Terje Lobach
Legal Adviser
Directorate of Fisheries
Norway
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Lobach, T. Measures to be Adopted by the Port State in Combating IUU Fishing. Document AUS:IUU/2000/15. 2000. 10 p. ABSTRACT This paper reviews current practice by some port States, both
through domestic policies and regional arrangements, to curb IUU fishing, in the
light of the failure of many flag States to exercise effective and responsible
flag State control over their fishing vessels. The paper also examines the
possibility of implementing an analogous system of regional port State control
of fishing vessels as the system of MOUs (Memoranda of Understanding) on port
State control established for the merchant shipping fleet. The paper concludes
that such an approach might be a useful way forward in combating IUU fishing,
provided that it is closely linked to the regional fisheries management
organizations. Included in the paper are also some elements that could comprise
the content of such a system. |
PREPARATION OF THIS REPORT
This paper has been prepared as one in a series of specialist background papers for the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Co-operation with FAO, Sydney, Australia, 15-19 May 2000. It is expected that this series of papers and the expert consultation will contribute to the elaboration of an international plan of action (IPOA) to deal effectively with all forms of illegal, unreported and unregulated (IUU) fishing, the development of which is being undertaken in accordance with the decision of the 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries. The views expressed in this paper are those of the author and do not necessarily reflect the views of FAO or any of its Members.
EXECUTIVE SUMMARY
During the 1990s a number of approaches were taken in the international arena in an attempt to govern world fisheries, including combating illegal, unreported and unregulated (IUU) fishing. These initiatives have so far only partly led to a more sound management of the fisheries resources as some of the agreed instruments have not entered into force and due to the fact that poachers still find loopholes in the established systems.
The new tools concerning the conservation and management of world fisheries resources have strengthened the role of regional fisheries management organizations. Some of these organizations have established measures also on port State control, concerning fishing vessels flying the flag of parties as well as non-parties of the organization. These measures seem to be too weak, in particular in relation to the parties of such organizations, and regional bodies should be encouraged to get their «own houses in order».
The usual approach when dealing with non-parties is under the presumption that fishing vessels sighted in an area governed by a regional fisheries management organization are undermining the organization’s conservation and management measures and thereby should be refused to land that particular catch in ports of parties to the organization.
Some States have established measures reaching further than those established by the regional fisheries management organization to which those States are parties. In this regard, Norway has taken the radical approach to deny fishing vessels (the physical vessels) taking part in unregulated fisheries on the high seas the right to fly the Norwegian flag and/or a licence to fish in waters under Norwegian jurisdiction under a foreign flag. States like Canada, Iceland, Norway and United States are refusing access to port services for vessels undermining conservation and management measures on the high seas.
Port State regimes have got international acceptance in recent years as a result of numerous developments for the merchant shipping fleet. Inspired by the Paris MOU (Memorandum of Understanding) several new MOUs have been adopted in different regions of the world in order to trace substandard vessels. Such port State control is tied to internationally agreed rules and standards.
By examining internationally agreed instruments like the UN Fish Stocks Agreement and the Compliance Agreement, measures established by several regional fisheries management organizations and unilateral approaches taken by some States, it is found that port State control is highly relevant for fishery conservation and management.
As the existing MOUs on port State control are targeting the standard of the vessel itself, they seem not to be the right vehicles for seeking compliance with fisheries conservation and management measures. It should therefore be considered to take the now widely applicable regional MOUs on merchant shipping as a model for a regional approach to fisheries.
In doing so, it is recommended that such an approach is closely linked to the existing regional fisheries management organizations. Their role in world fisheries is strengthened in recent years and most of the conservation and management measures for different regions are established by such organizations. Thereby the internationally agreed measures that vessels should comply with, will be those of the relevant organization. Consequently, there is a direct link between that particular organization and port States in the region. In order to achieve a comprehensive system within a region, the regional fisheries management organization should be encouraged to enter into agreements on mandatory port State control with port States in the region, including those which are not parties to the relevant regional fisheries body.
It is also recommended to formalize co-operation between regional fisheries management organizations. Such co-operation would be essential in areas where IUU fishing is the concern of two or more regional bodies. For example, the conservation and management of fish resources in the Atlantic Ocean is the responsibility of several fisheries management organizations. A comprehensive system on port State control would require that IUU fishing within the area of responsibility of one specific organization, should have consequences for port States which have agreed on mandatory measures in another region.
