VI. PORT STATES
This issue was not originally included in the Chair's list of
issues to be discussed (A/CONF.164/10), but emerged as a matter
that required more in-depth treatment. During the informal
discussions, it was agreed that this question is not well
documented in the Law of the Sea Convention. Delegates expressed
divergent views on the extent of port State jurisdiction in terms
of high seas fisheries. There was also disagreement on the
customary international law in this respect. Some delegates
advocated an extended jurisdiction for the port State, based on the
coastal State's special interests. Others argued that the port
State's authority was the exception rather than the rule and is
limited to a number of specific cases, such as the protection of
the marine environment and the prevention of pollution.
In the discussion on measures that the port State may/should carry
out, delegates mentioned the following:
- The right to request information from flag States was not disputed and some delegates attached to it a collateral obligation on the part of the flag State to provide this information.
- It was agreed that the inspection of vessels suspected of violating the prescribed measures should be limited to cases where the port State has reason to suspect that the vessel's fishing practices undermine the conservation measures adopted. Some developing nations questioned their own capacity to carry out such inspections and suggested that on-board inspection schemes be set up to help them in this task. Others called for the transfer of technologies, such as satellite tracking devices, to enhance cooperation between flag States and port States.
- Detainment of vessels that have violated the conservation and management measures raised the question of how long a vessel could be detained -- until the flag State has been notified or until the port State is satisfied that the proper measures have been taken by the flag State. The principle of proportionality, which should be applied to this situation, needs to be further refined.
- Refusing entry to vessels that are known to have violated conservation and management measures as well as the blacklisting of offending vessels has been applied in practice and has met with some success.
- Refusing to land catches that were harvested in violation of the conservation and management measures caused some worry that this measure would be in violation of GATT provisions. It was explained, however, that GATT does not apply to direct imports from the high seas.
- Hailing is a practice that has been successful in the past and was recommended for inclusion in this section.
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- Confiscation of vessels or fishing gear was suggested in the case of the most serious violations.