1998-99

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Fisheries Legislation Amendment Bill (No. 1) 1999

No. , 1999

(Agriculture, Fisheries and Forestry)

A Bill for an Act to amend legislation dealing with fisheries and fishers, and for related purposes

A Bill for an Act to amend legislation dealing with fisheries and fishers, and for related purposes

1 Short title

This Act may be cited as the Fisheries Legislation Amendment Act (No. 1) 1999.

2 Commencement

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) The Parts of Schedule 1 commence on a day or days to be fixed by Proclamation. However, if a Part of that Schedule has not commenced before the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent, the Part commences on the first day after the end of that period.

(4) Before the Governor-General makes a Proclamation fixing the day for the commencement of Schedule 2, the Minister must be satisfied that the day is not earlier than the day the Fish Stocks Agreement enters into force for Australia.

(5) If Schedule 2 does not commence under subsection (3) within the period of 6 months beginning on the day on which the Fish Stocks Agreement enters into force for Australia, it commences on the first day after the end of that period.

Fish Stocks Agreement means the Agreement for 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.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Enforcement

(a) is an Australian ship as defined in the Shipping Registration Act 1981; or

(b) would be an Australian ship as defined in the Shipping Registration Act 1981 if it were a ship as defined in that Act.

(aa) for the purposes of boarding a boat that is at a place where the officer may board it under paragraph (a) or (b):

(i) require the master to stop the boat at such a place to allow the officer to board it; and

(ii) if the master does not stop the boat as required and the boat is not an Australian-flagged boat, use any reasonable means consistent with international law to stop the boat (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat); and

4 Subsection 4(1) (paragraph (a) of the definition of Australian fishing zone)

5 Subsection 4(1) (paragraph (b) of the definition of Australian fishing zone)

Omit “, adjacent to the coast of Australia or the coast of an external Territory”.

(a) outside the outer limits of the exclusive economic zones of all countries, including Australia and its external Territories; or

(b) inside the outer limits of the exclusive economic zone adjacent to the coast of the Australian Antarctic Territory.

(1B) To avoid doubt, the validity of the seizure of a boat by an officer under paragraph (1)(g) is not affected merely because:

(1C) To avoid doubt, paragraphs (1)(k) and (l) allow an officer to require the master of a boat to bring or take the boat to a specified place and remain in control of the boat there even if it is necessary for the boat to travel on the high seas to reach the place.

(1D) To avoid doubt, paragraph (1)(m) allows an officer to bring a boat to a place and remain in control of it there even if it is necessary for the boat to travel on the high seas to reach the place.

Note: The heading to section 99 is altered by adding at the end “—strict liability offence”.

Note: The heading to section 100 is altered by adding at the end “—strict liability offence”.

100A Offence of using foreign boat for fishing in AFZ

(d) the boat is at a place in the AFZ at the time of the use and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.

(a) a foreign fishing licence is in force authorising the use of the boat at the place; or

(b) the boat is a Treaty boat and a Treaty licence is in force in respect of the boat authorising the use of the boat at the place.

(5) The only burden of proof that a defendant bears in respect of paragraph (4)(a) or (b) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

Note: The heading to section 101 is altered by adding at the end “—strict liability offence”.

101A Offence of having foreign boat equipped for fishing

(d) the boat is at a place in the AFZ and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.

(a) the use or presence of the boat at the place is authorised by a foreign fishing licence or port permit; or

(c) the boat’s nets, traps and other equipment for fishing are stored and secured and the boat is at the place in accordance with the approval of AFMA given under, and in accordance with, the regulations made for the purposes of paragraph 101(1)(c); or

(d) the boat’s nets, traps and other equipment for fishing are stored and secured and the boat is travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest practicable route.

(5) The only burden of proof that a defendant bears in respect of paragraph (4)(a), (b), (c) or (d) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

(1) The amendments made by this Part apply to things occurring after its commencement.

(2) Paragraph 101A(4)(c) of the Fisheries Management Act 1991 applies whether the regulations mentioned in the paragraph were made or commenced before or after the commencement of this Part.

101B Using boat outside AFZ to support illegal foreign fishing in AFZ

(b) the support boat is outside the AFZ but not in the territorial sea of a foreign country, and the supporter is reckless as to that fact; and

(i) the use of a foreign boat (other than the support boat) by a person in the AFZ in contravention of section 100 or 100A; or

(ii) a person having possession or charge of a foreign boat (other than the support boat) in the AFZ in contravention of section 101 or 101A;

(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.

(3) To avoid doubt, an officer outside the AFZ (but not in the territorial sea of a foreign country) may exercise powers under section 84 in relation to the support boat and a person on the support boat whom the officer has reasonable grounds to believe has committed an offence against this section if:

(a) one or more officers have pursued without interruption from a place in the AFZ to a place outside the AFZ:

(ii) a foreign boat that an officer has reasonable grounds to believe was being used by, or was in the possession or charge of, a person committing an offence against section 100, 100A, 101 or 101A with support from the support boat; and

(b) the powers are exercised at or immediately after the conclusion of the chase.

