ENB:07:42
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PART V—COMPLIANCE AND ENFORCEMENT
Nandan invited delegates to continue debate on Article 19 which deals with international cooperation in enforcement. 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.
The EU supported the US proposal, but only if the amendment's wording clearly determines that each situation be treated on a case-by-case basis. The EU could not support the Russian proposal because it would mean subordinating the possibility of fishing on the high seas to the provisions of the coastal State. Fiji supported the US proposal.
China regretted that the US proposal extended unilateral rights to the coastal State on whether another State would enjoy the right to fish. He said enforcement measures on the high seas should be limited to regional or subregional areas, as enforcement is designed to enhance the conservation and management measures in the region. The question of fishing without authorization should be addressed through regional cooperation and arrangements and in the event of absence of such provisions, bilateral arrangements could be substituted. With regard to inspection of vessels, Brazil welcomed improvements in the Chair's text, but noted that DWFNs still could not accept the need for inspection in order to enforce compliance. Brazil could not accept the proposals submitted by Norway and the Russian Federation, but expressed some support for the US proposal, including the provision of authorization. He noted that the Russian proposal brings moratoria controls within enforcement measures. Referring to the CCAMLR regime, he thought that observation within the inspection process should be incorporated into the draft text, as the two mechanisms are mutually inclusive in enforcement measures.
Japan proposed a new additional paragraph that "Only the authorities of the flag States may try the offense and impose penalties", and said that with regard to paragraph (2), the flag State should be the subject, but reserved further comment on paragraph (4) in order to study this in the context of domestic law. Korea and Poland supported the Japanese addition. 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 incorporation of some of the Japanese alternative language. Israel supported the Japanese addition, but preferred it to 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.
The Russian Federation expressed support for the US proposal, but reserved its position on the Japanese proposal. He noted that some delegates had not spoken favorably of its proposal, especially the EU, who said it conflicted with UNCLOS. He rejected this legal interpretation.
Peru said the US position does not refer to the general case of violation on the high seas, but errs in favor of the EEZ. He noted that some delegates wanted the rule of the flag State to prevail, as expressed by the EU.
New Zealand strongly supported the proposed US amendment because it drew upon language adopted by the 49th Session of the General Assembly. He noted that flexibility is required regarding the imposition of sanctions and penalties. China suggested incorporating the US proposal into Article 17, dealing with duties of the flag State, as this would then become an obligation of the flag State. Peru was concerned that if the flag State refrained from imposing sanctions, then the flag State would enjoy the final word and internationally agreed measures would become unworkable.
Sri Lanka said that without suitable compliance, new legislation would be of no benefit. Cooperation between States on compliance and enforcement is important and the 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 vessels have contravened preventive measures. Remedial action should be available if flag States fail to comply. On the US proposal, he said reference to international law was too vague and preferred for the amendment to read "generally accepted international law". Canada questioned whether broad requirements could be applied to all regions of the world and also whether non-member States should be subject to such rules. He suggested that the US proposal on paragraphs (3) and (4) could be interpreted in two different ways, but noted the well-intended introductory paragraph.
The Russian Federation supported the need for compliance and enforcement both for States fishing the high seas as well as in EEZs, and said that indisputable violations should be punished. Panama said that parties have to take into account not only the safety of the vessel, but also the rights of any State involved with the vessel. In respect of the boarding of vessels and their inspection on the high seas, this should only occur with the agreement of the flag State, with those duties being directly cross-referenced to UNCLOS.
The US said that boarding and inspection should not be limited to specific areas, but should apply in all regions to cover both SFS and HMFS. Securing access to the vessels of non-members is essential to prevent erosion of conservation and management measures. He said that the inspecting State needed obligatory feedback from the flag State and the text should include this provision. Referring to paragraph (4), he said it is based on the RNT of 1994. Similar wording appears in the Bering Sea Agreement. Compliance and enforcement needs to be effective so that fishermen can undertake their duties responsibly.
