21998A0703(01)
Agreement on the implementation of the provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
relating to the conservation and management of straddling fish
stocks and highly migratory fish stocks - Declaration concerning the
competence of the European Community - Interpretative declarations
/* Montego Bay Convention */
Dates:
OF DOCUMENT: 04/12/1995
OF EFFECT: 00/00/0000; ENTRY INTO FORCE SEE ART 40
OF END OF VALIDITY: 99/99/9999
Authentic language: ENGLISH ; ARABIC ; CHINESE ; SPANISH ; FRENCH ;
RUSSIAN
Author:
UNITED NATIONS ORGANIZATION
Subject matter: FISHERIES POLICY ; EXTERNAL RELATIONS
Directory code: 04201000 ; 11304000
EUROVOC descriptor: conservation of fish stocks ; exclusive economic
zone ; law of the sea ; sea fish ; waste management ; UN convention
Legal basis:
192E043................... ADOPTION
192E228-P3L1.............. ADOPTION
Amendment to:
298A0623(01)......COMPLETION....
Amended by:
ADOPTED-BY.... 398D0414..........
AGREEMENT on the implementation of the provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
relating to the conservation and management of straddling fish
stocks and highly migratory fish stocks
THE STATES PARTIES TO THIS AGREEMENT,
RECALLING the relevant provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982,
DETERMINED to ensure the long-term conservation and sustainable use
of straddling fish stocks and highly migratory fish stocks,
RESOLVED to improve cooperation between States to that end,
CALLING for more effective enforcement by flag States, port States
and coastal States of the conservation and management measures
adopted for such stocks,
SEEKING to address in particular the problems identified in Chapter
17, programme area C, of Agenda 21 adopted by the United Nations
Conference on Environment and Development, namely, that the
management of high seas fisheries is inadequate in many areas and
that some resources are over-utilised; noting that there are
problems of unregulated fishing, over-capitalisation, excessive
fleet size, vessel reflagging to escape controls, insufficiently
selective gear, unreliable databases and lack of sufficient
cooperation between States,
COMMITTING themselves to responsible fisheries,
CONSCIOUS of the need to avoid adverse impacts on the marine
environment, preserve biodiversity, maintain the integrity of marine
ecosystems and minimise the risk of long-term or irreversible
effects of fishing operations,
RECOGNISING the need for specific assistance, including financial,
scientific and technological assistance, in order that developing
States can participate effectively in the conservation, management
and sustainable use of straddling fish stocks and highly migratory
fish stocks,
CONVINCED that an agreement for the implementation of the relevant
provisions of the Convention would best serve these purposes and
contribute to the maintenance of international peace and security,
AFFIRMING that matters not regulated by the Convention or by this
Agreement continue to be governed by the rules and principles of
general international law,
HAVE AGREED AS FOLLOWS:
PART I
GENERAL PROVISIONS
Article 1
Use of terms and scope
1. For the purposes of this Agreement:
(a) 'Convention` means the United Nations Convention on the Law of
the Sea of 10 December 1982;
(b) 'conservation and management measures` means measures to
conserve and manage one or more species of living marine resources
that are adopted and applied consistent with the relevant rules of
international law as reflected in the Convention and this Agreement;
(c) 'fish` includes molluscs and crustaceans except those belonging
to sedentary species as defined in Article 77 of the Convention; and
(d) 'arrangement` means a cooperative mechanism established in
accordance with the Convention and this Agreement by two or more
States for the purpose, inter alia, of establishing conservation and
management measures in a subregion or region for one or more
straddling fish stocks or highly migratory fish stocks.
2. (a) 'States Parties` means States which have consented to be
bound by this Agreement and for which the Agreement is in force.
(b) This Agreement applies mutatis mutandis:
(i) to any entity referred to in Article 305(1)(c), (d) and (e), of
the Convention and
(ii) subject to Article 47, to any entity referred to as an
'international organisation` in Annex IX, Article 1, of the
Convention
which becomes a Party to this Agreement, and to that extent 'States
Parties` refers to those entities.
3. This Agreement applies mutatis mutandis to other fishing entities
whose vessels fish on the high seas.
Article 2
Objective
The objective of this Agreement is to ensure the long-term
conservation and sustainable use of straddling fish stocks and
highly migratory fish stocks through effective implementation of the
relevant provisions of the Convention.
Article 3
Application
1. Unless otherwise provided, this Agreement applies to the
conservation and management of straddling fish stocks and highly
migratory fish stocks beyond areas under national jurisdiction,
except that Articles 6 and 7 apply also to the conservation and
management of such stocks within areas under national jurisdiction,
subject to the different legal regimes that apply within areas under
national jurisdiction and in areas beyond national jurisdiction as
provided for in the Convention.
2. In the exercise of its sovereign rights for the purpose of
exploring and exploiting, conserving and managing straddling fish
stocks and highly migratory fish stocks within areas under national
jurisdiction, the coastal State shall apply mutatis mutandis the
general principles enumerated in Article 5.
3. States shall give due consideration to the respective capacities
of developing States to apply Articles 5, 6 and 7 within areas under
national jurisdiction and their need for assistance as provided for
in this Agreement. To this end, Part VII applies mutatis mutandis in
respect of areas under national jurisdiction.
Article 4
Relationship between this Agreement and the Convention
Nothing in this Agreement shall prejudice the rights, jurisdiction
and duties of States under the Convention. This Agreement shall be
interpreted and applied in the context of and in a manner consistent
with the Convention.
PART II
CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY
MIGRATORY FISH STOCKS
Article 5
General principles
In order to conserve and manage straddling fish stocks and highly
migratory fish stocks, coastal States and States fishing on the high
seas shall, in giving effect to their duty to cooperate in
accordance with the Convention:
(a) adopt measures to ensure long-term sustainability of straddling
fish stocks and highly migratory fish stocks and promote the
objective of their optimum utilisation;
(b) ensure that such measures are based on the best scientific
evidence available and are designed to maintain or restore stocks at
levels capable of producing maximum sustainable yield, as qualified
by relevant environmental and economic factors, including the
special requirements of developing States, and taking into account
fishing patterns, the interdependence of stocks and any generally
recommended international minimum standards, whether subregional,
regional or global;
(c) apply the precautionary approach in accordance with Article 6;
(d) assess the impacts of fishing, other human activities and
environmental factors on target stocks and species belonging to the
same ecosystem or associated with or dependent on the target stocks;
(e) adopt, where necessary, conservation and management measures for
species belonging to the same ecosystem or associated with or
dependent on the target stocks, with a view to maintaining or
restoring populations of such species above levels at which their
reproduction may become seriously threatened;
(f) minimise pollution, waste, discards, catch by lost or abandoned
gear, catch of non-target species, both fish and non-fish species,
(hereinafter referred to as 'non-target species`) and impacts on
associated or dependent species, in particular endangered species,
through measures including, to the extent practicable, the
development and use of selective, environmentally safe and
cost-effective fishing gear and techniques;
(g) protect biodiversity in the marine environment;
(h) take measures to prevent or eliminate overfishing and excess
fishing capacity and to ensure that levels of fishing effort do not
exceed those commensurate with the sustainable use of fishery
resources;
(i) take into account the interests of artisanal and subsistence
fishers;
(j) collect and share, in a timely manner, complete and accurate
data concerning fishing activities on, inter alia, vessel position,
catch of target and non-target species and fishing effort, as set
out in Annex I, as well as information from national and
international research programmes;
(k) promote and conduct scientific research and develop appropriate
technologies in support of fishery conservation and management, and
(l) implement and enforce conservation and management measures
through effective monitoring, control and surveillance.
Article 6
Application of the precautionary approach
1. States shall apply the precautionary approach widely to
conservation, management and exploitation of straddling fish stocks
and highly migratory fish stocks in order to protect the living
marine resources and preserve the marine environment.
2. States shall be more cautions when information is uncertain,
unreliable or inadequate. The absence of adequate scientific
information shall not be used as a reason for postponing or failing
to take conservation and management measures.
3. In implementing the precautionary approach, States shall:
(a) improve decision-making for fishery resource conservation and
management by obtaining and sharing the best scientific information
available and implementing improved techniques for dealing with risk
and uncertainty;
(b) apply the guidelines set out in Annex II and determine, on the
basis of the best scientific information available, stock-specific
reference points and the action to be taken if they are exceeded;
(c) take into account, inter alia, uncertainties relating to the
size and productivity of the stocks, reference points, stock
condition in relation to such reference points, levels and
distribution of fishing mortality and the impact of fishing
activities on non-target and associated or dependent species, as
well as existing and predicted oceanic, environmental and
socioeconomic conditions, and
(d) develop data-collection and research programmes to assess the
impact of fishing on non-target and associated or dependent species
and their environment, and adopt plans which are necessary to ensure
the conservation of such species and to protect habitats of special
concern.
4. State shall take measures to ensure that, when reference points
are approached, they will not be exceeded. In the event that they
are exceeded, States shall, without delay, take the action
determined under paragraph 3(b) to restore the stocks.
