In some cases, the primary consultative mechanism has an MCS function, albeit sometimes limited by geographical scope (e.g. to a special zone has been established in an area where there is uncertainty over the maritime boundary). This function may be implied [e.g. Argentina/UK Joint Statement; Japan/China Agreement; Japan/Korea Agreement; Baltic Sea Convention; Mediterranean and Gulf Agreements] or express [e.g. NEAFC Convention; Norway/Russia 1978 Agreement]. The decisions made by the consultative mechanism may be binding on the parties, or just advisory, depending on the arrangement concerned (see section 2.9 above).
Some arrangements have adopted so-called “schemes” related to MCS (e.g. NEAFC’s two schemes, albeit that these relate to the activities of vessels on the high seas). Schemes directed at non-party vessels within the EEZ are potentially useful even for bilateral coastal State arrangements. For example, the Herring System (1996 Protocol) requires parties to cooperate to deter activities of non-party vessels which undermine the effectiveness of agreed conservation and management measures; such cooperation could be started by drafting of a joint scheme of measures.
Four of the arrangements [Torres Strait Treaty; NEAFC Convention; Norway/Russia 1975 Agreement; Baltic Sea Convention] have subsidiary bodies specializing in MCS issues. The MCS subsidiary body established within the Norway/Russia 1975 Agreement in 1993 has been very active. Measures developed through it have included inter alia (Honneland)[19]:
|
(a) |
exchange of catch and landings data; |
|
(b) |
establishment of procedures for informal information exchange about the situation at sea (facilitated by Norwegian aid in improving communications); |
|
(c) |
monitoring of valid fishing and port tickets; |
|
(d) |
participation of inspectors from one party in inspections of that party’s vessels and in the ports and waters of the other party; |
|
(e) |
elaboration of joint conversion factors for fish products of all species (except haddock); |
|
(f) |
elaboration of joint procedures for opening and closing fishing grounds; |
|
(g) |
establishment of joint seminars for enforcement officers. |
Where a special zone has been established in an area where there is uncertainty over the maritime boundary, that arrangement usually provides for flag State control alone [Japan/China Agreement; Japan/Korea Agreement; Norway/Russia 1978 Agreement; Halibut Convention, re “boundary regions”; Colombia/Jamaica Treaty; Trinidad and Tobago/ Venezuela Agreement] or for control only by the party that has issued the licence to the vessel [Faroes/UK Agreement; Norway/Russia 1978 Agreement].
However, in these instances cooperation may be facilitated by:
|
(a) |
provision for one party to call other party’s attention to breaches by its vessel of joint conservation and management measures [Japan/China Agreement; Japan/Korea Agreement] and a corresponding duty on the other party to take actions and notify these [Japan/China Agreement; Japan/Korea Agreement; Colombia/Jamaica Treaty]; |
|
(b) |
a duty to exchange information on catches and modes of fishing [Japan/Korea Agreement] and on vessels [Norway/Russia 1978 Agreement]; |
|
(c) |
a requirement either that neither party authorises third state fishing [Halibut Convention; Colombia/Jamaica Treaty] or that such licensing is to be done under specified conditions [Norway/Russia 1978 Agreement]; |
|
(d) |
agreement for either party to take enforcement action against a vessel that is not licensed by either party [Norway/Russia 1978 Agreement; Halibut Convention]. |
If there is no line in place and no special zone, there may nonetheless be a duty to consult to avoid difficulties [Australia/Indonesia MOU, re areas where the provisional line does not apply].
Where a boundary (permanent or provisional) is in place, some arrangements may provide that a party exercising control over vessels licensed by the other party may only do so on its side of the boundary [Australia/Indonesia MOU]. Practice on how one party can enforce its vessels in the other party’s waters varies. There may be express recognition that the flag State may not board or stop its vessels in the other party’s waters [Japan/Korea Agreement]. Alternatively, it may be expressly stated that each party has the right to enforce the convention in all convention waters in respect of its own nationals and fishing vessels [Halibut Convention] or impliedly stated [Lake Victoria Convention]. One arrangement establishes the general principle that corrective action is only to be taken by the party whose nationality is borne by the vessel or person concerned [Torres Strait Treaty, re Protected Zone]; however, that arrangement then goes on to specify the type of sanction to be taken by the party of nationality in given circumstances (cancellation or suspension of fishing licence). In contrast, some arrangements reassure that the party in whose waters the vessels of the other party are fishing has the power to ensure compliance [Japan/China Agreement; Japan/Korea Agreement].
