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The Impracticability Exemption to the WCPFC’s Prohibition on Transhipment on the High Seas

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Abstract: Transhipment at sea allows fishing vessels to offload their catch on to carrier vessels, take on supplies, and continue fishing without leaving their fishing grounds. Worldwide, transhipment at sea, particularly on the high seas, poses serious problems because it is largely unmonitored. It is associated with higher levels of illegal, unreported, and unregulated fishing and has also been implicated in a range of criminal activities, including wildlife trafficking, drug trafficking, human smuggling, and more. For these reasons, the international community has sought to limit or ban transhipment at sea. The Western and Central Pacific Fisheries Commission (WCPFC) prohibits transhipment at sea by purse seine vessels. For longline and other non-purse seine vessels, however, it prohibits transhipment on the high seas unless a WCPFC member determines that transhipment in port is “impracticable” because it would cause “significant economic hardship” or require a vessel to make “significant and substantial changes to its historical mode of operation.” Certain WCPFC members, however, treat this exemption as the rule. The evidence strongly indicates that transhipment in port would not cause significant economic hardship or a substantial change to a vessel’s mode of operation. Moreover, market reasons do not suggest that transhipment at sea is needed to get valuable fish products to market.This Article proposes replacement of the “impracticability” test with bright line rules — namely, a presumption against transhipment on the high seas. It allows, however, time-limited exemptions to ensure transhipment of ultra-low temperature frozen fish from a fishing vessel to a carrier vessel and for fresh fish but directs the Secretariat to study the circumstances under which these exemptions are needed; the exemptions expire unless these studies conclude that the exemptions are necessary. In addition, and in sharp contrast to the current regime, the exemptions must be approved by the WCPFC; they cannot be unilaterally established. The process that applies to exemptions for purse seine vessels would be applied to all other vessels. Moreover, to allow the WCPFC to review implementation of such plans to encourage transhipment in port, exemptions may not be granted for more than three years, although CCMs may apply for a new exemption at the end of the three years. Only through such a process can the WCPFC help minimize illegal, unreported, and unregulated fishing, prevent human rights abuses, and reduce opportunities for human trafficking and smuggling of guns, drugs, and wildlife. At the same time, it will help Pacific Island States develop their ports and economies.

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