5. Where the status of target stocks or non-target or associated or
dependent species is of concern, States shall subject such stocks
and species to enhanced monitoring in order to review their status
and the efficacy of conservation and management measures. They shall
revise those measures regularly in the light of new information.
6. For new or exploratory fisheries, States shall adopt as soon as
possible cautious conservation and management measures, including,
inter alia, catch limits and effort limits. Such measures shall
remain in force until there are sufficient data to allow assessment
of the impact of the fisheries on the long-term sustainability of
the stocks, whereupon conservation and management measures based on
that assessment shall be implemented. The latter measures shall, if
appropriate, allow for the gradual development of the fisheries.
7. If a natural phenomenon has a significant adverse impact on the
status of straddling fish stocks or highly migratory fish stocks,
States shall adopt conservation and management measures on an
emergency basis to ensure that fishing activity does not exacerbate
such adverse impact. States shall also adopt such measures on an
emergency basis where fishing activity presents a serious threat to
the sustainability of such stocks. Measures taken on an emergency
basis shall be temporary and shall be based on the best scientific
evidence available.
Article 7
Compatibility of conservation and management measures
1. Without prejudice to the sovereign rights of coastal States for
the purpose of exploring and exploiting, conserving and managing the
living marine resources within areas under national jurisdiction as
provided for in the Convention, and the right of all States for
their nationals to engage in fishing on the high seas in accordance
with the Convention:
(a) with respect to straddling fish stocks, the relevant coastal
States and the States whose nationals fish for such stocks in the
adjacent high seas area shall seek, either directly or through the
appropriate mechanisms for cooperation provided for in Part III, to
agree upon the measures necessary for the conservation of these
stocks in the adjacent high seas area;
(b) with respect to highly migratory fish stocks, the relevant
coastal States and other States whose nationals fish for such stocks
in the region shall cooperate, either directly or through the
appropriate mechanisms for cooperation provided for in Part III,
with a view to ensuring conservation and promoting the objective of
optimum utilisation of such stocks throughout the region, both
within and beyond the areas under national jurisdiction.
2. Conservation and management measures established for the high
seas and those adopted for areas under national jurisdiction shall
be compatible in order to ensure conservation and management of the
straddling fish stocks and highly migratory fish stocks in their
entirety. To this end, coastal States and States fishing on the high
seas have a duty to cooperate for the purpose of achieving
compatible measures in respect of such stocks. In determining
compatible conservation and management measures, States shall:
(a) take into account the conservation and management measures
adopted and applied in accordance with Article 61 of the Convention
in respect of the same stocks by coastal States within areas under
national jurisdiction and ensure that measures established in
respect of such stocks for the high seas do not undermine the
effectiveness of such measures;
(b) take into account previously agreed measures established and
applied for the high seas in accordance with the Convention in
respect of the same stocks by relevant coastal States and States
fishing on the high seas;
(c) take into account previously agreed measures established and
applied in accordance with the Convention in respect of the same
stocks by a subregional or regional fisheries management
organisation or arrangement;
(d) take into account the biological unity and other biological
characteristics of the stocks and the relationships between the
distribution of the stocks, the fisheries and the geographical
particularities of the region concerned, including the extent to
which the stocks occur and are fished in areas under national
jurisdiction;
(e) take into account the respective dependence of the coastal
States and the States fishing on the high seas on the stocks
concerned, and
(f) ensure that such measures do not result in harmful impact on the
living marine resources as a whole.
3. In giving effect to their duty to cooperate, States shall make
every effort to agree on compatible conservation and management
measures within a reasonable period of time.
4. If no agreement can be reached within a reasonable period of
time, any of the States concerned may invoke the procedures for the
settlement of disputes provided for in Part VIII.
5. Pending agreement on compatible conservation and management
measures, the States concerned, in a spirit of understanding and
cooperation, shall make every effort to enter into provisional
arrangements of a practical nature. In the event that they are
unable to agree on such arrangements, any of the States concerned
may, for the purpose of obtaining provisional measures, submit the
dispute to a court or tribunal in accordance with the procedures for
the settlement of disputes provided for in Part VIII.
6. Provisional arrangements or measures entered into or prescribed
pursuant to paragraph 5 shall take into account the provisions of
this Part, shall have due regard to the rights and obligations of
all States concerned, shall not jeopardize or hamper the reaching of
final agreement on compatible conservation and management measures
and shall be without prejudice to the final outcome of any dispute
settlement procedure.
7. Coastal States shall regularly inform States fishing on the high
seas in the subregion or region, either directly or through
appropriate subregional or regional fisheries management
organisations or arrangements, or through other appropriate means,
of the measures they have adopted for straddling fish stocks and
highly migratory fish stocks within areas under their national
jurisdiction.
8. States fishing on the high seas shall regularly inform other
interested States, either directly or through appropriate
subregional or regional fisheries management organisations or
arrangements, or through other appropriate means, of the measures
they have adopted for regulating the activities of vessels flying
their flag which fish for such stocks on the high seas.
PART III
MECHANISMS FOR INTERNATIONAL COOPERATION CONCERNING STRADDLING FISH
STOCKS AND HIGHLY MIGRATORY FISH STOCKS
Article 8
Cooperation for conservation and management
1. Coastal States and States fishing on the high seas shall, in
accordance with the Convention, pursue cooperation in relation to
straddling fish stocks and highly migratory fish stocks either
directly or through appropriate subregional or regional fisheries
management organisations or arrangements, taking into account the
specific characteristics of the subregion or region, to ensure
effective conservation and management of such stocks.
2. States shall enter into consultations in good faith and without
delay, particularly where there is evidence that the straddling fish
stocks and highly migratory fish stocks concerned may be under
threat of overexploitation or where a new fishery is being developed
for such stocks. To this end, consultations may be initiated at the
request of any interested State with a view to establishing
appropriate arrangements to ensure conservation and management of
the stocks. Pending agreement on such arrangements, States shall
observe the provisions of this Agreement and shall act in good faith
and with due regard to the rights, interests and duties of other
States.
3. Where a subregional or regional fisheries management organisation
or arrangement has the competence to establish conservation and
management measures for particular straddling fish stocks or highly
migratory fish stocks, States fishing for the stocks on the high
seas and relevant coastal States shall give effect to their duty to
cooperate by becoming members of such organisation or participants
in such arrangement, or by agreeing to apply the conservation and
management measures established by such organisation or arrangement.
States having a real interest in the fisheries concerned may become
members of such organisation or participants in such arrangement.
The terms of participation in such organisation or arrangement shall
not preclude such States from membership or participation; nor shall
they be applied in a manner which discriminates against any State or
group of States having a real interest in the fisheries concerned.
4. Only those States which are members of such an organisation or
participants in such an arrangement, or which agree to apply the
conservation and management measures established by such
organisation or arrangement, shall have access to the fishery
resources to which those measures apply.
5. Where there is no subregional or regional fisheries management
organisation or arrangement to establish conservation and management
measures for a particular straddling fish stock or highly migratory
fish stock, relevant coastal States and States fishing on the high
seas for such stock in the subregion or region shall cooperate to
establish such an organisation or enter into other appropriate
arrangements to ensure conservation and management of such stock and
shall participate in the work of the organisation or arrangement.
6. Any State intending to propose that action be taken by an
intergovernmental organisation having competence with respect to
living resources should, where such action would have a significant
effect on conservation and management measures already established
by a competent subregional or regional fisheries management
organisation or arrangement, consult through that organisation or
arrangement with its members or participants. To the extent
practicable, such consultation should take place prior to the
submission of the proposal to the intergovernmental organisation.
Article 9
Subregional and regional fisheries management organisations and
arrangements
1. In establishing subregional or regional fisheries management
organisations or in entering into subregional or regional fisheries
management arrangements for straddling fish stocks and highly
migratory fish stocks, States shall agree, inter alia, on:
(a) the stocks to which conservation and management measures apply,
taking into account the biological characteristics of the stocks
concerned and the nature of the fisheries involved;
(b) the area of application, taking into account Article 7(1), and
the characteristics of the subregion or region, including
socioeconomic, geographical and environmental factors;
(c) the relationship between the work of the new organisation or
arrangement and the role, objectives and operations of any relevant
existing fisheries management organisations or arrangements, and
(d) the mechanisms by which the organisation or arrangement will
obtain scientific advice and review the status of the stocks,
including, where appropriate, the establishment of a scientific
advisory body.
2. States cooperating in the formation of a subregional or regional
fisheries management organisation or arrangement shall inform other
States which they are aware have a real interest in the work of the
proposed organisation or arrangement of such cooperation.
