3. MONITORING, CONTROL AND SURVEILLANCE

It is the duty of states, in accordance with international law, to ensure compliance with and enforcement of both national and international conservation and management measures and to establish effective mechanisms to monitor and control the activities of fishing vessels in waters under national jurisdiction and on the high seas. Growing concerns about illegal, unreported and unregulated (IUU) fishing in national waters and on the high seas prompted states to develop and adopt new international fisheries instruments to address this issue and to provide states with a legal basis for taking action against fishing vessels that are undermining international and conservation measures agreed in the framework of subregional or regional fisheries organizations or arrangements. Both the FAO Compliance Agreement^[35] and the UN Agreement on Fish Stocks^[36] require that flag states whose vessels operate on the high seas take measures to ensure that vessels flying their flag comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures. These two instruments contain provisions specifying flag State responsibility and duties. They include, inter alia, establishment of a national record of fishing vessels authorized to fish on the high seas, requirements for marking of fishing vessels and fishing gear, requirements for recording and reporting information on fishing activities, requirements for recording and timely reporting of vessel position, implementation of national inspection schemes and subregional and regional schemes for cooperation in enforcement, implementation of national observer programmes, development and implementation of VMS, and regulation of transshipment on the high seas.

An International Plan of Action (IPOA) on IUU was developed by FAO and approved by the FAO Committee in March 2001.^[37] The objective of the IPOA-IUU is to "prevent, deter and eliminate IUU fishing by providing all states with comprehensive, effective and transparent measures by which to act".^[38] The IPOA, which applies to both waters under national jurisdiction and the high seas, sets out the responsibilities of all states and flag states in implementing measures to prevent, deter and eliminate IUU fishing and provides measures to be taken by coastal states and port states to attain this goal. All states are required, inter alia, to develop and implement national plans of action to achieve the objectives of the IPOA and give full effect to its provisions; and to undertake comprehensive and effective MCS of fishing from its commencement to marketing of fisheries products, through, among other things, maintaining records of all vessels, implementing a VMS and observer programmes. It is the flag State responsibility, inter alia, to establish a fishing vessel registration system and to maintain a record of fishing vessels entitled to fly its flag.

Among the measures that the coastal State should consider to ensure effective MCS of fishing activities are: licensing of each vessel to fish within coastal State waters, requirement for the master of each fishing vessel to maintain a logbook recording fishing activities and prior authorization for at-sea transshipment of fish and fish products in coastal State waters. Since at-sea monitoring and control is costly, emphasis has been put on strengthening in-port monitoring and control. To this end, the IPOA provides that the port State should establish a port inspection scheme: (a) requiring fishing vessels and vessels involved in fishing related activities seeking permission to enter their ports to provide reasonable advance notice, a copy of their authorization to fish and information on their fishing activities; (b) requiring the port State to deny authorization to land or transship fish in its ports to any vessel suspected of having engaged in IUU fishing; and (c) laying down inspection procedures and specifying information to be collected by authorized inspectors. It also sets out the procedures to be followed by the port State where, in the course of inspection, there are reasonable grounds to suspect that the vessel has engaged in IUU fishing in areas beyond its jurisdiction.

The purpose of this section is to identify the type of MCS measures introduced by Mediterranean coastal states in their fisheries legislation to ensure effective monitoring and control of fishing vessels operating in waters under their jurisdiction and of fishing vessels flying their flag on the high seas. This section, however, is not an attempt to assess the degree of compliance by these states with the international fisheries instruments described briefly above. The information contained in Table 4 can nevertheless be used within this international framework to determine whether the monitoring and control scheme established by each Mediterranean coastal State is sufficiently comprehensive, and to identify areas that need improvement or action. Nine types of MCS measures have been identified through the review of national fisheries legislation; they are briefly discussed in this section. They entail registering or recording of fishing vessels; registering or recording of fishers; marking of fishing vessel and gear; inspection; reporting; landing of catch; transshipment; observer programmes; and VMS.

3.1 Registering or recording of fishing vessels

While registration of vessels is generally within the purview of merchant shipping law, the information contained in this section focuses exclusively on separate registers or records of fishing vessels established under the fisheries law. Consequently, in the absence of such a requirement, it should not be inferred from information shown in Column 1 of Table 4 that fishing vessels are not required to be registered under another law.

