Some general standards and harmonized procedures should be worked out. A system may also include measures dealing in particular with the problem of "Flag of Convenience" (FOC)-vessels, as there is a close link between port State control and activities undertaken by such vessels. The call for port State measures is in many cases based on the lack of implementation of flag State responsibility. If all flag States complied with their obligations concerning their fishing fleets, port State control would more or less be superfluous. As mentioned above, the joint FAO/IMO Working Group developed a list of criteria for port State control, which should be examined when considering developing such measures. The IPOA on IUU fishing also includes a number of possible measures that should be looked at in this context. It is further of importance to agree internationally on consequences for vessels found to be in non-compliance with international conservation and management measures. A MOU should apply to all vessels engaged in, or supporting, fishing activities including thus fishing vessels and vessels transporting fish and fishery products.
Under international law the flag State is primarily responsible for ensuring compliance with international minimum standards. Article 94 of the 1982 UN Convention reaffirms this fundamental principle, but also makes clear that flag states have certain obligations especially with regard to ensuring compliance with international minimum safety, pollution prevention and social standards. Similarly, Article 217 of the 1982 UN Convention sets out an obligation on flag States to effectively enforce such international rules, standards and regulations, irrespective of where the violation occurs. These requirements were incorporated in IMO Resolution Guidelines to Assist Flag States in the Implementation of IMO Instruments (A. 847 [20]).
Article 91 of the 1982 UN Convention requires there to be a "genuine link" between the vessel and the flag State. Although the "genuine link" is not expressly defined in the 1982 UN Convention, other Articles, especially Article 217, implicitly point to the requirement for at least an "economic link". This indicates that there should exist within the flag State a substantial entity which can be made responsible for actions of the vessel and on which penalties of adequate severity can be levied so as to discourage violations of applicable international minimum rules and standards, wherever they occur.
The FAO Compliance Agreement introduced the concept of flag State responsibility in the fisheries context to the global level.[32] In many respects the 1995 UN Fish Stocks Agreement[33] reiterates the concept of flag State responsibility as elaborated in the FAO Compliance Agreement. It should also be noted that Section 7.8 of the Code of Conduct in a way addresses the problems caused by re-flagging of fishing vessels to FOC-registers in order to escape controls. The IPOA on IUU fishing sets out a number of measures aiming at strengthening the flag State obligations in the context of fisheries.[34]
It is commonly acknowledged that one major factor related to the problem of IUU fishing are the activities undertaken by FOC-vessels which often are defined as vessels flying the flag of States with open shipping registers. In 1998 the First Joint Ministerial Conference of the Paris and Tokyo Memorandums of Understanding on Port State Control agreed, in their joint ministerial declaration, to take action within IMO for the adoption of comprehensive binding quality criteria for flag State administrations and shipping registers and to apply all reasonable measures to induce flag State administrations with a record of being unable or unwilling to exercise adequate control over their vessels to do so.
As outlined above there have been a number of global attempts to address the issue of FOC-vessels in relation to IUU fishing by strengthening the flag State obligations. It is unlikely that the problem with open shipping registers will be solved within the foreseeable future. Thus, new avenues should be explored in order to deal with this challenge and in particular measures in the context of port State control should be considered.
