 2014, it was estimated that there were in
excess of 73,000 aFADs in use, of which around 80% were deployed by small-scale
fishers in the Mediterranean Sea to catch dolphin fish; most of the remainder were
deployed in the western central Pacific Ocean to catch tuna.
6
In contrast to aFADs, dFADs typically consist of a floating raft made of wood or plastic,
with ropes or synthetic netting dangling beneath to depths of up to 100 m.
7
Since the
early 2000s, most dFADs have been equipped with a buoy with a satellite tracking device,
which enables the parent fishing vessel to monitor their location; many have also been
equipped with echo sounders, which indicate the volume of fish under a dFAD.
8
dFADs
are deployed almost exclusively by vessels using purse-seine nets to catch tuna in tropical
waters.
9
Such deployment began in the 1980s, and has increased substantially since the
early 1990s. Information on the precise number of dFADs deployed is not available. It has
been estimated that during 2013 between 81,000 and 121,000 dFADs were deployed
worldwide in tropical tuna fisheries.
10
Estimates since then suggest totals of
44,00064,000 annually in the western and central Pacific Ocean for the period
20172019,
11
27,000 in the Indian Ocean during the first quarter of 2020,
12
and 18,000
and 15,000 in the Atlantic and eastern Pacific Oceans in 2014 and 2015, respectively.
13
It appears that the majority of dFADs that are put into the sea are not eventually
retrieved.
14
For example, it has been estimated that in the western and central Pacific
3
MRAG, An Analysis of the Uses, Impacts and Benefits of Fish Aggregating Devices (FADs) in the Global Tuna Industry
(2017) 67, available at wwf.org.uk/sites/default/files/publications/Mar17/Tuna%20fisheries%20FADs%20report%20-
%20MRAG_WWF.pdf (accessed 19 May 2020).
4
Ibid, 7.
5
Ibid. See also M. Sinopoli T. Cillari, F. Andaloro, et al., Are FADs a Significant Source of Marine Litter? Assessment of
Released Debris and Mitigation Strategy in the Mediterranean Sea(2020) 253 Journal of Environmental Management 109749.
6
European Parliament, G. P. Scott and J. Lopez, The Use of FADs in Tuna Fisheries (2014) 4144, available at
europarl.europa.eu/thinktank/en/document.html?reference ¼IPOL-PECH_NT(2014)514002 (accessed 19 May 2020).
7
Pew Charitable Trusts, D. Gershman, A. Nickson, and M. OToole, Estimating the Use of FADs around the World (2015) 1,
available at pewtrusts.org//media/assets/2015/11/global_fad_report.pdf (accessed May 19, 2020); and Q. Hanich, R.
Davis, G. Holmes, et al., Drifting Fish Aggregating Devices (FADS): Deploying, Soaking and Setting——When Is a FAD
Fishing?(2019) 34 International Journal of Marine and Coastal Law 731, 734735.
8
T. K. Davies, C. C. Mees, and E. J. Milner-Gulland, The Past, Present and Future Use of Drifting Fish Aggregating
Devices (FADs) in the Indian Ocean(2014) 45 Marine Policy 163, 163164; Hanich, Davis, Holmes, et al., ibid, 733734.
9
MRAG, note 3, 6.
10
Gershman, Nickson, and OToole, note 7, 1 and 13. Other global estimates are 91,000 (Scott and Lopez, note 6, 12)
and 100,000108,000 in 2015 (MRAG, note 3, 6).
11
R. Banks and M. Zaharia, Characterization of the Costs and Benefits Relevant to Lost and/or Abandoned Fish
Aggregating Devices in the Western and Central Pacific Ocean (2020), 1, available at: https://www.consult-poseidon.com/
fishery-reports/Poseidon_Pew1514_FAD%20final%20report_270120.pdf (accessed 2 December 2020).
12
Indian Ocean Tuna Commission (IOTC), Summary Overview of Buoy Data Submitted to the IOTC Secretariat for the
Period JanuaryJuly 2020, Doc. IOTC-2020-WPDCS16-17 (2020) 3, available at: https://www.iotc.org/fr/documents/
WPDCS/16/17 (accessed 27 November 2020).
13
Greenpeace, Ghost Gear: The Abandoned Fishing Nets Haunting Our Oceans (2019) 10, available at: https://issuu.com/
greenpeaceinternational/docs/ghost_fishing_gear_report_en_single_page_051119 (accessed 4 December 2020).
14
Gershman, Nickson, and OToole, note 7, 15. See also S. D. Balderson and L. E. C. Martin, Environmental Impact and
Causation of BeachedDrifting Fish Aggregating Devices around Seychelles Islands, Doc. IOTC-2015-WPEB11-39 (2015),
available at: https://iotc.org/documents/environmental-impacts-and-causation-%E2%80%98beached%E2%80%99-drifting-
170 R. CHURCHILL
Ocean (which accounts for nearly 40% of the total number of dFADs deployed world-
wide) only around 10% of dFADs were retrieved by the deploying vessel during the
period 20162020.
15
Different writers, generally nonlawyers, use differing terminology
to refer to dFADs that are not retrieved. From the point of the legal analysis with
which this article is concerned, two categories of nonretrieval may be distinguished.
The first is when the owner/master of a fishing vessel attempts to retrieve a dFAD
but fails to do so, for example, because the FAD has sunk or the satellite tracking
buoy is no longer functioning properly. Such nonretrieval will be referred to hereafter
as the lossof a dFAD. The second category is where the owner/master has no
intention of retrieving a dFAD, because, for example, it regards the cost of, and time
spent, attempting to do so as excessive,
16
or it has switched the satellite tracking
device off and left the dFAD to drift. This second category of nonretrieval will be
referred to as abandonment.
Depending on their design and the material of which they are made, lost and aban-
doned dFADs may have various adverse environmental effects. They include ghost fish-
ing; entanglement with marine life (particularly sharks and turtles); acting as habitat for
the spread of invasive species; and washing ashore on beaches or stranding on reefs as
marine litter and causing harm to sensitive habitats, such as seagrass beds and coral
reefs.
17
Many lost or abandoned dFADS sink, thereby also potentially causing environ-
mental harm, for example, to seamounts or deep-sea chemosynthetic communities.
18
As
long as they remain anchored, aFADs will not cause significant environmental harm.
However, a recent study found that most aFADs deployed in the Mediterranean Sea are
lost or destroyed by adverse winter weather, washing up on beaches as litter. During
the period 19612017, nearly 1.5 million aFADs are estimated to have suffered this
fate.
19
This will also be referred to as loss.
The UN Convention on the Law of the Sea (UNCLOS) defines marine pollution as:
the introduction by man, directly or indirectly, of substances or energy into the marine
environment, including estuaries, which results or is likely to result in such deleterious
effects as harm to living resources and marine life, hazards to human health, hindrance to
fish-aggregating-devices-around (accessed 27 November 2019); Greenpeace, Coastal Management Issues Associated With
Activities to Prevent Marine Pollution. Background Information on Use of Drifting Fish Aggregating Devices (FADs) and Their
Contribution to Marine Litter, Doc. LC/SG38/8/1 (6 March 2015) Annex 1, 1 and 45, available in the (restricted)
documents section of the website of the International Maritime Organization (IMO); and G. Macfadyen, T. Huntington,
and R. Cappell, Abandoned, Lost or Otherwise Discarded Fishing Gear, FAO Fisheries and Aquaculture Technical Paper No.
523 (2009) 23, available at: http://www.fao.org/3/i0620e/i0620e00.htm (accessed 19 May 2020).
15
L. Escalle, B. Muller, S. Hare, et al., Report on the Analyses of the 2016/2020 PNA FAD Tracking Programme, Doc.
WCPFC-SC16-2020/M1-IP-14 (2020) 3, available at: https://www.wcpfc.int/node/46713 (accessed 27 November 2020).
16
See Parties to the Nauru Agreement (PNA), Tuna Market Intelligence No. 56 (2017) 3, available at pnatuna.com/
marketintel56 (accessed May 19, 2020); and Gershman, Nickson and OToole, note 7, 15.
17
Balderson and Martin, note 14; Gershman, Nickson and OToole, note 7, 3 and 15; Greenpeace, note 14, 13;
Greenpeace, Time to Deliver Precautionary Tuna Fisheries Management, Briefing Paper for the 20th Annual Meeting of
the Indian Ocean Tuna Commission (2016), available at: https://iotc.org/documents/greenpeace-position-statement-2016
(accessed 27 November 2020); and K. Richardson, D. Haynes, A. Talouli, et al., Marine Pollution Originating From Purse
Seine and Longline Fishing Vessels Operations in the Western and Central Pacific Region, 20032015, Doc. WCPFC-TCC11-
2015-OP06 (2015) 23, available at: https://www.wcpfc.int/node/26867 (accessed 19 May 2020). It is estimated that
annually about 10% of FADs beach in the Atlantic and Indian Oceans, and around 20% in the western and central
Pacific Ocean; see, respectively, Greenpeace, note 14, 10, and Banks and Zaharia, note 11, 1.
18
Banks and Zaharia, note 11, 2. The authors estimate that around two-thirds of dFADs in the western and central
Pacific sink each year.
19
Sinopoli, Cillari, Andaloro, et al., note 5.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 171
marine activities, including fishing and other legitimate uses of the sea, impairment of
quality for use of sea water and reduction of amenities.