(4) For the purposes of paragraph (3)(a), a pursuit of a boat is not interrupted merely because some or all of the officers pursuing the boat lose sight of it or lose trace of it on a radar or other sensing device.

(5) An officer may exercise powers under paragraph 84(1)(a) in relation to the support boat outside the AFZ as if the support boat were in the AFZ.

(6) This section applies to all persons (including foreigners) and all boats (including foreign boats), despite sections 7 and 8.

(ga) seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section:

Note: Subdivision C of Division 6 deals with notice of seizure of things under paragraph 84(1)(ga).

Subdivision A—Forfeiture by court order

Omit “13, 95 (not being an offence against that section mentioned in subsection (2)), 99 or 100”, substitute “13 or subsection 95(5)”.

Omit “95, being an offence arising out of the person having in his or her possession or in his or her charge a boat for taking fish, or of an offence against section 101,”.

Subdivision B—Automatic forfeiture of things used in offences

106A Forfeiture of things used in certain offences

(b) a boat used in an offence against section 101B as a support boat (as defined in that section);

(i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or

(ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B;

(i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or

(ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B.

Note: Paragraph 84(1)(ga) allows an officer to seize a thing that is forfeited under this section or that the officer has reasonable grounds to believe is forfeited.

Subdivision C—Dealing with things seized as automatically forfeited

106B Application of this Subdivision

This Subdivision sets out rules about a thing that an officer seizes under paragraph 84(1)(ga) because:

(i) it was, or was on, a boat described in that section at the time of an offence described in that section; or

(ii) it was used or involved in the commission of an offence described in that section and involving a boat; or

(b) the officer has reasonable grounds to believe the thing is forfeited under section 106A because the officer has reasonable grounds to believe the thing:

(i) was, or was on, a boat described in that section at the time of an offence described in that section; or

(ii) was used or involved in the commission of an offence described in that section and involving a boat.

106C Notice of seizure

(1) The officer must give written notice of the seizure of the thing to the person:

(b) whom the officer has reasonable grounds to believe was the master of the boat immediately before the seizure.

However, if the officer cannot conveniently give the notice to the person in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing, unless the thing is a fish.

(c) state that the thing will be condemned as forfeited unless the owner of the thing or the person who had possession, custody or control of the thing immediately before it was seized gives the Managing Director of AFMA within 30 days a written claim in English for the thing; and

Note: Section 106E condemns the thing if it is not claimed within 30 days. Section 106G condemns the thing if it is claimed but the claimant does not get a court order supporting the claim.

106D Dealing with thing before it is condemned

(1) On behalf of the Commonwealth, AFMA may cause the thing to be disposed of or destroyed if it is a boat and AFMA is satisfied that:

(d) the expenses of custody and maintenance of the boat between its seizure and condemnation are likely to be greater than its value.

(2) If AFMA causes the boat to be disposed of, it may cause the disposal to be made subject to specified conditions.

(3) The table lists some other provisions relevant to dealing with things before they are condemned as forfeited to the Commonwealth:

Provisions about dealing with things before they are condemned
Item	Provision	Subject of provision
1	Paragraph 84(1)(t)	Officer’s power to dispose of seized fish
2	Section 88	Release of seized property

106E Thing condemned if not claimed in time

(1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 30 days after notice of seizure of the thing has been given under section 106C, unless:

(a) within the 30 days the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Managing Director of AFMA a written claim for the thing; and

(b) the claim is in English; and

Note: Section 106H requires things condemned as forfeited to be dealt with in accordance with the Minister’s directions.

(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim.

106F Dealing with claim for thing

(1) If the thing is claimed as described in section 106E:

(a) an officer may retain possession of the thing without starting any proceedings for the condemnation of the goods; and

(b) the Managing Director of AFMA may give the claimant a written notice stating that the thing will be condemned if the claimant does not institute proceedings against the Commonwealth within 2 months:

(i) to recover the thing; or

(ii) for a declaration that the thing is not forfeited.

Note 1: An officer may retain possession even if the Managing Director of AFMA does not give notice. If so, the claimant will be able to recover the thing only if it is released under section 88 or a court orders its release to the claimant.

Note 2: If the Managing Director does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.

(2) The Managing Director of AFMA may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Managing Director. If the Managing Director does so, the letter is taken to be properly addressed for the purposes of section 29 of the Acts Interpretation Act 1901.

(3) Subsection (2) does not limit the ways in which the notice may be given.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.

(4) To avoid doubt, the Managing Director of AFMA may give the notice even if the thing has been released under section 88.

106G Condemnation of thing if it is claimed

Application

(1) This section applies if the Managing Director of AFMA gives the claimant a notice under section 106F about instituting proceedings:

(a) to recover the thing; or

(b) for a declaration that the thing is not forfeited.

Condemnation if proceedings not started within 2 months

(2) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 2 months after the notice is given if the claimant does not institute the proceedings within that period.