A new approach was discussed and agreed upon at a recent annual meeting of CCAMLR (Convention on the Conservation of Antarctic Marine Living Resources) in 2002. The idea was that rather than searching for the "genuine link" between the flag State and a fishing vessel flying its flag, measures should be established whether or not these vessels are under a traditional definition of "Flag of Convenience". Thus, States notorious for having flagged vessels engaged in IUU fishing should be identified, as it is "convenient" to use some specific flags to avoid being bound by conservation and management measures. Although many IUU-vessels tend to be flagged to States with so-called open registers, the point of this new approach is to get around the general problem of "Flag of Convenience" related to such registers. In principle States with restricted shipping registers could also be regarded a FOC in a fishing context if it is "convenient" to fly the flag of that State to conduct IUU-fishing. In order to distinguish between general FOC-States/vessels and this new approach CCAMLR agreed to use the terminology "Flag of Non-Compliance" (FONC). CCAMLR adopted a resolution on FONC implying, among other things, that Contracting Parties and non-Contracting Parties cooperating with CCAMLR should prohibit landings and transhipments of fish and fish products from FONC-vessels.[35]
Some RFMOs and States already operate lists of vessels regarded as being IUU-vessels. The CCAMLR-resolution has a wider application, as all fishing vessels flying a FONC-flag would be regarded as IUU-vessels when operating in the CCAMLR-area.[36]
In this context it is also appropriate to mention that ICCAT (International Commission for the Conservation of Atlantic Tunas) has adopted the concept of listing specific IUU States by agreeing on a measure identifying States whose vessels have been fishing for tuna and tuna-like species in a manner which diminishes the effectiveness of ICCAT conservation and management measures. Contracting Parties of ICCAT shall prohibit import of Atlantic bigeye tuna from the States listed[37]. IOTC (Indian Ocean Tuna Commission) has not gone as far as ICCAT by listing States, but has agreed on a resolution calling upon the parties to refuse port access to "flag of convenience vessels, which are engaged in fishing activities diminishing the effectiveness of measures adopted by IOTC".[38] However, in determining which vessels this resolution is targeting, there has to be some kind of understanding between the parties of IOTC about which flags such vessels are flying.
It is important to agree on criteria for characterizing a State as a FONC-State. Such criteria could include: possible reply and action (or rather non-action) by the flag State when approached by the relevant RFMO; number of vessels engaged in IUU fishing; whether the flag State has a "history" of non-compliance; record in areas under the responsibilities of other RFMOs etc. It is equally important to agree on procedures to maintain such a list, including the deletion of States, which after being listed have taken appropriate actions to cooperate with the relevant RFMOs.
To give full effect to such an approach, other regional bodies should adopt similar measures. This issue might be considered for inclusion into a MOU on port State control. As possible consequence of being regarded as a FONC-State specific actions, for example denial of access to its ports, could be taken when a vessel flying the flag of that State calls at a port of a party to a RFMO.
At its annual meeting in 2002 CCAMLR agreed to adopt a scheme to promote compliance with CCAMLR conservation measures[39] by Contracting Party vessels and a scheme to promote compliance with CCAMLR conservation measures by non-Contracting Party vessels[40]. These schemes imply that procedures were agreed upon for the establishment and maintenance of lists of fishing vessels (IUU Vessel list) found to have engaged in fishing activities in the CCAMLR-area in a manner, which has diminished the effectiveness of CCAMLR-measures. Also procedures for the removal of vessels from the IUU Vessel list have been adopted. Further Contracting Parties of CCAMLR have agreed to take a number of appropriate domestic actions against vessels appearing on the IUU Vessel list, such as the refusal of the granting of their flag and not authorizing landing or transhipment in ports. This measure might imply that the physical vessel could be denied such rights also when operated by others than those who participated in the fishing. This option is inspired by the Norwegian experience over a number of years showing that with such measures in place vessel owners think twice before engaging in IUU fishing. Some have seen the second hand value of their vessels decrease dramatically as the market for IUU-vessels in the North Atlantic almost disappeared. This is due to the fact that shipping brokers are aware of these vessels and advise potential buyers.
During the 7th session of the IOTC[41], a resolution was adopted to establishing a list of vessels presumed to have carried out IUU fishing in the IOTC Area.[42] It identifies inter alia criteria for establishing such presumption, provides for listing and "deleting from list" mechanisms as well as sharing of information. The resolution applies primarily to large-scale fishing vessels flying the flag of non-contracting parties. At its annual meeting in 2003, the resolution will be reviewed and as appropriate revised with a view "to extend it to other types of IUU fishing activities of non-Contracting Party vessels and, to Contracting Party, Co-operating non-Contracting Party vessels".[43]
There may be cases where vessels could be regarded as IUU-vessels even if the flag State is not considered to be a FONC-State. This is due to the fact that being regarded as a FONC-State would require some kind of a record of non-compliance as a flag State. Just one or two incidents would hardly be enough, but the vessel responsible for those incidents could be characterized as an IUU-vessel. It should thus be considered also to deny vessels appearing on those listings access to ports of parties to a possible MOU.