A regional system on port State control would also require common procedures for inspection, qualification requirements for inspection officers and agreed consequences for vessels found to be in non-compliance. Possible common elements in this regard would be denial of access to port, detention, denial of landing of catch or denial of fishing licence and the right to fly the flag of a party to the system.
SUGGESTIONS FOR THE IPOA TEXT
The following suggestions could be characterized as actions immediately feasible, or feasible in the short term (0-3 years) with relatively little political, legal or technical development work necessary:
The following suggestions could be characterized as actions feasible in a medium term time frame (3-6 years), requiring modest and reasonably achievable political, legal or technical development:
1. INTRODUCTION
1. It is acknowledged that the increasing levels of illegal, unreported and unregulated (IUU) fishing is undermining the conservation and management of fish stocks. IUU fishing concerns fisheries within the jurisdiction of coastal States and on the high seas within areas of the responsibility of regional fisheries organizations. This paper addresses the question on which measures port States may adopt in curbing such activity. In doing so some internationally agreed measures on port State control and measures established by some States, in particular Norway are examined[320]. In this regard measures introduced in order to react against fishing vessels participating in IUU fishing by port States in their respective EEZs is seen to be of relevance. Consequently a possible definition of port State control does not only cover measures adopted for the use of ports itself, but include measures related to activities by foreign flagged vessels in other areas under the jurisdiction of the port State.
2. SOME INTERNATIONALLY AGREED MEASURES ON PORT STATE CONTROL OF FISHING VESSELS
2. International instruments which were developed during the 1990s, like the FAO Code of Conduct[321], the Compliance Agreement[322] and the UN Fish Stocks Agreement[323] are all dealing with port State control of fishing vessels[324].
3. These new tools concerning the management of world fishery resources and, in particular the UN Fish Stocks Agreement and the Compliance Agreement, underscore the crucial role of regional fisheries management organizations in global fishery governance. The UN Fish Stocks Agreement provides that where a competent regional fisheries management organization exists, States should either become members of the organization, or they should agree to apply the conservation and management measures established by such organizations. Further, Article 8(4) provides that only those States which are members of such an organization, or agree to apply the relevant conservation and management measures of the organization, shall have access to the fishery resources to which these measures apply. The preamble of the Compliance Agreement calls upon States which do not participate in global, regional or subregional fishery organizations to do so, with a view to achieving compliance with international conservation and management measures[325].
4. At least two processes are under way in order to establish new regional fisheries management organizations, one for the conservation and management of highly migratory fish stocks in the Western and Central Pacific Ocean and another concerning straddling fish stocks in the South-east Atlantic Ocean. In the draft convention texts of both these organizations there are included provisions on port State control that mirror the text of Article 23 of the UN Fish Stocks Agreement[326].
5. In 1989 port State control of fishing vessels was introduced at a regional level with the adoption of the Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific[327] (the Wellington Convention on Drift-nets). The Convention provides for restriction of both access to the ports and to the use of service facilities in the ports of parties for vessels involved in drift-net fishing[328].
6. The Northwest Atlantic Fisheries Organization (NAFO) has established reciprocal port State control obligations[329]. According to the provisions a «Contracting Party whose port is being used shall ensure that its inspector is present and that, on each occasion when catch is offloaded, an inspection takes place of the species and quantities caught».
7. The provisions contained in the NAFO Conservation and Enforcement Measures apply only to fishing vessels flying the flag of Contracting Parties of NAFO. In order to combat IUU Fishing by non-Contracting Party vessels, NAFO at its annual meeting in 1997 adopted the «Scheme to Promote Compliance by Non-Contracting Party Vessels with Conservation and Enforcement Measures Established by NAFO»[330] which put additional obligations on the port States of NAFO. The Scheme presumes that a non-Contracting Party vessel which has been sighted engaging in fishing activities in the NAFO Regulatory Area is undermining the NAFO Conservation and Enforcement Measures. If such vessel enters a Contracting Party port, it must be inspected. No landings or transhipments will be permitted in Contracting Party ports unless vessels can establish that certain species on board were caught outside the NAFO Regulatory Area, and for certain other species that the vessel applied the NAFO Conservation and Enforcement Measures. Contracting Parties must report the results of such port inspections to the NAFO Secretariat, all Contracting Parties and the flag State of the vessel[331].