Condemnation at end of proceedings started within 2 months

(3) By force of this subsection, the thing is condemned as forfeited to the Commonwealth at the end of the proceedings that are instituted by the claimant against the Commonwealth within 2 months of the claimant being given the notice if, at the end of the proceedings, there is not:

(a) an order for the claimant to recover the thing; or

(b) an order for the Commonwealth to pay the claimant the proceeds of the sale of the thing if it has been sold before the end of the proceedings; or

(c) an order for the Commonwealth to pay the claimant the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings; or

(d) a declaration that the thing is not forfeited.

End of proceedings that go to judgment

(4) For the purposes of subsection (3), if the proceedings go to judgment, they end:

(a) at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or

(b) when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.

Proceedings relating to thing that has been disposed of

(5) Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.

Order for payment if thing has been disposed of or destroyed

(6) If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court must order the Commonwealth to pay the person an amount equal to:

(a) the proceeds of the sale of the thing, if it has been sold before the end of the proceedings; or

(b) the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings.

106H Dealing with thing after it is condemned

If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Minister.

Subdivision D—Giving false or misleading information

24 After section 107

Insert:

Subdivision E—Obstruction of officers

25 Application

The amendments of section 106 of the Fisheries Management Act 1991 made by this Part, and Subdivisions B and C of Division 6 of Part 6 of that Act, apply in relation to offences committed after the commencement of this Part.

Part 6—Precedence over Admiralty Act 1988

Fisheries Management Act 1991

26 At the end of Division 6 of Part 6

Add:

Subdivision F—Enforcement action prevails over admiralty action

108A Seizure or forfeiture has effect despite admiralty proceedings

(1) The seizure, detention or forfeiture of a boat under this Act has effect despite any or all of the following events:

(a) the arrest of the boat under the Admiralty Act 1988;

(b) the making of an order for the sale of the boat by a court in proceedings brought under the Admiralty Act 1988;

(2) Subsection (1) has effect regardless of whether the seizure, detention or forfeiture, or the event that was the basis for the seizure, detention or forfeiture, occurred before or after the arrest, making of the order or sale (as appropriate).

27 Application

Section 108A of the Fisheries Management Act 1991 applies to boats arrested or ordered to be sold as a result of proceedings commenced under the Admiralty Act 1988 after the commencement of this Part.

Schedule 2—Implementing the Fish Stocks Agreement

Part 1—Fisheries Administration Act 1991

1 After paragraph 6(b)

Insert:

(ba) ensuring that:

(i) the exploitation in the Australian fishing zone (as defined in the Fisheries Management Act 1991) and the high seas of fish stocks in relation to which Australia has obligations under international agreements; and

(ii) related activities;

are carried on consistently with those obligations; and

2 After paragraph 7(a)

Insert:

(aa) to devise and implement management regimes that:

(i) relate to fishing for fish stocks in relation to which Australia has obligations under international agreements; and

(ii) are consistent with those obligations;

3 After paragraph 7(g)

Insert:

(ga) to liaise and co-operate with overseas and international bodies on matters relating to global, regional or subregional fisheries management organisations or arrangements;

4 After paragraph 7(m)

Insert:

(ma) to take action in accordance with international law to deter the use of vessels on the high seas for activities that contravene or reduce the effectiveness of measures that are for the conservation and management of fish stocks and are established by:

(i) a subregional or regional fisheries management organisation that Australia is a member of; or

(ii) a subregional or regional fisheries management arrangement that Australia participates in;

5 At the end of section 7

Add:

(2) The paragraphs of subsection (1) do not limit one another.

Part 2—Fisheries Management Act 1991

6 After paragraph 3(2)(b)

Insert:

and (c) ensuring that conservation and management measures in the AFZ and the high seas implement Australia’s obligations under international agreements that deal with fish stocks;

7 Subsection 4(1)

Insert:

Australian regional management measure means a regional management measure established by a regional organisation or arrangement involving Australia.

8 Subsection 4(1)

Insert:

9 Subsection 4(1)

Insert:

FSA boat means a boat of the nationality of a foreign country that is party to the Fish Stocks Agreement.

10 Subsection 4(1)

Insert:

highly migratory fish stock has the same meaning as in the Fish Stocks Agreement.

11 Subsection 4(1)

Insert:

regional management measure means a measure established by a regional organisation or arrangement to conserve or manage one or more species of living marine resources (within the meaning of the Fish Stocks Agreement).

12 Subsection 4(1)

Insert:

regional organisation or arrangement means:

(a) a subregional or regional fisheries management organisation within the meaning of the Fish Stocks Agreement; or

(b) a subregional or regional fisheries management arrangement within the meaning of the Fish Stocks Agreement.

13 Subsection 4(1)

Insert:

seriously violate an Australian regional management measure in relation to a boat has the meaning given by subsection 87E(4).

14 Subsection 4(1)

Insert:

straddling fish stock has the same meaning as in the Fish Stocks Agreement.

