FAO Compliance Agreement
The Compliance Agreement deals particularly with high seas fishing
Courtesy of NOAA/J.Cort
The "Compliance Agreement" refers to the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.
The 1982 UN Convention on the Law of the Sea, in dealing with fisheries issues, focused on issues concerning the exclusive economic zone and, to a large extent, ignored the problem of high seas fishing. Problems encountered with regard to straddling fish stocks and highly migratory fish stocks which eventually led to the development of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, (referred to as the UN Fish Stocks Agreement) are well documented.
A parallel development took place regarding attempts to prevent the practice of reflagging of vessels in order to avoid the application of high seas conservation and management measures determined by regional fisheries organizations. UNCED, in calling for a conference to address straddling fish stocks and highly migratory fish stocks, also called for steps to prevent this custom. Essentially, the problem was that only vessels flying the flags of the parties to the organization could be compelled to comply with the conservation measures determined by it. Some vessels were then registered in countries that were not bound by the conservation measures in question. The vessel could then fish with impunity in an area subject to conservation measures, claiming that it was not bound by those measures under international law because its State of registration was not a party.
This matter had also been taken up by the FAO Technical Consultation on High Seas Fishing in September 1992, while at the 102nd session of the FAO Council, the Council "agreed that the issue of reflagging of fishing vessels into flags of convenience to avoid compliance with agreed conservation and management measures, ... should be addressed immediately by FAO, with a view to finding a solution which could be implemented in the near future."1 FAO was requested to formulate an agreement and, between 1991 and 1993, one was negotiated under Article XIV of the FAO Constitution. The Agreement was adopted by the FAO Conference on 24 November 1993 by resolution 15/93, and opened for acceptance. In accordance with Article XI.1, the Agreement entered into force on 24 April 2003, date of receipt by the Director-General of the twenty-fifth instrument of acceptance.2.
The FAO Compliance Agreement and the UN Fish Stocks Agreement have been supplemented by the Code of Conduct for Responsible Fisheries, which is a voluntary instrument adopted by the FAO Conference in Resolution 4 of 1995. Unlike the other two agreements referred to, as the Code is voluntary, no specific action by States is required for it to take effect. However, its provisions may be used as a basis for domestic action, whether in the form of policy initiatives or even in shaping specific legislative provisions.
These three instruments provide the framework for future actions concerning fisheries, particularly as regards high seas fishing. Furthermore, as they were negotiated over a broadly similar time frame, many of the negotiators were the same resulting in a high level consistency among them. The FAO Compliance Agreement was completed prior to the UN Fish Stocks Agreement, and some of the provisions in the two overlap. However, there are some important differences. Firstly, the UN Fish Stocks Agreement only addresses straddling fish stocks and highly migratory fish stocks (with some exceptions) whereas the FAO Compliance Agreement applies to all high seas fishing. Secondly, while there is a parallel obligation in the UN Fish Stocks Agreement to establish a record of fishing vessels, and to make the information available on request, only the Compliance Agreement provides for the systematic exchange of information regarding high seas fishing vessels to which the Agreement applies.
The Compliance Agreement
It is clearly outlined both in the preamble and in the definition of "international conservation and management measures" that the Agreement's provisions are intended to be consistent with "international law as reflected in the United Nations Convention on the Law of the Sea."
The Agreement defines some key terms. First, the definition of "vessels" includes "mother ships and any other vessels directly engaged in such fishing operations". This definition was the subject of much negotiation, and many states had wanted to achieve a much wider definition that included support vessels. The definition of "length" in respect of a fishing vessel is a very technical definition taken from the Torremolinos Convention which, as seen below, is important in view of the fact that the Agreement permits parties to exempt vessels less than 24 metres in length in certain circumstances. The Agreement also defines "record of fishing vessels". This term was used instead of the more usual term "register" given that the primary means of control was through the fishing authorization rather than through the register itself (though the definition was careful to include the wider type of register within the definition).
Application of the Compliance Agreement (Article II) is aimed at all vessels that are used or intended for fishing on the high seas except that a party may exempt fishing vessels of less than 24 metres in length, unless the exemption would undermine the object and purpose of the Agreement3. A special provision is made for regions such as the Mediterranean where this exemption would not apply except that the coastal states of such a region may agree, either directly or through an appropriate regional fisheries organization, to establish a minimum length of fishing vessel below which this Agreement shall not apply.
Importantly, this exemption does not detract from the main obligation of the Compliance Agreement; i.e. to ensure that the vessels concerned do not undermine the effectiveness of international conservation and management measures. This is confirmed in Article II: "A Party may exempt fishing vessels of less than 24 metres in length entitled to fly its flag from the application of this Agreement unless the Party determines that such an exemption would undermine the object and purpose of this Agreement…" This is strengthened further by the provision in Article III which states that in the event that a party has granted an exemption for fishing vessels of less than 24 metres "such Party shall nevertheless take effective measures in respect of any such fishing vessel that undermines the effectiveness of international conservation and management measures. These measures shall be such as to ensure that the fishing vessel ceases to engage in activities that undermine the effectiveness of the international conservation and management measures."
