prop · GL03139 · 1998-01-01 00:00:00 — In any high seas area covered by a subregional or regional fisheries management organization or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly authorized inspectors, board and inspect, in accordance with paragraph 2, fishing flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization 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 organization or arrangement. States shall establish, through subregional or regional fisheries management organizations 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 organization 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. If, within two years of the adoption of this Agreement, any organization or arrangement has not established such procedures, boarding and inspection pursuant to paragraph 1, as well as any subsequent enforcement action, shall, pending the of such procedures, be conducted in accordance with this article and the basic procedures set out in article 22. Prior to taking action under this article, inspecting States shall, either directly or through the relevant subregional or regional fisheries management organization or arrangement, inform all States whose fish on the high seas in the subregion or region of the form of identification issued to their duly authorized inspectors. The 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 organization or arrangement. Where, following a boarding and inspection, there are clear grounds for believing that a 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. 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 , in which case it shall promptly inform the inspecting State of the results of the investigation and of any enforcement action taken; or (b) authorize the inspecting State to investigate. Where the flag State authorizes 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 . Alternatively, the flag State may authorize the inspecting State to take such enforcement action as the flag State may specify with respect to the , consistent with the rights and obligations of the flag State under this Agreement. Where, following boarding and inspection, there are clear grounds for believing that a 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 to assist in further investigation including, where appropriate, by bringing the 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 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. The inspecting State shall inform the flag State and the relevant organization or the participants in the relevant arrangement of the results of any further investigation. The inspecting State shall require its inspectors to observe generally accepted international regulations, procedures and practices relating to the safety of the and the crew, minimize 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 that would constitute harassment of any fishing . For the purposes of this article, a serious violation means: (a) fishing without a valid licence, authorization or permit issued by the flag State in accordance with article 18, paragraph 3 (a); (b) failing to maintain accurate records of catch and catch-related data, as required by the relevant subregional or regional fisheries management organization or arrangement, or serious misreporting of catch, contrary to the catch reporting requirements of such organization 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 organization 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 ; (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 organization or arrangement. 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 is under the direction of the inspecting State, the inspecting State shall, at the request of the flag State, release the to the flag State along with full information on the progress and outcome of its investigation. 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. This article applies mutatis mutandis to boarding and inspection by a State Party which is a member of a subregional or regional fisheries management organization or a participant in a subregional or regional fisheries management arrangement and which has clear grounds for believing that a fishing 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 organization or arrangement, and such has subsequently, during the same fishing trip, entered into an area under the national jurisdiction of the inspecting State. Where a subregional or regional fisheries management organization 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 organization or arrangement, members of such organization 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. Action taken by States other than the flag State in respect of having engaged in activities contrary to subregional or regional conservation and management measures shall be proportionate to the seriousness of the violation. Where there are reasonable grounds for suspecting that a fishing on the high seas is without nationality, a State may board and inspect the . Where evidence so warrants, the State may take such action as may be appropriate in accordance with international law. 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. Basic procedures for boarding and inspection pursuant to article 21 The inspecting State shall ensure that its duly authorized inspectors: (a) present credentials to the of the 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 ''''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 and to the authorities of the flag State, noting therein any objection or statement which the wishes to have included in the report; (e) promptly leave the 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. The duly authorized inspectors of an inspecting State shall have the authority to inspect the , 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. The flag State shall ensure that : (a) accept and facilitate prompt and safe boarding by the inspectors; (b) cooperate with and assist in the inspection of the 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; and (f) facilitate safe disembarkation by the inspectors. In the event that the of a 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 of the to submit immediately to boarding and inspection and, if the does not comply with such direction, shall suspend the ''''s authorization to fish and order the 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. Measures taken by a port State 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 of any State. A port State may, inter alia, inspect documents, fishing gear and catch on board fishing , when such are voluntarily in its ports or at its offshore terminals. States may adopt regulations empowering the relevant national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas. Nothing in this article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law. REQUIREMENTS OF DEVELOPING STATES Recognition of the special requirements of developing States 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 of the United Nations and other specialized agencies, the Global Environment Facility, the Commission on Sustainable Development and other appropriate international and regional organizations and bodies, provide assistance to developing States. In giving effect to the duty to cooperate in the 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 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 and women fishworkers, as well as indigenous people in developing States, particularly small developing States; and (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. Forms of cooperation with developing States States shall cooperate, either directly or through subregional, regional or global organizations: (a) to enhance the ability of developing States, in particular the least- developed among them and small 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 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; and (c) to facilitate the participation of developing States in subregional and regional fisheries management organizations and arrangements. 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. 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; and (c) monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional programmes and access to technology and equipment. Special assistance in the implementation of this Agreement 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. States and international organizations should assist developing States in establishing new subregional or regional fisheries management organizations or arrangements, or in strengthening existing organizations or arrangements, for the conservation and management of straddling fish stocks and highly migratory fish stocks. PEACEFUL SETTLEMENT OF DISPUTES 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. 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 organizations and arrangements and shall strengthen existing decision- making procedures as necessary. 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. Procedures for the settlement of disputes 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. 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. 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. 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, paragraph 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 , Article 2, , Article 2, and , Article 2, for the settlement of disputes under this Part. 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 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. 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. 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, paragraph 5, and Article 16, paragraph 2. A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State. Limitations on applicability of procedures for the settlement of disputes Article 297 paragraph 3, of the Convention applies also to this Agreement. NON-PARTIES TO THIS AGREEMENT Non-parties to this Agreement States Parties shall encourage non-parties to this Agreement to become parties thereto and to adopt laws and regulations consistent with its provisions. States Parties shall take measures consistent with this Agreement and international law to deter the activities of flying the flag of non- parties which undermine the effective implementation of this Agreement. Good faith and abuse of rights States Parties shall fulfil in good faith the obligations assumed under this Agreement and shall exercise the rights recognized in this Agreement in a which would not constitute an abuse of right. States Parties are liable in accordance with international law for damage or loss attributable to them in regard to this Agreement. 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 organizations entitled to participate as . 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. This Agreement shall be open for signature by all States and the other entities referred to in Article 1, paragraph 2 (b), and shall remain open for signature at United Nations Headquarters for twelve months from the fourth of . This Agreement is subject to ratification by States and the other entities referred to in Article 1, paragraph 2 (b). The instruments of ratification shall be deposited with the Secretary-General of the United Nations. This Agreement shall remain open for accession by States and the other entities referred to in Article 1, paragraph 2 (b). The instruments of accession shall be deposited with the Secretary-General of the United Nations. This Agreement shall enter into force 30 days after the date of deposit of the 30th instrument of ratification or accession.