Peru said clear mandatory rules for cooperation are needed; participation of flag States and other parties must be ensured; and progressive steps must be taken with regard to UNCLOS. He cited the use of the Bering Sea Agreement as a possible step in this development. He said the text should mention coastal States. Peru also agreed that regional organizations must be open to all States and that the type of provisions proposed by Canada must be included in the revisions. The delegate of Uruguay stated that although the US proposal is balanced, measures and enforcement must ensure proper conservation and management on the high seas. He agreed that this Conference must develop the concepts established in UNCLOS. The regional nature and urgency of this problem must be dealt with by ensuring immediate implementation. In some cases, after proper and immediate notification to the flag State, monitoring States may have to presume consent to ensure that the enforcement process is not paralyzed. He said Canada's proposal should be incorporated in the final text. The delegate of Poland agreed with solutions that allow for more regional and subregional participation. He was concerned with the approach regarding non-members and concurred that the Bering Sea Agreement might offer some guidance. He suggested that the Korean proposal regarding member States' treatment could also be used, but that the Chair's reference to "fisheries" needs clarification and the use of the term "surveillance" might not be appropriate. 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 as well. The Bering Sea Agreement does not deal directly with the issue of enforcement, so the Japanese reserved judgment. The delegate 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. The delegate of Japan, supported by Uruguay, Poland and China expressed his preference for the paragraph (4) text outlined in the Korean proposal. The EU, New Zealand and Peru could not offer support for the Korean proposal.
Australia said that it was impossible to accept Korea's amendment for Article 20 paragraph (4) because it cuts across an important provision of UNCLOS. The Chair's language in the Draft Agreement was useful, but that language should not be softened to the extent asked for by Korea. The Russian Federation said that this is not a question of preservation of resources, but of concealing nationality. Standards have to be applied in accordance with UNCLOS. Papua New Guinea, supported by the Federated States of Micronesia, said tougher action should be taken on vessels not flying a flag and noted Japan's comment that such action constitutes a flagrant violation of international law. Korea said there is no uniform rule for punishing a Stateless vessel. Indonesia supported the Chair's text in paragraphs (3) and (4), but noted that the conditions in paragraph (4) are less stringent than for paragraph (3). Canada said that the amendments on the table may not be reconcilable and that this may be difficult for the Chair. 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 to find a solution. The Chair said he would begin informal consultations in due time if need be.
The Chair turned to Article 17, dealing with responsibilities of the flag State. Malta said that he wanted to be satisfied that there would be no provision contrary to any instrument covering fishing on the high seas. The Russian Federation said it was satisfied with the drafting. Concerning subparagraph (3) (b), dealing with national legislation, some regulations would require approval of the Parliament. In subparagraph (3) (g), dealing with monitoring, there is an obligation, inter alia, to develop implementation of monitoring systems in accordance with regional and national programmes. He said regionally agreed-to programmes could be adopted, but imposing them on States' national systems would be excessive. In subparagraph (3) (c), Canada said provisions for vessel registry should be accessible to the public and noted that Article 20 paragraph (5), dealing with enforcement, should be included in Article 17. Mexico objected to this and said national legislation could not provide for such transparency. The EU also said a broad definition of "transparency" could create problems. The EU agreed with the Chair's text but preferred the style and drafting to better reflect the Vienna Convention and Flagging Convention, although there should be no requirement to adopt the same terminology. He said the Russian proposal was creating non-law.
Debate ensued after Japan said that the authorization to fish should be taken from the same language as the Flagging Agreement, but the Chair indicated there could be inconsistency between the Flagging Agreement and UNCLOS. Peru said the Flagging Agreement should not be reopened. Article 17 provides for a minimum set of standards and these should not be eroded because such actions would undermine conservation and management measures.
In respect of how States might provide for compliance and enforcement through satellite monitoring, Mexico said the costs of such control would impose their own problems. Australia said satellite monitoring was a good conservation and management tool and that such controls are cost effective. Peru said the use of satellite monitoring should not be mandatorily imposed on coastal States. The International Collective in Support of Fishworkers said that paragraph (1) should include reference to international regulations specific to employment, safety and social security of fishworkers or that a new subparagraph (3) (g) (iv) be included, stating that flag States' duties shall include the implementation of international regulations specific to employment, safety and social security of fishworkers.