Specific provisions requiring the establishment of a register or record of fishing vessels was found in the fisheries legislation of six countries (Albania, Libyan Arab Jamahiriya, Malta, Slovenia, Spain and Syrian Arab Republic) and in the European fisheries law, while no information was available for Greece or Lebanon. As EU members, Cyprus, France, Italy and Greece are subject to EU law and are therefore required to keep a register of national fishing vessels. Information contained in national registers feeds in the Community fishing fleet register set up by the Commission. In addition, Croatian fisheries law provides for the establishment of a register of fishing licences containing information similar to those recorded in registers or records of fishing vessels.

Of the six countries keeping a register or record of fishing vessels, three (Albania, Libyan Arab Jamahiriya and Syrian Arab Republic) have established a register of fishing vessels, two (Malta and Slovenia) a record of fishing vessels and one (Spain) both register and record of fishing vessels. Based on the information available, it was not possible to determine whether the use of different terminology had any legal implication. Interestingly, the Spanish fisheries law requires the competent authorities to set up both a register of fishing vessels (Registro de buques pesqueros) and a record of fishing vessels (Censo de buques de pesca marítima). Apparently, the register of fishing vessels is primarily an administrative tool, whereas the record of fishing vessels is a management tool. No vessels other than those included in the record of fishing vessels can be licensed to fish within Spanish waters or beyond. In addition, to facilitate management and allocation of fishing possibilities, specific records of fishing vessels by gear, fisheries or areas can be established.

Table 4. Principal measures of monitoring, control and surveillance (MCS)

Registers are maintained at various levels in various states (local, central or both). Some Mediterranean coastal states (Albania, Croatia and Syrian Arab Republic) keep local registers of fishing vessels. In Albania, offices of the Fishery Inspectorate at the district level are required to maintain local registers of fishing vessels. In the Syrian Arab Republic, a local register of fishing vessels is established in every port and in every district (mouhafazat). In Croatia, it is the duty of the field offices^[45] of the Ministry responsible for marine fisheries to set up local registers of commercial and small-scale fishing licences. While a general register is also kept by the General Directorate of Fisheries in Albania, it could not be determined whether a general register was also maintained at the central level in Croatia and the Syrian Arab Republic.

In both Albania and Croatia, a distinction is made between large and small vessels in the registers. The criterion retained by legislators in Albania to determine if a vessel should be registered as a large or small vessel is whether it has a deck or not: those with are considered large vessels, whereas those without are regarded as small. In Croatia, commercial and small-scale fishing licences are entered on two separate lists.

Interestingly enough, the registration of fishing vessels is a consequence of licensing rather than a prerequisite in both Albania and Slovenia.

3.2 Register of fishers

The fisheries legislation of five Mediterranean coastal states (Albania, Algeria, Italy, Spain and Syrian Arab Republic) requires the competent authorities to keep a register of professional fishers.

Of these five states, two (Albania and Spain) maintain both central and local registers; one (Algeria), a central register; and two (Italy and the Syrian Arab Republic), local registers. In Albania, for instance, the General Directorate of Fisheries keeps a general register of professional fishers to record all persons engaged in professional fishing throughout Albanian waters; the regional offices of the Fishery Inspectorate maintain regional registers of professional fishers operating within their respective area of jurisdiction. The register of professional fishers consists of two parts, one dealing with fishers using vessels equipped with a deck and the other with those using vessels without deck or involved in fishing activities not requiring the use of any vessel. In Italy, a fishing company register and a professional fisher register are established in every port. Professional fishing can be undertaken only by legal persons registered in the fishing company register, and whose crew members are registered in the seamen’s register and/or the trawlermen’s register.

Any person wishing to engage in professional fishing in Albanian, Algerian, Italian or Spanish waters is required to be registered in the register of professional fishers. To be eligible, fishers are generally required to demonstrate that they meet minimum qualification standards to ensure that they are sufficiently knowledgeable and skilled to undertake commercial fishing. In Spain, for instance, only those having acquired a navigation/fishing certificate (titulación nautico-pesquera) can be listed in the register of professional fishers. Likewise, in Italy, fishers must have successfully passed the "vocational training course" to be able to register in the seamen’s register. In Algeria, full registration in the seamen’s register is acquired when the applicant can demonstrate that he/she has spent at least 12 months at sea. Additional conditions may be imposed. In Italy, for example, fishers must show that fishing is their sole or principal source of income.

In both Albania and Italy, registration may be terminated for breach of law. Albanian fisheries law provides that information to be entered in the register of professional fishers must include any reported violation of any fisheries law or regulation together with the penalties that were imposed. In Italy, any person having been convicted of more than five major violations of the fisheries law or for a term of imprisonment exceeding one year pursuant to a breach of the fisheries law is barred from registration in the register of professional fishers.

