Implementing the Compliance Agreement
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The purpose of this section is to identify the key issues in the Compliance Agreement6 that need to be transposed into national legislation and suggest how this might be done, drawing where appropriate on the legislation of states that have already undertaken this task.
As indicated above, in most countries, following the agreement will require new national laws. Depending on the legislation already in place, however, some countries may be able to implement the agreement through changes to current legislation, new regulations, or other subsidiary legislation. Any reference to "national legislation" in this section may mean any of these legal devices.
The most important provisions of the Compliance Agreement, from the point of view of a state implementing legislation, are those related to the responsibility of the flag state and to the gathering and exchange of information. An essential starting point for the parties to the agreement would be deciding which authority should be responsible for carrying out the duties according to the agreement and defining what those duties are.
It is important for a state that is party to the agreement to make an initial decision as to which national bodies will have the responsibility to carry out the actions or functions that are required to be performed by the party's government under the agreement.7 That authority would be responsible for carrying out the following duties of the agreement:
- High seas fishing authorizations: the authorization, denial, revocation, or suspension of high seas fishing authorizations;
- Setting up and maintaining a record of high seas fishing vessels;
- Collection and sharing of information; and
- Enforcement. Page 6
The authority that would carry out this responsibility would have to be designated by national legislation. The duties could be spelled out in a separate regulation. A model for such a provision is set out in FAO's "Guidelines for the Implementation in National Legislation of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas."8 It reads as follows:
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(1) This Act shall be administered by the [Chief Fisheries Officer] [Director of Fisheries] appointed pursuant to [relevant fisheries law] who shall be responsible for:
(a) maintaining a record of all fishing vessels in respect of which high seas fishing licenses have been issued under this Act, . . . ;
(b) collection of statistics concerning fish stocks and fishing on the high seas;
(c) the monitoring, control and surveillance of the operations of fishing vessels of [Enacting State] on the high seas;
(d) the issue, variation, suspension and revocation of licenses for fishing on the high seas;
(e) the collection of fees in respect of licenses of fishing vessels;
(f) the giving of such information and the making of such reports to FAO and other parties to the Agreement as is required of [Enacting State] pursuant to Articles V and VI of the Agreement;
(g) the taking of appropriate measures in cooperation with other States for the implementation of Articles VII and VIII of the Agreement;
(h) . . .
(i) the taking of all such other measures as the [Chief Fisheries Officer] [Director of Fisheries] may consider appropriate for the implementation of the Agreement and this Act.
. . .
(5) This Act shall be enforced by authorized officers acting subject to the directions of the [Chief Fisheries Officer] [Director of Fisheries]. . . .
This is an important provision because it lays out how the important elements of the Compliance Agreement will need to be put into effect. Page 7
The concept of flag state responsibility in respect of fishing vessels operating on the high seas is spelled out in Article III of the Compliance Agreement, which is the first global agreement to address this issue.9 It requires parties to take such measures as may be necessary to ensure that fishing vessels entitled to fly their flag do not engage in any activity that undermines the effectiveness of any international conservation and management measures.
"International conservation and management measures" are defined in Article I(b) of the Compliance Agreement as "measures to conserve or manage one or more species of living marine resources that are adopted and applied in accordance with the relevant rules of international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Such measures may be adopted by global, regional or sub-regional fisheries organizations, subject to the rights and obligations of their members, or by treaties or other international agreements."
It will probably not be possible for these provisions to be spelled out definitively in national law because the definition looks ahead to future conservation and management measures, as well as backward at existing measures. To do so would involve making it an offense in national law for a fishing vessel in the state in question to engage in any activity that undermines such conservation and management measures. In some jurisdictions the need for prosecutors to state with precision the charge that the defendant must answer may cause problems with such a wide definition. One device that may be employed to introduce greater certainty is to delegate to the minister the power and responsibility to list those measures to which the act applies. This does, however, require a continuing commitment to update this list on a regular basis.
According to the agreement, parties shall not allow any of their flag vessels to fish on the high seas unless they have been authorized to do so by the appropriate national authorities.10 Authorized fishing vessels must fish in accordance with conditions of the authorization.
Here, national legislative provisions have to set up the necessary framework to authorize high seas fishing. It will also be necessary for parties to Page 8 describe the application process-where and how to apply, what the cost will be, and so on.
The U.S. High Seas Fishing Compliance Act of 1995 deals with the matter in the following way:
(1) The owner or operator of a high seas fishing vessel may apply for a permit under this section by completing an application form prescribed by the Secretary.
(2) The application form shall contain-
(A) the vessel's name, previous names (if known), official numbers, and port of record;
(B) the vessel's previous flags (if any);
(C) the vessel's International Radio Call Sign (if any);
(D) the names and addresses of the vessel's owners and operators;
(E) where and when the vessel was built;
(F) the type of vessel;
(G) the vessel's length; and
(H) any other information the Secretary requires for the purposes of implementing the Agreement.11
The law will have to be clear about the conditions that may be imposed on the granting of the authorizations. Many countries will probably find it convenient to give the authority responsible for the implementation of the act the power to address this issue in part through regulation.
In addition to these conditions, certain other obligations are imposed directly on the state. First, according to Article III.3 of the Compliance Agreement:
No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel.
A key concept here is the "link" between the vessel and the flag state. The agreement puts this in terms of the ability of that state "to exercise effectively its responsibilities under this Agreement" in respect of its vessels. Parties first have to decide for themselves what kind of link vessels need to have to the flag state in order to meet the requirements of this paragraph and then ex- Page 9 press that in legislation. Parties may wish to spell out in detail the factors that should be taken into consideration in determining whether the government will be able to exercise effectively its responsibilities under the agreement with regard to a particular vessel. Alternatively, the determination could be left to the discretion of the authority responsible for the implementation of the act.12
The U.S. High Seas Fishing Compliance Act of 1995 leaves it to the secretary of commerce to decide when the link is sufficient:
The Secretary may not issue a permit to a vessel unless the Secretary is satisfied that the United States will be able to exercise effectively its responsibilities under the Agreement with respect to that vessel.13
In contrast, the Marine Living Resources Act of the Republic of South Africa gives the minister the power to "issue a high seas fishing license in respect of a local fishing vessel, subject to the conditions that he or she considers appropriate."14
In general, it would be in the best interests of the parties to have strong links to vessels registered in their state. If a vessel has no substantial economic or physical links with the flag state other than the fact of registration, then it could become costly and difficult to monitor the activities of such a vessel to ensure that it does not undermine the effectiveness of international conservation and management measures. Under such circumstances, where the vessel is not landing its catch in the...
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