1993 FAO Compliance Agreement
1995 UN Fish Stocks Agreement
1995 FAO Code of Conduct for Responsible Fisheries
2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU)
The 1993 FAO Compliance Agreement seeks to encourage countries to take effective action, consistent with international law, and to deter the reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas. With respect to the role of RFBs, the preamble calls upon States which do not participate in global, regional or subregional fishery organizations or arrangements to do so, with a view to achieving compliance with international conservation and management measures. Further articles provide:
that the parties shall, when and as appropriate, enter into cooperative agreements or arrangements of mutual assistance, on a global, regional, subregional or bilateral basis, in order to promote the objectives of the Agreement;[171]
for the parties to RFBs to exchange information;[172]
that the parties to cooperate on a global, regional, subregional or bilateral level, to provide assistance to developing State parties, in order to assist them to fulfill obligations under the Agreement.[173]
The Fish Stocks Agreement complements and strengthens a number of provisions of the 1982 UN Convention. The Agreement seeks to ensure a harmonious development of coherent conservation and management measures for exclusive economic zones (EEZs) and the high seas, and thereby alleviate some of the existing tensions and conflicts. It is recognized that the effective implementation of this instrument depends on political will and a high degree of cooperation between coastal States and high seas fishing nations and fishing entities on a range of technical issues.[174] Part III, relating to mechanisms for international cooperation, sets out the central role of appropriate RFBs as mechanism through which States Parties to the Agreement should act to meet their obligations and exercise their rights under the Agreement.
In particular, Article 8 of Part III is pivotal, and relates to cooperation for conservation and management. It provides, inter alia, that where a competent RFB exists, States should either become members of the body, or they should agree to apply the conservation and management measures established by such organizations. This is reinforced by other Articles, including those providing the following:
only those States which are members of a RFB, or which agree to apply the relevant RFBs conservation and management measures, shall have access to the fishery resources to which these measures apply;[175]
the establishment and functions of RFBs;[176]
the nature and extent of participatory rights for new members; [177]
transparency required in the activities of RFBs;[178]
the strengthening of existing organizations and arrangements; [179]
monitoring, control and surveillance (MCS) by flag States providing for international, regional and subregional cooperation in enforcement.[180]
The Code of Conduct is a voluntary, broad and comprehensive instrument that sets out principles and standards for the conservation and management of all fisheries and aquaculture including processing and trade in fish and fishery products, research and the integration of fisheries and aquaculture into coastal area management. The Code makes numerous references to the role of RFBs in establishing a responsible international fisheries regime. Some relevant provisions are:
the Code is global in scope, and directed towards stakeholders that include RFBs;[181]
RFBs are charged with collaborating in the implementation of the objectives and principles in the Code;[182]
RFBs should apply a precautionary approach to the conservation, management and exploitation of living aquatic resources;[183]
the role of RFBs in attaining fisheries management objectives, providing a management framework and procedures, data gathering and management advice, application of the precautionary approach, describing management measures and implementation of the Code itself.[184]
As appropriate, the International Plans of Action adopted under the Code of Conduct also designate a role for RFBs.
The IPOA-IUU is a voluntary instrument. Its implementation through National Plans of Action (NPOAs) is seen as a priority because of the 2004 timeline agreed by the World Summit on Sustainable Development for their development. The IPOA-IUU contains reference to regional fisheries management organizations[185] in the context of many of its sections, including the objective and principles of the IPOA-IUU,[186] National Plans of Action,[187] cooperation between States,[188] port State measures,[189] internationally agreed market-related measures[190] and reporting.[191]
The IPOA-IUU also contains an entire section on RFBs, which reinforces the other post-UNCED instruments and describes action to be taken by States through RFBs. It repeats the obligation of non-member states to cooperate with the RFMO and not to undermine its measures - therefore giving broad effect to the decisions of the RFMO. Most of the actions described in the IPOA-IUU would benefit from effective decision-making procedures, and include specified measures to strengthen and develop innovative ways to prevent, deter and eliminate IUU fishing,[192] objectives of institutional and policy strengthening,[193] encouraging non-parties to join or participate in the organization[194] and procedures to adopt measures where a state fails to ensure that its vessels or nationals do not engage in IUU fishing.[195]
To emphasize the extent of the obligations of RFBs under the IPOA-IUU, and the consequent significance of effective decision-making, the paragraphs in the RFMO section of the IPOA-IUU are set out below.
REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS
78. States should ensure compliance with and enforcement of policies and measures having a bearing on IUU fishing which are adopted by any relevant regional fisheries management organization and by which they are bound. States should cooperate in the establishment of such organizations in regions where none currently exist.
79. As the cooperation of all relevant States is important for the success of measures taken by relevant regional fisheries management organizations to prevent, deter and eliminate IUU fishing, States which are not members of a relevant regional fisheries management organization are not discharged from their obligation to cooperate, in accordance with their international obligations, with that regional fisheries management organization. To that end, States should give effect to their duty to cooperate by agreeing to apply the conservation and management measures established by that regional fisheries management organization, or by adopting measures consistent with those conservation and management measures, and should ensure that vessels entitled to fly their flag do not undermine such measures.
