ENB:07:43
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PART V—COMPLIANCE AND ENFORCEMENT
The Chair said that compliance and enforcement remains one of the most difficult, yet important, issues; however, once agreement is reached on the principles for conservation and management measures, governments must ensure compliance and enforcement of those measures. The primary responsibility is that of the flag State, as contained in Article 18. Japan said that he had a problem with subparagraph (1)(c), because of its legal implications. Papua New Guinea said that in paragraph (3), dealing with sanctions, the word "severity" should be substituted for "gravity". The Philippines said sanctions should not affect the fishing vessel's crew. Japan said that since a vessel may fish in more than one fishery, sanctions should be limited to the particular fishery involved, and only the flag State may bring offenders to trial and impose penalties.
Peru introduced a new Article 19 (bis), dealing with cooperation and enforcement to strengthen conservation and management measures within the framework of regional or subregional arrangements or organizations.
Canada said he supported the proposal made by the US delegation on 31 March, but only on the proviso that the words "without prejudice to Article 111 of UNCLOS" be included. Australia supported this proposed amendment.
China regretted that the US proposal extended unilateral rights to the coastal State, and said enforcement measures on the high seas should be limited to regional and subregional areas. Fishing without authorization should be addressed through regional cooperation and arrangements and, in the absence of such provisions, bilateral arrangements could be substituted. Brazil noted that DWFNs still could not accept the need for inspection in order to enforce compliance, and he thought the CCAMLR regime measures for inspection and observation could be adopted for incorporation into a revised text.
Korea said the flag State should exercise jurisdiction over its vessels that commit offenses on the high seas. Malta said it supported the draft text with modification of some of the Japanese alternative language. Israel supported the Japanese addition, but preferred that it be amalgamated with the EU language. Morocco supported the draft text, but also spoke in favor of the proposed US addition to paragraph (5). Poland said the proposed US addition covered a lacuna in the original text.
Sri Lanka said that without suitable compliance, new legislation would be without benefit. Cooperation between States on compliance and enforcement is important and coastal States have a vital role to play. Thailand said enforcement should be primarily conditioned by approval of the flag State, and that there must be a well-founded reason to believe that vessels have contravened preventive measures. Remedial action should be available if flag States fail to comply.
Panama said that parties must take into account not only the safety of the vessel, but also the rights of any State involved with the vessel. The boarding and inspection of vessels on the high seas should occur only with the agreement of the flag State, with those duties being directly cross-referenced to UNCLOS.
The US said securing access to vessels of non-members is essential to prevent erosion of conservation and management measures. The inspecting State needs obligatory feedback from the flag State, and the text should include this provision. Compliance and enforcement needs to be effective so that fishermen can undertake their duties responsibly.
Japan stated that the uniform scheme for joint-enforcement suggested by the US is unnecessary. Regional organizations should adopt methods that they deem appropriate. In reference to paragraph (4), the Bering Sea Agreement applies to the situation of non-member states, and Article 32, paragraph (3) of the Chair's text deals with this situation. He also pointed out that the US proposal does not deal effectively with the basic principles of sovereignty and flag State responsibility, and that there are greater international legal implications.
Papua New Guinea, supported by the Federated States of Micronesia, said tougher action should be taken on vessels not flying a flag, as such action constituted a flagrant violation of international law. Korea said there is no uniform rule for punishing a Stateless vessel. Canada said that the range of amendments proposed may make reconciliation difficult, and he asked the Chair if he had considered reviving the "friends of the Chair" to give proponents of different views a chance to compare notes and find a solution. The Chair said he would begin informal consultations in due time, if need be.