15 Subsection 4(1)

Insert:

territorial sea has the meaning given by subsection 3(1) of the Seas and Submerged Lands Act 1973.

16 Subsection 4(1) (definition of Treaty)

Omit “the Schedule”, substitute “Schedule 1”.

17 At the end of subsection 7(1)

Add:

Note: Some of the sections of this Act having or dealing with extra-territorial operation outside the AFZ are sections 8, 13, 14, 15, 87, 87A, 87B, 87D, 87G, 87H, 105A, 105B, 105C, 105E and 105F.

18 Subsection 7(3)

Repeal the subsection, substitute:

(3) In relation to so much of a managed fishery as is outside the AFZ, this Act applies to Australian boats and all persons (including foreigners) on Australian boats. This subsection does not limit subsection (2).

(4) Subsections (2) and (3) do not limit the extra-territorial operation of this Act.

19 At the end of section 8

Add:

(4) This section does not limit the extra-territorial operation of this Act.

20 Paragraphs 10(3)(a) and (b)

After “management”, insert “or temporary order”.

21 At the end of Division 1 of Part 3

Add:

16A AFMA to meet obligations under Fish Stocks Agreement

Boat involved in contravening regional management measure

(1) AFMA must not authorise under this Part the use of an Australian-flagged boat for fishing on the high seas for a straddling fish stock or highly migratory fish stock during the period specified in subsection (2), if:

(a) a court has convicted a person of an offence described in subsection (3) involving the use of the boat; and

(b) the court has ordered the person to pay a fine for the offence (whether or not the person has also been sentenced to imprisonment for the offence); and

Period for which AFMA must not authorise use of boat

(2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs:

(a) the person pays the fine;

(b) a penalty is imposed on the person for failure to pay the fine;

(d) the conviction of the person for the offence for which the person was ordered to pay the fine is quashed.

Offences that prevent AFMA authorising use of boat

(3) Subsection (1) limits authorisation of the use of a boat involved in any of the following offences:

(a) an offence against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorises fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas:

(i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment;

(ii) failing to maintain accurate records of catch;

(iii) failing to provide an accurate return of fish taken, carried, transhipped or processed;

(iv) taking, carrying, transhipping or processing more fish than authorised by the concession, permit or order;

(v) changing or hiding the markings of the boat;

(b) an offence against section 105A involving a fish from a conserved fish stock and a boat;

(d) an offence against section 107 relating to a document, statement, return or information about catch of a conserved fish stock;

(e) an offence against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

What is a conserved fish stock?

(4) In this section:

conserved fish stock means:

(a) a straddling fish stock covered by a regional management measure; or

(b) a highly migratory fish stock covered by a regional management measure.

22 After subsection 17(5B)

Insert:

(5C) A plan of management for a fishery affecting straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement) must set out stock-specific reference points (within the meaning of that Agreement) for the stocks.

23 Application and saving of existing plans

(1) Subsection 17(5C) of the Fisheries Management Act 1991 applies to all plans of management, whether notice relating to them is published in the Gazette under section 19 of that Act before or after the commencement of this Schedule.

(2) However, in the 12 months immediately after the commencement of this Schedule, a plan of management is not invalid merely because it does not comply with that subsection, if:

(a) the plan is for a fishery affecting straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement); and

(b) a notice relating to it was published in the Gazette under section 19 of that Act before the commencement of this Schedule.

24 At the end of subsection 22(3)

Add:

Note: Sections 42 and 42A also impose conditions on statutory fishing rights.

25 Subsection 32(1)

Omit “and (1C)”, substitute “, (1C) and (1D)”.

26 Subsections 32(1A) and (1B)

Omit “subsection (1C)”, substitute “subsections (1C) and (1D)”.

27 After subsection 32(1C)

Insert:

(1D) If subsection 16A(1) prohibits AFMA from authorising a use of a boat for a period described in subsection 16A(2), the permit does not authorise the use of the boat during the period.

Note: Subsection 16A(1) prohibits AFMA from authorising the use of a boat to fish on the high seas for a straddling fish stock or a highly migratory fish stock if the boat has been used in the commission of certain offences and the penalties for those offences have not been complied with.

28 At the end of subsection 32(5)

Add:

Note: Sections 42 and 42A also impose conditions on fishing permits.

29 At the end of subsection 33(3)

Add:

Note: Section 42A also imposes a condition on some scientific permits.

30 At the end of section 39

Add:

; or (d) both of the following conditions are met:

(i) the concession authorises the use of a boat for fishing for a fish stock covered by a regional organisation or arrangement;

(ii) Australia is not involved in the regional organisation or arrangement and has not agreed to apply regional management measures established by the regional organisation or arrangement.

31 At the end of subsection 42(1)

Add:

; or (d) the course, or position at regular intervals, inside or outside the outer limits of the AFZ of boats to which the fishing concessions relate.