Article 10
Functions of subregional and regional fisheries management
organisations and arrangements
In fulfilling their obligation to cooperate through subregional or
regional fisheries management organisations or arrangements, States
shall:
(a) agree on and comply with conservation and management measures to
ensure the long-term sustainability of straddling fish stocks and
highly migratory fish stocks;
(b) agree, as appropriate, on participatory rights such as
allocations of allowable catch or levels of fishing effort;
(c) adopt and apply any generally recommended international minimum
standards for the responsible conduct of fishing operations;
(d) obtain and evaluate scientific advice, review the status of the
stocks and assess the impact of fishing on non-target and associated
or dependent species;
(e) agree on standards for collection, reporting, verification and
exchange of data on fisheries for the stocks;
(f) compile and disseminate accurate and complete statistical data,
as described in Annex I, to ensure that the best scientific evidence
is available, while maintaining confidentiality where appropriate;
(g) promote and conduct scientific assessments of the stocks and
relevant research and disseminate the results thereof;
(h) establish appropriate cooperative mechanisms for effective
monitoring, control, surveillance and enforcement;
(i) agree on means by which the fishing interests of new members of
the organisation or new participants in the arrangement will be
accommodated;
(j) agree on decision-making procedures which facilitate the
adoption of conservation and management measures in a timely and
effective manner;
(k) promote the peaceful settlement of disputes in accordance with
Part VIII;
(l) ensure the full cooperation of their relevant national agencies
and industries in implementing the recommendations and decisions of
the organisation or arrangement, and
(m) give due publicity to the conservation and management measures
established by the organisation or arrangement.
Article 11
New members or participants
In determining the nature and extent of participatory rights for new
members of a subregional or regional fisheries management
organisation, or for new participants in a subregional or regional
fisheries management arrangement, States shall take into account,
inter alia:
(a) the status of the straddling fish stocks and highly migratory
fish stocks and the existing level of fishing effort in the fishery;
(b) the respective interests, fishing patterns and fishing practices
of new and existing members or participants;
(c) the respective contributions of new and existing members or
participants to conservation and management of the stocks, to the
collection and provision of accurate data and to the conduct of
scientific research on the stocks;
(d) the needs of coastal fishing communities which are dependent
mainly on fishing for the stocks;
(e) the needs of coastal States whose economies are overwhelmingly
dependent on the exploitation of living marine resources, and
(f) the interests of developing States from the subregion or region
in whose areas of national jurisdiction the stocks also occur.
Article 12
Transparency in activities of subregional and regional fisheries
management organisations and arrangements.
1. States shall provide for transparency in the decision-making
process and other activities of subregional and regional fisheries
management organisations and arrangements.
2. Representatives from other intergovernmental organisations and
representatives from non-governmental organisations concerned with
straddling fish stocks and highly migratory fish stocks shall be
afforded the opportunity to take part in meetings of subregional and
regional fisheries management organisations and arrangements as
observers or otherwise, as appropriate, in accordance with the
procedures of the organisation or arrangement concerned. Such
procedures shall not be unduly restrictive in this respect. Such
intergovernmental organisations and non-governmental organisations
shall have timely access to the records and reports of such
organisations and arrangements, subject to the procedural rules on
access to them.
Article 13
Strengthening of existing organisations and arrangements
States shall cooperate to strengthen existing subregional and
regional fisheries management organisations and arrangements in
order to improve their effectiveness in establishing and
implementing conservation and management measures for straddling
fish stocks and highly migratory fish stocks.
Article 14
Collection and provision of information and cooperation in
scientific research
1. States shall ensure that fishing vessels flying their flag
provide such information as may be necessary in order to fulfil
their obligations under this Agreement. To this end, States shall in
accordance with Annex I:
(a) collect and exchange scientific, technical and statistical data
with respect to fisheries for straddling fish stocks and highly
migratory fish stocks;
(b) ensure that data are collected in sufficient detail to
facilitate effective stock assessment and are provided in a timely
manner to fulfil the requirements of subregional or regional
fisheries management organisations or arrangements, and
(c) take appropriate measures to verify the accuracy of such data.
2. States shall cooperate, either directly or through subregional or
regional fisheries management organisations or arrangements:
(a) to agree on the specification of data and the format in which
they are to be provided to such organisations or arrangements,
taking into account the nature of the stocks and the fisheries for
those stocks, and
(b) to develop and share analytical techniques and stock assessment
methodologies to improve measures for the conservation and
management of straddling fish stocks and highly migratory fish
stocks.
3. Consistent with Part XIII of the Convention, States shall
cooperate, either directly or through competent international
organisations, to strengthen scientific research capacity in the
field of fisheries and promote scientific research related to the
conservation and management of straddling fish stocks and highly
migratory fish stocks for the benefit of all. To this end, a State
or the competent international organisation conducting such research
beyond areas under national jurisdiction shall actively promote the
publication and dissemination to any interested States of the
results of that research and information relating to its objectives
and methods and, to the extent practicable, shall facilitate the
participation of scientists from those States in such research.
Article 15
Enclosed and semi-enclosed seas
In implementing this Agreement in an enclosed or semi-enclosed sea,
States shall take into account the natural characteristics of that
sea and shall also act in a manner consistent with Part IX of the
Convention and other relevant provisions thereof.
Article 16
Areas of high seas surrounded entirely by an area under the national
jurisdiction of a single State
1. States fishing for straddling fish stocks and highly migratory
fish stocks in an area of the high seas surrounded entirely by an
area under the national jurisdiction of a single State and the
latter State shall cooperate to establish conservation and
management measures in respect of those stocks in the high seas
area. Having regard to the natural characteristics of the area,
States shall pay special attention to the establishment of
compatible conservation and management measures for such stocks
pursuant to Article 7. Measures taken in respect of the high seas
shall take into account the rights, duties and interests of the
coastal State under the Convention, shall be based on the best
scientific evidence available and shall also take into account any
conservation and management measures adopted and applied in respect
of the same stocks in accordance with Article 61 of the Convention
by the coastal State in the area under national jurisdiction. States
shall also agree on measures for monitoring, control, surveillance
and enforcement to ensure compliance with the conservation and
management measures in respect of the high seas.
2. Pursuant to Article 8, States shall act in good faith and make
every effort to agree without delay on conservation and management
measures to be applied in the carrying out of fishing operations in
the area referred to in paragraph 1. If, within a reasonable period
of time, the fishing States concerned and the coastal State are
unable to agree on such measures, they shall, having regard to
paragraph 1, apply Article 7(4)(5) and (6) relating to provisional
arrangements or measures. Pending the establishment of such
provisional arrangements or measures, the States concerned shall
take measures in respect of vessels flying their flag in order that
they not engage in fisheries which could undermine the stocks
concerned.
PART IV
NON-MEMBERS AND NON-PARTICIPANTS
Article 17
Non-members of organisations and non-participants in arrangements
1. A State which is not a member of a subregional or regional
fisheries management organisation or is not a participant in a
subregional or regional fisheries management arrangement, and which
does not otherwise agree to apply the conservation and management
measures established by such organisation or arrangment, is not
discharged from the obligation to cooperate, in accordance with the
Convention and this Agreement, in the conservation and management of
the relevant straddling fish stocks and highly migratory fish
stocks.
2. Such State shall not authorise vessels flying its flag to engage
in fishing operations for the straddling fish stocks or highly
migratory fish stocks which are subject to the conservation and
management measures established by such organisation or arrangement.
3. States which are members of a subregional or regional fisheries
management organisation or participants in a subregional or regional
fisheries management arrangement shall, individually or jointly,
request the fishing entities referred to in Article 1(3) which have
fishing vessels in the relevant area to cooperate fully with such
organisation or arrangement in implementing the conservation and
management measures it has established, with a view to having such
measures applied de facto as extensively as possible to fishing
activities in the relevant area. Such fishing entities shall enjoy
benefits from participation in the fishery commensurate with their
commitment to comply with conservation and management measures in
respect of the stocks.
4. States which are members of such organisation or participants in
such arrangement shall exchange information with respect to the
activities of fishing vessels flying the flags of States which are
neither members of the organisation nor participants in the
arrangement and which are engaged in fishing operations for the
relevant stocks. They shall take measures consistent with this
Agreement and international law to deter activities of such vessels
which undermine the effectiveness of subregional or regional
conservation and management measures.
PART V
DUTIES OF THE FLAG STATE
Article 18
Duties of the flag State
1. A State whose vessels fish on the high seas shall take such
measures as may be necessary to ensure that vessels flying its flag
comply with subregional and regional conservation and management
measures and that such vessels do not engage in any activity which
undermines the effectiveness of such measures.
2. A State shall authorise the use of vessels flying its flag for
fishing on the high seas only where it is able to exercise
effectively its responsibilities in respect of such vessels under
the Convention and this Agreement.