80. States, acting through relevant regional fisheries management organizations, should take action to strengthen and develop innovative ways, in conformity with international law, to prevent, deter and eliminate IUU fishing. Consideration should be given to including the following measures:
80.1 institutional strengthening, as appropriate, of relevant regional fisheries management organizations with a view to enhancing their capacity to prevent, deter and eliminate IUU fishing;
80.2 development of compliance measures in conformity with international law;
80.3 development and implementation of comprehensive arrangements for mandatory reporting;
80.4 establishment of and cooperation in the exchange of information on vessels engaged in or supporting IUU fishing;
80.5 development and maintenance of records of vessels fishing in the area of competence of a relevant regional fisheries management organization, including both those authorized to fish and those engaged in or supporting IUU fishing;
80.6 development of methods of compiling and using trade information to monitor IUU fishing;
80.7 development of MCS, including promoting for implementation by its members in their respective jurisdictions, unless otherwise provided for in an international agreement, real time catch and vessel monitoring systems, other new technologies, monitoring of landings, port control, and inspections and regulation of transshipment, as appropriate;
80.8 development within a regional fisheries management organization, where appropriate, of boarding and inspection regimes consistent with international law, recognizing the rights and obligations of masters and inspection officers;
80.9 development of observer programmes;
80.10 where appropriate, market-related measures in accordance with the IPOA;
80.11 definition of circumstances in which vessels will be presumed to have engaged in or to have supported IUU fishing;
80.12 development of education and public awareness programmes;
80.13 development of action plans; and
80.14 where agreed by their members, examination of chartering arrangements, if there is concern that these may result in IUU fishing.
81. States, acting through relevant regional fisheries management organizations, should compile and make available on a timely basis, and at least on an annual basis, to other regional fisheries management organizations and to FAO, information relevant to the prevention, deterrence and elimination of IUU fishing, including:
81.1 estimates of the extent, magnitude and character of IUU activities in the area of competence of the regional fisheries management organization;
81.2 details of measures taken to deter, prevent and eliminate IUU fishing;
81.3 records of vessels authorized to fish, as appropriate; and
81.4 records of vessels engaged in IUU fishing.
82. Objectives of institutional and policy strengthening in relevant regional fisheries management organizations in relation to IUU fishing should include enabling regional fisheries management organizations to:
82.1 determine policy objectives regarding IUU fishing, both for internal purposes and co-ordination with other regional fisheries management organizations;
82.2 strengthen institutional mechanisms as appropriate, including mandate, functions, finance, decision making, reporting or information requirements and enforcement schemes, for the optimum implementation of policies in relation to IUU fishing;
82.3 regularize coordination with institutional mechanisms of other regional fisheries management organizations as far as possible in relation to IUU fishing, in particular information, enforcement and trade aspects; and
82.4 ensure timely and effective implementation of policies and measures internally, and in cooperation with other regional fisheries management organizations and relevant regional and international organizations.
83. States, acting through relevant regional fisheries management organizations, should encourage non-contracting parties with a real interest in the fishery concerned to join those organizations and to participate fully in their work. Where this is not possible, the regional fisheries management organizations should encourage and facilitate the participation and cooperation of non-contracting parties, in accordance with applicable international agreements and international law, in the conservation and management of the relevant fisheries resources and in the implementation of measures adopted by the relevant organizations. Regional fisheries management organizations should address the issue of access to the resource in order to foster cooperation and enhance sustainability in the fishery, in accordance with international law. States, acting through relevant regional fisheries management organizations, should also assist, as necessary, non-contracting parties in the implementation of paragraphs 78 and 79 of the IPOA.
84. When a State fails to ensure that fishing vessels entitled to fly its flag, or, to the greatest extent possible, its nationals, do not engage in IUU fishing activities that affect the fish stocks covered by a relevant regional fisheries management organization, the member States, acting through the organization, should draw the problem to the attention of that State. If the problem is not rectified, members of the organization may agree to adopt appropriate measures, through agreed procedures, in accordance with international law.
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[171] Article
V(3). [172] Article VI, (4), (6) and (11). [173] Article VII. [174] In 2003 advance text of a report to the United Nations General Assembly on an overview of the main trends in implementation of the UN Fish Stocks Agreement since its adoption in 1995 and entry into force in 2001, it is noted that at present no existing or planned regional fisheries management organization (RFMO) is composed entirely of States Parties to the Agreement, which some believe to be a key constraint on its implementation. However, since 1995 existing RFBs have adopted a wide range of measures reflecting provisions in the Agreement and much of the Agreement has been directly incorporated in some instruments to establish post-1995 RFBs. [175] Article 8(4). [176] Articles 9 and 10. [177] Article 11. [178] Article 12. [179] Article 13. [180] Articles 18-23. [181] Article 1.2. [182] Article 4.1. [183] Article 6.5. [184] Article 7. [185] As noted in the main document, to be consistent, this appendix will refer to RFBs. [186] Paragraphs 8 and 9. [187] Paragraph 25. [188] Paragraphs 28 and 51.2. [189] Paragraphs 58.5, 62, 63 and 64. [190] Paragraphs 68 and 73. [191] Paragraph 87. [192] Paragraph 80. [193] Paragraph 82. [194] Paragraph 83. [195] Paragraph 84. |