20
The deployment of FADs clearly falls within this definition. FADs are substances
that are introduced into the marine environment and are likely to result in
deleterious effectssuch as harm to living resources and marine lifeand
reduction of amenities(in the case of FADs washed up on tourist beaches). Not all
acts that constitute marine pollution as defined by UNCLOS necessarily violate inter-
national law. For reasons that are explained later, the deployment of FADs that are
retrieved is not illegal. However, the deployment of a FAD that is lost or abandoned
may be contrary to international law. The aim of this article is to ascertain whether
that is so by examining the two bodies of international marine pollution law that are
relevant in this context, namely, the international regime governing the dumping of
waste at sea and the International Convention for the Prevention of Pollution from
Ships (MARPOL).
21
While this question has been discussed to some degree in the
literature, mainly by nonlawyers, such discussion has been brief.
22
To the writers
knowledge, the present article is the first systematic and sustained legal analysis of
the question.
FADs and the International Regime Governing the Dumping of Waste
at Sea
Since the early 1970s an international regime to control and limit the dumping of
waste at sea has been developed. This regime has four components. The first is the
Convention on the Prevention of Marine Pollution by the Dumping of Wastes and
Other Matter (the London Convention).
23
The Convention prohibits the dumping of
the most noxious kinds of waste and requires the prior issuing of a permit for the
dumping of all other kinds of waste. The second component is the Protocol to the
London Convention (the London Protocol).
24
As between its parties, the Protocol
replaces the London Convention and for them is effectively a new and separate
treaty. The Protocol adopts the so-called reverse listing approach. It thus prohibits
the dumping of all wastes except those that are expressly permitted. Nevertheless, the
dumping of such permitted wastes is subject to obtaining a permit. When the
Protocol was adopted, it was hoped that all the parties to the London Convention
would in time become parties to the Protocol, thereby making the Convention
defunct. However, that has not (yet) happened. As of November 2020, around 40 of
20
United Nations Convention on the Law of the Sea, adopted 10 December 1982, entered into force 16 November
1994, 1833 UNTS 397, Art 1(1)(4).
21
International Convention for the Prevention of Pollution from Ships, adopted 2 November 1973, entered into force 2
October 1983, 1340 UNTS 62.
22
See, for example, T. Davies, D. Curnick, J. Barde, et al., Potential Environmental Impacts Caused by Beaching of Drifting
Fish Aggregating Devices and Identification of Management Solutions and Uncertainties (2017) 8, available at: https://iotc.
org/documents/potential-environmental-impacts-caused-beaching-dfads-and-identification-management (accessed 19
May 2020); Hanich, Davis, Holmes, et al., note 7, 750753; and MRAG, note 3, 18.
23
Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, adopted 29
December 1972, entered in force 30 August 1975, 1046 UNTS 138.
24
Protocol to the London Convention, adopted 7 November 1996, entered into force 24 March 2006, (2007) 36 ILM 1.
172 R. CHURCHILL
the Conventions 87 parties had not ratified the Protocol. It is not clear why they
have not done so.
The third component of the international dumping regime is the UNCLOS. It
contains no substantive provisions relating to dumping. Instead, it applies the provi-
sions of other treaties concerned with dumping to its parties through so-called rules
of reference. Thus, Article 210 requires all parties to UNCLOS to adopt laws to con-
trol dumping that are no less effective in preventing, reducing and controlling pol-
lution [from dumping] than the global rules and standards.That raises the question
of what those global rules and standardsare. They would certainly seem to include
the rules of the London Convention. It might be objected that since the Convention
has only 87 parties, less than half the total number of states, its provisions cannot
be said to be global.However, that objection has little force. First, unlike some
other rules of reference in UNCLOS, Article 210 does not contain the qualification
that global rulesmust be generally accepted.Second, a significant number of
states do not engage, or have an interest, in the dumping of waste at sea and there-
fore have no incentive to ratify the Convention. Thus, the number of ratifications
should not, on its own, be determinative as to whether the rules of the Convention
are global.Third, if global rulesdid not include the London Convention, which
was adopted well before UNCLOS was drafted, that would have made Article 210
devoid of practical effect since it is difficult to see to what else global rulescould
have referred.
Whether global rulesalso include the London Protocol is less straightforward. It
could be argued that they do not on the ground that if they did, the significant number
of states parties to the London Convention that were also parties to UNCLOS but had
chosen not to ratify the Protocol would have to adopt national laws that were as effect-
ive as the provisions of the Protocol. However, if a state chooses to ratify UNCLOS, it
has to accept the consequences of the rules of reference therein, including the possibility
that such rules may develop over time. It is also relevant that the London Protocol was
adopted under the auspices of the International Maritime Organization (IMO), the
UNs specialized agency for shipping, with the expectation that it would eventually
replace the Convention. While the matter is not free from doubt, a plausible case may
be made that the rules of the London Protocol are included in the category of global
rulesreferred to in Article 210 of UNCLOS.
25
The fourth component of the international dumping regime is treaties that regulate
dumping at the regional level. There are currently five such treaties. Of those, only two
apply to areas where FADs are deployed in significant numbers, one to the
Mediterranean Sea and the other to the South Pacific.
26
To a large extent the two trea-
ties duplicate the London Convention. Although each has been amended to bring it
25
The same view is taken by L. de La Fayette, The London Convention 1972: Preparing for the Future(1998) 13
International Journal of Marine and Coastal Law 515, 516; and F. Wacht, Article 210in A. Proelss (ed.), United Nations
Convention on the Law of the Sea: A Commentary (C. H. Beck, 2017) 1407, 1418. Harrison, on the other hand, considers
that the provisions of the Protocol should not be considered global rulesuntil the vast majorityof states parties to
the Convention have become parties to the Protocol; see J. Harrison, Saving the Oceans through Law: The International
Legal Framework for the Protection of the Marine Environment (Oxford University Press, 2017) 110.
26
Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft, adopted 16
February 1976, entered into force 12 February 1978, 1102 UNTS 92; and Protocol for the Prevention of Pollution of the
South Pacific Region by Dumping, adopted 24 November 1986, entered into force 22 August 1990, (1987) 26 ILM 41.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 173
into line with the London Protocol, those amendments have not (yet) entered into
force. Because the two regional treaties add nothing of significance to the three global
treaties, they are not considered further here.
Virtually all states involved in the deployment of FADswhether as flag states,
coastal states, or states where FADs are loaded on to vessels for deployment at seaare
parties to one or more of the London Convention, London Protocol, or UNCLOS. The
main exception is Taiwan, which because of its unique international legal status is
unable to become a party to any of those treaties. Taiwanese vessels account for around
1015% of all catches of tuna taken by purs-seine vessels,
27
and therefore may be
assumed to be significant users of dFADs.
Having introduced the components of the international dumping regime, the ques-
tions now to be considered are (1) whether the loss or abandonment of a FAD falls
within the scope of the regime, and (2) if so, what legal consequences follow?
Does the Loss or Abandonment of a FAD Fall within the Scope of the
International Dumping Regime?
The international dumping regime applies to the dumpingof waste or other
matter.
28
Thus, to determine whether the loss or abandonment of a FAD falls within
the scope of the regime, it is necessary to consider whether a FAD may be considered
waste or other matterwithin the meaning of the regime; and if so, whether its loss or
abandonment constitutes dumpingas defined by the regime.
As regards the first issue, wastes or other matteris defined in the London
Convention and Protocol as material and substance of any kind, form or
description.
29
That is a very wide definition and includes FADs. UNCLOS does not
define wastes or other matter,but given that its definition of dumpingis virtually
identical to that of the London Convention, it is reasonable to assume that wastes or
other matterhas the same meaning in UNCLOS as in the Convention.
The next question is whether the loss or abandonment of a FAD constitutes
dumping.Article III(1) of the London Convention, Article 1(4) of the London
Protocol, and Article 1(5)(a) of UNCLOS define dumping as any deliberate disposal at
sea [the Protocol has into the sea] of wastes or other matter from vessels.The
requirements that disposal is at sea(or into the sea) and is from a vesselare
clearly satisfied. That leaves the questions of whether the loss or abandonment of a
FAD constitutes disposaland if so, whether that disposal is deliberate.The term
disposalis not defined in the Convention, Protocol, or UNCLOS. According to
Article 31(1) of the Vienna Convention on the Law of the Treaties (VCLT),
30
a treaty is
to be interpreted in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.The ordinary
meaningof a provision is usually that given in dictionaries. The latter lists quite a
27
MRAG, note 3, 7.
28
Cf. the full titles of the London Convention and London Protocol, and the provisions setting out the basic obligations
of their parties in Article I of the Convention and Articles 2 and 4 of the Protocol.
29
Article III(4) of the Convention; Article 1(8) of the Protocol.
30
Vienna Convention on the Law of Treaties, adopted 22 May 1969, entered into force 27 January 1980, 1155
UNTS 331.
174 R. CHURCHILL
range of meanings of disposal.The meaning that is probably intended here is the act
of getting rid of.
31
That probably also accords with the contextof the three treaties,
as the use of the term disposalelsewhere in the Convention, Protocol, and UNCLOS
would appear to mean getting rid of.
If disposalmeans the act of getting rid of,the next question is whether any
aspects of the placement of a FAD in the sea fall within that phrase. Where a vessel pla-
ces a dFAD in the sea and later retrieves it, it is obviously not getting rid of it and is
therefore not engaged in disposal.On the other hand, both the loss and abandonment
of a FAD would seem to amount to getting rid of it and therefore do constitute
disposal.However, such disposal will not fall within the definition of dumping
unless it is deliberate.That term is also not defined by the Convention, Protocol, or
UNCLOS. Applying Article 31(1) VCLT again, the ordinary meaningof deliberate
suggested by dictionaries is intentional.The context and object and purpose do not
offer further guidance on this point. Assuming that deliberatemeans intentional,it
would appear to follow that the loss of a FAD is not deliberate,whereas its abandon-
ment clearly is. Thus, only the abandonment of a FAD, which in practice happens only
with dFADs, constitutes dumpingunder the definition of dumping in Article III(4) of
the London Convention, Article 1(4) of the London Protocol, and Article 1(5)
of UNCLOS.