3. Measures to be taken by a State in respect of vessels flying its
flag shall include:
(a) control of such vessels on the high seas by mens of fishing
licences, authorisations or permits, in accordance with any
applicable procedures agreed at the subregional, regional or global
level;
(b) establishment of regulations:
(i) to apply terms and conditions to the licence, authorisation or
permit sufficient to fulfil any subregional, regional or global
obligations of the flag State,
(ii) to prohibit fishing on the high seas by vessels which are not
duly licensed or authorised to fish, or fishing on the high seas by
vessels otherwise than in accordance with the terms and conditions
of a licence, authorisation or permit,
(iii) to require vessels fishing on the high seas to carry the
licence, authorisation or permit on board at all times and to
produce it on demand for inspection by a duly authorised person,
(iv) to ensure that vessels flying its flag do not conduct
unauthorised fishing within areas under the national jurisdiction of
other States;
(c) establishment of a national record of fishing vessels authorised
to fish on the high seas and provision of access to the information
contained in that record on request by directly interested States,
taking into account any national laws of the flag State regarding
the release of such information;
(d) requirements for marking of fishing vessels and fishing gear for
identification in accordance with uniform and internationally
recognisable vessel and gear marking systems, such as the Food and
Agriculture Organisation of the United Nations Standard
Specifications for the Marking and Identification of Fishing
Vessels;
(e) requirements for recording and timely reporting of vessel
position, catch of target and non-target species, fishing effort and
other relevant fisheries data in accordance with subregional,
regional and global standards for collection of such data;
(f) requirements for verifying the catch of target and non-target
species through such means as observer programmes, inspection
schemes, unloading reports, supervision of transhipment and
monitoring of landed catches and market statistics;
(g) monitoring, control and surveillance of such vessels, their
fishing operations and related activities by, inter alia:
(i) the implementation of national inspection schemes and
subregional and regional schemes for cooperation in enforcement
pursuant to Articles 21 and 22, including requirements for such
vessels to permit access by duly authorised inspectors from other
States,
(ii) the implementation of national observer programmes and
subregional and regional observer programmes in which the flag State
is a participant, including requirements for such vessels to permit
access by observers from other States to carry out the functions
agreed under the programmes,
(iii) the development and implementation of vessel monitoring
systems, including, as appropriate, satellite transmitter systems,
in accordance with any national programmes and those which have been
subregionally, regionally or globally agreed among the States
concerned;
(h) regulation of transhipment on the high seas to ensure that the
effectiveness of conservation and management measures is not
undermined;
(i) regulation of fishing activities to ensure compliance with
subregional, regional or global measures, including those aimed at
minimising catches of non-target species.
4. Where there is a subregionally, regionally or globally agreed
system of monitoring, control and surveillance in effect, States
shall ensure that the measures they impose on vessels flying their
flag are compatible with that system.
PART VI
COMPLIANCE AND ENFORCEMENT
Article 19
Compliance and enforcement by the flag State
1. A State shall ensure compliance by vessels flying its flag with
subregional and regional conservation and management measures for
straddling fish stocks and highly migratory fish stocks. To this
end, that State shall:
(a) enforce such measures irrespective of where violations occur;
(b) investigate immediately and fully any alleged violation of
subregional or regional conservation and management measures, which
may include the physical inspection of the vessels concerned, and
report promptly to the State alleging the violation and the relevant
subregional or regional organisation or arrangements on the progress
and outcome of the investigation;
(c) require any vessel flying its flag to give information to the
investigating authority regarding vessel position, catches, fishing
gear, fishing operations and related activities in the area of an
alleged violation;
(d) if satisfied that sufficient evidence is available in respect of
an alleged violation, refer the case to its authorities with a view
to instituting proceedings without delay in accordance with its laws
and, where appropriate, detain the vessel concerned;
(e) ensure that, where it has been established, in accordance with
its laws, a vessel has been involved in the commission of a serious
violation of such measures, the vessel does not engage in fishing
operations on the high seas until such time as all outstanding
sanctions imposed by the flag State in respect of the violation have
been complied with.
2. All investigations and judicial proceedings shall be carried out
expeditiously. Sanctions applicable in respect of violations shall
be adequate in severity to be effective in securing compliance and
to discourage violations wherever they occur and shall deprive
offenders of the benefits accruing from their illegal activities.
Measures applicable in respect of masters and other officers of
fishing vessels shall include provisions which may permit, inter
alia, refusal, withdrawal or suspension of authorisations to serve
as masters or officers on such vessels.
Article 20
International cooperation in enforcement
1. States shall cooperate, either directly or through subregional or
regional fisheries management organisations or arrangements, to
ensure compliance with and enforcement of subregional and regional
conservation and management measures for straddling fish stocks and
highly migratory fish stocks.
2. A flag State conducting an investigation of an alleged violation
of conservation and management measures for straddling fish stocks
or highly migratory fish stocks may request the assistance of any
other State whose cooperation may be useful in the conduct of that
investigation. All States shall endeavour to meet reasonable
requests made by a flag State in connection with such
investigations.
3. A flag State may undertake such investigations directly, in
cooperation with other interested States or through the relevant
subregional or regional fisheries management organisation or
arrangement. Information on the progress and outcome of the
investigations shall be provided to all States having an interest
in, or affected by, the alleged violation.
4. States shall assist each other in identifying vessels reported to
have engaged in activities undermining the effectiveness of
subregional, regional or global conservation and management
measures.
5. States shall, to the extent permitted by national laws and
regulations, establish arrangements for making available to
prosecuting authorities in other States evidence relating to alleged
violations of such measures.
6. Where there are reasonable grounds for believing that a vessel on
the high seas has been engaged in unauthorised fishing within an
area under the jurisdiction of a coastal State, the flag State of
that vessel, at the request of the coastal State concerned, shall
immediately and fully investigate the matter. The flag State shall
cooperate with the coastal State in taking appropriate enforcement
action in such cases and may authorise the relevant authorities of
the coastal State to board and inspect the vessel on the high seas.
This paragraph is without prejudice to Article 111 of the
Convention.
7. States Parties which are members of a subregional or regional
fisheries management organisation or participants in a subregional
or regional fisheries management arrangement may take action in
accordance with international law, including through recourse to
subregional or regional procedures established for this purpose, to
deter vessels which have engaged in activities which undermine the
effectiveness of or otherwise violate the conservation and
management measures established by that organisation or arrangement
from fishing on the high seas in the subregion or region until such
time as appropriate action is taken by the flag State.
Article 21
Subregional and regional cooperation in enforcement
1. In any high seas area covered by a subregional or regional
fisheries management organisation or arrangement, a State Party
which is a member of such organisation or a participant in such
arrangement may, through its duly authorised inspectors, board and
inspect, in accordance with paragraph 2, fishing vessels flying the
flag of another State Party to this Agreement, whether or not such
State Party is also a member of the organisation or a participant in
the arrangement, for the purpose of ensuring compliance with
conservation and management measures for straddling fish stocks and
highly migratory fish stocks established by that organisation or
arrangement.
2. States shall establish, through subregional or regional fisheries
management organisations or arrangements, procedures for boarding
and inspection pursuant to paragraph 1, as well as procedures to
implement other provisions of this Article. Such procedures shall be
consistent with this Article and the basic procedures set out in
Article 22 and shall not discriminate against non-members of the
organisation or non-participants in the arrangement. Boarding and
inspection as well as any subsequent enforcement action shall be
conducted in accordance with such procedures. States shall give due
publicity to procedures established pursuant to this paragraph.
3. If, within two years of the adoption of this Agreement, any
organisation or arrangement has not established such procedures,
boarding and inspection pursuant to paragraph 1, as well as any
subsequent enforcement action, shall, pending the establishment of
such procedures, be conducted in accordance with this Article and
the basic procedures set out in Article 22.
4. Prior to taking action under this Article, inspecting States
shall, either directly or through the relevant subregional or
regional fisheries management organisation or arrangement, inform
all States whose vessels fish on the high seas in the subregion or
region of the form of identification issued to their duly authorised
inspectors. The vessels used for boarding and inspection shall be
clearly marked and identifiable as being on government service. At
the time of becoming a Party to this Agreement, a State shall
designate an appropriate authority to receive notifications pursuant
to this Article and shall give due publicity of such designation
through the relevant subregional or regional fisheries management
organisation or arrangement.
5. Where, following a boarding and inspection, there are clear
grounds for believing that a vessel has engaged in any activity
contrary to the conservation and management measures referred to in
paragraph 1, the inspecting State shall, where appropriate, secure
evidence and shall promptly notify the flag State of the alleged
violation.
6. The flag State shall respond to the notification referred to in
paragraph 5 within three working days of its receipt, or such other
period as may be prescribed in procedures established in accordance
with paragraph 2, and shall either:
(a) fulfil, without delay, its obligations under Article 19 to
investigate and, if evidence so warrants, take enforcement action
with respect to the vessel, in which case it shall promptly inform
the inspecting State of the results of the investigation and of any
enforcement action taken; or
(b) authorise the inspecting State to investigate.
7. Where the flag State authorises the inspecting State to
investigate an alleged violation, the inspecting State shall,
without delay, communicate the results of that investigation to the
flag State. The flag State shall, if evidence so warrants, fulfil
its obligations to take enforcement action with respect to the
vessel. Alternatively, the flag State may authorise the inspecting
State to take such enforcement action as the flag State may specify
with respect to the vessel, consistent with the rights and
obligations of the flag State under this Agreement.
8. Where, following boarding and inspection, there are clear grounds
for believing that a vessel has committed a serious violation, and
the flag State has either failed to respond or failed to take action
as required under paragraphs 6 or 7, the inspectors may remain on
board and secure evidence and may require the master to assist in
further investigation including, where appropriate, by bringing the
vessel without delay to the nearest appropriate port, or to such
other port as may be specified in procedures established in
accordance with paragraph 2. The inspecting State shall immediately
inform the flag State of the name of the port to which the vessel is
to proceed. The inspecting State and the flag State and, as
appropriate, the port State shall take all necessary steps to ensure
the well-being of the crew regardless of their nationality.