NEAFC (North East Atlantic Fisheries Commission) is working towards the establishment of a similar system.[44]
ICCAT has taken a different approach. At the annual meeting in 2002, ICCAT adopted a measure concerning the establishment of a record of large scale fishing vessels[45] authorized to operate in the Convention area (a so-called "white list").[46] This implies that only vessels appearing on the list are regarded as being fishing in conformity with applicable ICCAT-measures. The record is maintained by the ICCAT-secretariat based on information submitted by Contracting Parties, co-operating non-Contracting Parties or a fishing Entity. Vessels that are not entered into the record are deemed not to be authorized to fish for, retain on board, tranship or land tuna and tuna-like species. The measure puts a number of obligations on the parties concerning their vessels that are included in the record. Parties to ICCAT shall take measures, under their applicable legislation, to prohibit, amongst other things, the transhipment and landing of tuna and tuna-like species by large scale fishing vessels which are not entered into the ICCAT record. IOTC has taken up a similar approach at its annual meeting in 2002[47] during which it adopted a resolution[48] concerning the establishment of an IOTC record of vessels over 24 meters authorised to operate in the IOTC Area as well as a recommendation[49] with a view to prevent those IUU fishing vessels from being entered in the IOTC Record before the former Resolution enters into force.
Port States should require all foreign vessels having engaged in fishing activities or transporting fish and fishery products to provide prior notice of the intention to use a port, its landing or transhipment facilities.
Paragraph 55 of the IPOA on IUU fishing sets out some minimum requirements for prior notification in order to ascertain whether the vessel has engaged in or supported IUU fishing. Elements mentioned are information related to the identity of the vessel, including its authorization to fish and activities undertaken.
The following vessel-related information might be required: Name of vessel, registration number (IMO number, if available)[50], flag of vessel, register and port of registration, international radio call sign, name and address of owner (telephone numbers, fax, e-mail). In order to get a complete picture it should be considered to request the following additional information: length, vessel monitoring system (VMS), gross ton (GT), navigational equipment, previous flag and date of change, previous names and date of change including their names and address.
Concerning fishing licences (authorizations/permits) the following information should be given to the port authorities: Vessel authorized to fish, including conditions such as areas, scope and duration, identification of species and fishing gear authorized.
An advance notification should be given within a reasonable time limit enabling the port authorities to verify the information submitted and to be prepared for an inspection (if the vessel is allowed into port).
An aspect of some significance concerns access of fishing vessels to foreign ports. As the concept of "port State denial" has become established within the maritime industry as a mechanism to ensure compliance with the International Safety Management (ISM) Code, it may be possible to seek to utilise such mechanism to curb IUU fishing.
Whether such a measure is in full conformity with general international law has been subject to some debate. Through this debate, the evidence concerning customary law and State practice reinforces the view that the coastal State has the right to exclude foreign merchant vessels from entering its ports. States may of course grant right of access by means of treaties or other agreements that create a legal obligation. The 1995 UN Fish Stocks Agreement has rightly stated the governing principle of international law in that nothing in Article 23 "affects the exercise by States of their sovereignty over ports in their territory in accordance with international law".[51] According to paragraph 56 of the IPOA on IUU fishing the port State should not allow the vessel to land or tranship fish in its ports if a port State has clear evidence that the vessel which has been granted access to port has engaged in IUU fishing. By using the term "having been granted access" there is an indication that such access also may be denied if the port State so decides. It is thus generally recognized that the right of the coastal State to deny access to its ports in respect of fishing vessels is not in dispute. In deciding whether to grant that consent, and subject only to agreed commitments, the port State is free to impose such conditions as it wishes. Thus, access to a port of another State is a privilege, not a right. Exceptions from this basic principle would be for reasons of force majeure or distress or for rendering assistance to persons or vessels in danger or distress.
It has been argued that restrictions on access of fishing vessels to foreign ports would be in contradiction to free trade and provisions of GATT/WTO[52] and in particular the argument has been made that the free transit provisions of Article V would be compromised by such restrictions. It should, however, be noted that nothing in the GATT/WTO regulations derogates from the basic principle of State sovereignty over ports. Furthermore no right of entry is established under these provisions.