That is not the end of the matter, however, as the treaties list a number of acts that
do not constitute dumpingfor the purposes of the international regime, even though
they may appear to fall within the regimes definition of that term. For simplicity, the
matters covered by this list will be referred to as exceptions. The first exception relevant
to the abandonment of FADs is the disposal at sea of wastes or other matter incidental
to, or derived from the normal operations of vessels.
32
Historically, the main reason
for this exception was to avoid an overlap, and potential conflict, with the 1954 Oil
Pollution Convention,
33
the predecessor to MARPOL.
34
The 1954 Convention permitted
the discharge of oily waste from oil tankers under certain conditions while en route.
Without the exception, such discharges, which were incidental to the normal operation
of a tanker, would have constituted dumping under the London Convention and there-
fore would have been subject to its provisions. Whether the exception also applies to
the abandonment of dFADs is less certain. The question is whether such abandonment
can be said to be incidental to, or derived from the normal operationsof a fishing
vessel. The normal operationsof a fishing vessel are navigating to a fishing ground
and fishing there. The terms incidental toand derived fromare not defined in the
London Convention or Protocol. The abandonment of a dFAD could probably not be
described as incidentalto the normal operationsof a fishing vessel, given the
31
This definition is taken from Chambers English Dictionary and the Oxford English Dictionary.
32
Article III(1)(b)(i) of the Convention, Article 1(4)(b)(i) of the Protocol.
33
International Convention for the Prevention of Pollution of the Sea by Oil, adopted 12 May 1954, entered into force
26 July 1958, 327 UNTS 3.
34
See President of the USA, Letter of Transmittal of the London Convention to the Senate (1973), vi, available at:
https://www.gc.noaa.gov/gcil_mp_ocean_dumping.html (accessed May 19, 2020); IMO Secretariat, The London Dumping
Convention: The First Decade and Beyond (1990) 17 (which refers to the exception as covering operational discharges);
C. C. Joyner and S. Frew, Plastic Pollution in the Marine Environment(1991) 22 Ocean Development and International
Law 33, 42; and T. L. Leitzell, The Ocean Dumping ConventionA Hopeful Beginning(1973) 10 San Diego Law Review
502, 505.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 175
number of abandonments and their intentional nature. Whether it could be considered
to be derivedfrom such operations is less certain. In a sense the abandonment of a
FAD could be said to be derivedfrom the normal operationsof a fishing vessel
deploying FADs. Nevertheless, had the drafters of the London Convention known of
the practice of extensively using and often deliberately abandoning FADs that was to
develop two decades after the Convention was adopted, it is perhaps doubtful whether
they would have intended a deliberately abandoned FAD to fall within the exception.
Furthermore, it is a general rule of treaty interpretation that exceptions to general rules
should be applied restrictively. That also argues against permitting the abandonment of
FADs to fall within the exception.
The second exception is placement of matter for a purpose other than the mere
disposal thereof, provided that such placement is not contrary to the aims ofthe
Convention or Protocol.
35
To fall within this exception, an act must therefore satisfy
two conditions. First, it must involve the placement of matter in the sea for a purpose
other than its mere disposal. Second, such placement must not be contrary to the
aims of the Convention/Protocol. There is considerable uncertainty as to the meaning
and scope of the first of these conditions. The matter was discussed at meetings of
the parties to the London Convention (Consultative Meetings) between 2000 and
2005. It was agreed that placement under this exception should not be used as an
excuse for the disposal at sea of waste. Beyond that, no further agreement on guid-
ance as to the meaning of this second exception could be reached.
36
Subsequently,
there has been discussion at the Consultative Meetings as to the application of the
second exception to specific activities, notably, ocean fertilization and artificial reefs,
but those discussions do not really help in establishing the meaning or scope of the
exception. The IMO Secretariat has suggested that the exception is intended to cover
such activities as the placing of scientific equipment and aquaculture installations in
the sea.
37
In trying to determine whether the second exception applies to the abandonment of a
FAD, the first question is whether an abandoned FAD is placed in the sea for a pur-
pose other than the mere disposal thereof.While the initial placement of a FAD in the
sea is not for the purpose of disposing of it, once a vessel has decided not to retrieve
the FAD, the purpose of placing the FAD in the sea has changed to one of disposal. It
would create a significant loophole in the Convention and Protocol if the second excep-
tion were interpreted so as to permit a person to place an object in the sea where the
initial purpose was not disposal, even though all along it was that persons intention
ultimately to dispose of the object at sea once its initial purpose had been fulfilled, or
where that intention developed during the initial deployment of the object in the sea.
35
Article III(1)(b)(ii) of the Convention, Article 1(4)(b)(ii) of the Protocol.
36
See the following reports of the Consultative Meetings: 22nd meeting (2000), 1920; 23rd meeting (2001), 2728;
24th meeting (2002), 2425; 25th meeting (2003), 2426; 26th meeting (2004), 2324; and 27th meeting (2005), 2729.
These reports, like other documents relating to the Convention and Protocol referred to in the following, are available
in the documents section of the IMOs website; because access to this part of the site requires prior registration, no
URL is given. See also A. B. Sielen, The New International Rules on Ocean Dumping: Promise and Performance(2009)
21 Georgetown International Environmental Law Review 295, 311312.
37
IMO Secretariat, note 34, 17. Similarly, Leitzell, note 34, 5, suggests that the exception is designed to deal with the
situation where objects such as environmental monitoring devices are placed on the seabed and may not be intended
for recovery.No authority is given for that statement.
176 R. CHURCHILL
Thus, a strong argument can be made that the abandonment of a FAD does not satisfy
the first condition of the exception. Even if it did, it would still have to satisfy the
second condition, namely, that placement of an object in the sea is not contrary to the
aims of the Convention or Protocol. Those aims are, respectively, to improve protection
of the marine environment and to protect the marine environment and to promote the
sustainable use and conservation of marine resources.
38
Given the adverse environmen-
tal impacts of lost and abandoned FADs outlined earlier,
39
abandonment of a FAD
should be regarded as being contrary to the aims of the Convention and Protocol.
Overall, therefore, a strong case can be made that the abandonment of a FAD does not
fall within the second exception to dumping.
The London Convention contains only the two exceptions just discussed, but the
London Protocol adds a third exception. This is the abandonment in the sea of matter
(e.g. cables, pipelines and marine research devices) placed for a purpose other than the
mere disposal thereof.
40
The scope of this exception is not clear. The quoted phrase is
preceded by the words notwithstanding paragraph (4)(a)(iv) [of Article 1].The latter
paragraph provides that the abandonment or toppling of platforms and other man-
made structures at sea for the sole purpose of deliberate disposal constitutes dumping.
The notwithstandingphrase might suggest that the term matterin this third excep-
tion refers to matter connected with platforms and man-made structures. However, that
is really only true of the second of the three examples given of matter,namely, pipe-
lines. Cables and research devices rarely relate to platforms and structures. It is not clear
what the policy rationale for the third exception is or how it is intended to differ from
the second exception. Nevertheless, given the aims of the Protocol, there is a case for
interpreting matterrestrictively and limiting it to the three examples given and to
objects closely connected therewith, and for regarding the purpose of the exception as
to exclude from the definition of dumpingabandoned matter that before its abandon-
ment had a use that was beneficial to the community at large and not harmful to the
marine environment. Such an interpretation would exclude the abandonment of FADs,
with their potential to cause significant environmental harm, from the scope of this
third exception.
The conclusion from the preceding discussion is that the retrieval or loss of a FAD
does not constitute dumpingwithin the meaning of the London Convention and
London Protocol, and thus falls outside the scope of those treaties and is not regulated
by them. In contrast, although the matter is not wholly free from doubt, the abandon-
ment of a FAD does constitute dumpingand thus falls within the scope and regula-
tory provisions of both the Convention and Protocol, as well as the provisions of
UNCLOS relating to dumping. There is support for that conclusion from the practice of
the institutions of the London Convention and Protocol. First, at its 2018 session, the
meeting of the parties to the Convention and Protocol, in considering the IMOs Action
Plan on Marine Litter (referred to in the following), noted that dumping of fishing
38
London Convention, preamble, first three recitals; London Protocol, preamble, 1st recital: see also 8th recital and
Articles 2 and 3.
39
See text at notes 1719.
40
Protocol, Art 1(4)(b)(iii).
OCEAN DEVELOPMENT & INTERNATIONAL LAW 177
gear was in contravention of LC/LP.
41
Second, at their meeting in 2019, the Scientific
Groups instructed the secretariat to issue a circular inviting states parties to provide
information on their (possible) source control options to reduce the presence of marine
litter in LC/LP waste streams on, inter alia, discardedFADs.
42
Having determined that the abandonment of FADs probably constitutes dumping,
the next question is what consequences follow from that finding. As noted earlier, in
practice, only dFADs are abandoned. Thus, the discussion that follows relates only to
dFADs, and not aFADs.
What Legal Consequences Follow from the Finding that the Abandonment of
FADs Falls within the Scope of the International Dumping Regime?