Article III is the most important clause, for it sets out the responsibility of the flag state. The clause is long and subject to important qualifications, but in essence it places an obligation on the flag state to take "such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures" (paragraph 1 a). It continues: "In particular, no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization." (Article III 2) Further duties are imposed to give content to these basic obligations, including provisions concerning: not granting an authorization unless the flag state is able to exercise effectively its responsibilities in respect of the vessel, non-authorization of a vessel still under suspension, the requirement that vessel be marked so as to be readily identified in accordance with generally accepted standards (such as the FAO vessel marking scheme4), supplying information on the operations of a vessel, and the imposition of sufficiently grave sanctions as to be effective in securing compliance with requirements of the Agreement.5
Simplified diagram of maritime zones and distribution of shared, straddling and highly migratory stocks
Under Article IV, each party is required to maintain a record of fishing vessels entitled to fly its flag and authorized for use on the high seas, and to take such measures as are necessary to ensure that all such vessels are entered on that record.6
Article V deals with international cooperation, referring to the exchange of information (such as evidentiary material) relating to activities of vessels in order to assist the flag State in identifying those vessels flying its flag which have reportedly engaged in activities undermining international conservation and management measures. There is also a provision for cooperation by the port state where a vessel that is voluntarily in a port and believed to have undermined international conservation and management measures. The parties are urged to enter into cooperative agreements or arrangements of mutual assistance on a global, regional, subregional or bilateral basis in order to achieve the objectives of the Agreement.
Article VI deals with the exchange of information where each party should make available to FAO certain information on fishing vessels which is to be circulated periodically by FAO. Furthermore, parties are to promptly update FAO with additions and deletions, including the reasons for deletion of a vessel from the record. Each party should supply FAO with all information regarding activities of fishing vessels flying its flag that undermine the effectiveness of international conservation and management measures, including the identity of the vessel and of any measures imposed. This information may be subject to national legislation regarding confidentiality. Any party which has reasonable grounds to believe that a fishing vessel not entitled to fly its flag has engaged in activity which undermines the effectiveness of conservation and management measures, is to draw this to the attention of the flag State concerned and may, where appropriate, provide FAO with a summary of such evidence. Each party is also required to inform FAO of situations in which it has granted an authorization in respect of a vessel previously registered in the territory of another party where a period of suspension has not expired, or where an authorization to fish has been withdrawn.
The Agreement also has clauses dealing with cooperation with developing countries, non-parties, and settlement of disputes and final clauses. The settlement of disputes provision (Article IX) encourages first a consultation with regard to the interpretation or application of the Agreement. Failing that, the parties should discuss among themselves as soon as possible in hope of settling the dispute by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means. If the dispute is still not resolved, it shall, "with the consent of all Parties to the dispute be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea" or to arbitration. Failure to reach agreement through any of these methods, the parties "shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources".
The principal obligations and benefits
As described above, the main obligation for a country accepting the Agreement will be first to exercise its responsibility over vessels flying its flag, and second to establish a record of fishing vessels and to provide the information required under the Agreement with respect to those vessels. The principal benefit to participants will come from the availability of information regarding vessels authorized to fish on the high seas, which will lead to an increased ability to identify those vessels fishing without permission. This will be particularly important in light of the expanded powers that countries will acquire under the UN Fish Stocks Agreement. As these Agreements become increasingly effective, all participants will duly benefit.
1 FAO Council report 102nd Session, Rome, 9-20 November 1992, paragraph 58. It was on the basis of this statement that the negotiations for the FAO Compliance Agreement were placed on the so-called "fast track".
2 The updated list of acceptances is available here. In FAO practice, Article XIV Agreements are first approved by the Conference (which is broadly equivalent to signature) and then open for "acceptance", which has the same function as ratification or accession. This practice is fully consistent with the language used in the Vienna Convention on the Law of Treaties concerning the entry into force of treaties.
3 The length criterion becomes unimportant, of course, if the flag State decides to make the provisions of the Agreement applicable to a much wider range of vessels. NB also that the UN Fish Stocks Agreement does not limit its application to vessels above a certain size, indeed, it does not define 'vessel", focusing instead on the obligations of a State over vessels flying its flag.
4 The UN Fish Stocks Agreement, in Article 18.3 (d), includes the marking of fishing gear.
5 The UN Fish Stocks Agreement in Article 18 is slightly wider in the duties it imposes on the flag state, in part reflecting the fact that it was drafted during and after the completion of the Compliance Agreement, which enabled the parties to build on what had already been agreed. The UN Fish Stocks Agreement also requires the flag State to take measures to ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of another State.
6 This obligation is also found in the UN Fish Stocks Agreement but it is not accompanied by any detailed system, as is found in the FAO Compliance Agreement.