Port States should consider denying port access to vessels that engage in or support IUU fishing. By granting an IUU-vessel the right to use its port, the port State might be, directly or indirectly, supporting IUU fishing if the vessel is allowed to refuel and re-supply. It should be mentioned that some States have implemented into their domestic legislation provisions banning the use of ports by vessels participating in IUU fishing.[53]
If parties to a MOU on port State control agree to develop lists of IUU-vessels and FONC-States, it should be considered to deny access to ports for vessels on the list or vessels flying the flag of that particular State. In addition vessels may not be allowed into ports of the parties if the port State when considering the prior notification by the vessel is not satisfied with the information submitted.
However, to deny access for a vessel that has been fishing within waters under jurisdiction of a port State might not be appropriate at all. Indeed in a case of non-compliance, the port State would have a number of reactions available, including prosecution and might welcome such a vessel to its port in order to institute legal proceedings against the vessel.
According to Article 23 of the 1995 UN Fish Stocks Agreement, port States shall not discriminate in form or in fact against the vessels of any State. This suggests that port States as a basic principle should treat their vessels and foreign vessels on equal terms. It could be argued that other means of control of vessels flagged to the port State[54] may replace the obligation on mandatory port State control. As mentioned before, the Paris MOU requires that at least 25% of the merchant fleet be inspected. A similar approach, with different level of inspection frequency, could be considered also for MOUs on port State control of fishing vessels. Other parameters such as the size of vessels, FONC or FOC-vessels, production vessels etc. could also be relevant. There are, however, good reasons for arguing that all foreign fishing vessels should be subject to mandatory port State control.
Paragraph 57 of the IPOA on IUU fishing provides that States should publicize ports to which foreign flagged vessels may be permitted admission. Some States have so many ports that it would almost be impossible to man them 24 hours a day all year round. So this may be a way forward where lack of resources is a challenge. It should also be mentioned that some States have singled out just a few ports to where the foreign fishing fleet has access.[55] Paragraph 57 also requires that States should ensure that such designated ports have the capacity to conduct inspections. This would mean that the responsible authorities are capable of conducting the foreseen inspections and that these are finalized within a reasonable time frame.
In order to have a wide application of port State measures for counteracting IUU fishing, it should be recognized that creating awareness about, and capacity building in port State measures, especially in developing countries is vital.[56]
Vessel inspections are a key management tool for monitoring and control. Port inspections are considerably easier to conduct than those at sea due to the safety factor of not having to deal with the motion of the sea on boarding and disembarking, or during the inspection itself. Naturally, it will be impossible to observe fishing and processing operations during an inspection in port, but it should nevertheless be possible to reconstruct the fishing activities of the vessel. In addition to formalities such as identification etc, a port inspector should be able to determine the fishing pattern, catches, and verify the fish on board through an inspection. It should also be possible to check the hold and construction of the fishing gear. Even if not landed, information about the fish on board the vessel may in some cases also be determined as precisely as desired.
When examining the record of a particular vessel, the inspector should be in possession of all relevant conservation and management measures in force for the area/areas where the vessel conducted its fishing. The vast majority of RFMOs have published the conservation and management measures in force on their respective web sites.
In exercising their duties, a port State inspector must be properly qualified and authorized by the port State authority to carry out port State inspections. Thus minimum standards for port State inspectors should be agreed upon. In order to achieve the qualifications required adequate training courses should be developed. Such courses may include elements such as an overview of the relevant conservation and management measures that apply, information sources which should be examined such as log books, vessel monitoring systems (VMS) for validation of information given by the master of the fishing vessel, species identification, catch landing monitoring, including determining conversion factors for the various species and products, fishing vessel boarding/inspection, hold inspections and calculation of vessel hold volumes. Furthermore inspectors should be trained in gear inspections and guided in collection of evidence in order to be prepared for a possible challenge by the flag State or for a possible court case.
The procedures for inspections would also require common understanding and internationally accepted standards. Thus a checklist for inspection should be worked out.
