Blaise Kuemlangan[36]
ABSTRACT
The Code of Conduct for Responsible Fisheries and the related international plans of actions (IPOAs) are voluntary. This means that they are not legally binding and are meant to facilitate, inter alia, the implementation of other binding fisheries instruments, namely the Law of the Sea Convention, the UN Fish Stocks Agreement and the Compliance Agreement. However the measures outlined in these voluntary instruments may have significant legislative implications. The fact that the Code is now referred to in many multilateral and bilateral agreements increases this prospect. The most meaningful way in legislatively implementing the Code is to use it as a reference document in developing legislative provisions for fisheries legal frameworks. However, this should not discourage the implementation of the Code and the other voluntary instruments by non legislative means. Much can be achieved through informal arrangements for implementation of the Code. What is important is to begin the process of adapting the Code and the IPOAs to the needs of the State for application within national jurisdiction.
INTRODUCTION
This paper discusses the legal implications of the Code of Conduct for Responsible Fisheries (the Code) and related International Plans of Action (IPOAs) relating to the conservation and management of fisheries. It also points out the legislative action required to implement the Code, the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement) as an integral part of the Code, and the IPOAs, particularly the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).
It has been stressed that the Code and IPOAs are voluntary instruments. That is, they are non binding or do not lead to any legal obligations. It may seem ironic therefore to be discussing or even suggest that there are legal implications of voluntary and non binding instruments. The truth is that there are indeed legal implications of these instruments even if they are themselves not biding in nature due to the fact that these instruments do not exist or intended to be applied in isolation. They were established in the context of established principles of international law and binding agreements concerning fisheries conservation and management. Indeed, they are, in many instances, intended to fill in the gaps in the pre-existing rules on fisheries conservation and management with the objective of facilitating the effective implementation of those binding rules.[37] In this context, there exists a complex web of relationships between the voluntary instruments and the binding ones which need to be taken into consideration in the more important task of implementation of fisheries conservation and management directives that these instruments contain.
Further, in the world of international law making and undertakings, States subjects of international law, and not individuals, have the ability to enter into relationships with other States and make State-level commitments. Whatever commitments entered into, whether binding or not, do not affect individuals although it may be stated in a State-level instrument that it also applies to individuals.[38] It follows therefore that if it is desired that individuals take certain actions, the international commitments should be translated into national action plans and directives. Most of these national directives take the form of legislated policy so that they are enforceable. That these would, at legislation stage, have legal obligations is therefore obvious.
NATURE AND SCOPE OF THE INSTRUMENTS
The Code
The Code explicitly draws attention to its relationship with other binding international instruments and its scope. In this respect, the relevant and much cited provisions of the Code are Article 1, Nature and Scope, and Article 3, Relationship with other International Instruments. The important excerpts from these provisions are restated below:
"1.1 The Code is voluntary. However, certain parts of it are based on relevant rules of international law.....The code also contains provisions that may be or have provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to promote Compliance with International Conservation and Management Measures by Fishing Vessels on the high Seas, 1993 which... forms an integral part of the Code."
"3.1 The Code is to be interpreted and applied in conformity with international the relevant rules of international law, as reflected in the United Nations Convention on the Law of the Sea, 1982. Nothing in this Code prejudices the rights, jurisdiction and duties of States under international law as reflected in the Convention.
3.2 The Code is also to be interpreted and applied:
(a) in a manner consistent with the relevant provisions of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks;
(b) in accordance with applicable rules of international law including the respective obligations of States pursuant to international agreements to which they are party; and,
(c) in the light of the 1992 Declaration of Cancun, the 1992 Rio Declaration on Environment and Development, and Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED), in particular Chapter 17 of Agenda 21, and other relevant declarations and international instruments."
As regards the extent of its application, the Code "is global in scope and is directed toward members and non-members of FAO, fishing entities, sub-regional, regional and global organizations.... and all persons concerned with the conservation of fisheries resources and management and development of fisheries".[39]
Thus the immediate legal considerations concerning the Code are that:
certain provisions of the Code have binding effect for all States if such provisions reflect international law.
certain provisions of the Code have binding effect for certain States only if the provision reflects a term of an existing binding agreement and such States are parties to that agreement.
all other provisions of the Code are voluntary until a State, in applying the Code, formulates a term of the Code into a binding requirement particularly through national legislation for application within its national jurisdiction. It is also possible that a State, with other States could convert a voluntary provision of the Code into a binding commitment through bilateral or multilateral agreement.
