Chile, supported by Peru, began the discussion on Article 21, which deals with the boarding and inspection by port States, by distributing a working paper seeking to assure compliance and enact a broad enforcement regime taking into account the rights of port and flag States. The delegate supported the Chair's text in Article 21 paragraphs (1), (2) and (3). He pointed to a number of international agreements and stated that when no rule exists guiding landing and discharge, these activities are implicitly prohibited. He repeated his call for States to promulgate domestic legislation supporting this. The text should introduce clear-cut norms and principles that would apply to the conduct of all States. The US, supported by the Russian Federation, Brazil, and others, expressed concern that there be no threat to the sovereignty of port States and said that Article 21 paragraph (3) diminishes the authority of port States. He proposed that international law govern port State actions. The delegate supported the language in paragraph (2). The EU was concerned that the use of the term "force majeure" might be interpreted to allow unilateral action by port States. The delegate of the Russian Federation cautioned that the EU proposal might grant protection to irresponsible fishing States. Norway supported the US, Chile, and the Russian Federation. Norway had existing legislation to deny landings and access when appropriate. The Japanese delegate restated his view that the port States should retain authority as expressed in UNCLOS. Port State authority on the high seas must be based on agreement between the concerned States. He said that fishing States must be safeguarded against excessive enforcement measures. China, referring to the Chilean proposal, was concerned that port State jurisdiction goes beyond the scope of the Convention. He could not support the Chair's wording of paragraph (2) because it did not recognize the commercial nature and rights of fishing vessels. He said that access to ports and facilities must be protected as this was a trade issue. Australia expressed support for the US and others with regards to the rights of port States, and agreed with delegates that paragraphs (3) and (4) were not necessary.
Iceland said that port States have a large role to play in enforcement and management. Canada spoke in support of the Chilean proposal and supported reinstatement on landing of catch as in the Chair's March revised negotiating text. Micronesia supported the US and Australia and said Article 21 must not restrict the rights of the port State. Israel said articles should refer to States that are a party to the regional and subregional arrangements. It is necessary to protect the freedom of navigation and innocent passage through territorial seas in UNCLOS. Belize agreed that paragraphs (1) and (3) could be deleted. Uruguay said the provisions on the port State must supplement and ensure the compliance of the conservation and management measures. Chile said that landing and transshipment should also be subject to conservation and management measures. In referring to the comments by China, he said violations of conservation and management are not related to trade. Papua New Guinea, supported by New Zealand, said the rights of States to carry out action including general inspection under paragraph (2) falls under international law. Rights should not inadvertently be circumscribed under international law. Argentina supported Uruguay on the deletion of paragraph (3) and endorsed the US arguments for deletion of this paragraph. Uruguay said the mere deletion of the paragraph would conceal differences and not provide a clear solution to the problem. The Russian Federation supported India and said that some delegations had suggested that the actions port States might undertake to ensure implementation of conservation and management measures may run counter to GATT. He said that Article 20(g) of GATT provides for general exceptions and that GATT would not be an obstacle when it comes to exhaustion of natural resources. The representative of the International Collective in Support of Fishworkers (ICSF) proposed a new paragraph (3) (bis) that a port State should be vested with the power to take action where appropriate against vessels authorized to fish in the high seas if there are reasonable grounds to suspect they have undertaken unauthorized fishing in areas of national jurisdiction.
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