Paragraph 58 of the IPOA on IUU fishing lists information that should be collected during an inspection in port. This list of information may be considered as minimum requirements and include information regarding: the flag State of the vessel and identification details; name, nationality and qualifications of the master/fishing master; fishing gear, catch on board, including origin, species, form and quantity and total landed/transhipped catch. It is referred also to other information required by relevant RFMOs or other international agreements. Such additional information might include information regarding fishing licences (authorizations and permits to fish), "the history" of a vessel such as previous flag, previous name, previous owner etc., the fishing trip itself (commencement of fishing, which areas have been visited, when the trip ended etc.) and quantities staying on board after discharge (if relevant).
It might be considered, as it is contained in the Paris MOU, to establish a two-step approach; an initial inspection of the vessel, followed by a more detailed inspection if the vessel during the initial inspection becomes suspected of failing to meet the required standards. However, a comprehensive inspection of fishing vessel would be required to verify if it has conducted IUU fishing or not.
A port State inspector should decide on the consequences if the vessel is found to be in non-compliance with conservation and management measures established for areas to which the MOU applies.
If there are reasonable grounds for believing that a foreign fishing vessel has been fishing contrary to applicable conservation and management measures, the port State should choose from among several possible courses of action. The appropriateness of such actions would of course depend on the seriousness of the violations in question. The crucial point is to ascertain whether an activity or activities could be defined as "undermining" agreed measures. It might be an idea to draw upon the list of activities that are characterised as serious violations in Article 21.11 of the 1995 UN Fish Stocks Agreement and use it as a guideline for when to take action against a fishing vessel also in port. It should be mentioned that the European Union[57] and NEAFC[58] have worked out similar lists.
Paragraph 59 of the IPOA on IUU fishing advises that the port State may take actions with the consent of, or upon the request of, the flag State. Possible actions with the concurrence of the flag State may include a wide range of options pursuant to relevant domestic legislation of the flag State. In this context, however, the challenge is to agree on actions that the port State should at least take against a vessel without the concurrence of the flag State.
Paragraphs 56 and 59 of the IPOA on IUU fishing include actions that should be taken by port States if a foreign vessel is found to have engaged in IUU fishing. Two commitments are specifically mentioned; it should not allow the vessel to discharge/tranship and the matter should be reported to the flag State of the vessel and to the relevant RFMO. There is, however, a reference to any other action consistent with international law. As mentioned above, a port State has full jurisdiction over its ports and may consider a wide range of reactions. In a possible MOU the challenge will be to agree on certain minimum standards for actions against vessels found to be conducting IUU fishing.
Further it is self-evident that if a vessel is found to have violated applicable legislation in waters under jurisdiction of the port State, it should exercise jurisdiction as a coastal State and institute proceedings accordingly.
Generally speaking, a State is not normally entitled under international law to institute legal proceedings against a foreign vessel for fishing violations that have taken place solely in areas outside the national jurisdiction of that State. There are, however, exceptions to this rule. One exception concerns vessels without nationality fishing on the high seas. The IPOA on IUU fishing calls on all States (including port States) to take action against such vessels. At least some States take the view that a vessel without nationality on the high seas is subject to the jurisdiction of any State. The domestic laws of Canada, Norway, and the United States respectively authorise each of those States to take enforcement action against such vessels under certain circumstances.
An alternative concept could be to make it an offence to arrive in port having conducted IUU fishing irrespective whether the activities have been undertaken within waters under the jurisdiction of the port State, within waters under the jurisdiction of another State or on the high seas. Such an offence will thus be committed upon entry into port itself and thereby avoiding jurisdictional problems and the fishing vessel may be prosecuted under domestic legislation.
If this last idea is not considered appropriate, prosecution in general would be excluded and alternative measures, so-called administrative reactions, should be agreed upon.