3.3 Marking

Marking of fishing vessels enables authorities responsible for controlling and monitoring fishing activities to identify vessels at sea. It is common practice, under merchant shipping law, to require vessels, including fishing vessels, to bear identification marks in order to be registered. In addition, fishing vessels may be required under the fisheries law to bear specific identification marks as determined by the fisheries authority. This is the case in Albania, Cyprus, Egypt, France, Libyan Arab Jamahiriya, Morocco, Syrian Arab Republic and Turkey. The Maltese fisheries legislation stipulates that marking is a prerequisite for fishing vessels to be recorded; it is not specified whether marking refers to general marking requirements applicable to all merchant vessels or to specific marking requirements for fishing vessels. In Albania, fishing vessels authorized to conduct professional fishing operations in Albanian waters must be marked in compliance with the FAO Standard Specifications for the Marking and Identification of Fishing Vessels. Moroccan and EU fisheries laws provide for the marking of both the vessel and the fishing gear carried on board. Identification marks to be borne on the vessel may include the vessel’s registration number (Libyan Arab Jamahiriya, Morocco and Syrian Arab Republic) or the vessel’s licence number (Turkey).

3.4 Inspection

Inspection is a broad concept covering both at-sea and in-port inspections. At-sea inspections are those carried out by authorized officers at sea within waters under national jurisdiction to ensure that fishing operations are conducted in conformity with the rules and regulations laid down in the fisheries law. They encompass examination of vessels’ documents (e.g. fishing licence, logbook), fishing gear on board and catch retained on board. Given the urgent need to curb IUU fishing on the high seas, and with the development of new international fisheries instruments, at-sea inspections also include the issue of inspection of fishing vessels flying the flag of another State in international waters. This latter entails two types of inspections, namely, those prior to licensing and the routine in-port inspections. Technical inspections prior to licensing are used to check that the vessel for which a licence is sought complies with required technical and safety standards, and that the fishing gears on board conform to the technical specifications as prescribed in the fisheries law. Routine in-port inspections include control of the catch on board the vessel and the catch to be landed (e.g. size, health), examination of the vessel’s documents, control of fishing gear on board and control of sanitary conditions.

At-sea and in-port inspections are enforcement tools. Typically, to carry out their duties, designated enforcement officers are authorized to inspect, at any time, any fishing vessel whether in port or operating within waters under national jurisdiction (Albania, Croatia, Malta, Spain, Slovenia, Syrian Arab Republic and Tunisia).^[46] It is worth noting that in the EU, Member States are authorized to: (a) inspect Community vessels flying their flag in all Community waters outside waters under the sovereignty of another Member State; (b) carry out inspections in accordance with the rules of the CFP relating to fishing activities in all Community waters outside waters under their sovereignty on fishing vessels, only: (i) after authorization of the coastal Member State concerned; or (ii) where a specific monitoring programme has been adopted in accordance with Art. 34c of Regulation (EEC) No. 2847/93; and (c) inspect Community fishing vessels flying the flag of another Member State in international waters.

In addition to routine in-port inspections, the fisheries law of three countries (Egypt, Libyan Arab Jamahiriya and Morocco) conditions the licensing of any fishing vessel to a technical inspection by the designated authorities. Similar provisions are found in the Algerian fisheries law with respect to foreign fishing vessels.

3.5 Reporting

As reflected in international fisheries instruments, conservation and management decisions should be based on the best scientific evidence available. To this end, states should undertake research and data collection in order to improve the scientific and technical knowledge of fisheries. In this context, gathering timely, complete and reliable statistical data on catch and fishing effort is crucial to evaluate the current state of the fishery resources and to allow sound conservation and management decisions. As shown in Column five of Table 4, reporting this information by masters or owners of fishing vessels is required in all Mediterranean coastal states.^[47]

General reporting requirements are found in the fisheries legislation of Albania, Algeria, Croatia, Cyprus, Egypt, Israel, Libyan Arab Jamahiriya, Malta, Morocco, Slovenia, Tunisia and Turkey. They generally apply to both national and foreign fishing vessels. Specific provisions with regard to reporting by foreign fishing vessels are provided for in the Libyan Arab Jamahiriya, where masters of such vessels must provide catch data after each fishing trip; and in Malta, where foreign fishing vessels entering into, or departing from, Maltese waters are required to declare the amount of fish retained on board. Frequency of reporting is generally determined through regulations. In Albania, licence holders are required to submit monthly statistical data to the competent regional office of the Fisheries Inspectorate. In addition, they must submit annual information to the competent authority. In Italy, every licence holder is also required to submit monthly information on fishing activities.

