[DRAFT AGREEMENT ON THE FLAGGING OF VESSELS
FISHING ON THE HIGH SEAS TO PROMOTE
COMPLIANCE WITH INTERNATIONALLY AGREED
CONSERVATION AND MANAGEMENT MEASURES]
PREAMBLE
(to be revised by the Secretariat in light of the comments made at the working group
established by COFI, and the suggestions from the Technical Committee established
by the Council)
The Parties to this Agreement,
Recognizing that, under Article 117 of the United Nations Convention on the Law of the Sea, all States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas;
Mindful that the flagging of fishing vessels as a means of avoiding internationally agreed conservation and management measures for living marine resources seriously undermines the effectiveness of such measures;
Calling upon States which do not participate in international and regional fisheries organizations or arrangements to join or, as appropriate, to enter into understandings with such organizations and arrangements with a view to achieving compliance with internationally agreed conservation and management measures;
Recalling that Agenda 21, adopted by the United Nations Conference on Environment and Development, calls upon States to take effective action, consistent with international law, to deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas;
Further recalling the Declaration of Cancun, adopted by the International Conference on Responsible Fishing, also calls upon States to take effective action, consistent with international law, to deter reflagging of fishing vessels as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas;
Noting that the Council of the Food and Agriculture Organization of the United Nations (FAO) at its 102nd Session recommended the conclusion, as quickly as possible, of an international agreement to prevent reflagging of fishing vessels for such purposes;
Conscious of the fact that in order to resolve the problem effectively, it is necessary to deal more broadly with the issue of flagging of fishing vessels, and the responsibility of States for the operation of fishing vessels entitled to fly their flag;
Recalling that flag States have responsibilities under international law for vessels flying their flag, including fishing vessels, support vessels and vessels engaged in transhipment of fish;
Noting that the issues raised by the flagging of fishing vessels fall within the issues that would be covered as a part of the Code of Conduct for Responsible Fishing, as called for in the Cancun Declaration and now under consideration within the framework of FAO;
Desiring to conclude an international agreement within the framework of FAO, under Article XIV of the FAO Constitution;]
Have agreed as follows:
Article I
DEFINITIONS
For the purposes of this Agreement:
[(a) "fishing vessel" means any vessel used or intended for use for the purposes of the commercial exploitation of living marine resources, including mother ships and any other vessels directly engaged in such fîshing operations.]
(b) "length" means
(c) "international conservation and management measures" means measures to conserve or manage one or more species of living marine resources that are adopted and applied in accordance with the principles of international law as reflected in the 1982 United Nations Convention on the Law of the Sea. [Such measures may be adopted either by global, regional or sub-regional fisheries organizations, subject to the rights and obligations of their members, or by international agreement];
(d) "record of fishing vessels" means a record of fishing vessels in which are recorded pertinent details of the vessel. It may constitute a separate record for fishing vessels or form part of a general record of vessels;
(e) "vessels entitled to fly its flag" and "vessels entitled to fly the flag of a State", includes vessels entitled to fly the flag of a member State of a regional economic integration organization;
(f) "regional economic integration organization" means a regional economic integration organization to which its member States have transferred competence over matters covered by this Agreement, including the authority to make decisions binding on its member States in respect of those matters;
Article II
APPLICATION
1. Subject to the following paragraphs of this Article, this Agreement shall apply to all fishing vessels that are used or intended for fishing on the high seas.
[2. A Party may exempt fishing vessels of less than 24 metres in length entitled to fly its flag from the application of this Agreement unless the Party determines that such an exemption would undermine the object and purpose of this Agreement. Such an exemption shall not apply to the obligations undertaken by a Party under Article III paragraph 1 of this Agreement.]
3. In any fishing region where bordering coastal States have not yet declared exclusive economic
zones, or equivalent zones of national jurisdiction over fisheries, such coastal States as are Parties to this Agreement may agree, either directly or through appropriate regional fisheries organizations, to establish a minimum length of fishing vessels below which this Agreement shall not apply in respect of fishing vessels flying the flag of any such coastal State and operating exclusively in such fishing region.
