In order to establish a workable system, port States should adopt harmonized mandatory obligations for control of foreign fishing vessels. It may be appropriate to link such a system to the RFMOs.
Some conventions that establish RFMOs include provisions on port State control over foreign fishing vessels. Some other RFMOs have adopted such controls as part of their suite of fishery conservation and management measures. However, most of these bodies have not worked out an adequate policy to put such provisions into effect. MOUs could have a wider application since not all port States are members of a RFMO, because there are regions were RFMOs are unlikely to be established and finally because appropriate port measures might involve more than one RFMO. Nevertheless, a regional approach to port State control of fishing vessel's compliance with conservation and management measures may be founded on these organizations.
There are at least three reasons for that. Firstly, RFMOs were strengthened by the entry into force of the 1995 UN Fish Stock Agreement and their important role is underlined throughout the agreement. The 1995 UN Fish Stock Agreement has also inspired coastal States and distant water fishing nations to cooperate in order to establish such organizations in regions previously not covered by such bodies. Secondly, these organizations are responsible for establishing relevant conservation and management measures in areas under respective purviews. Thus, an inspection in port should therefore examine if the fishing vessel in question has violated any conservation and management measures established by any RFMO. 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[24] should of course be examined. Thirdly, most of these bodies have secretariats, which are up and running and a lot of expertise and experience on fisheries matters are gathered within those organizations.
For some RFMOs the Convention area also includes areas under national jurisdiction, but the competence to establish conservation and management measures is restricted to areas beyond the limits of such jurisdiction[25] and there are RFMOs where no distinction between areas of jurisdiction is made for management purposes[26]. There are also regional bodies in which the convention areas apply only to the high seas[27].
IUU fishing may take place by foreign vessels in waters under the jurisdiction of a port State, on the high seas by vessels flying the flag of parties or non-parties to a relevant RFMO. Port States should thus carry out control related to at least these three situations. In addition a port State should inspect vessels flying the flag of another State where fishing activities took place within the waters of that particular flag State. This last point is in particular important when conservation and management measures concerning shared stocks have been agreed upon between two or more States. Sometimes fishing is conducted within the EEZ of a party to such arrangements, but landed in the port of another State (due to port facilities, price factors, distance from fishing grounds etc.). In these cases it is most likely that the fishing vessels leave the waters of a coastal State without being inspected to determine whether the fishing has been conducted in accordance with applicable legislation. This is also, however, a general issue as a coastal State may seek assistance from a port State to verify that fishing in the waters of that coastal State has been in accordance with relevant legislation. This may be the only way of obtaining the information required for assessing the situation. It should be mentioned that for example Norway has entered into agreements about cooperation in the field of monitoring, control and surveillance with a number of States.[28] This includes the exchange of information of mutual inspections in ports by parties to the agreements.
In principle port State control should relate to all areas where marine capture fishing operations take place. Port States should thus examine that fishing undertaken in these areas have been in conformity with established conservation and management measures. In summary a port State should examine whether IUU fishing has taken place in: 1) the Regulatory Area[29] (RA) by a Contracting Party of a RFMO, 2) the RA by a non-Contracting Party of a RFMO, 3) waters under national jurisdiction of a Contracting Party by a Contracting Party of a RFMO and 4) waters under national jurisdiction of a Contracting Party by a non-Contracting Party of a RFMO.
Parties to a RFMO are most likely both fishing nations and States having responsibilities as port States. This may facilitate mandatory port State control for both Contracting and non-Contracting Party vessels as a part of the organization's conservation measures that could have a great impact on IUU fishing. However, vessels conducting IUU fishing move from one region to another and are therefore not the concern of one RFMO alone. 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 take action against vessels having participated in IUU fishing in areas managed also by other regional bodies. Therefore RFMOs should be encouraged to enter into multilateral agreements on port State control. Such cooperation would be essential in areas where IUU fishing is the concern of two or more regional bodies.
Such a possible MOU on port State control between RFMOs 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 negotiations could be carried out by representatives empowered by each of the regional bodies, followed by a process within the RFMOs adopting the result of such negotiations. Members will then have an obligation to implement these international agreed standards into their respective domestic legislation.
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 RFMO may qualify to become a member solely by operating as a port State that receives landings of fish or facilitates service for the fleet. It is doubtful if such activities meet the concept of «real interests» in Article 8.3 the 1995 UN Fish Stocks Agreement. If not, such a State may not be entitled to become a member of a RFMO.[30] However, concerning the duty to cooperate, the Article refers to relevant coastal States in general, which includes port States. This may indicate that a State acting solely as a port State also may become a member of a RFMO if it so wishes. If that is not the case, such a State should be approached and encouraged by relevant organizations to become party either to a relevant RFMO or to a possible MOU on port State control.
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[24] UNGA Resolution
46/215. [25] However, a RFMO may regulate also within waters under national jurisdiction with the consent of the coastal State, see for example Article 6 of the NEAFC Convention. [26] This is the case for bodies managing highly migratory species. [27] See the SEAFO Convention (signed in April 2001, but not entered into force) and the draft for a new RFMO in the South Indian Ocean (Madagascar, September 2001). [28] Such agreements have been concluded with Denmark, Faroe Islands, France, Germany, Iceland, Ireland, Netherlands, Sweden, Russian Federation and United Kingdom. [29] “The Regulatory Area” is the area of competence to establish conservation and management measures within a RFMO. [30] Attempts to define the concept «real interests» have been carried out without success both in NAFO (Northwest Atlantic Fisheries Organization) and in the process of establishing SEAFO (South East Atlantic Fisheries Organization). |