8. There are no provisions on port State control in the Convention text or any recommendation of the North East Atlantic Fisheries Commission (NEAFC). However, NEAFC has established a scheme where certain elements of port State duties are built-in. A Scheme to Promote Compliance by non-Contracting Party vessels with Recommendations established by NEAFC was agreed upon at the annual meeting in 1998 and entered into force 1 July 1999[332]. This scheme to a great extent builds upon the same idea as was introduced in NAFO in 1997. The NEAFC Scheme consists, however, of a system of alternative counter-evidence as opposed to a system of exclusive counter-evidence, upon which the NAFO scheme relies.
9. NEAFC is considering the establishment of complementary measures to be applied by port States. In that regard the European Union has tabled an outline of elements for such measures, including prior notice of landings or transhipment, monitoring, inspection and surveillance obligations and communication of information on landings and transhipments[333].
10. An interesting suggestion is that parties may designate places or locations where transhipments and landings can be carried out and should prohibit landings at places or locations or at times where or when it is unable to ensure appropriate inspections and surveillance.
11. There are no provisions in the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) or in the Schedule of Conservation Measures in force that directly deal with port State control. However, inspired by the NAFO Scheme on non-Contracting Parties, CCAMLR at the annual meeting in 1998 adopted a similar scheme[334]. If a non-Contracting Party vessel enters the ports of Contracting Parties, they must be inspected. No landings or transhipments will be permitted in Contracting Party ports unless vessels can establish that the fish were caught outside the Convention Area or in compliance with all relevant CCAMLR Conservation measures and requirements under the Convention.
12. Another measure which also requires the control of port States was adopted at CCAMLR XVIII (November 1999), namely a Catch Documentation Scheme for Dissostichus spp.[335]. The Scheme builds on the principle of flag State responsibility, but at the same time the Scheme requires that landings of Dissostichus Spp. at its port and each transhipment of Dissostichus spp. to its vessels be accompanied by a completed catch document. The document will need to be countersigned by a port State official when the catch is landed. This signature will confirm that the catches landed agree with the details on the document.
13. At the annual meeting of the International Commission for the Conservation of Atlantic Tuna (ICCAT) in 1997, ICCAT revised their Port Inspection Scheme[336]. Parties are encouraged to enter into bilateral agreements/arrangements that allow for an inspector exchange program designed to promote co-operation, share information and educate each party’s inspectors on strategies and operations that promote compliance with ICCAT’s management measures. The port inspection scheme was amended recognising that most of the recommendations can only be enforced during off-loading and therefore that port State enforcement is «the most fundamental and effective tool for monitoring and inspection».
14. Several fisheries management organizations have recognized the need for transparent systems in order to track fishing vessels violating the conservation and management measures established by such organizations. The annual Meeting of NAFO in 1999 considered ways to improve co-operation with other fishery organizations, and in particular with NEAFC. The NEAFC Secretariat had already started to inform NAFO of sightings of non-Contracting Party vessels in the NEAFC Regulatory Area. It was agreed that the NAFO Secretariat should start informing the Secretariats of NEAFC, NASCO[337], ICCAT, IBSFC[338] and CCAMLR on the fishing/fish processing/transhipment activities of non-Contracting Party vessels[339].
3. NORWEGIAN APPROACH TO CURB IUU FISHING
15. Norway has for a number of years been working seriously in dealing with unregulated fisheries on the high seas. Norway has experienced such a fishery taking place just outside the 200-mile zones in the Barents Sea on stocks regulated in Norwegian waters.
3.1 Denial of fishing licence and the right to fly the Norwegian flag
16. In an attempt to discourage unregulated fisheries on the high seas, Norway has established a regulation stating that an application for a licence to fish in Norwegian waters may be denied if the vessel or the vessel’s owner has taken part in an unregulated fishery on the high seas on a fish stock subject to regulations in waters under Norwegian fisheries jurisdiction[340]. The amendment in particular implies that a given vessel may be denied a fishing licence in Norwegian waters even if it is operated by other than those who participated in the unregulated fishery. Vessels which previously have taken part in the unregulated fishery in the «Loophole» in the Barents Sea, have been denied a licence in Norwegian waters even after being flagged to another State. It should be noted that such vessels would also be denied a licence to fish under a Norwegian flag. After a more recent amendment the legislation now also targets unregulated fishery on stocks regulated by a regional or sub-regional fisheries management organization[341].