The Technical Guidelines for Responsible Fisheries[40] formulated largely to help guide implementation of the Code are also voluntary. Certain guidelines, suggest the making of regulations at the national and regional level to implement the Code. To that extent, those technical guidelines would have legislative implications.
The Compliance Agreement
The purpose of the Compliance Agreement is to reinforce the effectiveness of international fisheries conservation and management measures. It does this by redefining and reinforcing in a number of specific ways the concept of flag State responsibility for the activities of fishing vessels flying the flag of a State Party. It also seeks to provide means to ensure the free flow of information on all high seas fishing operations. The Compliance Agreement was initially conceived as an instrument to close a legal loophole in regional and species fisheries arrangements whereby fishing vessels could change their state of registration ("reflag") in order to evade or avoid the obligations of such arrangement.[41]
In the context of the Code, the Compliance agreement is, as stipulated under Article 1.1, an integral part of the Code.
The IPOAs
The International Plans of Actions relating to fisheries established under the auspices of FAO are also voluntary. These IPOAs are: the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, the International Plan of Action for Conservation and Management of Sharks, the International Plan of Action for the Management of Fishing Capacity and the IPOA-IUU. The IPOAs were negotiated within the context of Article 2 (d) of the Code in that they provide guidance which may be used where appropriate in the formulation and implementation of the international agreements and other legal instruments. The IPOA-IUU in particular states that it is "elaborated within the framework of the FAO Code of Conduct for Responsible Fisheries as envisaged under Article 2 (d)".
Like the Code, the IPOAs are not intended to give rise to any legally binding obligations. This is apparent from drafting style (the "verbose essay style" of drafting), the use of non-mandatory language (e.g. the use of "should" instead of "shall"), the general context in which the negotiations of the texts took place, and other means such as that they do not require formal acts of acceptance by States, they are not structured like internationally binding instruments and there are no provisions on signature, entry into force or other standard final clauses as are common of binding instruments.[42] As is evident from the text, the context of negotiations and declarations made at the adoption of the text, the negotiators of the IPOA-IUU in particular went out of their way, perhaps unnecessarily, to underscore the voluntary nature of the IPOA and that it does not prejudice their rights and obligations under international law and other relevant agreements.[43]
LEGISLATIVE IMPLICATIONS OF THE CODE, THE COMPLIANCE AGREEMENT AND THE IPOA-IUU
The inherent value of the Code, the Technical Guidelines and the IPOAs is in their objectives, which should be kept in mind in implementation. Many of the actions elaborated in these instruments are specific enough so as to be implemented directly. Other prescribed actions require other prerequisite action or that institutional infrastructure be put in place so that the prescribed actions can be effected. The Code and the IPOA-IUU, specifically directs that specific legislative provisions or frameworks for specific purposes should be established. In other instances, these instruments require that for a specific action to be established, the legal framework or legislative action should be among the matters to be considered if that specific action were to be pursued. This section examines and presents the legislative implication of the Code, the Compliance Agreement and IPOA-IUU.
It should be noted that while it is a possibility, enacting legislation or the promulgation of regulations to effect action should not always be the preferred national implementation response to the Code and the IPOAs. This is because by incorporating their provisions in legislation, the required actions stipulated in the Code and other voluntary instruments once legislated, would become legally binding if mandatory language is used. It is important therefore to ensure that non mandatory language is used in drafting language if certain actions (for example principles) are put in legislation only to draw attention to them or to give them emphasis. Much can be achieved without legislation, through calls to undertake voluntary action by way of national plans of action, policy statements, national voluntary codes of practice and other non binding instruments.
Legislative implications of the Code
The provisions of the Code identified herein are only those that explicitly refer to the need for legislative action or where it is considered that legislative action could provide realistic opportunity for implementation. However, there are instances where national legislative practices have used certain provisions of the Code as inspiration for legislative texts even if these provisions do not prescribe legislative action. Such provisions would be highlighted where appropriate.