Article III
FLAG STATERESPONSIBILITY
[1. (i) Each Party shall take such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures.
(ii) In the event that a Party has, pursuant to Article II paragraph 2, granted an exemption for fishing vessels of less than 24 metres in length entitled to fly its flag from the application of other provisions of this Agreement, such Party shall nevertheless take effective measures in respect of any such fishing vessel that undermines the effectiveness of international conservation and management measures.]
2. In particular, no Party shall allow any fishing vessel entitled to fly its flag to fish on the high seas unless it has been authorized to do so by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization.
3. A Party that has authorized a fishing vessel to fish on the high seas shall cancel such authorization upon the request of the owner or operator of the fishing vessel.
4. No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it is satisfied that the Party 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 vessel.
5. No Party shall authorize any fishing vessel entitled to fly its flag that has been previously registered in another State to be used for fishing on the high seas unless it is satisfied that the fishing vessel is not authorized by such State to be used for fishing on the high seas.
[6. (i) No Party shall authorize any fishing vessel previously registered in another State, which has undermined the effectiveness of international conservation and management measures, to be used for fishing on the high seas, unless it is satisfied that, with respect to the owner or operator of such vessel -
(a) any period of suspension by another State of an authorization for such vessel to fish on the high seas has expired;
(b) no authorization for such vessel to fish on the high seas has been withdrawn by another State within the last [five] [two] years; and
(c) in the case of such vessel whose authorization is suspended, or has been withdrawn and not reinstated by another State, and whose ownership has since changed, the new owner has provided sufficient guarantees that there exists no legal or economic link with the previous owner or operator.
(ii) The provisions of subparagraph (i) shall not apply where the Party concerned, after having reviewed all relevant facts, including the circumstances in which the fishing authorization has been refused or withdrawn by the other Party, has determined in conformity with paragraph 2 of this Article that to grant an authorization to use the vessel for fishing on the high seas would not undermine the object and purpose of this Agreement.]
7. Each Party shall ensure that all fishing vessels entitled to fly its flag that it has entered in the record maintained under Article V are marked in such a way that they can be readily identified in accordance with generally accepted standards, such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels.
8. Each Party shall ensure that each fishing vessel entitled to fly its flag shall provide it with such information on its operations as may be necessary to enable the Party to fulfil its obligations under this Agreement, including in particular information pertaining to the area of its fishing operations and to its catches and landings.
9. Each Party shall take enforcement measures in respect of fishing vessels entitled to fly its flag which act in contravention of the provisions of this Agreement, including, where appropriate, making the contravention of such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall be of sufficient gravity as to be effective in securing compliance with the requirements of this Agreement and to deprive offenders of the benefits accruing from their illegal activities. Such sanctions shall, for serious offences, include refusal, suspension or withdrawal of the authorization to fish on the high seas.
[Article IV
ALLOCATION OF FLAG
deleted]
Article V
RECORDS OF FISHING VESSELS
Each Party shall, for the purposes of this Agreement, maintain a record of fishing vessels entitled to fly its flag and authorized to fish on the high seas, and shall take such measures as may be necessary to ensure that all such fishing vessels are entered in that record.
Article VI
INTERNATIONAL COOPERATION
1. Parties shall cooperate as appropriate in the implementation of this Agreement, and shall, in particular, exchange information, including evidentiary material, relating to activities of fishing vessels in order to assist the flag State in identifying those fishing vessels flying its flag reported to have engaged in activities undermining international conservation and management measures, so as to fulfil its obligations under Article III.
[2. When a fishing vessel is voluntarily in the port of a Party other than its flag State, that Party, where it has reasonable grounds for suspecting that mat fishing vessel has been used for an activity that undermines the effectiveness of international conservation and management measures, shall promptly notify the flag State accordingly. Parties may make arrangements regarding the undertaking by port States of such investigatory measures as it considers necessary to establish whether the fishing vessel has indeed been used contrary to the provisions of this Agreement.]
