The Chair highlighted that everyone agrees that there should be conservation and management of high seas resources and the flag States agree they have prerogatives to take the appropriate measures. But vessels that fish on the high seas are fishing at great distances from their nation and it is impractical to expect that flag States could observe what is happening on the high seas. As part of the regional arrangements, assistance is needed for the flag States to ensure that their vessels are cooperating. A delegate agreed that such assistance is needed, but the text does not specify whether this responsibility is shared by the coastal State or the regional mechanisms.
The Chair's text calls for a transfer of competence from the flag State to the coastal State within the framework of the regional organization alone, whereas in L.11/Rev.1 the competence to enforce would be conferred on any party, vis- -vis any other party of a universal convention. Adjustments and reconciliation between these two texts need to be made. It should still be made clear that the competence of the coastal State is subsidiary in nature, and a residual competence could be exercised only if and after the flag State does not take the appropriate measures. A distant water fishing State re-emphasized the importance of having those measures applied through specific regional organizations.
Some argued that direct action by the coastal State can only be allowed in a number of particular cases, such as fishing when fishing is banned, without permission, and when the national quota has already been filled. Compensation schemes could then be established if the sanctions cause damages.
A delegate said that the text should not go further than the FAO flagging document that was agreed upon. Another delegate answered that since not all negotiating parties present acceded to the FAO agreement, it should not be mentioned too generally. References to Stateless vessels also proved troublesome.
A delegate mentioned that some of the measures to be adopted would violate some States' constitutions, and this led to the latest legalistic debate on the applicability, signature and ratification of UNCLOS and its Article 117, which deals with the duty of States to adopt measures for the conservation of the living resources of the high seas.
Some delegates called for more flexibility on the part of the flag States to allow boardings of vessels fishing on the high seas by persons of the non-flag States. The sovereignty issue, however, was one on which traditional open registries were uncompromising.
A delegate said that one of the major problems is how to deal with States that are not party to the regional agreements. To be applicable to all, there is a need to strengthen the arrangements into international hard law.
A distant water fishing State questioned the extent of the penalties applicable, whether they are pertinent to the vessel and how long they should be applied. References to "alleged violations" are too vague; they do not indicate what the sources of information are or how the violation is documented.
A representative of a coastal State warned against attempts by some to delete everything that ensures the efficacy of methods of compliance and enforcement that would disturb flag States in any way.
The Chair intervened to explain how the text should be understood. Part A of Section V, on compliance and enforcement by flag States, is an elaboration of UNCLOS, but Part B, on regional arrangement for compliance and enforcement, should not be misunderstood as going further than UNCLOS. It is not an "open season" for coastal States to deal with foreign vessels on the high seas. The procedures must be agreed on before any of these measures can apply.
[Return to start of article]