Flag State Duties, Boarding and Disputes

In one line

The 1995 Agreement did what no earlier instrument dared: it let one State's inspectors board another State's fishing vessel on the high seas.

In exam wording: articles 18 to 23 of the Fish Stocks Agreement 1995 impose duties on the flag State, provide for compliance and enforcement by the flag State, for subregional and regional cooperation in enforcement, for boarding and inspection by a State party other than the flag State, for the action of a boarding State following that inspection, and for measures by a port State; and articles 27 to 32 provide for the peaceful settlement of disputes and for provisional measures.

Article 18: duties of the flag State

Paragraph 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.

Paragraph 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 the Agreement.

That paragraph is the answer to the open registry problem. A State that cannot control its vessels may not authorise them to fish on the high seas at all.

Paragraph 3 lists the measures, and they are the practical content of the obligation:

• control of such vessels on the high seas by means of fishing licences, authorisations or permits, in accordance with any applicable procedures agreed at subregional, regional or global level;
• establishment of regulations to apply terms and conditions to the licence, to apply national laws in the context of a regional management regime, and to specify that vessels are prohibited from fishing without or outside the terms of the authorisation and are to carry the licence on board;
• 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;
• requirements for marking of vessels and gear for identification in accordance with uniform and internationally recognisable systems;
• requirements for recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data;
• 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;
• monitoring, control and surveillance of such vessels, their fishing operations and related activities by, among other things, the implementation of national inspection schemes and national observer programmes, and vessel monitoring systems including satellite transmitter systems;
• regulation of transhipment on the high seas to ensure that the effectiveness of conservation and management measures is not undermined; and
• regulation of fishing activities to ensure compliance with subregional, regional or global measures, including those aimed at minimising catches of non-target species.