Seven countries (Algeria, Croatia, France, Israel, Slovenia, Spain and Syrian Arab Republic) and the EU require the master or owner of a fishing vessel to keep a logbook. In Croatia and Israel, the obligation to maintain a logbook applies to all commercial fishing vessels (national or foreign) authorized to fish within national waters. In the EU and Slovenia, all vessels (except those whose overall length is less than 10 m) are subject to this obligation. The Spanish fisheries legislation provides that all vessels are required to keep a logbook but that exemption can be made. In Algeria, no vessels other than foreign vessels and vessels conducting scientific research are required to keep a logbook. In France, maintenance of a logbook is imposed on fishing vessels targeting species subject to a control quota to determine whether they have exhausted their fishing possibilities. In the Syrian Arab Republic, sponge divers are required to keep a logbook. Usually, the information to be shown in the logbook relates to the quantity of fish caught, size, species, place of catch and gear used to catch them (e.g. France, Israel).

Keeping a logbook or reporting information on fishing activities is a legal obligation; failure to do so may trigger sanctions by the competent authority or court. For instance, in Albania, any licence holder who fails to report required information or falsifies this information is liable to a fine. In Croatia, the fisheries law provides that any person who fails to report the required information on commercial fishing operations is liable to a fine for a first offence, and to a fine combined with the suspension of the licence for a period from 3 months to 5 years for subsequent offences.

3.6 Landing of catch

The IPOA-IUU encourages states to strengthen port control in order to combat IUU fishing through the adoption of port State measures regulating, inter alia, access to ports and landing of catch.^[48] Provisions regulating the landing of catch in national ports of Mediterranean coastal states were identified in 11 national fisheries legislations (Albania, Algeria, Cyprus, France, Israel, Libyan Arab Jamahiriya, Malta, Slovenia, Spain, Syrian Arab Republic and Tunisia) and in EU law.

Three Mediterranean coastal states (Albania, Algeria and Tunisia) require that all catches taken by any fishing vessel, whether national or foreign, operating in waters under national jurisdiction, be landed in a national port. Authorization to do otherwise may be granted by the fisheries administration in both Algeria and Tunisia.

No landing of catch is allowed in any Algerian or Tunisian port unless under the monitoring of a fisheries inspector. Spanish fisheries law enables the fisheries administration to adopt similar measures.

Both Cyprus and Israel have established an authorization scheme for the landing of catch in a national port. In Cyprus, this scheme applies to any vessel operating outside Cypriot territorial waters, whereas in Israel it applies to any fishing vessel registered in a foreign country provided that the master of the vessel has agreed to comply with Israeli regulations on net mesh sizes and minimum landing sizes of fish and other species.

Two Mediterranean coastal states (Slovenia and Spain) and the EU require that vessels wishing to land fish or fish products in any of their ports provide reasonable advance notice of their entry into port. In Slovenia, this requirement applies only to vessels registered in a third country (non-EU Member State). These vessels must notify the competent authority of their intention to land fish or fish products in a Slovenian port at least 72 hours prior to the estimated time of arrival. In Spain, the fisheries administration is entitled to require Spanish fishing companies to notify the competent authorities of their vessels’ arrival into port. In addition, the Spanish fisheries law provides that the master of any third-country vessel (non-EU state) wishing to land fish or fish products in a Spanish fishing port is subject to prior advance notice. He/she must inform the competent authorities of the place, date and time of the vessel’s arrival. EU law provides two separate sets of rules, one for Community fishing vessels and the other for third-country fishing vessels. With respect to the former, the master of a Community vessel who wishes to utilize landing locations in a Member State other than the flag Member State must comply with the requirements of any designated port scheme established by that Member State. If said Member State does not operate such a scheme, the competent authorities in that Member State must be informed at least 4 hours in advance concerning: (a) the landing location and estimated time of arrival and (b) the quantity of each species to be landed. The master or the master’s representative of each Community fishing vessel of overall length equal to or longer than 10 m, must, after each trip and within 48 hours of landing, submit a declaration to the competent authorities of the Member State where the vessel has landed. With regard to the latter, masters of third-country fishing vessels or their representatives must notify the competent authorities of the Member State whose ports or landing facilities they wish to use at least 72 hours before the estimated time of arrival at the port, of their time of arrival when actually landed, the catches retained on board and the zone or zones where the catch was made. They (or their representatives) must submit as soon as possible, but no later than 48 hours after landing, a declaration indicating the quantity of fishery products by species landed and the date and place of each catch to the authorities of the Member State whose ports or landing facilities they use.