The general role of legal frameworks in implementation of the Code
While it has been mentioned that legislation is not the only means by which the Code can be implemented, it is evident that the Code itself recognises the important role of national laws and regulations comprising the legal framework concerning fisheries (including aquaculture) management, as an integral part of the implementation approach for the Code. The fact that one of the objectives of the Code, as stipulated under Article 2 (c), is to "serve as an instrument to help States to establish or improve legal frameworks required for the exercise of responsible fisheries", underscores the important role that legal frameworks play in conservation and management efforts.
This significant role is further emphasized in Article 7.1 which requires that "appropriate policy, legal and institutional frameworks to pursue the goal of long term conservation and sustainable use of fisheries resources" should be established. The importance of appropriate legal framework to facilitate the pursuance of the Code's objectives is restated again in article 7.7.1, article 8.3.1 (in respect of Port State duties), article 9.1.1 (in respect of facilitating responsible aquaculture) and article 10.1.1 (in respect of integration of fisheries in coastal area management). This specific role, once stated as an objective of fisheries management legislation, provides the fundamental basis for general implementation of the Code as well as the specific activities required for the pursuance of the Code's objectives.
Specific legislative implications of the Code
The other provisions of the Code with specific or implied legislative implications are articles:
6.13, relating to ensuring that decision making processes are transparent and achieve timely solutions to urgent matters, and facilitating consultation and the effective participation of industry, fish workers, environmental and other interested organizations in decision making, and the development of laws and policies related to fisheries management, development, international lending and aid;
7.6.2, concerning the adoption of measures to ensure that no vessel is allowed to fish without authorization and in a manner consistent with international law or in conformity with national legislation within areas of national jurisdiction;
7.6.6, which provides for the need to give due recognition, as appropriate, to the traditional practices, needs and interests of indigenous people and local fishing communities which are highly dependent on fishery resources for their livelihood, in deciding on the use, conservation and management of fisheries resources;
7.7.2, concerning the need to ensure that sanctions applicable in respect of violations are adequate in severity to be effective, including sanctions which allow for the refusal, withdrawal or suspension of authorizations to fish in the event of non-compliance with conservation and management measures in force;
7.7.3, regarding the implementation of effective fisheries monitoring, control, surveillance (MCS) and law enforcement measures including, where appropriate, observer programmes, inspection schemes and vessel monitoring systems and that such measures should be promoted and, where appropriate, implemented by subregional or regional fisheries management organizations and arrangements (RFMOs);
8.1.8, relating to the need to maintain records of fishers which should, whenever possible, contain information on their service and qualifications, including certificates of competency;
8.2.4, in respect of the need to ensure that fishing gear should be marked in accordance with prescribed specifications in order that the owner of the gear can be identified and that such marking requirements should take into account uniform and internationally recognizable gear marking systems;
8.2.6, regarding the ratification and implementation of the Compliance Agreement and to adopt laws and regulations consistent with the provisions of the Agreement;
8.2.7, concerning the need for Flag States to take enforcement measures in respect of fishing vessels entitled to fly their flag which have been found by them to have contravened applicable conservation and management measures, including, where appropriate, making the contravention of such measures an offence. Sanctions applicable in respect of violations should be adequate in severity to be effective in securing compliance and to discourage violations and should deprive offenders of the benefits accruing from their illegal activities. Such sanctions may, for serious violations, include provisions for the refusal, withdrawal or suspension of the authorization to fish;
8.3.1, relating to the need to for Port States to take such measures as are necessary to achieve and to assist other States in achieving the objectives of the Code, and to make known to other States details of regulations and measures they have established for this purpose. When taking such measures a port State should not discriminate in form or in fact against the vessels of any other State;
8.3.2, concerning the need for Port States to provide such assistance to flag States as is appropriate, when a fishing vessel is voluntarily in a port or at an offshore terminal of the port State and the flag State of the vessel requests the port State for assistance in respect of non- compliance with subregional, regional or global conservation and management measures or with internationally agreed minimum standards for the prevention of pollution and for safety, health and conditions of work on board fishing vessels;
8.5.1, concerning: the need to ensure that fishing gear, methods and practices, to the extent practicable, are sufficiently selective so as to minimize waste, discards, catch of non-target species, both fish and non-fish species, and impacts on associated or dependent species and that the intent of related regulations is not circumvented by technical devices; and, in this regard, need for the fishers to cooperate in the development of selective fishing gear and methods and that information on new developments and requirements is made available to all fishers;