9. The inspecting State shall inform the flag State and the relevant
organisation or the participants in the relevant arrangement of the
results of any further investigation.
10. The inspecting State shall require its inspectors to observe
generally accepted international regulations, procedures and
practices relating to the safety of the vessel and the crew,
minimise interference with fishing operations and, to the extent
practicable, avoid action which would adversely affect the quality
of the catch on board. The inspecting State shall ensure that
boarding and inspection is not conducted in a manner that would
constitute harassment of any fishing vessel.
11. For the purposes of this Article, a serious violation means:
(a) fishing without a valid licence, authorisation or permit issued
by the flag State in accordance with Article 18(3)(a);
(b) failing to maintain accurate records of catch and catch-related
data, as required by the relevant subregional or regional fisheries
management organisation or arrangement, or serious misreporting of
catch, contrary to the catch reporting requirements of such
organisation or arrangement;
(c) fishing in a closed area, fishing during a closed season or
fishing without, or after attainment of, a quota established by the
relevant subregional or regional fisheries management organisation
or arrangement;
(d) directed fishing for a stock which is subject to a moratorium or
for which fishing is prohibited;
(e) using prohibited fishing gear;
(f) falsifying or concealing the markings, identity or registration
of a fishing vessel;
(g) concealing, tampering with or disposing of evidence relating to
an investigation;
(h) multiple violations which together constitute a serious
disregard of conservation and management measures; or
(i) such other violations as may be specified in procedures
established by the relevant subregional or regional fisheries
management organisation or arrangement.
12. Notwithstanding the other provisions of this Article, the flag
State may, at any time, take action to fulfil its obligations under
Article 19 with respect to an alleged violation. Where the vessel is
under the direction of the inspecting State, the inspecting State
shall, at the request of the flag State, release the vessel to the
flag State along with full information on the progress and outcome
of its investigation.
13. This Article is without prejudice to the right of the flag State
to take any measures, including proceedings to impose penalties,
according to its laws.
14. This Article applies mutatis mutandis to boarding and inspection
by a State Party which is a member of a subregional or regional
fisheries management organisation or a participant in a subregional
or regional fisheries management arrangement and which has clear
grounds for believing that a fishing vessel flying the flag of
another State Party has engaged in any activity contrary to relevant
conservation and management measures referred to in paragraph 1 in
the high seas area covered by such organisation or arrangement, and
such vessel has subsequently, during the same fishing trip, entered
into an area under the national jurisdiction of the inspecting
State.
15. Where a subregional or regional fisheries management
organisation or arrangement has established an alternative mechanism
which effectively discharges the obligation under this Agreement of
its members or participants to ensure compliance with the
conservation and management measures established by the organisation
or arrangement, members of such organisation or participants in such
arrangement may agree to limit the application of paragraph 1 as
between themselves in respect of the conservation and management
measures which have been established in the relevant high seas area.
16. Action taken by States other than the flag State in respect of
vessels having engaged in activities contrary to subregional or
regional conservation and management measures shall be proportionate
to the seriousness of the violation.
17. Where there are reasonable grounds for suspecting that a fishing
vessel on the high seas is without nationality, a State may board
and inspect the vessel. Where evidence so warrants, the State may
take such action as may be appropriate in accordance with
international law.
18. States shall be liable for damage or loss attributable to them
arising from action taken pursuant to this Article when such action
is unlawful or exceeds that reasonably required in the light of
available information to implement the provisions of this Article.
Article 22
Basic procedures for boarding and inspection pursuant to Article 21
1. The inspecting State shall ensure that its duly authorised
inspectors:
(a) present credentials to the master of the vessel and produce a
copy of the text of the relevant conservation and management
measures or rules and regulations in force in the high seas area in
question, pursuant to those measures;
(b) initiate notice to the flag State at the time of the boarding
and inspection;
(c) do not interfere with the master's ability to communicate with
the authorities of the flag State during the boarding and
inspection;
(d) provide a copy of a report on the boarding and inspection to the
master and to the authorities of the flag State, noting therein any
objection or statement which the master wishes to have included in
the report;
(e) promptly leave the vessel following completion of the inspection
if they find no evidence of a serious violation; and
(f) avoid the use of force except when and to the degree necessary
to ensure the safety of the inspectors and where the inspectors are
obstructed in the execution of their duties. The degree of force
used shall not exceed that reasonably required in the circumstances.
2. The duly authorised inspectors of an inspecting State shall have
the authority to inspect the vessel, its licence, gear, equipment,
records, facilities, fish and fish products and any relevant
documents necessary to verify compliance with the relevant
conservation and management measures.
3. The flag State shall ensure that vessel masters:
(a) accept and facilitate prompt and safe boarding by the
inspectors;
(b) cooperate with and assist in the inspection of the vessel
conducted pursuant to these procedures;
(c) do not obstruct, intimidate or interfere with the inspectors in
the performance of their duties;
(d) allow the inspectors to communicate with the authorities of the
flag State and the inspecting State during the boarding and
inspection;
(e) provide reasonable facilities, including, where appropriate,
food and accommodation, to the inspectors;
(f) facilitate safe disembarkation by the inspectors.
4. In the event that the master of a vessel refuses to accept
boarding and inspection in accordance with this Article and Article
21, the flag State shall, except in circumstances where, in
accordance with generally accepted international regulations,
procedures and practices relating to safety at sea, it is necessary
to delay the boarding and inspection, direct the master of the
vessel to submit immediately to boarding and inspection and, if the
master does not comply with such direction, shall suspend the
vessel's authorisation to fish and order the vessel to return
immediately to port. The flag State shall advise the inspecting
State of the action it has taken when the circumstances referred to
in this paragraph arise.
Article 23
Measures taken by a port State
1. A port State has the right and the duty to take measures, in
accordance with international law, to promote the effectiveness of
subregional, regional and global conservation and management
measures. When taking such measures a port State shall not
discriminate in form or in fact against the vessels of any State.
2. A port State may, inter alia, inspect documents, fishing gear and
catch on board fishing vessels, when such vessels are voluntarily in
its ports or at its offshore terminals.
3. States may adopt regulations empowering the relevant national
authorities to prohibit landings and transhipments where it has been
established that the catch has been taken in a manner which
undermines the effectiveness of subregional, regional or global
conservation and management measures on the high seas.
4. Nothing in this Article affects the exercise by States of their
sovereignty over ports in their territory in accordance with
international law.
PART VII
REQUIREMENTS OF DEVELOPING STATES
Article 24
Recognition of the special requirements of developing States
1. States shall give full recognition to the special requirements of
developing States in relation to conservation and management of
straddling fish stocks and highly migratory fish stocks and
development of fisheries for such stocks. To this end, States shall,
either directly or through the United Nations Development Programme,
the Food and Agriculture Organisation of the United Nations and
other specialised agencies, the Global Environment Facility, the
Commission on Sustainable Development and other appropriate
international and regional organisations and bodies, provide
assistance to developing States.
2. In giving effect to the duty to cooperate in the establishment of
conservation and management measures for straddling fish stocks and
highly migratory fish stocks, States shall take into account the
special requirements of developing States, in particular:
(a) the vulnerability of developing States which are dependent on
the exploitation of living marine resources, including for meeting
the nutritional requirements of their populations or parts thereof;
(b) the need to avoid adverse impacts on, and ensure access to
fisheries by, subsistence, small-scale and artisanal fishers and
women fishworkers, as well as indigenous people in developing
States, particularly small island developing States;
(c) the need to ensure that such measures do not result in
transferring, directly or indirectly, a disproportionate burden of
conservation action onto developing States.
Article 25
Forms of cooperation with developing States
1. States shall cooperate, either directly or through subregional,
regional or global organisations:
(a) to enhance the ability of developing States, in particular the
least-developed among them and small island developing States, to
conserve and manage straddling fish stocks and highly migratory fish
stocks and to develop their own fisheries for such stocks;
(b) to assist developing States, in particular the least-developed
among them and small island developing States, to enable them to
participate in high seas fisheries for such stocks, including
facilitating access to such fisheries subject to Articles 5 and 11;
(c) to facilitate the participation of developing States in
subregional and regional fisheries management organisations and
arrangements.
2. Cooperation with developing States for the purposes set out in
this Article shall include the provision of financial assistance,
assistance relating to human resources development, technical
assistance, transfer of technology, including through joint-venture
arrangements, and advisory and consultative services.
3. Such assistance shall, inter alia, be directed specifically
towards:
(a) improved conservation and management of straddling fish stocks
and highly migratory fish stocks through collection, reporting,
verification, exchange and analysis of fisheries data and related
information;
(b) stock assessment and scientific research;
(c) monitoring, control, surveillance, compliance and enforcement,
including training and capacity-building at the local level,
development and funding of national and regional observer programmes
and access to technology and equipment.