In several Mediterranean coastal states (EU, France, Libyan Arab Jamahiriya, Slovenia, Spain and Syrian Arab Republic), landing of fish or fish products can be made only in designated ports. In the Libyan Arab Jamahiriya, landing of catch by Libyan fishing vessels must be made in the port of the vessel’s registration. In Slovenia, Slovenian fishing vessels may choose to land their catch in any of the country’s three fishing ports, whereas third-party fishing vessels are required to land their catch in the port of Koper. In the Syrian Arab Republic, sponge divers must land their catch in the locality mentioned on the permit.

3.7 Transshipment

Under the IPOA-IUU, flag states are encouraged to ensure that all their own fishing, transport and support vessels involved in transshipment at sea have obtained a prior authorization issued by themselves and to report to the national fisheries administration or other designated institution the required information about operations.^[49]

Provisions regulating the transshipment of fish or fish products have been found in the fisheries law of five Mediterranean coastal states (Algeria, Libyan Arab Jamahiriya, Malta, Spain and Tunisia) and in EU law. In Algerian waters, transshipment at sea is strictly prohibited, except in the case of force majeure.^[50] In the other four states, transshipment is subject to an authorization scheme. In the Libyan Arab Jamahiriya, this requirement applies only for transshipment at sea, whereas in the other states it is required for transshipments both at sea and in port. In Spain, the authorization scheme applies only to foreign fishing vessels, while transshipment by Spanish fishing vessels is subject to an advance notice procedure. Under EU law, prior authorization is required only for third-country fishing vessels.

In both Malta and Spain, masters of fishing vessels are required to provide any prescribed information pursuant to transshipment.

3.8 Observer programmes

The fisheries legislation of three Mediterranean coastal states (Albania, Algeria and Malta) and EU law provide for the establishment of observer programmes. In both Albania and Malta, the fisheries law contains language enabling the competent authority to impose the placing of observers on board any vessel. Licence holders have a duty to allow designated observers to stay on board and facilitate the performance of their duties. In Algeria, the master of any foreign fishing vessel duly authorized to fish for highly migratory species within Algerian waters is required to embark two observers on board, one appointed by the fisheries administration, the other by the coast guards. EU law stipulates that Member States are responsible for placing observers on board fishing vessels.

3.9 VMS

In order to ensure compliance with conservation and management measures, an increasing number of coastal states and regional fisheries management organizations (RFMOs) have established a VMS in the last decade. To date, VMSs have been primarily used to monitor the position of duly authorized fishing vessels operating within waters under national jurisdiction or within areas of jurisdiction of RFMOs on the high seas. With the development of new technology, more and more coastal states have elected to establish satellite-based monitoring systems. In this section, VMS is not synonymous with satellite-based monitoring systems, but should be construed as referring to any type of VMS intended to monitor the position of fishing vessels regardless of the communications system used (e.g. radar, radio).

In the Mediterranean Sea, specific provisions on VMS have been found in the fisheries law of five Mediterranean coastal states (Algeria, Malta, Morocco, Slovenia and Spain) and in EU law. In Algeria, both foreign fishing vessels engaged in fishing for highly migratory species and fishing vessels used for scientific research purposes are required to report their position regularly to the competent authorities. Slovenian fisheries law empowers the Minister responsible for fisheries, in agreement with the Minister responsible for maritime affairs, to establish a VMS and determine the technology on which it should be based. In Malta, the Minister responsible for fisheries is expressly authorized to establish a satellite-based monitoring system. A few years ago, Morocco modified its fisheries law to introduce language allowing the establishment of a VMS. The principal Spanish fisheries legislation provides for the establishment of periodical communications systems designed to monitor fishing vessels’ entry into and departure from fishing zones and fishing ports, and to communicate any other information that may be prescribed. The most comprehensive VMS regulations have been enacted by the EU. Under these regulations, any Community fishing vessel and third-country vessel operating in Community waters is required to be equipped with a functioning system that allows detection and identification of that vessel by remote monitoring systems. This requirement applies to vessels exceeding 18 m overall length as of 1 January 2004, and to vessels exceeding 15 m overall length as of 1 January 2005. In 2004, the Commission will decide on the obligation to set up means of remote sensing.^[51] The satellite-tracking device to be installed on board fishing vessels must enable any fishing vessel to communicate its geographical position and where applicable effort reports as may be determined by satellite to the flag State and to the coastal Member State concerned simultaneously. In 2004 the Council will decide about the obligation to transmit electronically records and information on fishing activities, including landings and transshipments.