32 After section 42

Insert:

42A Fishing concession condition to facilitate boarding

It is a condition of a fishing concession, or scientific permit, authorising the use of an Australian-flagged boat outside the AFZ that the master of the boat:

(a) facilitate boarding of the boat; and

(b) co-operate with inspection of the boat;

by officials of a foreign country acting in accordance with the Fish Stocks Agreement.

33 At the end of paragraph 43(1)(a)

Add:

(iii) the maintenance of straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement) before a plan of management is determined, amended or revoked; or

34 At the end of paragraph 43(2)(d)

Add:

(iii) that is the subject of an international agreement and occurs outside the AFZ; or

35 Paragraph 43(4)(c)

Omit “3”, substitute “6”.

36 Application

The amendment of paragraph 43(4)(c) made by this Schedule applies to temporary orders made after the commencement of this Schedule.

37 After section 87

Insert:

87A Officers’ powers: FSA boat on high seas after illegally fishing in AFZ

(1) Paragraphs 84(1)(aa), (a), (c), (n), (o), (p) and (r) apply in relation to an FSA boat on the high seas in the same way as they apply in relation to a boat in the AFZ, if the officer mentioned in subsection 84(1) has reasonable grounds to believe that:

(a) the boat has been used in the AFZ or Australia or an external Territory in contravention of section 95; and

(b) the boarding of the boat has been authorised by the appropriate authority of the country of nationality of the boat.

(2) This section does not limit section 87.

87B Officers’ powers: FSA boat illegally fishing on the high seas

(1) The provisions of section 84 listed in the table (and the other provisions of that section so far as they relate to the listed provisions) apply, with the modifications (if any) set out in the table, to:

(a) an FSA boat equipped for fishing that is on the high seas in an area covered by a regional organisation or arrangement involving Australia; and

(b) the master of the boat; and

(d) a thing on the boat.

Provisions of section 84 applying to FSA boats on high seas
Item	Applied provision	Modifications
1	Paragraph 84(1)(aa)	None
2	Paragraph 84(1)(a)	Applies as if: (a) the reference to a boat in the AFZ were a reference to an FSA boat equipped for fishing that is on the high seas in an area covered by a regional organisation or arrangement involving Australia; and (b) the reference to an offence against this Act were a reference to an offence against section 105E or 105F
3	Paragraph 84(1)(c)	None
4	Paragraph 84(1)(fa)	Applies as if it allowed the officer to require the master of a boat to give the officer such help as the officer reasonably requires for the purpose of measuring equipment, regardless of whether a fishing concession is in force
5	Paragraph 84(1)(g)	Applies as if: (a) the reference to subsection (1A) included a reference to section 87E; and (b) a reference to contravention of this Act were a reference to an offence against section 105E or 105F
6	Paragraph 84(1)(j)	Applies: (a) subject to section 87E; and (b) as if a reference to an offence against this Act were a reference to an offence against section 105E or 105F
7	Paragraph 84(1)(k)	Applies: (a) subject to section 87E; and (b) as if a reference to contravention of this Act were a reference to an offence against section 105E or 105F; and (c) as if subparagraph 84(1)(k)(i) were omitted; and (d) as if the reference in subparagraph 84(1)(k)(ii) to such a place included a reference to a port in a foreign country
8	Paragraph 84(1)(l)	Applies: (a) subject to section 87E; and (b) as if the reference to a place in Australia included a reference to a port in a foreign country
9	Paragraph 84(1)(m)	Applies: (a) subject to section 87E; and (b) as if a reference to contravention of this Act were a reference to an offence against section 105E or 105F; and (c) as if the reference to a place in Australia included a reference to a port in a foreign country
10	Paragraph 84(1)(n)	Applies as if a reference to a fishing concession included a reference to an authorisation (however described) by a foreign country to use the boat for fishing on the high seas
11	Paragraph 84(1)(o)	None
12	Paragraph 84(1)(p)	Applies as if there were a fishing concession under this Act in force in relation to the boat
13	Paragraph 84(1)(q)	Applies as if a reference to contravention of this Act were a reference to an offence against section 105E or 105F
14	Paragraph 84(1)(r)	Applies as if a reference to an offence against this Act were a reference to an offence against section 105E or 105F
15	Subsection 84(1A)	Applies as if the reference to the owner of the boat were a reference to the master of the boat at the time the officer believes the offence against section 105E or 105F occurred

Note: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.

(2) This section does not limit the extra-territorial operation that section 84 has apart from this section, except in relation to offences against section 105E or 105F.

87C Officers’ powers: FSA boat in Australian waters

FSA boats that have been fishing on the high seas

(1) This section operates in relation to an FSA boat in the AFZ, Australia or an external Territory, but only if:

(a) the FSA boat is equipped for fishing; and

(b) an officer has reasonable grounds to believe that the boat is on a fishing trip within the meaning of the Fish Stocks Agreement; and

(i) the boat has been used on the high seas in contravention of an Australian regional management measure; and

(ii) the boat entered the AFZ after the contravention.

Note: Section 105E makes it an offence to use an FSA boat in certain areas of the high seas in contravention of a regional management measure.