8.5.2, regarding the need take into account the range of selective fishing gear, methods and strategies available to the industry when drawing up laws and regulations in order to improve selectivity;
8.7.1, in respect of the need to introduce and enforce laws and regulations based on the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);
9.1.1, concerning the need to establish, maintain and develop an appropriate legal and administrative framework to facilitate the development of responsible aquaculture;
10.1.1, which requires States to ensure that an appropriate policy, legal and institutional framework is adopted to achieve the sustainable and integrated use of the resources, taking into account the fragility of coastal ecosystems and the finite nature of their natural resources and the needs of coastal communities;
10.1.3, regarding the need to determine the possible uses of coastal resources and to govern access to them taking into account the rights of coastal fishing communities and their customary practices to the extent compatible with sustainable development;
10.2.5, relating to the need to promote multi-disciplinary research in support of coastal area management;
11.1.12, concerning the need to ensure that environmental effects of post-harvest activities are considered in the development of related laws, regulations and policies without creating any market distortions;
11.3.1, relating to the need for laws, regulations and administrative procedures applicable to international trade in fish and fishery products to be transparent, as simple as possible, comprehensible and, when appropriate, based on scientific evidence;
11.3.2, which requires facilitation of appropriate consultation with and participation of industry as well as environmental and consumer groups in the development and implementation of laws and regulations related to trade in fish and fishery products;
11.3.3, concerning the need to simplify laws, regulations and administrative procedures applicable to trade in fish and fishery products without jeopardizing their effectiveness;
11.3.4, which requires: States, in introducing changes to legal requirements affecting trade in fish and fishery products with other States, to allow sufficient information and time for other States and producers affected to introduce, as appropriate, the changes needed in their processes and procedures; and, in this connection, to allow consultation with affected States on the time frame for implementation of the changes and that due consideration be given to requests from developing countries for temporary derogations from obligations;
11.3.5, regarding the need for periodical review of laws and regulations applicable to international trade in fish and fishery products in order to determine whether the conditions which gave rise to their introduction continue to exist; and,
12.14, which provides that there should be compliance with laws and regulations and international law in the conduct of scientific research activities in waters under the jurisdiction of another State.
As the Compliance Agreement is an integral part of the Code, provisions of the Code which reflect the requirements of the Compliance Agreement would in some instances, need to be implemented by State parties to the Agreement through national legislation even if such provisions do no explicitly require this. The same is true with the provisions of the Code which reflect international law and other Agreements, in particular the UN Fish Stocks Agreement.
Of particular interest is current States practice relating to the article 6 - General Principles. As can be seen from the text of this article, its prevailing nature is that it is a statement of principles or fundamental considerations that should be the basis for specific national action for sound conservation and management of fisheries resources. The nature of the article is its very attraction.
Many States have adapted article 6 and incorporated it into national legislation as statement of principles to guide interpretation or implementation of national laws or a reference for specific conservation and management measures. It this way, the principles have become legislated policy but non necessarily binding requirements for many States. In the Pacific, such statement of principles in legislation can be found in the Fisheries Act of Solomon Islands, the Fisheries Management Act of Papua New Guinea, the Fisheries Management Act of Marshall Islands, the Fisheries Management Act of Nauru and the Fisheries Management Act of Tonga. This is a good example of legislating provisions of the Code which gives its principles high profile desired while avoiding the difficulty of having to undertake complicated drafting to translate the utopian objectives of Article 6 into specific action.
The Compliance Agreement
It should be recalled that with respect to binding instruments such as the Compliance Agreement, only States as subjects are obliged to implement it if they are parties to that Agreement. For common law countries such as the island countries of the Pacific, the legal obligation of States under international binding agreements can only be binding on individuals if there is enabling national legislation in place. It should be noted however that States, if they so wish, may implement an international agreement even if they are not parties to the Agreement.
The provisions of the Compliance Agreement with legislative implications[44] are as follows:
Art. III - Flag State Responsibility
(1) (a) This paragraph requires each party to take necessary measures to ensure that its vessels do not undermine the effectiveness of international measures. This could be complied with by, inter alia, recognizing international measures and an authorization for vessels to fish on the high seas, subject to appropriate conditions, sanctions for violation of the conditions and the power to suspend or cancel the licence.
