ARTICLE 19 - COMPLIANCE AND ENFORCEMENT BY THE FLAG STATE: The Articles in Part VI were the most difficult and hotly debated of the Agreement. The development of the text was protracted, involving numerous informal consultations and heated exchanges. The five Articles that make up Part VI must be examined as a whole for a thorough understanding of the difficulties faced by the delegates in arriving at a harmonized text.
Article 19 deals with the obligations of the flag State regarding compliance and enforcement of conservation and management measures implemented through the Agreement. Discussion on this Article over the course of the negotiations centered on the determination of guilt or innocence, the responsibilities of the flag State in the case of a violation, and the imposition of penalties. Like Article 18, this Article is closely linked to the highly contentious issue of boarding and inspection. The final text calls for the flag State to: enforce measures regardless of where the violations occur; investigate fully and promptly any alleged violation; ensure its vessels provide required information to the investigating authority; ensure that a vessel involved in a violation does not engage in high seas fishing until outstanding sanctions are addressed; and ensure expeditious judicial proceedings and sanctions of adequate severity.
ARTICLE 20 - INTERNATIONAL COOPERATION IN ENFORCEMENT: This Article addresses the rights, duties and obligations of flag States, coastal States, and subregional or regional organizations or arrangements. It examines issues such as: cooperation in compliance and enforcement; flag State investigations and assistance from other States, organizations or arrangements; identification and reporting of vessels alleged to be undermining the effectiveness of subregional, regional, or global conservation and management measures; gathering and sharing of evidence; and action taken in accordance with international law to deter vessels from activities which violate or undermine conservation and management measures. Discussion on these issues was heated, particularly regarding the question of cooperation between flag States and coastal States and the authorization to board and inspect. Another area of contention was the deterrence of vessels engaged in activities that violate the conservation and management measures of a subregion or region.
ARTICLE 21 - SUBREGIONAL AND REGIONAL COOPERATION IN ENFORCEMENT: This Article and that of former Article 21(bis), now Article 22, remained contentious throughout three years of negotiation. Considerable intersessional activity was devoted to work on these articles. The high level of disagreement on this issue led the US to host an informal and select workshop in Washington, DC, in June 1995. A paper from this meeting served as the backdrop for three days of pre-sessional activity prior to the final session of the Conference. Alternative proposals were tabled by Japan and the EU. Several sessions of informal consultations were devoted to this topic and consensus remained elusive until the eleventh hour. Flag States argued that balance had to be maintained throughout the text, while the coastal States sought to enhance their position. Of particular concern to the flag States, was that the "right should not precede the rule" in respect of boarding and inspection procedures. In one three-hour sitting of negotiations in informal consultations, only three paragraphs were considered. Several proposed amendments were tabled throughout the session exclusive of several revised texts prepared by the Chair.
Much of the discussion focused on boarding and inspection procedures and the determination of an infringement of the rules with regard to defining a "serious violation." The response time afforded the flag State, following boarding and inspection revealing a violation was eventually agreed at three days. A watering down and reduction of the "shopping list" of serious violations was not considered desirable and the Chair ruled accordingly. Examples of nine serious violations are given. Of particular concern to the Flag-of-Convenience and developing flag States was that not only the safety of the ship should be guaranteed, following boarding, but the safety of the crew should be afforded the same status. The Chair was concerned that the "prompt release of vessels should apply throughout the oceans." Specific reference to Article 292 of the Convention, which deals with prompt release of vessel and crew, does not now feature in this Article. The procedures for boarding and inspection are qualified in Article 22.
ARTICLE 22 - BASIC PROCEDURES FOR BOARDING AND INSPECTION PURSUANT TO ARTICLE 21: Paragraph (2) of Article 21 deals with the establishment of procedures for the boarding and inspection, and Article 22 sets out the procedures for boarding and inspection that shall not discriminate against non-members of the organization or non-participants in the arrangement. The Article imposes requirements on the inspecting States with regard to the authorized duties of the inspector. This covers: the presentation of credentials to the vessel master; the requirement to initiate notice to the flag State at the time of boarding and inspection; non-interference in the master's ability to communicate with the flag State authorities; the provision of a copy of the boarding and inspection report to the master and flag State authorities; the prompt departure from the vessel by the inspector following investigation in which no evidence of a serious violation is found; and avoidance of the use of force except when and to the degree necessary.
The Article authorizes the inspector to perform certain duties, and mandates that the flag State require its vessel masters to conform to certain rules, including the inspector's safe disembarkation. In the event that the master of a vessel refuses to accept boarding and inspection, the flag State is required to direct the master to submit to immediate boarding, and shall suspend the vessels authorization to fish if the master does not comply. This Article was subject to intense debate and negotiation before consensus could be struck because flag States wanted balance in the text. In informal Plenary towards the end of the session, Malta attempted to undermine the provisions of the Article, by requiring that the inspecting State give simultaneous notification of boarding to the flag State.
ARTICLE 23 - MEASURES TAKEN BY A PORT STATE: This Article deals with the rights and duties of the port State to take measures to promote the effectiveness of subregional, regional and global conservation and management measures. Authority is vested in the port State to inspect documents, fishing gear and catch on board fishing vessels, only when such vessels are voluntarily in its ports. States may empower national authorities to prohibit landings and transshipments if the catch has been taken in a manner which undermines the conservation and management measures to which the Article refers.
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