The consequences that follow from the finding that the deliberate abandonment of
dFADs falls within the scope of the London Convention, the London Protocol, and
UNCLOS differ significantly between the three treaties. Each is therefore considered
separately. In the case of the London Convention, Article IV prohibits the dumping of
the particularly noxious substances listed in Annex I (the so-called black list). The
dumping of the somewhat less harmful substances listed in Annex II (the so-called gray
list) is only permitted if a prior special permit has been obtained, while the dumping of
all other substances requires a prior general permit. The only substances on the black
list that appear to be potentially relevant to FADs are persistent plastics and other per-
sistent synthetic materials, for example, netting and ropes, which float or remain in sus-
pension in the sea in such a manner as to interfere materially with fishing, navigation
or other legitimate uses of the sea.As noted earlier, dFADs often have a plastic float
and have synthetic netting or ropes suspended beneath them. They may also interfere
with navigationand possibly with other legitimate uses of the sea,although whether
such interference is materialis debatable. Where interference is considered to be
material, and the FAD concerned is constructed of the proscribed materials, its dump-
ing, that is, abandonment, is therefore prohibited. The only substances on the gray list
that appear potentially relevant to FADs are materials which, though of a non-toxic
nature, may become harmful due to the quantities in which they are dumped, or which
are liable to seriously reduce amenities.While abandoned FADs are unlikely to
become harmful due to the quantities in which they are dumped,they could possibly
be liable to seriously reduce amenities,for example, when washed up on to tourist
beaches. In such cases, a vessel that intended to abandon a FAD would require a prior
special permit. If a FAD did not contain any material on the black or gray lists, the ves-
sel intending to abandon it would require a prior general permit.
Under Article VI(2)(a) of the London Convention, permits are to be issued by the
state in whose territory the matter intended for dumpingis to be loaded (the state of
loading). The Convention does not stipulate that a vessel intending to load matter that
41
Report of the Fortieth Consultative Meeting and Thirteenth Meeting of Contracting Parties (2018), [9.51]. As seen earlier
(when discussing the FAOs Voluntary Guidelines on the Marking of Fishing Gear), and as will be seen again in the
following (when discussing MARPOL), FADs are considered to be fishing gear.
42
Report of the Forty-Second Meeting of the Scientific Group of the London Convention and the Thirteenth Meeting of the
Scientific Group of the London Protocol (2019), [8.25].
178 R. CHURCHILL
requires a permit has to have the nationality of a state party to the Convention, so it
would seem that the state of loading is required to issue a permit to any vessel loading
matter that is intended for dumping, regardless of that vessels nationality. Where the
state of loading is not a party to the Convention, a permit is to be issued by the flag
state if it is a party to the Convention (Article VI(2)(b)). Where neither the state of
loading nor the flag state is a party to the Convention, the Convention does not apply
to the vessel concerned.
The application of these provisions to vessels loading FADs is not straightforward.
The state of loading will be the state where a fishing vessel takes a FAD on board. For
Article VI(2)(a) to operate effectively, the state of loading needs to know whether a ves-
sel loading a FAD in one of its ports intends eventually to abandon it. It is difficult to
see how the state of loading can know what the intention of the vessel is. It can ask the
master, but it may not receive an honest reply. Where a vessel is known to have a his-
tory of deliberately abandoning FADs, it is reasonable for the state of loading to assume
that the vessel will do so again and thus require it to have a permit. The most straight-
forward way for the state of loading to be sure that it complies with its obligations
under Article VI(2) is for it to require all vessels loading FADs in its ports to obtain a
prior permit. It will also need to check what each FAD is made of. If a FAD contains
matter on the black list, the state of loading must prohibit the vessel concerned from
taking the FAD on board. If a FAD contains matter on the gray list, the state of loading
must issue a special permit. Otherwise, it must issue a general permit. Annex III of the
Convention sets out various factors that the state of loading must carefully consider
before issuing a special or general permit. They include the characteristics and compos-
ition of the matter to be dumped, the characteristics of the proposed dumping site, and
the possible effects of the dumping. The second and third of these factors are not easy
to apply in the case of FADs.
Where the state of loading is not a party to the London Convention but the flag state
of a vessel deploying FADs is, the issuing of permits becomes the flag states responsi-
bility. Again, the situation is not straightforward. A flag state needs to know in which
states its fishing vessels are loading FADs, and whether those states are parties to the
Convention. Discovering the former is likely to be difficult, especially if the flag state is
a flag of convenience with limited oversight over its vessels. Where a flag state is aware
of its vessels loading FADs in states that are not parties to the London Convention, it
faces similar difficulties to the state of loading in determining whether it should be issu-
ing permits.
Whether states of loading or flag states in practice generally, or indeed ever, issue
permits to vessels deploying FADs is unclear. The fact that the issue of such permits
appears never to be mentioned in Consultative Meetings of the London Convention
might suggest that states of loading and flag states do not generally issue permits.
However, no real conclusions can be drawn from the lack of such mention, as compli-
ance by states parties with their obligation under Article VI(4) of the Convention annu-
ally to report details of the permits that they have issued to the IMO has been poor.
43
43
For example, in 2015, only 35% of the parties reported as required; see Report, note 41, [7.3].
OCEAN DEVELOPMENT & INTERNATIONAL LAW 179
Articles II, IV(1), and VII(1) and (2) of the London Convention require states parties
to make the provisions of the Convention that are intended to govern the conduct of
nonstate actors part of their national law. That is important as the Convention, like all
treaties, does not bind nonstate actors, such as the owners, operators, and masters of
fishing vessels. The Convention also imposes obligations on its parties to enforce its
provisions regulating dumping against nonstate actors via its national laws. Article
VII(2) provides that each party to the Convention shall take in its territory appropriate
measures to prevent and punish conduct in contravention of the provisionsof the
Convention. This provision would seem to have the following implications as far as
fishing vessels deploying FADs are concerned. First, the state of loading must prevent a
vessel leaving its ports if it reasonably suspects it of subsequently intending to abandon
a FAD loaded in its ports that either contains plastic material on the Conventions black
list or for which there is no permit. Second, if a vessel returns to a port in the state of
loading after engaging in conduct prohibited by the Convention with respect to a FAD
loaded in that state, the latter must institute criminal or administrative proceedings
against the vessel if it has sufficient evidence to do so.
44
Third, the flag state, regardless
of whether it issued, or should have issued, a permit, must institute criminal or admin-
istrative proceedings against a vessel having its nationality where it has adequate evi-
dence that the vessel has acted contrary to the Convention, unless the state of loading
has already taken action. The latter qualification reflects a general principle of inter-
national human rights law that a person may not be tried or punished twice for the
same offense.
45
In addition, Article VII(1)(c) of the Convention stipulates that a state
must apply its provisions to any vessel believed to be dumping waste in any maritime
areas where it exercises jurisdiction. Thus, such a state, that is, the coastal state, must
institute proceedings against a vessel deliberately abandoning a FAD in a way that is
contrary to Convention in any such areas. Articles 210(5) and 216(1)(a) of UNCLOS
clarify that those areas are the territorial sea, exclusive economic zone (EEZ), and con-
tinental shelf.
The obligations of enforcement just outlined are not absolute ones. In two advisory
opinions, the International Tribunal for the Law of the Sea (ITLOS) has held that where
a state is required to ensure that nonstate actors comply with the rules of a particular
treaty, the obligations on that state are ones of due diligence.
46
Thus, a failure by the
state of loading to prevent the departure from one of its ports of a vessel carrying a
FAD made of prohibited material or without a required permit or to take proceedings
against the vessel where it had abandoned a FAD would not necessarily represent a
breach of the Conventions enforcement obligations. It would depend on whether that
state had exercised due diligence to prevent such a departure or detect the abandon-
ment. According to the ITLOS, the obligation of due diligence requires a state to deploy
adequate means and to exercise best possible efforts to prevent the breach in question.
44
Reference is made to administrative proceedings as an alternative to criminal proceedings because some states
sanction regulatory offenses through administrative, rather than criminal, proceedings and penalties.
45
This principle is found, for example, in Article 14(7) of the International Covenant on Civil and Political Rights,
adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171.
46
Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion of 1 February 2011,
ITLOS Reports 2011, pp. 4144 [110120]; and Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission, Advisory Opinion of 2 April 2015, ITLOS Reports 2015, p. 40 [129].
180 R. CHURCHILL
That is particularly relevant to abandonment because it will be extremely difficult for
the state of loading, flag state, or coastal state, as the case may be, to obtain adequate
evidence of an offense. Recent measures adopted by the four regional fisheries manage-
ment organizations (RFMOs) that have responsibility for tropical tuna fisheries may aid
detection of an offense and the acquisition of evidence. All four RFMOs require purse-
seine vessels to carry observers on board.
47
Such observers may be able to detect
breaches of the London Convention. Indeed, the WCPFC require observers to compile
reports on the disposal of dFADs.
48
In addition, all four RFMOs require a dFAD and/
or its buoy to carry unique identification markings that must be notified to the flag
state.
49
Thus, if a dFAD is washed up on a beach or reef, the coastal state should be
able to identify the vessel that lost or abandoned the dFAD, although it will probably
not be able to deduce whether it is a case of loss or abandonment.
The position under the London Protocol differs in some significant ways from that
just described under the London Convention. The Protocol prohibits the dumping of all
matter except that listed in Annex I. The only matter in that list that could apply to
FADs is organic material of natural origin.This would include, for example, FADs
made of wood. If a FAD does not consist of organic material of natural origin,and it
appears that at the present time most do not,
50
its dumping (i.e., abandonment) is pro-
hibited under Article 4. A FAD that does consist of such material may be dumped, but
only if a prior permit has been obtained. The state that is to the issue the permit, that
is the state of loading, or the flag state if the state of loading is not a party to the
Protocol, must comply with the conditions set out in Annex II to the Protocol before
issuing the permit. As with the London Convention, states parties to the London
Protocol are required to make its provisions that are intended to govern the conduct of
nonstate actors part of their national law.
51
The provisions of the Protocol setting out
the enforcement obligations of its parties (in Article 10) are similar to those of the
London Convention.