Article 26
Special assistance in the implementation of this Agreement
1. States shall cooperate to establish special funds to assist
developing States in the implementation of this Agreement, including
assisting developing States to meet the costs involved in any
proceedings for the settlement of disputes to which they may be
parties.
2. States and international organisations should assist developing
States in establishing new subregional or regional fisheries
management organisations or arrangements, or in strengthening
existing organisations or arrangements, for the conservation and
management of straddling fish stocks and highly migratory fish
stocks.
PART VIII
PEACEFUL SETTLEMENT OF DISPUTES
Article 27
Obligation to settle disputes by peaceful means
States have the obligation to settle their disputes by negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other peaceful means
of their own choice.
Article 28
Prevention of disputes
States shall cooperate in order to prevent disputes. To this end,
States shall agree on efficient and expeditious decision-making
procedures within subregional and regional fisheries management
organisations and arrangements and shall strengthen existing
decision-making procedures as necessary.
Article 29
Disputes of a technical nature
Where a dispute concerns a matter of a technical nature, the States
concerned may refer the dispute to an ad hoc expert panel
established by them. The panel shall confer with the States
concerned and shall endeavour to resolve the dispute expeditiously
without recourse to binding procedures for the settlement of
disputes.
Article 30
Procedures for the settlement of disputes
1. The provisions relating to the settlement of disputes set out in
Part XV of the Convention apply mutatis mutandis to any dispute
between States Parties to this Agreement concerning the
interpretation or application of this Agreement, whether or not they
are also Parties to the Convention.
2. The provisions relating to the settlement of disputes set out in
Part XV of the Convention apply mutatis mutandis to any dispute
between States Parties to this Agreement concerning the
interpretation or application of a subregional, regional or global
fisheries agreement relating to straddling fish stocks or highly
migratory fish stocks to which they are parties, including any
dispute concerning the conservation and management of such stocks,
whether or not they are also Parties to the Convention.
3. Any procedure accepted by a State Party to this Agreement and the
Convention pursuant to Article 287 of the Convention shall apply to
the settlement of disputes under this Part, unless that State Party,
when signing, ratifying or acceding to this Agreement, or at any
time thereafter, has accepted another procedure pursuant to Article
287 for the settlement of disputes under this Part.
4. A State Party to this Agreement which is not a Party to the
Convention, when signing, ratifying or acceding to this Agreement,
or at any time thereafter, shall be free to choose, by means of a
written declaration, one or more of the means set out in Article
287(1), of the Convention for the settlement of disputes under this
Part. Article 287 shall apply to such a declaration, as well as to
any dispute to which such State is a party which is not covered by a
declaration in force. For the purposes of conciliation and
arbitration in accordance with Annexes V, VII and VIII to the
Convention, such State shall be entitled to nominate conciliators,
arbitrators and experts to be included in the lists referred to in
Annex V, Article 2, Annex VII, Article 2, and Annex VIII, Article 2,
for the settlement of disputes under this Part.
5. Any court or tribunal to which a dispute has been submitted under
this Part shall apply the relevant provisions of the Convention, of
this Agreement and of any relevant subregional, regional or global
fisheries agreement, as well as generally accepted standards for the
conservation and management of living marine resources and other
rules of international law not incompatible with the Convention,
with a view to ensuring the conservation of the straddling fish
stocks and highly migratory fish stocks concerned.
Article 31
Provisional measures
1. Pending the settlement of a dispute in accordance with this Part,
the parties to the dispute shall make every effort to enter into
provisional arrangements of a practical nature.
2. Without prejudice to Article 290 of the Convention, the court or
tribunal to which the dispute has been submitted under this Part may
prescribe any provisional measures which it considers appropriate
under the circumstances to preserve the respective rights of the
parties to the dispute or to prevent damage to the stocks in
question, as well as in the circumstances referred to in Article
7(5), and Article 16(2).
3. A State Party to this Agreement which is not a Party to the
Convention may declare that, notwithstanding Article 290(5), of the
Convention, the International Tribunal for the Law of the Sea shall
not be entitled to prescribe, modify or revoke provisional measures
without the agreement of such State.
Article 32
Limitations on applicability of procedures for the settlement of
disputes
Article 297(3), of the Convention applies also to this Agreement.
PART IX
NON-PARTIES TO THIS AGREEMENT
Article 33
Non-parties to this Agreement
1. States Parties shall encourage non-parties to this Agreement to
become parties thereto and to adopt laws and regulations consistent
with its provisions.
2. States Parties shall take measures consistent with this Agreement
and international law to deter the activities of vessels flying the
flag of non-parties which undermine the effective implementation of
this Agreement.
PART X
GOOD FAITH AND ABUSE OF RIGHTS
Article 34
Good faith and abuse of rights
States Parties shall fulfil in good faith the obligations assumed
under this Agreement and shall exercise the rights recognised in
this Agreement in a manner which would not constitute an abuse of
right.
PART XI
RESPONSIBILITY AND LIABILITY
Article 35
Responsibility and liability
States Parties are liable in accordance with international law for
damage or loss attributable to them in regard to this Agreement.
PART XII
REVIEW CONFERENCE
Article 36
Review conference
1. Four years after the date of entry into force of this Agreement,
the Secretary-General of the United Nations shall convene a
conference with a view to assessing the effectiveness of this
Agreement in securing the conservation and management of straddling
fish stocks and highly migratory fish stocks. The Secretary-General
shall invite to the conference all States Parties and those States
and entities which are entitled to become Parties to this Agreement
as well as those intergovernmental and non-governmental
organisations entitled to participate as observers.
2. The Conference shall review and assess the adequacy of the
provisions of this Agreement and, if necessary, propose means of
strengthening the substance and methods of implementation of those
provisions in order better to address any continuing problems in the
conservation and management of straddling fish stocks and highly
migratory fish stocks.
PART XIII
FINAL PROVISIONS
Article 37
Signature
This Agreement shall be open for signature by all States and the
other entities referred to in Article 1(2)(b), and shall remain open
for signature at United Nations Headquarters for 12 months from the
4 December 1995.
Article 38
Ratification
This Agreement is subject to ratification by States and the other
entities referred to in Article 1(2)(b). The instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.
Article 39
Accession
This Agreement shall remain open for accession by States and the
other entities referred to in Article 1(2)(b). The instruments of
accession shall be deposited with the Secretary-General of the
United Nations.
Article 40
Entry into force
1. This Agreement shall enter into force 30 days after the date of
deposit of the 30th instrument of ratification or accession.
2. For each State or entity which ratifies the Agreement or accedes
thereto after the deposit of the 30th instrument of ratification or
accession, this Agreement shall enter into force on the 30th day
following the deposit of its instrument of ratification or
accession.
Article 41
Provisional application
1. This Agreement shall be applied provisionally by a State or
entity which consents to its provisional application by so notifying
the depositary in writing. Such provisional application shall become
effective from the date of receipt of the notification.
2. Provisional application by a State or entity shall terminate on
the entry into force of this agreement for that State or entity or
on notification by that State or entity to the depositary in writing
of its intention to terminate provisional application.
Article 42
Reservations and exceptions
No reservations or exceptions may be made to this Agreement.
Article 43
Declarations and statements
Article 42 does not preclude a State or entity, when signing,
ratifying or acceding to this Agreement, from making declarations or
statements, however phrased or named, with a view, inter alia, to
the harmonisation of its laws and regulations with the provisions of
this Agreement, provided that such declarations or statements do not
purport to exclude or to modify the legal effect of the provisions
of this Agreement in their application to that State or entity.
Article 44
Relation to other agreements
1. This Agreement shall not alter the rights and obligations of
States Parties which arise from other agreements compatible with
this Agreement and which do not affect the enjoyment by other States
Parties of their rights or the performance of their obligations
under this Agreement.
2. Two or more States Parties may conclude agreements modifying or
suspending the operation of provisions of this Agreement, applicable
solely to the relations between them, provided that such agreements
do not relate to a provision derogation from which is incompatible
with the effective execution of the object and purpose of this
Agreement, and provided further that such agreements shall not
affect the application of the basic principles embodied herein, and
that the provisions of such agreements do not affect the enjoyment
by other States Parties of their rights or the performance of their
obligations under this Agreement.
3. States Parties intending to conclude an agreement referred to in
paragraph 2 shall notify the other States Parties through the
depositary of this Agreement of their intention to conclude the
agreement and of the modification or suspension for which it
provides.
Article 45
Amendment
1. A State Party may, by written communication addressed to the
Secretary-General of the United Nations, propose amendments to this
Agreement and request the convening of a conference to consider such
proposed amendments. The Secretary-General shall circulate such
communication to all States Parties. If, within six months from the
date of the circulation of the communication, not less than one half
of the States Parties reply favourably to the request, the
Secretary-General shall convene the conference.
2. The decision-making procedure applicable at the amendment
conference convened pursuant to paragraph 1 shall be the same as
that applicable at the United Nations Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks, unless otherwise decided by
the conference. The conference should make every effort to reach
agreement on any amendments by way of consensus and there should be
no voting on them until all efforts at consensus have been
exhausted.