3.2 Denial of the use of port facilities
17. Norwegian authorities have denied access to port by foreign fishing vessels that have taken part in an unregulated fishery on the high seas. A regulation concerning the entry into and passage through Norwegian territorial waters in peacetime of foreign non-military vessels stipulates that such vessels may be refused admission to Norwegian internal waters when special grounds make that necessary[342]. Such special grounds exist, inter alia, when fishing vessels plan to enter these waters in connection with fishing, or bringing ashore a catch that implies that appropriate total quotas for the fish species in question are being exceeded.
3.3 Stateless vessels
18. As a result of diplomatic efforts made by NAFO members, Sierra Leone has withdrawn the registration for four named fishing vessels. After some investigation, there are reasonable grounds for suspecting that one or more of those vessels are now without nationality.
19. In the 1982 UN Convention on the law of the Sea (LOS Convention), there are references to the rights to interfere with foreign ships on the high seas[343]. If there are reasonable grounds for suspecting a vessel being without nationality, such a vessel may be treated by the boarding State as its own vessel. However, in order to enable a boarding State to take appropriate actions there might be a need to adopt domestic measures to deal with those vessels. Under US law, such a vessel could be assimilated and considered to be subject to US jurisdiction. Inspired by the US approach, Norway is now in a process of amending its national legislation accordingly[344].
3.4 Co-operation with other port States
20. Norway has entered into agreements about co-operation in the field of monitoring, surveillance and control with a number of States[345]. It is acknowledged that there are significant benefits in sharing relevant information and intelligence and enhancing co-operation in areas of mutual interest. In particular the following initiatives are pursued; exchange of information on inspections at sea, exchange of information on port control, exchange of personnel between relevant control services and to co-operate on training of personnel.
21. Norway and Canada have signed an agreement by recognising that fishing operations beyond the 200-mile zone of each party for stocks which occur both within that zone and the area beyond must be conducted in a manner which does not undermine the effectiveness of applicable conservation and management measures[346]. Each party will deny access to its ports to vessels that engage in activities that undermine such measures, except in cases of force majeure, and will prohibit the landing of the catch of such vessels. Further, the appropriate authorities of each party may board, inspect and search a vessel flying the flag of the other party (flag party). If the authorities of the inspecting party find evidence of undermining conservation and management measures, they may seize the vessel and institute proceedings against it or present such evidence to the flag party. There are also specific provisions dealing with the obligations of the flag party upon receipt of such evidence.
3.5 Other Measures
22. Any Norwegian fishing vessel wishing to fish on the high seas, must be authorised by Norwegian Authorities to do so[347]. The authorisation is valid for one calendar year and an application may be refused if, inter alia, the fishery concerned is regulated by regional or subregional fisheries management organizations.
23. According to regulations concerning the management of Governmental support for the shipbuilding industry, such support will be granted only for vessels exported to States which have ratified the UN Fish Stocks Agreement and the Compliance Agreement or to States where such ratifications are foreseen in the near future.
4. CURRENT PRACTICES BY SOME OTHER PORT STATES
24. Some States[348] have established measures in addition to those of regional fisheries management organizations to which the State is a member. Such additional measures reach further than the obligations established by the relevant organization which may be seen as minimum standards.
4.1 Canada
25. Canadian fisheries legislation includes the controlling of activities and access to Canadian ports of foreign vessels[349]. The regulations list nations whose vessels may be granted a licence to enter Canadian ports for a number of purposes, including effecting of repairs and obtaining supplies. Subject to obligations arising from bilateral fisheries agreements, other laws, treaties and provisions, e.g. force majeure, access to Canadian ports will not be granted to fishing vessels which undermine conservation measures by fishing contrary to conservation regimes established by international fisheries organizations to which Canada is party. Licences for access to Canadian waters for specific purposes, such as purchase of fuel and supplies, ship repair, crew exchanges and transhipment of fish catches, are only granted to fishing vessels from a country with which Canada has favourable fishery relations. The listed[350] countries are those that consistently co-operate with Canada on international fisheries conservation objectives including the sound conservation and management of fish stocks off Canada’s coasts.
4.2 United States
26. According to US legislation fishing vessels taking part in large-scale drift-net fishing on the high seas may be denied port privileges in a US port[351]. Further, foreign vessels under US law[352] are generally prohibited from landing in a US port fish caught on the high seas, and as a result foreign vessels do not call on US ports.