[3. Parties should enter into cooperative agreements or arrangements of mutual assistance when and as appropriate, on a global, regional, sub-regional or bilateral basis so as to promote the achievement of the objectives of this Agreement.]
Article VII
EXCHANGE OF INFORMATION
1. Each Party shall make readily available to FAO the following information with respect to each fishing vessel entered in the record required to be maintained under Article V:
2. Each Party shall, to the extent practicable, make available to FAO the following additional information with respect to each fishing vessel entered in the record required to be maintained under Article V:
3. Each Party shall promptly notify to FAO any modifications to the information listed in paragraphs 1 and 2 of this Article.
4. FAO shall circulate periodically the information provided under paragraphs 1,2, and 3 to all Parties, and, on request, individually to any Party. FAO shall also, subject to any restrictions imposed by the Party concerned regarding the distribution of information, provide such information on request individually to any global, regional or subregional fisheries organization.
5. Each Party shall also promptly inform FAO of -
6. Where information is given to FAO under paragraph 5 (ii) above, the Party concerned shall specify which of the reasons listed in that paragraph is applicable.
7. Each Party shall inform FAO of any exemption granted under paragraph 2 of Article II and of any agreement reached under paragraph 3 of Article II.7.
8. (i) Each Party shall report promptly to FAO all relevant information regarding any activities of fishing vessels flying its flag that undermine the effectiveness of international conservation and management measures, including the identity of the fishing vessel or vessels involved and measures imposed by the Party in respect of such activities. Reports on measures imposed by a Party may be subject to such limitations as may be required by national legislation with respect to confidentiality, including, in particular, confidentiality regarding measures that are not yet final.
(ii) Each Party, where it has reasonable grounds to believe that a fishing vessel not entitled to fly its flag has engaged in any activity that undermines the effectiveness of international conservation and management measures, shall draw this to the attention of the flag State concerned and may, as appropriate, draw it to the attention of FAO. It shall provide the flag State with full supporting evidence and may provide FAO with a summary of such evidence. FAO shall not circulate such information until such time as the flag State has had an opportunity to comment on the allegation and evidence submitted, or to object as the case may be.
9. Each Party shall inform FAO of any cases where the Party, pursuant to Article III paragraph 6(ii), has decided that the provisions of Article III paragraph 6(i) shall not apply. The information shall include pertinent data permitting the identification of the fishing vessel and the owner or operator [and the reason for the Party's decision].
10. FAO shall circulate promptly the information provided under paragraphs 5, 6, 7, 8 [and 9] to all Parties, and, on request, individually to any Party. FAO shall also, subject to any restrictions imposed by the Party concerned regarding the distribution of information, provide such information promptly on request individually to any global, regional or subregional fisheries organization.
11. The Parties shall exchange information relating to the implementation of this Agreement, including through FAO and other appropriate global, regional and subregional fisheries organizations.
Article VIII
[TECHNICAL] COOPERATION
Parties [shall/should] cooperate, at a global, regional, subregional or bilateral level, and, as appropriate, with the support of FAO and other international or regional organizations, to provide assistance, including technical [and financial] assistance, to Parties that are developing countries in order to allow them to fulfil their obligations under this Agreement.
Article IX
NON-PARTIES
1. The Parties shall encourage any State not party to this Agreement to accept this Agreement and shall encourage any non-Party to adopt laws and regulations consistent with the provisions of this Agreement.
2. Parties shall cooperate in a manner consistent with this Agreement and with international law to the end that fishing vessels entitled to fly the flags of non-Parties do not engage in activities that undermine the effectiveness of international conservation and management measures.
3. The Parties shall exchange information amongst themselves, either directly or through FAO, with respect to activities of fishing vessels flying the flags of a non-Parties that undermine the effectiveness of international conservation and management measures.