Finally, turning to UNCLOS, Article 210(5) provides that a vessel may dump matter
within the territorial sea, EEZ, or onto the continental shelfof a state only with the
express prior approval of that state, which has the right to permit, regulate and control
such dumping after due consideration with other states which by reason of their geo-
graphical situation may be adversely affected thereby.The effect of this provision is
that a vessel intending to abandon a FAD within the territorial sea, EEZ, or continental
47
See, respectively, IOTC Res. 11/04, available at: https://iotc.org/cmms (accessed 2 December 2020); Article XIII and
Annex II of the Agreement on the International Dolphin Conservation Program, adopted 21 May 1998, entered into
force 15 February 1999, available at: https://iattc.org/IDCPENG.htm (accessed 19 May 2020) (scheme of the Inter-
American Tropical Tuna Commission (IATTC)); ICCAT Rec. 19-02, note 2, [58] and Annex 7; and West and Central Pacific
Fisheries Commission (WCPFC) CMM 2018-01, available at: https://www.wcpfc.int/system/files/booklets/31/CMM%
20and%20Resolutions.pdf (accessed 19 May 2020).
48
WCPFC CMM 2018-01, ibid, [34]. Further on the role of WCPFC observers for this purpose, see Richardson, Haynes,
Talouli, et al., note 17, 12.
49
IOTC Res. 19/02, [2] and [7], available at: https://iotc.org/cmms; IATTC Res. C-18-05, [9], available at: https://www.
iattc.org/ResolutionsActiveENG.htm (accessed 2 December 2020); ICCAT Rec. 19-02, note 2, [18], Annex 1, [3(e)] and
Annex 4; and WCPFC CMM 2018-01, note 48, [23].
50
In the western and central Pacific Ocean less than 3% of dFADs were constructed only of natural materials as of
2020 and 1834% were made entirely from artificial materials: see N. B. Phillip and L. Escalle, Updated Evaluation of
Drifting FAD Construction Materials in the WCPO, 3, Doc. WCPFC-SC-16-2020/EB-IP-03, available at: https://www.wcpfc.int/
node/46724 (accessed May 19, 2020).
51
Articles 4 and 10(1)(2) of the Protocol.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 181
shelf of any state must obtain the prior approval of that state before doing so, regardless
of any permit that it may have obtained from the state of loading or its flag state under
the London Convention or Protocol.
Article 216 of UNCLOS provides that a coastal state may institute proceedings against
any vessel that dumps (i.e., abandons) a FAD in its maritime zones without having
obtained its prior approval. Article 216 also reinforces the obligations in Article VII of
the London Convention and Article 10 of the London Protocol by requiring the coastal
state (where the breach takes place in its maritime zones), the flag state, and the state of
loading to enforce applicable international rules and standardsunless another state
has already instituted proceedings. This provision is particularly relevant for states that
are not parties to the London Convention or Protocol.
Action Against States That Fail to Comply with Their Obligations under the
International Dumping Regime
Where a state failed to exercise its obligations under the international dumping regime
with respect to the abandonment of FADs, it would be possible for a nonstate actor,
such as an environmental organization, to make representations to the state concerned
and request it to take corrective action. If that state declined to do so, there would be
little more that a nongovernmental organization (NGO) could effectively do on its own.
To take matters further, it would have to try to find a state that would be willing to
take up the matter with the noncomplying state. That would not be easy. In general,
with the notable exception of the World Trade Organization (WTO) dispute settlement
procedures, states are reluctant to resort to more formal dispute resolution procedures,
especially litigation, because of the cost, time, and effort involved. Furthermore, litiga-
tion is often perceived as an unfriendly act, and states are therefore cautious about ini-
tiating legal proceedings for fear of damaging their relations with potential defendant
states. Thus, a state would be very unlikely to take action with respect to alleged
breaches by another state of its obligations under the international dumping regime
unless it had a particular interest in the matter, for example, if its tourist beaches had
become littered with lost or abandoned FADs. If another state did take up the matter, it
would begin by making diplomatic representations to the state of loading or the flag
state. If that failed to persuade the state concerned to comply with its obligations, the
other state could resort to the dispute settlement procedures of the international dump-
ing regime. Such procedures vary, as between the three treaties that comprise
the regime.
The London Convention contains no dispute settlement procedures. Amendments to
the Convention to provide such procedures were adopted in 1978, but have not received
the necessary number of ratifications to enter into force. Thus, a dispute relating to the
Convention can only be resolved by utilising the general dispute resolution mechanisms
of international law. Unlike the London Convention, the London Protocol does contain
dispute settlement procedures. Articles 16 provides that disputes relating to the
interpretation or applicationof the Protocol shall be resolved in the first instance
through negotiation, mediation, conciliation, or other agreed means. Where a dispute
cannot be resolved within 12 months using those means, either party may unilaterally
182 R. CHURCHILL
refer the dispute to arbitration, unless the parties agree to use the dispute settlement
procedures of UNCLOS (outlined in the following) instead. The qualification in Article
16 that a dispute must relate to the interpretation or applicationof the Protocol is a
standard formulation in dispute settlement clauses in treaties. It has long been estab-
lished in the jurisprudence of international courts and tribunals that applicationin
this context includes alleged breaches of the treaty in question. Although the Protocol
has been in force since 2006, its dispute settlement procedures (with the possible excep-
tion of negotiations) have yet to be used. In addition to those procedures, the Protocol
also has a noncompliance procedure.
52
Under this procedure, instances of alleged non-
compliance by a state party to the Protocol may be referred to the Compliance Group
by the Meeting of Contracting Parties, by the noncomplying state party itself, or by
another state that has an interest that is likely to be affected by the noncompliance. The
Group shall investigate the matter. Following the investigation, the Meeting of
Contracting Parties may take one or more of a number of possible measures. To date,
no allegations of noncompliance by individual states parties have been referred to the
Compliance Group. Instead, the Group has considered systemic noncompliance by the
parties generally.
UNCLOS contains an extensive system for the settlement of disputes relating to its
interpretation or application in Part XV. Section 1 of Part XV requires states parties to
settle any dispute between them by negotiation or other agreed means. Section 2 goes
on to provide that any dispute that cannot be so settled may, with some exceptions
(none of which is relevant in the present context), be unilaterally referred by any party
to the dispute to legally binding settlement. To date, very few environmental disputes
have been referred for settlement under section 2 of Part XV and none has con-
cerned dumping.
Concluding Observations on FADs and the International Dumping Regime
The international dumping regime was not designed to deal with the use of FADs by
fishing vessels and, perhaps not surprisingly, its application to FADs is not free from
difficulty. In particular, it is not wholly certain whether the abandonment of a dFAD
constitutes dumping. If it does, the application of the regimes regulatory system, espe-
cially the issue of permits, to such abandonment is not straightforward.
There has been some limited discussion of FADs in the institutions of the
Convention and Protocol. In 2012, Greenpeace, together with experts from the Pew
Foundation, gave an informal presentation on the problems of FADs to the governing
bodies.
53
Greenpeace followed that up in 2015 with the presentation of a paper to the
38th meeting of the Scientific Group that highlighted the lack of knowledge about the
deployment of FADs, the environmental problems that they can cause, and the need for
better regulation.
54
The Scientific Group noted those points. The only member of the
52
Compliance Procedures and Mechanisms pursuant to Article 11 of the 1996 Protocol to the London Convention,
Report of the Twenty-Ninth Consultative Meeting (2007), annex 7. For the text as amended in 2017, see Report of the
Thirty-Ninth Consultative Meeting and Twelfth Meeting of Contracting Parties (2017), annex 5.
53
Greenpeace paper, note 14, 1.
54
Ibid.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 183
Group recorded as having expressed a specific view was the United States, which con-
sidered that the best approach to addressing the problems of unrecovered FADs was
through regional forums, such as RFMOs. It added that it did not consider FADs inher-
ently to be marine debris but as the component of a well-regulated fishing technique
that was widely used.
55
The only record of any discussion of the issue in the reports of
the Meetings since the 38th meeting of the Scientific Group is in the report of the 2019
Meetings. There it is recorded that Pew Charitable Trusts and Greenpeace gave an
informal presentation on the problem of FADs as marine litter and the action that
could be taken under the Convention and Protocol.
56
There is no record of any
response to that presentation, and the text of the presentation is not included in the
Meeting papers.
In theory, it would be possible for a state or an observer NGO to take up the matter
again with the Scientific Group and/or Consultative Meetings, for example, by trying to
persuade the Meetings to declare that abandonment was contrary to the international
dumping regime. A less far-reaching alternative would be to follow the example of arti-
ficial reefs briefly mentioned earlier and try to encourage the Meetings to adopt guide-
lines on the deployment of FADs. However, in view of the response of members of the
Scientific Group to the paper by Greenpeace, it is likely that it would be difficult to per-
suade the Meetings to adopt either of those courses of action.
A more productive approach might be to try to utilize the noncompliance procedure
of the London Protocol. A state party, such as one whose tourist beaches were littered
with abandoned FADs, might be willing to refer to the Compliance Group a state of
loading or a flag state that was known, for example, not to issue permits for the aban-
donment of FADs made of permissible materials or prohibit the abandonment of FADs
made of other materials. That would enable the Compliance Group to rule on exactly
how the Protocol applied to the abandonment of FADs, thereby potentially resolving
some of the current uncertainties.
Having examined the position under the international dumping regime, attention
now turns to the question of whether the loss or abandonment of FADs contra-
venes MARPOL.
FADs and MARPOL
MARPOL is intended to address most forms of pollution from ships other than dump-
ing. The detailed provisions laying down antipollution standards are set out in six
annexes to the Convention. The only annex that is relevant to the loss or abandonment
of FADs is Annex V, which deals with garbage.