4.3 Iceland
27. Icelandic legislation bans the landing, transhipment and selling of catch in Icelandic ports from a foreign fishing vessel which has been violating agreements on uitilization and preservation of living marine resources to which Iceland is a party. Such vessels may not be provided with services within the Icelandic EEZ nor from Icelandic ports[353].
4.4 South Africa
28. In South Africa a foreign flagged vessel must request a permit to enter South African waters. Before the vessel calls into a South African port, it must furnish the authorities with proof that it has complied with the reporting requirements of the flag State. When it has done this and has reported its current position, the authorities will consent to the vessel entering South African waters and will furnish it with a permit. In terms of this permit, the vessel is not normally permitted to discharge its catch.
5. THE POSSIBILITY OF THE DEVELOPMENT OF A SIMILAR SYSTEM OF REGIONAL PORT STATE CONTROL OF FISHING VESSELS AS THE SYSTEM OF REGIONAL MEMORANDA OF UNDERSTANDING ON PORT STATE CONTROL FOR MERCHANT SHIPS
29. International acceptance of port State control has increased over the last twenty years. The Law of the Sea Convention established rules to guide port States by setting reasonable standards for interventions, inspections and violations. When provisions for port State control were included in different treaties, it was assumed that their application would be of national concern. The port State control regime (Paris MOU) [354] which was agreed in 1982 changed that. That was the first regional system in the world on port State control. The Paris MOU is an international agreement between 18 countries to establish a co-ordinated port State control system with respect to vessel safety and pollution prevention standards and equipment. One goal of the Paris MOU is for each member State to inspect at least 25 percent of foreign merchant ships entering their respective ports each year[355]. If deficiencies are discovered the ship will be detained and repairs must be completed before the ship can leave the port[356]. IMO (International Maritime Organization) has developed a global strategy for port State control and has incorporated in the procedures for such control the professional profile, training and qualification requirements and general operating guidelines for control officers. This is to ensure that, while the systems may be regional, the standards applied will be universal.
30. The procedures instituted by the Paris MOU initiative provided an inspiration for the development of port State regimes around the world. Port State control regimes are now operated in Australia, the Asia-Pacific Region, the Caribbean Region, the Indian Ocean, in the Mediterranean Region, Latin America and in West and Central Africa. More than 90 countries are involved in these different systems and there are now forces taking the process further by formalizing the transfer of information between the different systems.
31. The development of port State control for the merchant fleet has increased the number of checks on international shipping and standards have undoubtedly improved. Regimes on port State control are most effective if such regimes have common goals with the flag State and are initiatives that supplement and not substitute flag State control. The principle of flag State responsibility over vessels continues to be the primary principle in international shipping. Critics have claimed that the port State control imposes a burden on port States which should be borne by the flag State. But the key question is how the international society can deal with vessels flying the flag of States not taking that responsibility.
32. The concern about IUU fishing is first and foremost related to conservation and management measures and less to the safety of fishing vessels and pollution prevention standards. IUU fishing is thus not the prime concern of IMO nor of shipping administrators, and thus the existing regional MOUs on port State control, targeting substandard vessels, are not the vehicle for seeking to compensate for the lack of effective flag State implementation of fisheries conservation and management measures.
33. The approaches to fisheries-related port State control in instruments like the UN Fish Stocks Agreement, the Compliance Agreement and several regional management agreements, suggest that the concept of port State control is highly relevant for fishery conservation and management measures. There may be an idea to take the now widely applicable regional MOUs on merchant shipping as a model and see if some regional approaches to fisheries can be developed.
34. To put it another way, port States may already exercise individual port State control over fishing vessels voluntarily in their ports, but the IUU fishing experience strongly suggests the need for a network of mandatory port State controls. The underlying principle, formulated in Article 23 (1) of UN Fish Stocks Agreement is «the right and the duty» of a port State to take non-discriminatory measures in accordance with international law, in order to «promote the effectiveness of subregional, regional and global conservation and management measures». Paragraph 2 specifies, inter alia, inspection of documents, fishing gear and catch on board as measures which the port State may take on vessels voluntarily in port. Emphasis needs to be put not only on the «right» in Article 23 of the UN Fish Stocks Agreement, but also on the «duty».
35. Some States have already implemented into their domestic legislation the obligations set out in Article 23 of the UN Fish Stocks Agreement. It is, however, questionable if all relevant port States are willing to take such actions in a foreseeable future. A workable system has to be mandatory, comprehensive and transparent. In order to establish mandatory obligations for port States and thereby giving the concept «duty» a relevant content, it seems to be beneficial building on the regional fisheries management organizations.