(2) This paragraph requires parties to prohibit fishing on the high seas by their vessels without authorization and requires the authorized vessel to fish in accordance with the conditions of the authorization. This could be complied with by requiring an authorization, imposing appropriate conditions, applying sanctions for violation of the conditions and being able to suspend or cancel the licence.
(3) This paragraph requires parties to be able to exercise effective control over their vessels. In order to ensure that vessels that cannot be controlled are not registered in areas under national jurisdiction, consultation with the authority responsible for vessel registration and licensing is necessary before a fishing vessel is registered or licensed.
(4) This paragraph provides that the authorisation is deemed cancelled when the vessel ceases to fly the party's flag. This seems to derive directly from the agreement and may not require national action but it could be restated if it is desirable.
(5) This paragraph requires parties to refuse an authorisation to reflagged vessels that have had an authorisation cancelled or suspended for undermining international management measures, subject to various conditions.
(6) This paragraph requires that vessels be marked according to generally accepted standards, such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels. The State needs to ensure that legislation fully incorporates FAO standards.
(7) This paragraph requires vessels to supply information on area, catches and landings. Provisions for reporting, plus general provisions for authorisation, conditions and regulations, would allow this to be implemented.
(8) This paragraph requires enforcement measures including refusal, suspension or withdrawal of the authorisation.
Art. IV - Records of Fishing Vessels
This article requires records of authorised vessels, which may be accomplished through legislative provision if it does not already exist.
Art. V - International Cooperation
(1) The parties are required to exchange information including evidence
(2) This paragraph requires parties to notify the flag state where a vessel in port has undermined an international management measure. No legislation is needed although it could be restated if it is desirable.
This paragraph also provides for parties to arrange for port state investigations. In any case, it would appear that a port state may inspect fishing vessels.
Art. VI - Exchange of Information
This article provides for supply of information to FAO. Legislation may not be necessary, although it has been legislated in some jurisdictions. Licence application provisions could be amplified to request additional information (previous registration number, previous flag, "moulded depth" [if "practicable"]).
The IPOA-IUU
The IPOA-IUU was conceived to, as is stated in its name, prevent deter and eliminate illegal, unreported and unregulated fishing.[45] It does this by providing all States, within its terms, comprehensive, effective and transparent measures by which to act. These measures shall be applied, taking into consideration the special requirements of developing countries and respecting the principles of participation and coordination, phased implementation, comprehensive and integrated approach, conservation, transparency and non-discrimination.[46] The IPOA-IUU is said to be probably the most important global instrument concerning fisheries since 1995 when both the Code and the UN Fish Stocks Agreement were finalized.[47]
Due to the nature of the IPOA-IUU (i.e. dealing with largely illegitimate activity), it should come as no surprise that most of the measures set out under the IPOA-IUU would have to be facilitated by national laws and regulations. Most of the groups of measures under Part IV (implementing international instruments, exercising State control over nationals, dealing with vessels without nationality, imposing sanctions for IUU fishing and dealing with IUU fishing by non-cooperating states and MCS), would need implementation through national legislation. The same is true for implementing flag state responsibilities relating to fishing vessel registration, keeping records of fishing vessels, authorizations to fish, coastal State responsibilities and port States measures.
The FAO Technical Guidelines for Responsible Fisheries 9, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU Technical Guidelines) provides a comprehensive guide to implement the IPOA-IUU including what needs to be provided in national legislation which should be referred to by any national legislative review process.
It suffices for the purposes of this paper to refer to the recommendation in the IPOA-IUU Technical Guidelines relating to national laws, regulations and practice that "[a]t any early stage in the implementation of the IPOA-IUU, each State should undertake a thorough review of its national laws, regulations and practices relating to IUU fishing."[48]
The review should consider such questions as:
For all states, is any additional legislative or regulatory authority necessary or desirable to implement the IPOA?
Are existing penalties for IUU fishing of sufficient severity to prevent deter and eliminate such fishing by vessels flying your flag and/or operating in areas under your jurisdiction?
For all States, does your domestic law give effect to obligations you have assumed under international law, including through your participation in RFMOs?
For flag States, are the laws, regulations and practices relating to fishing vessels flying your flag on the high seas and in areas under the jurisdiction of other States sufficient to prevent deter and eliminate IUU fishing by those vessels? Do your laws regulations and practices provide an adequate basis for monitoring such fishing activity on the high seas, for apprehending IUU fishers and for imposing penalties on them?