57
The rules in Annex V apply not only
to states that have ratified MARPOL. Article 211(2) of UNCLOS requires flag states par-
ties to it to adopt laws and regulations for the prevention of pollution from ships
55
Report of the 38th meeting of the Scientific Group, Doc. LC/SG38/16, 24.
56
Report of the Forty-First Consultative Meeting and Fourteenth Meeting of Contracting Parties (2019), [90].
57
The original text of Annex V was replaced by a revised version in 2011, which entered into force in 2013; see Res.
201(62) (2011) of the IMOs Marine Environment Protection Committee (MEPC). This and other resolutions of the MEPC
referred to below are available at: https://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Pages/MEPC.aspx
(accessed 2 December 2020). Annex V has subsequently been amended a number of times. Relevant amendments are
referred to below.
184 R. CHURCHILL
having their nationality that have at least the same effect as that of generally accepted
international rules and standards.There can be no doubt that such rules and stand-
ardsinclude Annex V of MARPOL, given that as of November 2020 it had been rati-
fied by 154 states, the ships of which constituted 98.56% of the world fleet.
58
The effect
of Article 211(2) of UNCLOS is that the small number of states (around 15) that are
parties to UNCLOS, but not to Annex V of MARPOL, are bound to apply laws and reg-
ulations to ships having their nationality that have at least the same effectas the pro-
visions of Annex V. As with the international dumping regime, it is not possible for
Taiwan, whose vessels are responsible for a significant proportion of tropical tuna
catches, to become a party to either MARPOL or UNCLOS.
In relation to MARPOL, the loss or abandonment of a FAD raises the following ques-
tions: (1) Does such loss or abandonment contravene Annex V? (2) If so, what action
may be taken against individual vessels breaching Annex V and (3) their flag states?
Does the Loss or Abandonment of a FAD Contravene Annex V of MARPOL?
Annex V is concerned with the dischargeof various types of garbage from ships.
59
Ashipis defined, in Article 2(4) of the Convention itself (rather than Annex V),
60
as
a vessel of any type whatsoever operating in the marine environment.Under Article 3
of the Convention, MARPOL applies to all kinds of ships having the nationality of a
state party, as well as ships not having the nationality of a state party but which oper-
ate under the authorityof a state party, with the exception of warships and other state-
owned ships operated for noncommercial purposes. Thus, all fishing vessels having the
nationality of a state party or operated under the authority of a state party come within
the scope of MARPOL.
As for discharge,this term is defined in Article 2(3)(a) of the Convention as mean-
ing any release howsoever caused from a ship and includes any escape, disposal, spill-
ing, leaking, pumping, emitting or emptying.The placement of a dFAD in the sea that
is subsequently retrieved would appear not to constitute a discharge as there is no per-
manent release, escape, or disposal. That is confirmed by the Guidelines for the
Implementation of MARPOL Annex V, adopted by the MEPC in 2017,
61
paragraph
1.7.8 of which provides that [f]ishing gear that is released into the water with the
intention of later retrieval, such as fish aggregating devices (FADs) should not be
considered garbage or accidental loss in the context of Annex V.In contrast, the aban-
donment of a dFAD would seem to fall within the definition of dischargeas it consti-
tutes a release,and in a particular a disposal.Moreover, given that there is no
requirement for a discharge under MARPOL to be deliberate (unlike the London
Convention and Protocol, where disposal must be deliberate), the loss of a dFAD would
also seem in principle to constitute a dischargeas it falls within the concept of
escape,although, as will be seen in the following, there is an exception for accidental
58
IMO, Status of Treaties, available at: https://wwwcdn.imo.org/localresources/en/About/Conventions/
StatusOfConventions/StatusOfTreaties.pdf (accessed 2 December 2020).
59
See Annex V, Regs. 3 and 2, respectively.
60
Henceforth the term the MARPOL Convention(or simply Convention) will be used to refer to the text of the
Convention itself, and MARPOLto the Convention together with its annexes.
61
MEPC Res. 295(71) (2017). The Guidelines replace a previous set of guidelines, adopted in 2012.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 185
loss. The cause of the escape(loss of the dFAD) is immaterial since Article 2 refers to
a release howsoever caused.In the case of aFADs, the mere anchoring of a FAD in
the sea probably does not constitute a dischargeas it is intended to be used and not
disposed of. However, where an aFAD breaks loose from its moorings and is not
retrieved, that would appear to amount to a dischargewithin the meaning
of MARPOL.
Article 2(3)(b)(i) of the MARPOL Convention excludes from its definition of
discharge”“dumping within the meaningof the London Convention. Since the defin-
ition of dumping in the London Protocol is largely the same as that in the London
Convention, it is reasonable to assume that the exclusion in Article 2(3)(b)(i) also
includes the London Protocol. It was concluded earlier that the loss of a FAD did not
constitute dumping under the London Convention or Protocol. Thus, such loss does
not come within the exclusion in Article 2(3)(b)(i). However, it was concluded that
abandonment of a FAD probably does constitute dumping under the London
Convention. Thus, abandonment probably does fall within the exclusion. Nevertheless,
in case that conclusion is incorrect, the application of MARPOL to abandoned FADs
will be included in the discussion that follows.
Annex V prohibits the discharge of two groups of substances. First, Regulation 3.2
prohibits discharges into the sea of all plastics,including synthetic ropesand
synthetic fishing nets.As noted earlier, plastic is currently widely used in the con-
struction of FADs. The abandonment of a FAD containing plastic is therefore a clear
breach of Annex V. Regulation 7.1.3 provides that in the case of the accidental loss of
fishing gear from a ship,there is no breach of Annex V if all reasonable precautions
have been taken to prevent such loss.Thus, the loss of a FAD containing any plastic
will constitute a breach of Regulation 3.2 of Annex V unless the master/owner of the
fishing vessel concerned can show that all reasonable precautionsto prevent such loss
were taken. The term nonaccidental lossis used here to refer to the loss of FADs
where all reasonable precautions were not taken. Under Regulation 10.3.4 accidental
loss must be recorded in the ships log book; under Regulation 10.6 it must be reported
to the flag state of the fishing vessel if it poses a significant threat to the marine envir-
onment or navigation and, if it occurs in the territorial sea or EEZ of another state, to
that state.
62
There are no equivalent recording or reporting obligations in the case of
nonaccidental loss or abandonment, presumably because such loss and abandonment
are prohibited.
The second type of prohibited discharge is set out in Regulation 3.1. It prohibits the
discharge of all garbage,subject to certain exceptions. The only exception that is rele-
vant to FADs is that relating to accidental loss in Regulation 7.1.3, referred to in the
previous paragraph.
63
Garbageis defined in Regulation 1.9 as various kinds of listed
waste, including fishing gear,that is generated during the normal operation of the
ship and liable to be disposed of continuously or periodically.”“Garbagedoes not
62
Para 2.2 of the Guidelines for the Implementation of MARPOL Annex V, ibid, gives guidance to states on how such
reporting obligations should be implemented.
63
There is a further exception for accidental loss in Reg 7.1.2, but as far as fishing gear is concerned, it adds nothing
to the exception in Reg 7.1.3.
186 R. CHURCHILL
include fresh fish or parts thereof generated as a result of fishing activities undertaken
during the voyage.
Whether a lost or abandoned FAD constitutes garbageand thus falls within the
prohibition in Regulation 3.1 depends on whether it is (1) fishing gear; (2) generated
during the normal operation of the ship; and (3) liable to be disposed of continuously
or periodically.As to the first question, fishing gearis defined in Regulation 1.6 as
any physical device or part thereof that may be placed on or in the water with
the intended purpose of capturing, or controlling for subsequent capture or harvesting,
marine or fresh water organisms.Strictly speaking, the purpose of a FAD is not to cap-
ture fish or control their capture or harvesting, but to facilitate their capture. However,
the Guidelines for the Implementation of MARPOL Annex V clearly assume that FADs
are fishing gearsince they refer to [f]ishing gear that is released into the water ,
such as fish aggregating devices (FADs).
64
Likewise, the FAO Voluntary Guidelines on
the Marking of Fishing Gear include provisions on FADs, thus implying that they are
fishing gear.It therefore seems safe to regard FADs as fishing gearfor the purposes
of Annex V.
The next question is whether a lost or abandoned FAD is generated during the nor-
mal operationof a ship. dFADs are certainly used during the normal operationof a
fishing vessel; it also seems reasonable to suggest that their loss or deliberate abandon-
ment is generatedfrom such operation, even if generateis not perhaps the first verb
that springs to mind as a description of losing or abandoning a dFAD during fishing
operations. As its use in connection with the exclusion of fresh fish from the definition
of garbage shows, generateis something of all-purpose verb in Annex V. Whether a
lost aFAD can be said to be generated during the normal operationof a ship is less
straightforward, but the fact that an aFAD is put into position from a ship arguably
means that it is generatedfrom a normal operationof a ship.
The final question is whether the loss or abandonment of FADs is such that it can be
characterized as liable to be disposed of continuously or periodically.Given the scale
of the loss and abandonment of FADs described earlier, it would seem plausible to con-
sider such loss and abandonment as disposal that is liableto occur periodically.