36. As described above, several of those organizations do have provisions on port State control in their convention texts or as part of their management and conservation measures. However, most of these organizations have not developed a policy on how to put these provisions into effect. Never-theless, a regional approach to port State control of fishing vessels’ compliance with internationally agreed conservation and management measures should be linked to these organizations.
37. There are at least three reasons for that. Firstly, regional fisheries management organizations were strengthened by the signing of the UN Fish Stocks Agreement and their important role is underlined throughout the agreement. The UN Fish Stocks Agreement has also inspired coastal States and distant water fishing nations to get together in order to establish such organizations in regions previously not covered by such organizations. Secondly, these organizations are responsible for establishing relevant conservation and management measures on the high seas. Thus, an inspection in port should examine if the fishing vessel in question has violated any conservation and management measures established by any regional fisheries management organization. In addition compliance with global conservation measures such as the UN resolution on the global moratorium on all large-scale pelagic drift-net fishing on the high seas[357] should of course be examined. Thirdly, most of these organizations have secretariats which are up and running and a lot of expertise and experience on fisheries matter are gathered within those organizations.
38. It is presumed that today’s members of regional fisheries management organizations are States both fishing on the high seas and having responsibilities as port States. Thereby mandatory port State control for both contracting and non-contracting party vessels as a part of the organization’s conservation measures may have a great impact on IUU fishing. However, experience shows that vessels participating in IUU fishing move from one region to another and are therefore not the concern of only one regional fisheries management organization. In order to establish a comprehensive system, developing a MOU on port State control between such bodies could be a way forward. In that context port States should have the duty to react against vessels having participated in IUU fishing in areas managed by other regional organizations.
39. Therefore regional fisheries management organizations should be encouraged to enter into multilateral agreements on port State control. Such co-operation would be essential in areas where IUU fishing is the concern of two or more regional bodies. To trigger off such a process, it may be an idea to request FAO to convene a conference addressing principles and guidelines for the establishment of regional MOUs on port State control of fishing vessels within the framework of existing regional organizations.
40. To gain experience, it could also be an idea to inspire neighbouring regional organizations or arrangements in a specific area to establish a «pilot project» on a regional MOU on port State control which may serve as a model for other areas. In this regard it should be mentioned that the conservation and management of fish resources on the high seas in the North Atlantic are the responsibility of NAFO, NEAFC, NASCO and ICCAT.
41. Such a possible MOU on port State control between regional bodies is envisaged to be binding on all parties of those bodies. It seems not to be contrary to any legal instrument to enter into agreements of this kind. From a practical point of view such negotiations could be carried out by representatives empowered by each of the regional bodies, followed by a process within the bodies adopting the result of such negotiations. Members will then have an obligation to implement these international agreed standards into their respective domestic legislation.
42. A specific problem occurs where a State is not directly involved in fishing, but acts as a port State only. The question is whether a State with no fishing activity in the area of a regional fisheries management organization may qualify to become a member by solely operating as a port State which receives landings of fish or facilitate service for the fleet. It is doubtful if such activities meet the concept of «real interests» in Article 8.3 the UN Fish Stocks Agreement and such a State may not be entitled to become a member of a regional fisheries management organization[358]. If that is the case, such a State should be approached by relevant organizations to become party to a possible MOU on port State control.
6. CONTENT OF POSSIBLE MEMORANDA OF UNDERSTANDING ON PORT STATE CONTROL OF FISHING VESSELS
43. There is also a need to work out some global standards and harmonized procedures for these organizations and their members to implement into possible regional systems on port State control. It is further of great importance internationally to agree on consequences for vessels found to be in non-compliance. In order to facilitate a process for developing such common understanding, some ideas are set out below.
6.1 Prior notice of port access
44. Port States should require all vessels engaged in fishing activities on the high seas to provide prior notice of the intention to use port, landing or transhipment facilities.
6.2 Port State obligations
45. There are good reasons for arguing that all vessels that have fished on the high seas should be subject to mandatory port State control. However, lack of resources and different needs may lead to another conclusion. According to Article 23 of the UN Fish Stocks Agreement, port States shall not discriminate against any State. This suggests that as a point of departure control of flag vessels should be on equal terms as foreign vessels. It could be argued that other means of control of flag vessels[359] may replace the obligation on mandatory port State control. As mentioned before, the Paris MOU requires that at least 25% of the merchant fleet is inspected. A similar approach, with different level of inspection frequency, could be foreseen also for MOUs on port State control of fishing vessels. Other parameters such as the size of vessels, «flag of convenience»-vessels, production vessels etc. could be relevant. Nevertheless, some minimum requirements on this matter should be agreed to.