Officers’ powers

(2) Subsection 87B(1) applies in relation to the boat (and to its master, a person on it and a thing on it) in the same way as it applies to a boat, master, person and thing described in paragraphs 87B(1)(a), (b), (c) and (d).

Note 1: This gives an officer the powers described in section 84 (as modified by section 87B) in relation to the boat, its master, a person on it and a thing on it.

Note 2: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.

Modifications of powers

(3) However, subsection 87B(1) applies as if the following paragraphs in the column headed “Modifications” of the table in that subsection were omitted:

(a) paragraph (a) in item 2 of the table;

(b) paragraph (c) in item 7 of the table.

Relationship with section 84

(4) This section does not prevent an officer from exercising powers under section 84 as it applies of its own force, except in relation to a contravention of, or offence against, section 105E or 105F.

87D Officers’ powers: FSA boat in foreign country or waters

FSA boat ordered by officer to foreign country or waters

(1) This section operates in relation to an FSA boat that:

(a) is at a place in a foreign country or in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and

(b) was brought or taken to the place:

(i) as a result of a requirement made by an officer under paragraph 84(1)(k) or (l) as it applies because of section 87B or 87C; or

(ii) by an officer under paragraph 84(1)(m) as it applies because of section 87B or 87C.

Note: Under section 87E, the boat can be brought, or be required to be brought or taken, to a place in a foreign country or a foreign country’s waters only if the country of nationality of the boat:

(a) has not met its international obligations to enforce measures against illegal fishing on the high seas from the boat; or

(b) has authorised the boat being brought or taken to the place for investigation or enforcement action.

Officers’ powers

Note 1: This gives an officer the powers described in section 84 (as modified by section 87B) in relation to the boat, its master, a person on it and a thing on it.

Note 2: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.

Modification of powers

(3) However, subsection 87B(1) applies as if paragraph (a) in the column headed “Modifications” of item 2 of the table in that subsection provided that the reference in paragraph 84(1)(a) to a boat in the AFZ were a reference to an FSA boat in:

(a) a foreign country; or

(b) the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country.

Relationship with section 84

(4) This section does not limit the extra-territorial operation that section 84 has apart from this section, except in relation to offences against section 105E or 105F.

87E Limits on exercising certain powers in relation to FSA boats

(1) An officer must not do any of the following unless the requirements of subsection (2) are met:

(a) seize, detain or remove a thing that is, or is on, an FSA boat under paragraph 84(1)(g) as it applies because of section 87B, 87C or 87D; or

(b) arrest without warrant a person on a boat under paragraph 84(1)(j) as it applies because of section 87B, 87C or 87D; or

(c) require the master of an FSA boat to remain in control of a boat at a place in Australia or a Territory under subparagraph 84(1)(k)(i) as it applies because of section 87C; or

(d) require the master of an FSA boat to bring the boat to a place under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) as it applies because of section 87B, 87C or 87D; or

(e) bring an FSA boat to a place under paragraph 84(1)(m) as it applies because of section 87B, 87C or 87D.

(2) The requirements are that:

(a) an officer must believe on reasonable grounds that a person has committed an offence against section 105E or 105F involving the use of the boat; and

(b) an officer must have notified the appropriate authority of the country of nationality of the boat of that belief; and

(i) the appropriate authority of the country of nationality of the boat has authorised the action (specifically or in general terms); or

(ii) the circumstances described in subsection (3) exist.

(3) The circumstances are that:

(a) the country of nationality of the boat has not acted in accordance with its international obligations arising from the notification; and

(b) an officer has reasonable grounds to believe that a person has seriously violated an Australian regional management measure in relation to the boat.

Note: Paragraph 6 of Article 21 of the Fish Stocks Agreement requires the country of nationality of the FSA boat to do certain things if it is notified.

(4) A person seriously violates an Australian regional management measure in relation to a boat if:

(a) the person commits an offence against section 105E or 105F by:

(i) using the boat to fish; or

(ii) failing to maintain accurate records of fish taken using the boat; or

(iii) failing to provide accurate information about fish taken, carried, transhipped or processed using the boat; or

(iv) taking, carrying, transhipping or processing fish using the boat without an authorisation (however described) to do so; or

(v) taking, carrying, transhipping or processing more fish using the boat than the person is authorised to do; or

(vi) changing or hiding the markings of the boat; or

(vii) a prescribed act or omission, or a prescribed series of acts or omissions, relating to the boat; or

(b) the person conceals, tampers with or disposes of evidence of an offence against section 105E or 105F involving the boat; or

87F Procedures relating to exercise of powers on FSA boat

Overview

(1) This section applies if an officer on an FSA boat exercises powers under section 84 as it applies because of section 87B, 87C or 87D.

Showing documents to master

(2) When, or as soon as practicable after, an officer first exercises a power on the boat relating to an offence against section 105E or 105F in relation to an Australian regional management measure, an officer must show the master of the boat:

(a) a copy of the text of the measure; and

(b) a copy of the provisions of this Act and the regulations that relate to the measure.