Thus, while the matter is not wholly free from doubt, there is a strong argument for
concluding that a FAD that is abandoned or not accidentally lost constitutes garbage
within the meaning of Annex V. That conclusion is supported by the Guidelines for the
Implementation of MARPOL Annex V, which, as noted earlier, state that [f]ishing gear
that is released into the water with the intention of later retrieval, such as fish aggregat-
ing devices (FADs) should not be considered garbage or accidental loss in the con-
text of Annex V.The implication of that statement is that the nonaccidental loss and
abandonment of a FAD do constitute garbagefor the purposes of Annex V. Further
support comes from paragraph 2.2 of the Guidelines, which provides extensive guidance
as to what Annex V requires in the way of reporting and documentation with respect
to the discharge or loss of fishing gear,thereby confirming that such fishing gear con-
stitutes garbage. Paragraph 2.2 also encourages the fishing industry and governments to
64
Guidelines, note 61, [1.7.8].
OCEAN DEVELOPMENT & INTERNATIONAL LAW 187
carry out the research and development necessary to minimize the probability of loss,
and maximize the probability of retrieval of fishing gear from the sea.
Thus, the nonaccidental loss and abandonment of a FAD are contrary to Annex V.
65
If a FAD contains plastic material, its nonaccidental loss or abandonment violates the
prohibition in Regulation 3.2; if it does not contain such material, it violates the prohib-
ition in Regulation 3.1. The next question is, what action may be taken against fishing
vessels violating those prohibitions?
What Action May Be Taken Against a Fishing Vessel That Has Violated Annex V
of MARPOL?
It is possible for punitive action to be taken against vessels that have violated Annex V
by three categories of state: flag states, coastal states, and port states. The enforcement
rights and duties of each group of states are next examined in turn. A flag state must
enact legislation making violations of MARPOL by ships having its nationality a crim-
inal (or administrative) offense, punishable with sanctions that are adequate in severity
to discourage violationsand that are equally severe regardless of where the violation
occurs.
66
Where the flag state of a vessel is informed of a violation of MARPOL and is
satisfied that sufficient evidence is available to enable proceedings to be brought with
respect to the alleged violation, it shall cause such proceedings to be taken as soon as
possible, in accordance with its law.
67
Thus, if a flag state has sufficient evidence of a
violation of Annex V, it must take criminal proceedings (or administrative proceedings
if it is a state where regulatory offenses are normally sanctioned through administrative,
rather than criminal, penalties) against the owner, operator, and/or master of the vessel.
The observations that were made earlier about the difficulty of obtaining sufficient evi-
dence to bring proceedings in the case of violations of the rules of the international
dumping regime apply equally here. Some assistance to flag states may come from
RFMO measures: The IOTC and ICCAT require fishing vessels to report the loss of a
FAD to its flag state, while the WCPFC encourages them to do so.
68
Even if the flag
state does have sufficient evidence, there is no guarantee that it will take action. Articles
4(1) and 6(4) of the MARPOL Convention refer to a flag state acting in accordance
with its law.Thus, a flag state might decline to institute proceedings if, for example, it
was normal practice in that state not to institute criminal proceedings unless there was
more than a 50% chance of conviction, or if it was not considered in the public interest
to prosecute where the cost and effort of doing so were not commensurate with the
gravity of the offense or the likely penalty for conviction.
65
This has been explicitly acknowledged by one of the tropical tuna RFMOs. The preamble to WCPFC CMM 2017-04,
available at: https://www.wcpfc.int/system/files/booklets/31/CMM%20and%20Resolutions.pdf (accessed 19 May 2020),
notes that Annex V of MARPOL prohibit[s] the disposal of all fishing gear and plastics at sea.Somewhat curiously, the
measure does no more than encourageWCPFC members to prohibit their vessels from discharging garbage,
including fishing gearin accordance with Annex V ([3]). A footnote states that fishing gear released into the water for
later retrieval such as FADs . . . are not considered garbage.
66
Article 4(1) and 4(4) of the MARPOL Convention.
67
Articles 4(1) and 6(4).
68
See, respectively, IOTC, Res. 19/02, note 49, [10]; ICCAT, Rec. 19-02, note 1, 37; and WCPFC CMM 2017-04, note 65,
[5] and [10].
188 R. CHURCHILL
Paragraphs 4 and 6 of Article 217 of UNCLOS impose obligations on flag states simi-
lar to those in Articles 4(1) and 6(4) of the MARPOL Convention in relation to a vio-
lation of rules and standards established through the competent international
organization.The latter is universally understood to be the IMO, with the consequence
that the rules and standardsreferred to include MARPOL. The practical importance
of Article 217(4) and (6) primarily relates to the relatively few flag states that are parties
to UNCLOS but not to MARPOL. The same caveats may be made about these provi-
sions as were made about Articles 4(1) and 6(4) of MARPOL.
Turning now to the enforcement role of coastal states, Article 4(2) of the
MARPOL Convention provides that if a violation of MARPOL occurs within the
jurisdictionof a state other than the flag state, that is, within the territorial sea or
EEZ of another state, that state, that is, the coastal state, shall either inform the flag
state or institute proceedings with respect to the alleged violation itself. Unless a lost
or abandoned FAD has caused substantial damage in its waters, a coastal state is
likely to exercise the former option, as it will have little interest or incentive in going
to the bother and expense of instituting proceedings. Furthermore, it may be difficult
for a coastal state to obtain adequate evidence of an alleged violation. As with flag
states, UNCLOS includes parallel enforcement provisions for coastal states. Article
220(1) provides that where a vessel is voluntarily within one of its ports, a state may
(but is not obliged to) institute proceedings with respect to any violation of applic-
able international rules and standards (including MARPOL) when such a violation
has occurred within its territorial sea or EEZ. However, a coastal state may not arrest
in its territorial sea or EEZ a vessel suspected of having committed a pollution
offense there save in exceptional circumstances, which do not cover the loss or aban-
donment of a FAD.
69
As regards port states, Article 6(2) of the MARPOL Convention provides that they
may inspect a vessel in one of their ports for the purpose of verifying whether the ship
has discharged any harmful substances in violation ofMARPOL.
70
It is immaterial
where a discharge (i.e., loss or abandonment) took place. In practice, it would seem dif-
ficult for a port state to determine from such an inspection whether a dFAD had been
abandoned or lost, although there may be evidence in the log book. Both the IOTC and
ICCAT require vessels to record information concerning FAD activity in the log
book.
71
If the inspection indicates that a violation of MARPOL has occurred, the port
state must send a report to the flag state.
As in the case of flag and coastal states, UNCLOS includes broadly parallel enforce-
ment provisions for port states. Article 218(1) authorizes a port state to investigate any
vessel suspected of having made a discharge beyond the maritime zones of that state in
violation of applicable international rules and standards.
72
Such rules and standards
include MARPOL. Where its investigation reveals a violation, the port state may (but is
not obliged to) institute proceedings where the evidence so warrants.It seems unlikely
that a port state would have any interest in bringing proceedings with respect to
69
1982 UNCLOS, Arts 27(1) and 220 (2)(6).
70
There is a broadly similar power where another state requests an inspection; see Article 6(5).
71
See, respectively, IOTC Res. 19/02, note 49, [11]; and ICCAT Rec. 19-02, note 1, [37].
72
Discharges within a port states maritime zones fall under Article 220(1), discussed in the preceding.
OCEAN DEVELOPMENT & INTERNATIONAL LAW 189
discharges occurring beyond its maritime zones. In any case, under Article 218(2), it
may not bring proceedings where the discharge occurred within the maritime zones of
another state unless requested by that state or the flag state.
It is obvious from the amount of litter (including fishing gear) found at sea and
washed up on beaches that observance of Annex V by vessels is poor, and that enforce-
ment by flag, coastal, and port states has not been sufficient to act as a deterrent.
Recently, Vanuatu proposed two amendments to Annex V designed to improve compli-
ance by fishing vessels. The first would require parties to MARPOL to notify the IMO
of the discharge or accidental loss of fishing gear.
73
The second would require fishing
gear to be so marked as to enable the owner of the gear and the vessel on which it was
deployed to be identified.
74
The amendments are currently being considered by the
MEPC with a view to possible adoption. Further tightening up of Annex V in relation
to fishing vessels may in due course occur through implementation of the Action Plan
to address Marine Plastic Litter from Ships, adopted by the MEPC in 2018, which con-
tains a detailed section on fishing vessels.
75
What Action May Be Taken Against a Flag State with Respect to a Breach of
Annex V of MARPOL by One of Its Fishing Vessels?
It is primarily the flag state that is required to ensure that its fishing vessels comply
with MARPOL, not coastal states or port states. This section therefore focuses on the
action that could be taken against the flag state. Nevertheless, the dispute settlement
procedures of MARPOL, discussed in the following, could also be used against coastal
and port states that were in breach of their enforcement obligations. As in the case of
dumping, a flag states obligations of implementation and enforcement are obligations
of due diligence, not obligations of result. Thus, a violation by one of its vessels of
Annex V does not necessarily mean that a flag state is in breach of its obligations
under MARPOL.
Where a flag state was considered to be in breach of its due diligence obligations
under MARPOL, it would be possible for a nonstate actor, such as an environmental or
fisheries NGO, to make representations to that state and request it to take corrective
action. If the flag state declined to do so, an NGO could try to find another state to
take up the matter with the flag state. If that state did do so, it would begin by making
diplomatic representations to the flag state. If that failed to persuade the flag state to
comply with its obligations, the other state could resort to the dispute settlement proce-
dures of MARPOL. They are set out in Article 10 of the Convention and provide that
any dispute relating to the interpretation or application of MARPOL that has not been
settled by negotiation or other agreed means may be referred by either party to the dis-
pute to arbitration, the procedure for which is set out in Protocol II. It seems unlikely
that another state would be willing to resort to arbitration because it is both expensive
and time-consuming. In fact, the arbitration procedures of MARPOL have never once
been used during the nearly 40 years since MARPOL entered into force.
73
MEPC, Report of the 74th Session (2019), 69.
74
MEPC, 75th Session Doc. 75/8/4 (2020).