3. Once adopted, amendments to this agreement shall be open for
signature at United Nations Headquarters by States Parties for 12
months from the date of adoption, unless otherwise provided in the
amendment itself.
5. Amendments to this Agreement shall enter into force for the
States Parties ratifying or acceding to them on the 30th day
following the deposit of instruments of ratification or accession by
two thirds of the States Parties. Thereafter, for each State Party
ratifying or acceding to an amendment after the deposit of the
required number of such instruments, the amendment shall enter into
force on the 30th day following the deposit of its instrument of
ratification or accession.
6. An amendment may provide that a smaller or a larger number of
ratifications or accessions shall be required for its entry into
force than are required by this Article.
7. A State which becomes a Party to this Agreement after the entry
into force of amendments in accordance with paragraph 5 shall,
failing an expression of a different intention by that State:
(a) be considered as a Party to this Agreement as so amended;
(b) be considered as a Party to the unamended Agreement in relation
to any State Party not bound by the amendment.
Article 46
Denunciation
1. A State Party may, by written notification addressed to the
Secretary-General of the United Nations, denounce this Agreement and
may indicate its reasons. Failure to indicate reasons shall not
affect the validity of the denunciation. The denunciation shall take
effect one year after the date of receipt of the notification,
unless the notification specifies a later date.
2. The denunciation shall not in any way affect the duty of any
State Party to fulfil any obligation embodied in this Agreement to
which it would be subject under international law independently of
this Agreement.
Article 47
Participation by international organisations
1. In cases where an international organisation referred to in Annex
IX, Article 1, of the Convention does not have competence over all
the matters governed by this Agreement, Annex IX to the Convention
shall apply mutatis mutandis to participation by such international
organisation in this Agreement, except that the following provisions
of that Annex shall not apply:
(a) Article 2, first sentence;
(b) Article 3(1).
2. In cases where an international organisation referred to in Annex
IX, Article 1, of the Convention has competence over all the matters
governed by this Agreement, the following provisions shall apply to
participation by such international organisation in this Agreement:
(a) at the time of signature or accession, such international
organisation shall make a declaration stating:
(i) that it has competence over all the matters governed by this
Agreement;
(ii) that, for this reason, its Member States shall not become
States Parties, except in respect of their territories for which the
international organisation has no responsibility;
(iii) that it accepts the rights and obligations of States under
this Agreement;
(b) participation of such an international organisation shall in no
case confer any rights under this Agreement on Member States of the
international organisation;
(c) in the event of a conflict between the obligations of an
international organisation under this Agreement and its obligations
under the agreement establishing the international organisation or
any acts relating to it, the obligations under this Agreement shall
prevail.
Article 48
Annexes
1. The Annexes form an integral part of this Agreement and, unless
expressly provided otherwise, a reference to this Agreement or to
one of its Parts includes a reference to the Annexes relating
thereto.
2. The Annexes may be revised from time to time by States Parties.
Such revisions shall be based on scientific and technical
considerations. Notwithstanding the provisions of Article 45, if a
revision to an Annex is adopted by consensus at a meeting of States
Parties, it shall be incorporated in this Agreement and shall take
effect from the date of its adoption or from such other date as may
be specified in the revision. If a revision to an Annex is not
adopted by consensus at such a meeting, the amendment procedures set
out in Article 45 shall apply.
Article 49
Depositary
The Secretary-General of the United Nations shall be the depositary
of this Agreement and any amendments or revisions thereto.
Article 50
Authentic texts
The Arabic, Chinese, English, French, Russian and Spanish texts of
this Agreement are equally authentic.
In witness whereof, the undersigned Plenipotentiaries, being duly
authorised thereto, have signed this Agreement.
Opened for signature at New York, this fourth day of December, one
thousand nine hundred and ninety-five, in a single original, in the
Arabic, Chinese, English, French, Russian and Spanish languages.
Annex I
STANDARD REQUIREMENTS FOR THE COLLECTION AND SHARING OF DATA
Article 1
General principles
1. The timely collection, compilation and analysis of data are
fundamental to the effective conservation and management of
straddling fish stocks and highly migratory fish stocks. To this
end, data from fisheries for these stocks on the high seas and those
in areas under national jurisdiction are required and should be
collected and compiled in such a way as to enable statistically
meaningful analysis for the purposes of fishery resource
conservation and management. These data include catch and fishing
effort statistics and other fishery-related information, such as
vessel-related and other data for standardising fishing effort. Data
collected should also include information on non-target and
associated or dependent species. All data should be verified to
ensure accuracy. Confidentiality of non-aggregated data shall be
maintained. The dissemination of such data shall be subject to the
terms on which they have been provided.
2. Assistance, including training as well as financial and technical
assistance, shall be provided to developing States in order to build
capacity in the field of conservation and management of living
marine resources. Assistance should focus on enhancing capacity to
implement data collection and verification, observer programmes,
data analysis and research projects supporting stock assessments.
The fullest possible involvement of developing State scientists and
managers in conservation and management of straddling fish stocks
and highly migratory fish stocks should be promoted.
Article 2
Principles of data collection, compilation and exchange
The following general principles should be considered in defining
the parameters for collection, compilation and exchange of data from
fishing operations for straddling fish stocks and highly migratory
fish stocks:
(a) States should ensure that data are collected from vessels flying
their flag on fishing activities according to the operational
characteristics of each fishing method (e.g., each individual tow
for trawl, each set for long-line and purse-seine, each school
fished for pole-and-line and each day fished for troll) and in
sufficient detail to facilitate effective stock assessment;
(b) States should ensure that fishery data are verified through an
appropriate system;
(c) States should compile fishery-related and other supporting
scientific data and provide them in an agreed format and in a timely
manner to the relevant subregional or regional fisheries management
organisation or arrangement where one exists. Otherwise, States
should cooperate to exchange data either directly or through such
other cooperative mechanisms as may be agreed among them;
(d) States should agree, within the framework of subregional or
regional fisheries management organisations or arrangements, or
otherwise, on the specification of data and the format in which they
are to be provided, in accordance with this Annex and taking into
account the nature of the stocks and the fisheries for those stocks
in the region. Such organisations or arrangements should request
non-members or non-participants to provide data concerning relevant
fishing activities by vessels flying their flag;
(e) such organisations or arrangements shall compile data and make
them available in a timely manner and in an agreed format to all
interested States under the terms and conditions established by the
organisation or arrangement; and
(f) scientists of the flag State and from the relevant subregional
or regional fisheries management organisation or arrangement should
analyse the data separately or jointly, as appropriate.
Article 3
Basic fishery data
1. States shall collect and make available to the relevant
subregional or regional fisheries management organisation or
arrangement the following types of data in sufficient detail to
facilitate effective stock assessment in accordance with agreed
procedures:
(a) time series of catch and effort statistics by fishery and fleet;
(b) total catch in number, nominal weight, or both, by species (both
target and non-target) as is appropriate to each fishery. (Nominal
weight is defined by the Food and Agriculture Organisation of the
United Nations as the live-weight equivalent of the landings);
(c) discard statistics, including estimates where necessary,
reported as number or nominal weight by species, as is appropriate
to each fishery;
(d) effort statistics appropriate to each fishing method;
(e) fishing location, date and time fished and other statistics on
fishing operations as appropriate.
2. States shall also collect where appropriate and provide to the
relevant subregional or regional fisheries management organisation
or arrangement information to support stock assessment, including:
(a) composition of the catch according to length, weight and sex;
(b) other biological information supporting stock assessments, such
as information on age, growth, recruitment, distribution and stock
identity;
(c) other relevant research, including surveys of abundance, biomass
surveys, hydro-acoustic surveys, research on environmental factors
affecting stock abundance, and oceanographic and ecological studies.
Article 4
Vessel data and information
1. States should collect the following types of vessel-related data
for standardising fleet composition and vessel fishing power and for
converting between different measures of effort in the analysis of
catch and effort data:
(a) vessel identification, flag and port of registry;
(b) vessel type;
(c) vessel specifications (e.g., material of construction, date
built, registered length, gross registered tonnage, power of main
engines, hold capacity and catch storage methods);
(d) fishing gear description (e.g., types, gear specifications and
quantity).
2. The flag State will collect the following information:
(a) navigation and position fixing aids;
(b) communication equipment and international radio call sign;
(c) crew size.
Article 5
Reporting
A State shall ensure that vessels flying its flag sends to its
national fisheries administration and, where agreed, to the relevant
subregional or regional fisheries management organisation or
arrangement, logbook-data on catch and effort, including data on
fishing operations on the high seas, at sufficiently frequent
intervals to meet national requirements and regional and
international obligations. Such data shall be transmitted, where
necessary, by radio, telex, fax or satellite transmission or by
other means.
Article 6
Data verification
States or, as appropriate, subregional or regional fisheries
management organisations or arrangements should establish mechanisms
for verifying fishery data, such as:
(a) position verification through vessel monitoring systems;
(b) scientific observer programmes to monitor catch, effort, catch
composition (target and non-target) and other details of fishing
operations;
(c) vessel trip, landing and transshipment reports;
(d) port sampling.