For coastal States, are the laws, regulations and practices relating to fishing by vessels in areas under your jurisdiction sufficient to combat IUU fishing by those vessels? If you allow foreign vessels to fish in areas under your jurisdiction, do the agreements providing for such access need to be strengthened to address problems of IUU fishing?
For port States, are your laws, regulations and practices relating to the landings or transshipment of fish in your ports sufficient to ensure that such fish are not the product of IUU fishing?
For States involved in international trade in fish and fishery products, are your laws, regulations and practices sufficient to implement internationally agreed market-related measures designed to prevent deter and eliminate IUU fishing?
To the above could be added the considerations, including legislative options for strengthening State control over nationals also set out in the IPOA-IUU Technical guidelines.[49] In relation to reviewing national legislation to implement the IPOA-IUU measures on MCS, the questions to be asked in the review for strengthening national legislation relevant to MCS contained in Annex C of FAO Fisheries Technical Paper 415[50] are also relevant.
CONCLUSION
The above review certainly reveal that while the Code and the IPOAs are meant to be voluntary and meant to facilitate implementation of binding instruments, the measures outlined in these voluntary instruments may have significant legislative implications. The fact that the Code is now referred to in many binding international instruments increases this prospect.[51] However, this should not discourage the implementation of the Code and the other voluntary instruments by non legislative means. Much can be achieved through informal arrangements for implementation of the Code. What is important is to begin the process of adapting the Code and the IPOAs to the needs of the State for application within national jurisdiction. This implies, as has been stated with respect to the Code, "a phased assessment - Analysis - Action - process through which the provisions of the Code are set in context of the specific conditions of a region, sub-region, country, locality or fisheries."
Such a process involves "a review of the state of the fisheries, including initiatives that influence or are likely to impact on the sector, a study of the provisions of the Code, the identification of the pertinent issues and constraints, and the elaboration of strategies and (Action plan) to address the issues and constraints."[52]
| [36] Legal Officer, Development
Law Service, FAO Legal Office, FAO, Viale delle Terme di Caracalla, 00100
Rome, Italy. The views expressed in this paper are personal and do not necessarily
reflect the views of FAO. [37] For instance, the Code in article 2 (d) states: "the objectives of the Code are to... provide guidance which may be used where appropriate in the formulation and implementation of the international agreements and other legal instruments, both binding and voluntary." [38] For example Article 1.2 of the Code. [39] The Code Article 1, paragraph 1.2. [40] The Technical Guidelines are on: Fishing Operations, supplement to Fishing Operations on Vessel Monitoring Systems; the Precautionary Approach to Capture Fisheries and Species Introduction; the Integration of Fisheries into Coastal Area Management; Fisheries Management, supplement to Fisheries Management on Conservation and Management of Sharks and on Ecosystem Approach to Fisheries; Aquaculture Development, supplement to Aquaculture Development on Good Aquaculture Feed Management Practice; Inland Fisheries; Responsible Fish Utilization; Indicators for Sustainable Development of Marine Capture Fisheries; Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fisheries. [41] In its first versions, the Agreement was meant to deal directly with the act of re-flagging, by providing "that parties to the agreement should refuse to register fishing vessels unless they had sufficient grounds to believe that the vessel would 'not be used to undermine the effectiveness of internationally agreed conservation and management measures." It soon became clear however, that general consent would not be reached on any such agreement and for this reason, the primary focus of the draft agreement was changed from the legal act of flagging and vessel registration to the act of authorizing a vessel to fish on the high seas." Gerald Moore, "The Food and Agriculture Organization Compliance Agreement" (1995) 10 International Journal of Marine and Coastal Law 412-416 at 412. [42] See William Edeson, The International Plan of Action on Illegal Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, International Journal of Marine and Coastal Law, Vol 16, No. 4, 603-623 at page 608. [43] See William Edeson ibid. [44] See also Law and sustainable development since Rio, Legal trends in agriculture and natural resource management, FAO Legislative Study 73, Rome 2002. For a further reading into implementation of the Compliance Agreement in national legislation, see William Edeson, David Freestone and Elly Gudmundsdottir, Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, The World Bank Law, Justice and Development Series, Washington, D.C. [45] For the purposes of the IPOA-IUU:
[46] See paragraphs 8 to
9.6 of the IPOA-IUU. |
