LAW OF THE SEA

FAO (Food and Agriculture Organization of the United Nations) agreement on port state measures



FAO (Food and Agriculture Organization of the United Nations) agreement on port state measures

FAO Compliance Agreement

The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (“Compliance Agreement”) was adopted under the auspices of FAO, by FAO Conference Resolution 15/93 at the 27th Session of the FAO Conference in November 1993. It was adopted as part of FAO's work on the Code of Conduct for Responsible Fisheries (see 9.1.3) and was formally integrated as part of the Code when that instrument was adopted in 1995 (see Article 1(1) of the Code of Conduct). Unlike the other parts of the Code, however, the Compliance Agreement is a legally binding treaty. It entered into force on 24 April 2003, after acceptance by 25 Parties.

The main functions of the Agreement concern defining the responsibilities of flag States, particularly through authorizing fishing vessels to fish on the high seas, and establishing a system of information exchange on high seas fishing activities designed to improve compliance by high seas fishing vessels and to limit the freedom of vessels that have a bad compliance record to “shop around” for new flags (Grainger, 2000). The original mandate for the negotiations leading to the Agreement was somewhat different, however, as it was intended that the Agreement should deal directly with the issue of reflagging, i.e. the practice of changing the national registration of a fishing vessel (and hence its flag) as a means of avoiding compliance with international conservation and management measures.

Early negotiating drafts therefore included provisions dealing with rules for national registration of fishing vessels, grounds for refusal of registration and elaboration of the genuine link principle. Quite early in the negotiations, however, it became clear that agreement on such matters was never going to be reached, at least not in the time frame set for the negotiations, and so the focus of attention shifted from registration and reflagging to arrangements for authorizing fishing and defining elements of flag State responsibility(Balton, 1999). Although the Compliance Agreement stops short of dealing with the central issue of reflagging, it nevertheless contains a number of measures of considerable importance to high seas fisheries management, and was the first instrument to develop principles of flag State responsibility on a global scale (although such principles had already begun to emerge in some regional instruments: e.g., Article 4 of the 1987 Multilateral Fisheries Treaty between the Government of Certain Pacific Island States and the United States of America, see Chapter 2.4.8).

Indeed, at the time of its adoption the Agreement was acclaimed as “a momentous achievement and a milestone in the international management of high seas” (Resolution 15/93, operative paragraph 2). Its impact has been somewhat limited, however, in particular as it took many years to enter into force; it has not been widely ratified (in particular because a number of important high seas fishing States consider it ...