Where mutual access rights have been allocated there may be a duty to for each party to supply the other with details of its vessels [Norway/Russia 1976 Agreement (including support vessels); see also River Plate Treaty, re common fishing zone]. One arrangement creates an MCS buffer zone [Colombia/Ecuador Agreement] for the purpose of ensuring that the “accidental presence” of “local” fishermen of either country in that zone should not be considered a violation of the marine boundary. The Torres Strait Treaty provides for special access rights for traditional inhabitants (in the Protected Zone).
In general, cooperation on MCS is facilitated by:
|
(a) |
a duty on each party to ensure compliance by its vessels with the other party’s rules [Australia/Indonesia Agreement; Japan/China Agreement; Japan/Korea Agreement; Norway/Russia 1976 Agreement; Loophole Agreement], including making it an offence to breach the other party’s rules [Canada/US Enforcement Agreement; Torres Strait Treaty; Nauru Agreement] or placing other detailed enforcement duties on the vessel’s party [Micronesia Arrangement]; |
|
(b) |
a duty on each party either to ensure compliance by its vessels with the commission’s conservation and management measures and to report back to the commission [Baltic Sea Convention] and/or simply to enforce the fishery regimes [Baltic Sea Convention, Pacific Salmon Treaty]; |
|
(c) |
cooperation on inspection and enforcement [Torres Strait Treaty; Herring System] and inspection and boarding [Halibut Convention]; |
|
(d) |
exchange of lists of vessels (via the primary consultative mechanism if established) [River Plate Treaty]; |
|
(e) |
exchange of information on MCS systems and technology [Australia/Indonesia Agreement]; |
|
(f) |
pooled surveillance [Niue Agreement]; |
|
(g) |
port State control [Loophole Agreement, Micronesia Arrangement],e.g. bans on landings of illegal catches and denial of port access to illegal vessels [Loophole Agreement]; |
|
(h) |
provision for one party to call other party’s attention to breaches by its vessel of conservation and management measures, with certain follow-up expectations [Micronesia Arrangement]; |
|
(i) |
observer programmes [Micronesia Arrangement]; |
|
(j) |
coordination of laws and regulations on fishing registration and fishing licences [Colombia/Ecuador Agreement]; |
|
(k) |
conditions for the licensing of third state vessels, including standardisation [Nauru Agreement; Niue Agreement; Micronesia Arrangement (and use of a regional administrator); SRFC Access Convention]; |
|
(l) |
information exchange on licensed third state vessels [Mauritania/Senegal Convention, Protocol] including standardisation [Nauru Agreement; Niue Agreement]; |
|
(m) |
regional registers vessels, including agreed eligibility and joint review of registered vessels [Micronesia Arrangement]; |
|
(n) |
agreed quantitative criteria for the ejection of a vessel from the waters covered by the arrangement [SRFC Access Convention]; |
|
(o) |
cooperation on hot pursuit [Niue Agreement; SRFC Hot Pursuit Convention, including by additional protocol; Mauritania/Senegal Convention]; |
|
(p) |
cooperation on extradition [Niue Agreement]; |
|
(q) |
exchange of personnel [Mauritania/Senegal Convention, Protocol]; |
|
(r) |
notification in the event of seizure or enforcement action by one party against the other party’s vessels [Australia/Indonesia Agreement; Japan/China Agreement; Japan/Korea Agreement; Micronesia Arrangement]; |
|
(s) |
express agreement on prompt release [Japan/China Agreement; Japan/Korea Agreement; Micronesia Arrangement]. |
|
[19] pp. 256-259. |