Giving notice to flag state for boat

(3) When, or as soon as practicable after, an officer first exercises a power on the boat, an officer must give notice to the country of nationality that an officer has boarded and is inspecting the boat.

Leaving quickly after finding no evidence

(4) The officer must leave the boat as soon as reasonably practicable after exercising the powers on the boat and finding no evidence that a person has seriously violated an Australian regional management measure in relation to the boat.

Giving report of exercise of powers

(5) After one or more officers have finished exercising powers on the boat, an officer must give the master and the country of nationality of the boat a report of the exercise of the powers on the boat during the period while one or more officers were on the boat.

Report to note master’s statements

(6) The report must include a note of any objection or statement the master of the boat asked an officer to include in the report.

Minimising duplication

(7) This section does not require the master to be shown a document more than once, or more than one notice or report to be given, in relation to the exercise of a power or powers during the period for which one or more officers are on the boat (even if the same officer is not on the boat throughout the period).

Officers to comply with regulations

(8) The officer must comply with any other requirements prescribed by the regulations in relation to the exercise of the powers.

87G Officers’ powers: Australian-flagged boat beyond AFZ

(1) Section 84 applies in relation to an Australian-flagged boat that is outside the AFZ (and the master of the boat, a person on the boat and a thing on the boat) in the same way as that section applies to a boat that is in the AFZ, Australia or an external Territory (and the master of the boat, a person on the boat and a thing on the boat).

(2) This section does not limit:

(a) the extra-territorial operation that section 84 has apart from this section; or

(b) section 87.

87H Officers’ powers: boat on high seas without nationality

Power to board and inspect

(1) An officer may board and inspect a boat on the high seas that is equipped for fishing if the officer has reasonable grounds to believe that the boat does not have a nationality.

Note: If the officer discovers after boarding that the boat is in fact an FSA boat or an Australian-flagged boat, section 87B or 87G will apply section 84 to allow the officer to exercise powers on the boat.

Producing identification for master to inspect

(2) The officer must produce written identification of the officer for the master of the boat to inspect as soon as practicable after the officer has boarded. If the officer does not do so, he or she must not remain on the boat.

Giving report of exercise of powers

(3) After one or more officers have finished inspecting the boat, an officer must give the master of the boat a report of the inspection during the period while one or more officers were on the boat.

Report to note master’s statements

(4) The report must include a note of any objection or statement the master of the boat asked an officer to include in the report.

Minimising duplication

(5) This section does not require:

(a) more than one report to be given in relation to the period for which one or more officers are on the boat (even if the same officer is not on the boat throughout the period); or

(b) a report to be given to the master if section 87F requires a report to be given to the master.

Note: Section 87F will require a report to be given to the master if the boat is in fact an FSA boat (despite there having been reasonable grounds to believe it was without nationality).

87J Use of force to exercise powers relating to boat

Force to be used only in limited circumstances

(1) An officer must not use force in the exercise of the officer’s powers under a provision of section 84 (as it applies of its own force or because of section 87A, 87B, 87C, 87D or 87G) or under section 87H, unless it is necessary to do so:

(a) to ensure the safety of an officer; or

(b) to overcome obstruction of an officer in the exercise of that officer’s powers.

Force used must be reasonable

(2) The force used must not be more than is reasonably required for the relevant purpose described in paragraph (1)(a) or (b).

38 Subsection 88(1)

After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.

39 After section 88

Insert:

88A Release of FSA boats being investigated for high seas offences

(1) This section applies to an FSA boat that is under the control of an officer (the controlling officer) because of the exercise of a power under section 84 by an officer (whether the controlling officer or not) who is or has been investigating whether the boat has been used in an offence against section 105E or 105F.

(2) The controlling officer must release the boat to the appropriate authority of the country of nationality of the boat if the officer is satisfied that the appropriate authority has requested Australia or AFMA to release the boat to the authority.

(3) The controlling officer must not impose any conditions under section 88 on the release of the boat.

(4) For the purposes of subsection (1), it does not matter whether the power was exercised under section 84 as it applies of its own force or because of section 87B, 87C or 87D.

(5) This section has effect despite any other law of the Commonwealth, a State or a Territory.

40 After subsection 95(1)

Insert:

(1AA) Paragraphs (1)(d), (e) and (f) (and the rest of this section so far as it relates to those paragraphs) apply whether the contravention occurs inside or outside the outer limits of the AFZ.

41 After subsection 98(1)

Insert:

(1A) A court may order a person (including a foreigner) not to be on any Australian-flagged boat outside the AFZ for the purposes of commercial fishing during a period specified by the court if the court convicted the person of an offence:

(a) involving an Australian-flagged boat and a contravention of paragraph 95(1)(d), (e) or (f); or

(b) against section 105A, 105B or 105C (which deal with an Australian-flagged boat beyond the AFZ).