4.7.1 Refusal to allow landing of catch
Several RFMOs[59] have introduced the concept of refusal to allow landing catches resulting from IUU fishing. A direct reference to such an approach is also set out in Article 23.3 of the 1995 UN Fish Stocks Agreement. These measures can be taken by any State individually and they do not require collective action. However, such measures are often included in schemes dealing with non-Contracting Party vessels engaged in fishing activities in the areas of competence of a particular RFMO. It is presumed that a non-Party vessel observed fishing in that area is undermining applicable conservation and management measures and requires such vessels to be inspected before they are allowed to unload. No landings or transhipments will be permitted in a Contracting Party port unless vessels can establish that the fish were caught outside the area of application or in conformity with conservation and management measures in force. The master of the vessel may however rebut the presumption of IUU fishing. Also the IPOA on IUU fishing refers to similar measures in paragraph 63.
The argument has been made that also the prohibition of landing and transhipment would be contrary to the free transit provision in Article V of GATT/WTO. Beyond the question of access discussed above, measures restricting or banning landings and transhipment are associated with violation of conservation and management measures and thus could be regarded as a normal feature of environmental agreements aiming at the conservation of natural resources.[60]
Norway has taken a more radical approach by establishing a general prohibition on landing of catches presumed to deriving from IUU fishing.[61] It is a ban on landing of fish from stocks that are subject to Norwegian regulatory measures and have not been taken pursuant to a fisheries agreement between Norway and the flag State or by a vessel registered in a State with which Norway does not have a fisheries agreement. Further it is prohibited to land in a Norwegian port catches consisting of fish caught in contravention of provisions laid down by RFMOs, including catches taken by nationals of States that are not parties to such a RFMO. These prohibitions apply irrespective of whether the fish has been caught in an area under jurisdiction of a particular State or in international waters.
If a vessel is found to have participated in IUU fishing, the minimum action taken by the port State should be to refuse to allow landing or transhipment of catches regardless of whether the specific fish derive from IUU fishing.
4.7.2 Detention
At the Third Session of the Conference on the Straddling Fish Stocks[62] a clause that would enable the port States to detain a foreign vessel was included in the Revised Negotiating Text prepared by the Chairman of the Conference[63]. In later drafts, however, further mention of detention of vessels was excluded. This does not mean that the concept is without value in this context, and it should be kept in mind for future considerations. It should be mentioned that the Paris MOU includes provisions for detention of vessels until a deficiency is rectified.[64]
Activities undertaken by a vessel are under the primary responsibility of the State allowing that particular vessel to fly its flag. In a fisheries context this concept of "flag State responsibility" means in essence that the State shall ensure that fishing vessels operating under its flag do not engage in activities undermining the effectiveness of conservation and management measures. Some States, however, appear unable or unwilling to fulfil this responsibility. There may be situations where a port State has clear grounds for believing that a vessel will continue IUU fishing if it is allowed to proceed to sea. A possible approach would be that a port State which is not satisfied that a flag State is willing to exercise effectively its responsibilities concerning the fishing vessel concerned (based on established criteria), may detain the vessel until the flag State takes control over the vessel.
It is convenient to note that the Expert Consultation to Review Port State Measures to Combat IUU Fishing (4-6 November 2002) agreed that a port State could choose between several possible actions with the exception of detention, arrest or other corporal punishment against the crew. The Consultation considered, however, refusal to permit a fishing vessel to leave its port pending consultation with the flag State of the vessel to be an appropriate action.
4.7.3 Forfeiture
Many States have established legislation allowing an appropriate body to confiscate vessels, gear and equipment used for unlawful fishing and any fish derived from such activities. Generally speaking, forfeiture by a port State of a vessel that has operated outside waters under its jurisdiction would not be in accordance with international law. Concerning gear and equipment, the international community would hardly accept confiscation. It could be argued that for fish derived from IUU fishing, the situation would be different.
Paragraph 21 of the IPOA on IUU fishing provides that States should, among other measures, deprive nationals under its jurisdiction of the benefits accruing from IUU fishing. In a case related to a fishing vessel, such benefits would of course be the value of the catch. This paragraph is included in the section of the IPOA promoting responsibilities for all States. A similar provision is included in the Code of Conduct, but in the section promoting flag State duties[65]. Even if the IPOA on IUU fishing limits such actions to nationals of a State, it should be considered to widen the application of such measures for all States to take actions, irrespective of the nationality of the IUU-fishers. This would be especially relevant for IUU-catches intended for landing in a port of another State than the flag State. Thus, there may be circumstances where a vessel should be allowed or ordered to land a catch derived from IUU fishing, but the port State might confiscate the value of the catch. In some cases such an approach would actually be a better solution than a refusal to allow landing and thus let the fishing vessel search for another port State allowing it to discharge.
