9. The Consultation noted that the draft Memorandum attached to the paper prepared by Mr Lobach drew on the Paris Memorandum of Understanding on Port State Control 1982.
10. The Consultation considered a range of elements that might be included in regional Memoranda of Understanding. The Experts stressed the need for such elements to be practical in terms of their application and enforcement and to avoid measures and terminology that could be emotive.
11. The Consultation agreed that it would be appropriate to consider the following elements in regional Memoranda of Understanding:
Access to ports
12. Port States might, on the basis of objective and non discriminatory criteria, set out conditions of entry to their ports or deny access to their ports by foreign fishing vessels that have engaged in, or supported, IUU fishing. However, it was observed that, in cases of distress and force majeure vessels have a right of access to ports under customary international law. In addition, there might be bilateral or multilateral agreements or trade related arrangements providing for reciprocal free access to ports. It was also observed that denial of access to port in order to combat IUU fishing might not always be appropriate in practice for combating IUU fishing.
Scope of a Memorandum of Understanding (MOU)
13. A MOU should apply to all vessels engaged in, or supporting, fishing activities, including fishing vessels and vessels transporting fish and fishery products. Criteria for targeting specific vessels might be developed for a given MOU. For instance, vessels flying a “flag of non compliance” (FONC) or vessels having a history of non-compliance established by a regional fisheries management organisation could be particularly targeted.
Inspection
14. The need for harmonized and coordinated approaches for inspection was discussed, and these approaches received wide support in the Consultation. The Consultation considered that the use of a unique fishing vessel numbering system could be a useful tool for the effective implementation of a MOU on port State measures. It noted that such a system, based on the Lloyds Register fair-play system, is applied in IMO for numbering merchant ships.
15. The Consultation also observed that a harmonized system of certification of fishing vessels, including the clear identification of the vessel owners and managers, could be useful to facilitate the inspection of vessels in port States.
Prior notice of port access
16. Port States should require all foreign vessels having engaged in fishing activities or transporting fish and fishery products to provide prior notice of the intention to use their ports, landing or transhipment facilities. While failure to provide satisfactory information in the prior notification might be a reason for denial of port access, the Consultation noted that it might be advisable to allow a vessel to enter a port in order to ascertain whether the vessel has engaged in or supported IUU fishing.
Sanctions
17. The Consultation recognized that if a vessel is found to have violated applicable legislation in waters under jurisdiction of the port State, the latter should exercise jurisdiction as a coastal State and initiate proceedings accordingly.
18. In other situations, port States could choose between several possible actions. With the exception of detention, arrest or other measures against the vessel or its crew, a port State could take other more appropriate action. Such action could include (i) refusal to allow landing of fish and fishery products, (ii) forfeiture of fish and fishery products, or (iii) refusal to permit a vessel to leave its port pending consultation with the flag State of the vessel.
19. Whatever approach is taken, appropriate measures have to be provided for under national legislation of the port state, taking also into account its obligations under international law.
Awareness about, and capacity building in, port State measures
20. The Consultation recognized that awareness of, and capacity building in, port State measures, especially in developing countries, would be vital for effective and wide application of any MOU on port State measures to prevent, deter and eliminate IUU fishing.
Legal nature of a MOU
21. The Consultation noted that whether a MOU is binding or not would be determined by the Parties. A MOU will however include only the minimum requirements for port State measures. The question remained open as to the impacts and effects that the MOU could have on third parties. To encourage wider application of a MOU, the Consultation observed that it would be necessary to provide that the parties should apply the requirements in the same manner to vessels of non-parties, as may be necessary, to ensure that “no more favourable treatment” is given to such vessels. In this connection the Consultation noted that this approach is adopted in some IMO instruments.
Exchange of information
22. The Consultation noted that the exchange of information and data would be crucial for effective implementation of port State measures to prevent, deter and eliminate IUU fishing.
23. The Consultation reviewed in-depth the draft Memorandum of Understanding contained in Attachment 1 in the paper prepared by Mr Lobach. The Consultation also examined commitments under the draft Memorandum together with inspections, actions and information. Annexes A to D to the draft Memorandum were also carefully reviewed.
24. Following the discussions on, and the in-depth review of, the elements that might be included in regional Memoranda of Understanding, the Expert Consultation elaborated a draft Memorandum of Understanding on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. The draft Memorandum is attached as Appendix E.
