5. IMPLEMENTATION OF PORT STATE CONTROL OF FOREIGN FISHING VESSELS INTO DOMESTIC LEGISLATION

The design of legislation on port State control will of course differ from State to State in line with policy objectives and legislative traditions. Some points are, however, universal. There is surely need for clarity, simplicity and flexibility. Further the legislation should be easy to implement. In order to respond to changing needs regarding fisheries management, the details of the system would require certain flexibility. This would imply that rules that are liable to frequent modifications should be expressed in subsidiary legislation. In practice the appropriate level will depend upon the degree of flexibility required. However, the main lines of the administrative system, which includes the administration of the control services and the power of fisheries inspectors, should be laid down in the basic law. Most legislative traditions would also require that the power to make subsidiary legislation is clearly spelled out in the law itself and so are penalties and clauses setting out offences which sometimes are drafted in very precise and detailed language.

Many States have also included in the fisheries law specific clauses dealing with forfeiture. This would be action that could be taken in addition to or instead of penalties.

Possible regulations or other subsidiary legislation might build on the elements discussed above which would include: scope of application, prior notice of access, denial of access, inspection procedures, criteria for the evaluation of compliance (characterizing IUU fishing), reporting requirements and reactions.

It might also be considered whether these measures shall apply to all foreign fishing vessels or whether separate legislation should apply for vessels having fished within areas of jurisdiction of the port State. As outlined above, prosecution would generally be excluded when IUU fishing has taken place outside areas under the jurisdiction of the port State. Other means of reaction would thus have to be established.^[70] However, most of the remaining elements would be relevant for both categories of fishing vessels.