Paragraph 64 of the IPOA on IUU fishing provides that States should enhance cooperation, including the flow of relevant information, among and between relevant RFMOs and States.
In order to enhance transparency and better efficiency of the implementation of agreed conservation and management measures, results of port inspections should be communicated to the relevant States and bodies without delay. Furthermore, a standard report form would assist in harmonizing results of port inspections. In this context it should be mentioned that NEAFC and NAFO (Northwest Atlantic Fisheries Organization) have agreed on a format and protocols for electronic exchange of fisheries monitoring, inspection and surveillance information (The North Atlantic Format)[66]. This includes in principle also results of port inspections.[67]
When developing a harmonized communication system for port inspections, it is important that various elements can be easily identified. For this purpose the agreed international codes for States, fish species, vessel categories, vessel activities and fishing gear including their devices and attachments should be used.[68]
As rapid exchange of information is essential, a system should embrace a communication facility that allows for a direct, computerized exchange of messages between States and between port States and RFMOs. If this is working, notorious IUU-vessels will have nowhere to hide. Port State control data that is being made available through a transparent system may in itself change the attitude among IUU-operators.
It should be considered to use the newly developed North Atlantic Format for exchange of information as a format for the flow of information in the context of a possible MOU.
Also the establishment of a database could be an important tool for port State inspectors in enabling them to identify the flags, fishing vessels and operators that need to be checked more closely or specific actions taken. In order to assist port States, it is essential to have at their disposal up to-date information on individual vessels which have a record of IUU fishing. Such a database could be established and maintained by FAO, granting access to the information contained in the base to RFMOs, relevant coastal States, port States of such organizations and other cooperating port States.[69]
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[31] The Expert Consultation
to Review Port State Measures to Combat IUU Fishing (4-6 November 2002)
developed a draft MOU that could be used as a template for regional approaches
in this regard. [32] The basic provision being Article III (1)(a), but details are spelled out in the remains of that Article. [33] Cf. Article 18. [34] IPOA paragraphs 34 - 50. [35] See Resolution 19/XXI. [36] It should also be mentioned that for example Canada grants access to its waters and ports only to fishing vessels from a State with which Canada has favourable fishery relations. The listed States are those that consistently co-operate with Canada on international fisheries conservation objectives, including sound conservation and management of fish stocks off the coasts of Canada. [37] Cf. Recommendation by ICCAT regarding Belize, Cambodia, Honduras and St. Vincent and the Grenadines pursuant to the 1998 resolution concerning the unreported and unregulated catches of tunas by large-scale longline vessels in the Convention Area, entered into force 15 October 2001. [38] IOTC Resolution 99/02 calling for Action Against Fishing Activities by Large-Scale Flag of Convenience Longline Vessels. [39] Cf. CCAMLR Conservation Measure 10-06 (2002). [40] CF. CCAMLR Conservation Measure 10-07 (2002). [41] It was held in Victoria, Seychelles, on 2-6 December 2002, [42] Resolution 02/05 was adopted on “Establishing a List of Vessels Presumed to Have Carried Out Illegal, Unregulated and Unreported Fishing in the IOTC Area.” [43] Resolution 02/05, paragraph 11. [44] See the Report of PECCOE (Permanent Committee on Control and Enforcement), 3-4 October 2002. [45] Fishing vessels larger than 24 metres in length overall. [46] Cf. Recommendation by ICCAT concerning the establishment of an ICCAT record of vessels over 24 metres authorized to operate in the Convention Area which is expected to enter into force in June 2003. [47] Held in Victoria, Seychelles, on 2-6 December 2002, [48] Resolution 02/06 concerning the Establishment of an IOTC Record of Vessels Over 24 Meters Authorised To Operate In The IOTC Area. [49] Recommendation 02/07 on the Implementation of the Resolution