Article 7
Data exchange
1. Data collected by flag States must be shared with other flag
States and relevant coastal States through appropriate subregional
or regional fisheries management organisations or arrangements. Such
organisations or arrangements shall compile data and make them
available in a timely manner and in an agreed format to all
interested States under the terms and conditions established by the
organisation or arrangement, while maintaining confidentiality of
non-aggregated data, and should, to the extent feasible, develop
database systems which provide efficient access to data.
2. At the global level, collection and dissemination of data should
be effected through the Food and Agriculture Organisation of the
United Nations. Where a subregional or regional fisheries management
organisation or arrangement does not exist, that organization may
also do the same at the subregional or regional level by arrangement
with the States concerned.
Annex II
GUIDELINES FOR THE APPLICATION OF PRECAUTIONARY REFERENCE POINTS IN
CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY
MIGRATORY FISH STOCKS
1. A precautionary reference point is an estimated value derived
through an agreed scientific procedure, which corresponds to the
state of the resource and of the fishery, and which can be used as a
guide for fisheries management.
2. Two types of precautionary reference points should be used:
conservation, or limit, reference points and management, or target,
reference points. Limit reference points set boundaries which are
intended to constrain harvesting within safe biological limits
within which the stocks can produce maximum sustainable yield.
Target reference points are intended to meet management objectives.
3. Precautionary reference points should be stock-specific to
account, inter alia, for the reproductive capacity, the resilience
of each stock and the characteristics of fisheries exploiting the
stock, as well as other sources of mortality and major sources of
uncertainty.
4. Management strategies shall seek to maintain or restore
populations of harvested stocks, and where necessary associated or
dependent species, at levels consistent with previously agreed
precautionary reference points. Such reference points shall be used
to trigger pre-agreed conservation and management action. Management
strategies shall include measures which can be implemented when
precautionary reference points are approached.
5. Fishery management strategies shall ensure that the risk of
exceeding limit reference points is very low. If a stock falls below
a limit reference point or is at risk of falling below such a
reference point, conservation and management action should be
initiated to facilitate stock recovery. Fishery management
strategies shall ensure that target reference points are not
exceeded on average.
6. When information for determining reference points for a fishery
is poor or absent, provisional reference points shall be set.
Provisional reference points may be established by analogy to
similar and better-known stocks. In such situations, the fishery
shall be subject to enhanced monitoring so as to enable revision of
provisional reference points as improved information becomes
available.
7. The fishing mortality rate which generates maximum sustainable
yield should be regarded as a minimum standard for limit reference
points. For stocks which are not overfished, fishery management
strategies shall ensure that fishing mortality does not exceed that
which corresponds to maximum sustainable yield, and that the biomass
does not fall below a predefined threshold. For overfished stocks,
the biomass which would produce maximum sustainable yield can serve
as a rebuilding target.
ANNEX B
Declaration concerning the competence of the European Community with
regard to matters governed by the Agreement on the implementation of
the provisions of the United Nations Convention on the Law of the
Sea of 10 December 1982 relating to the conservation and management
of straddling fish stocks and highly migratory fish stocks
(Declaration made pursuant to Article 47 of the Agreement)
1. Article 47(1) of the Agreement on the implementation of the
provisions of the United Nations Convention on the Law of the Sea
relating to the conservation and management of straddling fish
stocks and highly migratory fish stocks provides that in cases where
an international organisation referred to in Annex IX, Article 1, of
the Convention does not have competence over all the matters
governed by the Agreement, Annex IX of the Convention (with the
exception of Article 2, first sentence, and Article 3(1)) shall
apply mutatis mutandis to participation by such international
organisation in the Agreement.
2. The current members of the Community are the Kingdom of Belgium,
the Kingdom of Denmark, the Federal Republic of Germany, the
Hellenic Republic, the Kingdom of Spain, the French Republic,
Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the
Kingdom of the Netherlands, the Republic of Austria, the Portuguese
Republic, the Republic of Finland, the Kingdom of Sweden and the
United Kingdom of Great Britain and Northern Ireland.
3. The Agreement on the implementation of the provisions of the
United Nations Convention on the Law of the Sea relating to the
conservation and management of straddling fish stocks and highly
migratory fish stocks shall apply, with regard to the competences
transferred to the European Community, to the territories in which
the Treaty establishing the European Community is applied and under
the conditions laid down in that Treaty, in particular Article 227
thereof.
4. This declaration is not applicable in the case of the territories
of the Member States in which the said Treaty does not apply and is
without prejudice to such acts or positions as may be adopted under
the Agreement by the Member States concerned on behalf of and in the
interests of those territories.
I. MATTERS FOR WHICH THE COMMUNITY HAS EXCLUSIVE COMPETENCE
5. The Community points out that its Member States have transferred
competence to it with regard to the conservation and management of
living marine resources. Hence, in this field, it is for the
Community to adopt the relevant rules and regulations (which the
Member States enforce) and within its competence to enter into
external undertakings with third States or competent organisations.
This competence applies in regard of waters under national fisheries
jurisdiction and to the high seas.
6. The Community enjoys the regulatory competence granted under
international law to the flag State of a vessel to determine the
conservation and management measures for marine fisheries resources
applicable to vessels flying the flag of Member States and to ensure
that Member States adopt provisions allowing for the implementation
of the said measures.
7. Nevertheless, measures applicable in respect of masters and other
officers of fishing vessels, for example refusal, withdrawal or
suspension of authorisations to serve as such, are within the
competence of the Member States in accordance with their national
legislation.
Measures relating to the exercise of jurisdiction by the flag State
over its vessels on the high seas, in particular provisions such as
those related to the taking and relinquishing of control of fishing
vessels by States other than the flag State, international
cooperation in respect of enforcement and the recovery of the
control of their vessels, are within the competence of the Member
States in compliance with Community law.
II. MATTERS FOR WHICH BOTH THE COMMUNITY AND ITS MEMBER STATES HAVE
COMPETENCE
8. The Community shares competence with its Member States on the
following matters governed by this Agreement: requirements of
developing States, scientific research, port-State measures and
measures adopted in respect of non-members of regional fisheries
organisations and non-Parties to the Agreement.
The following provisions of the Agreement apply both to the
Community and to its Member States:
- general provisions: (Articles 1, 4 and 34 to 50),
- dispute settlement: (Part VIII).
ANNEX C
Interpretative declarations to be deposited by the Community and its
Member States on ratification of the Agreement
1. The European Community and its Member States understand that the
terms 'geographical particularities`, 'specific characteristics of
the sub-region or region`, 'socioeconomic geographical and
environmental factors`, 'natural characteristics of that sea` or any
other similar terms employed in reference to a geographical region
do not prejudice the rights and duties of States under international
law.
2. The European Community and its Member States understand that no
provision of this Agreement may be interpreted in such a way as to
conflict with the principle of freedom of the high seas, recognised
by international law.
3. The European Community and its Member States understand that the
term 'States whose nationals fish on the high seas` shall not
provide any new grounds for jurisdiction based on the nationality of
persons involved in fishing on the high seas rather than on the
principle of flag State jurisdiction.
4. The Agreement does not grant any State the right to maintain or
apply unilateral measures during the transitional period as referred
to in Article 21(3). Thereafter, if no agreement has been reached,
States shall act only in accordance with the provisions provided for
in Articles 21 and 22 of the Agreement.
5. Regarding the application of Article 21, the European Community
and its Member States understand that, when a flag State declares
that it intends to exercise its authority, in accordance with the
provisions in Article 19, over a fishing vessel flying its flag, the
authorities of the inspecting State shall not purport to exercise
any further authority under the provisions of Article 21 over such a
vessel.
Any dispute related to this issue shall be settled in accordance
with the procedures provided for in Part VIII of the Agreement. No
State may invoke this type of dispute to remain in control of a
vessel which does not fly its flag.
In addition, the European Community and its Member States consider
that the word 'unlawful` in Article 21(18) of the Agreement should
be interpreted in the light of the whole Agreement, and in
particular, Articles 4 and 35 thereof.
6. The European Community and its Member States reiterate that all
States shall refrain in their relations from the threat or use of
force in accordance with general principles of international law,
the United Nations Charter and the United Nations Convention on the
Law of the Sea.
In addition, the European Community and its Member States underline
that the use of force as referred to in Article 22 constitutes an
exceptional measure which must be based on the strictest compliance
with the principle of proportionality and that any abuse thereof
shall imply the international liability of the inspecting State. Any
case of non-compliance shall be resolved by peaceful means and in
accordance with the applicable dispute-settlement procedures.
Furthermore, the European Community and its Member States consider
that the relevant terms and conditions for boarding and inspection
should be further elaborated in accordance with the relevant
principles of international law in the framework of the appropriate
regional and subregional fisheries management organisations and
arrangements.
the application of the provisions of Article 21(6), (7) and (8), the
flag State may rely on the requirements of its legal system under
which the prosecuting authorities enjoy a discretion to decide
whether or not to prosecute in the light of all the facts of a case.
Decisions of the flag State based on such requirements shall not be
interpreted as failure to respond or to take action.