Article X
SETTLEMENT OF DISPUTES
1. Any Party may seek consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible.
2. In the event that the dispute is not resolved through these consultations within a reasonable period of time, the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.
3. Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources.
Article XI
ACCEPTANCE
1. This Agreement shall be open to acceptance by any member or associate member of FAO, and to any non-Member State that is a member of the United Nations, or of any of the specialized agencies of the United Nations or of the International Atomic Energy Agency.
2. Acceptance of this Agreement shall be effected by the deposit of an instrument of acceptance with the Director-General and shall take effect on receipt of such instrument by the Director-General.
3. The Director-General shall inform all Parties, all members of FAO and the Secretary-General of the United Nations of all instruments of acceptance received.
[4. Where a regional economic integration organization that is a member of FAO submits an instrument of acceptance of this Agreement, it shall, at that time, as appropriate, modify its declaration of competence submitted under Article II.5 of the Constitution, or submit a supplement to its declaration of competence, explaining the extent of the organization's competence with respect to matters governed by this Agreement. Such organization shall also inform FAO, which will inform the other Parties of any substantial modification in the extent of their competence over these matters.]
[5. At the time of accepting this Agreement, any State may declare that the Agreement shall not apply in respect of any territory for whose international relations it is responsible.]
Article XII
ENTRY INTO FORCE
1. This Agreement shall enter into force as from the date of receipt by the Director-General of the twenty-fifth instrument of acceptance.
2. For the purpose of this Article, an instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such an organization.
Article XIII
RESERVATIONS
Acceptance of this Agreement may be made subject to reservations which shall become effective only upon unanimous acceptance by all Parties to this Agreement. The Director-General shall notify forthwith all Parties of any reservation. Parties not having replied within three months from the date of the notification shall be deemed to have accepted the reservation. Failing such acceptance, the State or regional economic integration organization making the reservation shall not become a Party to this Agreement.
Article XIV
AMENDMENTS
1. Any proposal by a Party for the amendment of this Agreement shall be communicated to the Director-General of FAO.
2. Any proposed amendment of this Agreement received by the Director-General of FAO from a Party shall be presented to a regular or special session of the Conference of FAO for approval and, if the amendment involves important technical changes or imposes additional obligations on the Parties, it shall be considered by an advisory committee of specialists convened by FAO prior to the Conference.
3. Notice of any proposed amendment of this Agreement shall be transmitted to the Parties by the Director-General of FAO not later than the time when the agenda of the session of the Conference at which the matter is to be considered is dispatched.
4. Any such proposed amendment of this Agreement shall require the approval of the Conference of FAO and shall come into force as from the thirtieth day after acceptance by two- thirds of the Parties. Amendments involving new obligations for Parties, however, shall come into force in respect of each Party only on acceptance by it and as from the thirtieth day after such acceptance.
5. The instruments of acceptance of amendments involving new obligations shall be deposited with the Director-General of FAO, who shall inform all Parties of the receipt of acceptance and the entry into force of amendments.
6. For the purpose of this Article, an instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such an organization.
Article XV
WITHDRAWAL
Any Party may withdraw from this Agreement at any time after the expiry of two years from the date upon which the Agreement entered into force with respect to that Party, by giving written notice of such withdrawal to the Director-General who shall immediately inform all the Parties and the members and associate members of FAO of such withdrawal. Withdrawal shall become effective at the end of the calendar year following that in which the notice of withdrawal has been received by the Director-General.
Article XVI
DUTIES OF THE DEPOSITARY
The Director-General shall be the Depositary of this Agreement. The Depositary shall:
(a) send certified copies of this Agreement to each member and associate member of FAO and to such non-Member States as may become party to this Agreement;
(b) arrange for the registration of this Agreement, upon its entry into force, with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations;
(c) inform each member and associate member of FAO and any non-Member States as may become Party to this Agreement of:
Article XVII
AUTHENTIC TEXTS
The Arabic, Chinese, English, French, and Spanish texts of this Agreement are equally authentic.