Concerning the IOTC Record of Vessels. [50] More and more States are examining the “history” of fishing vessels in an IUU context. It could be a difficult task, as vessels tend to change ownership, flag, name and international radio call sign. The Expert Consultation to Review Port State Measures to Combat IUU Fishing (4-6 November 2002) considered that the use of a unique fishing vessel numbering system could be a useful tool for the effective implementation of a MOU on port State measures. It noted that a system for numbering vessels is applied in IMO based on the Lloyds register fair-play system. [51] See Article 23 (4). [52] General Agreement on Tariffs and Trade/World Trade Organization. [53] Canada (cf. Coastal Fisheries Protection Act (R.S.C. 1970,c.C.21) Sections 3 and 4, and Coastal Fisheries Protection Regulations (C.R.C. 1978, c.413), Section 5, Iceland (cf. Article 3 of Act No 228 April 1988 concerning fishing and processing by foreign vessels in Iceland’s exclusive economic zone), Norway (cf. Regulation No. 1130 of 23 December 1994 concerning the entry into and passage through Norwegian territorial waters). [54] For instance, verifying that vessels are equipped with VMS (Vessel Monitoring Systems), observers on board etc. [55] It could be questioned whether such a designation of just a few ports would be in conflict with trade regulations as this may affect the distribution of catches to the fishing plants. [56] The Expert Consultation to Review Port State Measures to Combat IUU Fishing (4-6 November 2002) recommended with respect to follow-up action by FAO that programmes of assistance to facilitate human resource development and institutional strengthening should be elaborated and implemented, including legal assistance, in developing countries so as to promote the full and effective implementation of port State measures to combat IUU fishing. [57] Council Regulation (EC) establishing a list of types of behaviour which seriously infringe the rules of the common fisheries policy (1999/C 105/03). [58] Article 20 of the Recommendation on a Scheme of Control and Enforcement in respect of Fishing Vessels fishing in Areas beyond the Limits of National Jurisdiction in the Convention Area. [59] See NAFO/GC doc. 97/6, CCAMLR Conservation Measure 10-07(2002) and Annex F of the Report of 17th Annual Meeting of NEAFC. ICCAT has agreed that vessels with are not on their “white list” should be prohibited from landing or transhipping (this measure is expected to enter into force in June 2003). [60] Article XX of the General Agreement on Tariffs and Trade 1994 permits a State to apply exceptions to free trade in certain circumstances. Article XX(b) deals with measures that are “necessary to protect human, animal, or plant life or health” and Article XX(g) which allows for measures “relating to conservation of exhaustible natural resources”. [61] Cf. Regulation of 6 August 1993 relating to a prohibition on landing fish caught in waters outside Norwegian jurisdiction, amended 29 June 1999. [62] United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (14-31 March 1994. [63] Draft text: «The port State may detain a vessel for such reasonable period as is necessary for the flag State to take control of the vessel or otherwise take responsibility for enforcement purposes. If the port State detains a vessel for this purpose it must promptly inform the flag State». [64] Paris MOU, Section 3.7.1 ff. [65] Cf. paragraph 8.2.7. of the Code of Conduct. [66] Data exchange protocols for electronic transmission shall be X.25 and X.400. The format includes: category, data element, field code, type, content and definitions. [67] NEAFC has not yet agreed on a system of port State control, but is discussing this within PECCOE (Permanent Committee on Control and Enforcement), see report of 3-4 October 2002. However, NEAFC has established a full-fledged computerized system for the purpose of flow of other information. NAFO has adopted harmonized port State control that includes electronic exchange of information based on the North Atlantic Format. [68] ISO-3 flag State code, FAO 3-alpha code for fish species, FAO Alpha code for fishing vessels, FAO Alpha code for vessel activities, FAO Alpha Code for gear types and FAO 3-alpha code for attachment or device. [69] The Expert Consultation to Review Port State Measures to Combat IUU Fishing (4-6 November 2002) recommended with respect to follow-up action by FAO that the establishment of a database concerning relevant port State measures should be considered. |