6.3 Inspection procedures
46. A port State control officer must be properly qualified and authorized by the port State authority to carry out port State inspections. So minimum criteria for port State control officers should be agreed upon.
47. The way in which an inspection shall be carried out would also require common understanding and internationally accepted standards.
48. When examining the record of a particular vessel, the inspector should be in possession of all relevant conservation and management measures in force for the area/areas where the vessel has been fishing. A port State control officer should institute proceedings if the vessel is found to be «undermining international management and conservation measures».
6.4 Consequences/follow-up
49. Possible action against a fishing vessel would of course depend on the gravity of the behaviour of the vessel. The crucial point in this regard is to define whether a certain activity could be defined to be «undermining» international measures. For evaluating this it may be an idea to draw upon the listing of activity that is characterized as a serious violation in Article 21.11 of the UN Fish Stocks Agreement as a guideline for when to take action against a fishing vessel also in port. It should be mentioned that the European Union[360] and NEAFC[361] have worked out similar listings.
6.4.1 Denial of access to port
50. Whether such a measure is in full conformity with general international law has been the subject of considerable debate. Notwithstanding this debate, the evidence concerning customary law and State practice seems to reinforce the view that the coastal State has the right to exclude foreign merchant vessels from entering its ports.
51. It is also generally assumed that the right of the coastal State to deny access to its ports in respect of fishing vessels is not in dispute and offers the coastal State wider discretion in its application than would otherwise be the case. In this context it should be mentioned that during the deliberations leading up to the adoption of the UN Fish Stocks Agreement, the right of the coastal State to deny access to fishing vessels to its ports except in cases of force majeure was reflected in three successive drafts presented by the Chairman of the Conference.
52. While recognising that this right was not expressly set out in the final document, it could be argued that this does not detract from the rights of coastal States in this respect. The failure to agree on an express provision was due to the concern of several proponents of such rights at the Conference that an overly prescriptive approach to the question of port State jurisdiction might limit, rather than enlarge, coastal State competence by inviting too narrow an interpretation of the relevant provision[362]. It was submitted that, together with other rights under international law enjoyed by the coastal State, the right to regulate access would instead be adequately reflected in the final clause of the said provision, which stipulates that «nothing in this Article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law». Such considerations seem to have influenced the final outcome on this point to a considerable extent.
6.4.2 Detention
53. At the Third Session of the Conference on the Straddling Fish Stocks[363] a clause which would enable the port States to detain a foreign vessel was included in the Revised Negotiating Text prepared by the Chairman of the Conference.[364] In later drafts, however, further mention of detention of vessels was excluded. This does not mean that the concept is without value in this context, and this should be kept in mind for future considerations. It should be mentioned that the Paris MOU includes provisions for detention of vessels.[365]
6.4.3 Denial of landing of catch
54. Several regional fisheries management organizations have introduced the concept of denial of landing of catches resulting from IUU fishing. A direct reference to such an approach is also set out in Article 23.3 of the UN Fish Stocks Agreement.
6.4.4 Denial of fishing licence and right to fly the flag
55. The possibility should also be considered of introducing a measure, in line with the Norwegian approach, of denying vessels participating in IUU fishing the right to fish in the EEZ’s of port States and the right to fly the flag of port States.
6.5 Exchange of information - development of a data base
56. A data base would be an important tool for port State inspectors in enabling them to identify the flags, fishing vessels and operators that need to be checked more closely. In order to assist port States in their selection of foreign fishing vessels to be inspected in their ports, it is essential to have at their disposal up to-date information on individual vessels which have a record of IUU fishing in areas of other regional bodies.
57. For the purpose of rapid exchange of information, an information system should embrace a communication facility which allows for a direct, computerized exchange of messages between individual port States. If this is working notorious violators of international conservation measures will have nowhere to hide. Port State control data that is being made available through a transparent system, may in itself change the attitude among poachers.
58. Such a data base could be established and maintained by FAO, granting access to the information contained in the base to regional fisheries management organizations, port States of such organizations and other co-operating port States.