75
MEPC Res. 310(73) (2018).
190 R. CHURCHILL
In 2014, the MEPC adopted amendments to Annex V that introduce a new mechan-
ism for seeking to ensure compliance by flag states with their obligations.
76
The amend-
ments, which came into force at the beginning of 2016, add a new Regulation 12 to
Annex V under which every flag state party is subject to periodic audit to verify imple-
mentation of Annex V.
77
Where a flag state was thought to be in breach of its obliga-
tions under Annex V relating to the nonaccidental loss and abandonment of FADs and
was to be subject to periodic audit, it would be possible for an NGO or another state so
to inform the IMO, which operates the audit scheme.
In addition, the UNCLOS dispute settlement procedures, outlined in the preceding,
could be used against a flag state that was in breach of relevant obligations under
UNCLOS. Those obligations, as seen earlier, include the adoption and enforcement of
laws that have at least the same effect as Annex V.
78
To date, those procedures have
not been used for this purpose.
Conclusions
A large number of FADs are lost or abandoned every year, with many eventually wash-
ing up on beaches as litter, stranding in sensitive marine habitats, such as coral reefs
and seagrass beds, or sinking and causing damage to seabed habitats. That raises the
question of whether international marine pollution law, in particular the international
dumping regime (the London Convention, London Protocol, and UNCLOS) and
MARPOL, could be used to regulate and mitigate such loss and abandonment. As far as
the international dumping regime is concerned, the abandonment (but not the loss) of
a FAD probably constitutes dumping.From that it follows that where the London
Convention is the applicable law, the state of loading or the flag state, as the case may
be, must prohibit the abandonment of FADs made of persistent plastics or other persist-
ent synthetic materials and issue permits for all FADs made of other materials that a
fishing vessel intends to abandon. Where the London Protocol is the applicable law, the
state of loading or flag state must prohibit the abandonment of FADs made of materials
other than organic material of natural origin,and must issue permits for the deliber-
ate abandonment of FADs that are made of such materials. Under UNCLOS, where a
fishing vessel intends to abandon a FAD in the territorial sea, EEZ, or continental shelf
of a state other than the state of loading or the flag state, it must obtain the express
prior approval of that state. There is a due diligence obligation on the state of loading
and the flag state to enforce the prohibitions and permit systems of the London
Convention and Protocol. Where those states fail to do so, they may be made subject to
the dispute settlement processes of the London Protocol and UNCLOS, and to the non-
compliance procedure of the London Protocol.
In the case of MARPOL, the nonaccidental loss of a FAD constitutes a breach of
Annex V. That is also the case with the abandonment of a FAD, should the conclusion
that abandonment falls within the scope of the international dumping regime not be
76
MEPC Res. 246(66) (2014).
77
For information on the IMOs audit scheme, see https://www.imo.org/en/OurWork/MSAS/Pages/Default.aspx (accessed
2 December 2020).
78
UNCLOS, Arts 211(2) and 217(4) and (6).
OCEAN DEVELOPMENT & INTERNATIONAL LAW 191
correct. Flag states are under a due diligence obligation to enforce Annex V. Action
against states that fail to do so may be taken under the dispute settlement procedures of
MARPOL or UNCLOS. Alternatively, such failure could be drawn to the attention of
the IMO when the flag state concerned was next due for audit under the IMOs manda-
tory audit scheme.
Over the past few years, tropical tuna RFMOs have adopted a number of measures
designed to alleviate some of the environmental problems caused by lost or abandoned
FADs. All four RFMOs prohibit the use of entangling material suspended beneath
FADs in order to prevent sharks, turtles, and other nontarget species from becoming
entrapped, and encourage,but do not (yet) require, FADs to be constructed of bio-
degradable materials apart from the satellite buoy.
79
The ICCAT and WCPFC encour-
age the recovery of lost and abandoned FADs.
80
Both RFMOs also prohibit the use of
FADs in certain areas at certain times of the year
81
; it is not clear whether that leads to
a reduction in the use (and therefore the loss and abandonment) of FADs or simply
leads to greater concentrations when their use is permitted. It remains to be seen how
well the mandatory measures will be observed, and whether the hortatory measures
eventually become mandatory.
82
In the meantime, there is a real need for the inter-
national dumping regime and MARPOL to be properly implemented and effectively
enforced so that the significant pollution caused by lost and abandoned FADs may be
reduced and eventually eliminated.
Acknowledgments
This article is based on an opinion prepared for the International Pole and Line Foundation in
2017, which has been updated and revised for publication. Funding by the International Pole and
Line Foundation for this purpose is gratefully acknowledged. The views expressed in the article
are those of the author and are not necessarily shared by the Foundation. I am also grateful to
the two anonymous reviewers for their helpful comments on an earlier draft of this article. The
usual disclaimer applies.
ORCID
Robin Churchill http://orcid.org/0000-0001-8138-9254
79
IOTC Res. 19/02, note 49, [17] and [18]; IATTC Res. C-18-05, note 49, [10]; ICCAT Rec. 19-02, note 1, [40] and Annex
5; and WCPFC CMM-2018-01, note 47, [19] and [28].
80
ICCAT Rec. 19-02, note 1, [35] and Annex 1; and WCPFC CMM-2017-04, note 65, [5] and [9].
81
ICCAT Rec. 19-02, note 1, [27] and [28]; and WCPFC CMM-2018-01, note 49, [16] and [17]. In the Mediterranean Sea
the General Fisheries Commission for the Mediterranean has also established a closed season when the use of FADs is
not permitted: see Rec. GFCM/30/2006/2, available at: http://www.fao.org/gfcm/decisions/en (accessed 2
December 2020).
82
For further measures that the WCPFC (and by implication other tuna RFMOs) could take, see Hanich, Davis, Holmes,
et al., note 7, 753.
192 R. CHURCHILL
... Fonteneau, personal communication). Most importantly for this study, dFADs were recently assessed to have the third highest ALD risk of all fishing gears 10 , and therefore may infringe international marine pollution law 11 . A recent study estimated that more than 90% of dFADs are never retrieved after deployment in the western and central Pacific Ocean 12 , with some considering that this loss contributed as much as 225,720 metric tonnes of plastic debris over the period 2016-2020 13 , although a more reasonable estimate for this time period would be on the order of 10,000 metric tonnes 14 . ...
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... A recent meta-analysis of ALDFG highlighted the signi cant knowledge gaps on the rate of gear loss for many shing gear types 18 . Also a recent legal analysis of the 'loss' and 'abandonment' of FADs shows how complex the issues are and suggests some instances where the use of these devices constitutes illegal, unreported and unregulated (IUU) shing among international legislations 19 . The use of drifting FADs is also coming under increasing scrutiny for potentially contravening international marine pollution legislations including MARPOL V and the London Convention 20 . ...
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The fishing industry is recognized as one of the primary sources of at-sea marine litter, largely through its contributions via abandoned, lost or otherwise discarded fishing gear (ALDFG). Individual fleet’s contributions to ALDFG vary significantly across this global industry. While much information is available for some fisheries, the rate of ALDFG remains poorly known for many techniques. In this study, we used data collected by fisheries observers onboard pole-and-line fishing vessels in the Azores (Atlantic Ocean) and the Maldives (Indian Ocean) to provide an accurate and representative estimate of ALDFG for this gear. Our analysis of 993 fishing events demonstrated ALDFG contributions much lower than have been recorded for any other commercial tuna fishing gear. Overall, we found that an angler loses some monofilament line in 1.4% (±0.2) of fishing events. This informs that for every thousand tonnes of tuna harvested using this fishing technique, 0.3 kg of nylon is entering the marine environment. Globally, we estimate that all pole-and-line fisheries together contribute to 96 kg ± 42.6 kg of ALDFG per year. These results further evidence the low environmental impact of this traditional fishing practice, as well as the need for other methods to convert to less damaging gears.
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The plastic plague impacting the world's oceans stretches to the polar regions, and has now been documented in all areas of Arctic marine environments from floating sea ice to the seabed floor. As shipping and other maritime activities increase in a warming Arctic, preventing ever more marine plastic pollution is a global and regional imperative. The current international legal regime, despite banning discharge of plastic waste from ships for many years, has failed to halt marine plastic litter from sea-based sources in the Arctic. This paper examines through textual analysis how port reception facilities (PRFs), a critical element of international legal and policy frameworks for keeping vessel-source plastics out of the marine environment, have been insufficiently defined and loosely characterized in global agreements. Assessment of regional instruments and initiatives with an Arctic focus or impact reveals concrete ways in which defining fundamental adequacy criteria of PRFs can be achieved. Regional solutions to filling gaps in the global PRF regulatory regime run the risk of adding to legal fragmentation and conflicting norms. Options for mitigating and managing these risks include regime collaboration and co-creation of standards, which could have relevance to integrating PRFs as plastic waste control mechanisms in a new global plastics treaty.
Sea the General Fisheries Commission for the Mediterranean has also established a closed season when the use of FADs is not permitted: see Rec. GFCM/30/2006/2
  • Iccat Rec
ICCAT Rec. 19-02, note 1, [27] and [28]; and WCPFC CMM-2018-01, note 49, [16] and [17]. In the Mediterranean Sea the General Fisheries Commission for the Mediterranean has also established a closed season when the use of FADs is not permitted: see Rec. GFCM/30/2006/2, available at: http://www.fao.org/gfcm/decisions/en (accessed 2 December 2020).
For further measures that the WCPFC (and by implication other tuna RFMOs) could take, see Hanich
  • Davis
  • Holmes
For further measures that the WCPFC (and by implication other tuna RFMOs) could take, see Hanich, Davis, Holmes, et al., note 7, 753.