42 Subsection 98(2)

Omit “such an order”, substitute “an order made under subsection (1) or (1A)”.

43 Subsection 101B(6)

Omit “, despite sections 7 and 8”.

44 Paragraph 102(1)(c)

After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.

45 Subsection 103(1)

Repeal the subsection, substitute:

(1) A person is guilty of an offence if:

(a) the person is the master of a foreign boat; and

(b) the person intentionally lands or tranships (or causes to be landed or transhipped) fish from the boat at a place; and

(1A) The offence is punishable on conviction by a fine not more than 500 penalty units.

(1B) Subsection (1) does not apply if:

(a) the fish were landed or transhipped in accordance with:

(i) the terms of a foreign fishing licence; or

(ii) an entry under paragraph 21(2)(b) of the Torres Strait Fisheries Act 1984; or

(iii) the terms of an approval given by the Minister; or

(b) the person has a reasonable excuse for causing the fish to be landed or transhipped.

(1C) The Minister may give a person written approval of the landing or transhipment of fish. The approval may be expressed to be subject to conditions.

(1D) The conditions to which an approval may be expressed to be subject include:

(a) a condition that the person (the approved person) to whom the approval relates notify a specified person of the landing or transhipment; and

(b) a condition that the approved person give a specified person a return of the species and quantity of fish landed or transhipped; and

This does not limit subsection (1C).

(1E) The only burden of proof that a defendant bears in respect of subsection (1B) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

46 After Division 5 of Part 6

Insert:

Division 5A—Offences in places beyond the AFZ

Subdivision A—Australian-flagged boats beyond the AFZ

105A Australian-flagged boat with fish on high seas

(1) A person is guilty of an offence if:

(a) the person intentionally has a fish in his or her possession or control; and

(b) the fish is on an Australian-flagged boat on the high seas and the person is reckless as to that fact; and

(c) the taking of the fish is not authorised by a fishing concession or scientific permit and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 500 penalty units.

105B Australian-flagged boat on high seas equipped for fishing

(1) A person is guilty of an offence if:

(a) a person intentionally has in his or her possession or charge an Australian-flagged boat; and

(b) the boat is equipped with nets, traps or other equipment for fishing and the person is reckless as to that fact; and

(2) The offence is punishable on conviction by a fine not more than 500 penalty units.

(3) Subsection (1) does not apply if:

(a) the person holds a fishing concession or scientific permit authorising the boat to be at that location equipped with nets, traps or other equipment for fishing; or

(b) the person is acting on behalf of the holder of such a concession or permit; or

(i) Australia and a foreign country; or

(ii) Australia and an external Territory; or

(iii) an external Territory and a foreign country; or

(iv) 2 external Territories; or

(d) the person has a reasonable excuse.

Note: Even if subsection (1) does not apply because the person holds, or acts for the holder of, a fishing concession or scientific permit, the person will commit an offence under section 95 if the person contravenes a condition of the concession or permit.

(4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

105C Australian-flagged boat fishing in foreign waters

(1) A person is guilty of an offence if:

(a) the person intentionally uses an Australian-flagged boat for fishing; and

(b) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country and the person is reckless as to that fact; and

(c) the law of the country requires the person to have an authorisation (however described) given under the law of the country for the fishing and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 500 penalty units.

(3) Subsection (1) does not apply if the person has an authorisation (however described) issued under the law of the country for the fishing.

(5) If the person has been convicted or acquitted in the foreign country of an offence involving the fishing, the person cannot be convicted of an offence under this section involving the fishing.

105D Authorising foreign officials’ action affecting Australian-flagged boats

Boarding boats suspected of illegal fishing in foreign waters

(1) On behalf of Australia, AFMA may authorise officials of a foreign country that is party to the Fish Stocks Agreement to board and inspect an Australian-flagged boat on the high seas if:

(a) AFMA or Australia has received a request from the appropriate authority of the foreign country for that country’s officials to board and inspect the boat; and

(b) AFMA has reasonable grounds to believe that the boat has been used for fishing in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of the foreign country without an authorisation (however described) given under the law of that country; and

Investigating breach of regional management measures

(2) On behalf of Australia, AFMA may authorise an authority of a foreign country that is party to the Fish Stocks Agreement to investigate an alleged contravention of a regional management measure involving an Australian-flagged boat if:

(a) an official of the foreign country has boarded the boat on the high seas in an area covered by a regional organisation or arrangement; and

(b) the appropriate authority of the foreign country has notified AFMA or Australia that the official has reasonable grounds for believing that the boat has been used in contravention of the regional management measure; and

Revocation of authorisation by AFMA

(3) AFMA may revoke an authorisation AFMA has given under this section.

Form of authorisation or revocation by AFMA

(4) An authorisation, or revocation of an authorisation, by AFMA must be in writing or by electronic transmission. However, an authorisation or revocation cannot be made by electronic transmission of an oral message.

Enforcement action for breach of regional management measures

(5) On behalf of Australia, the Attorney-General may authorise in writing an authority of a foreign country to take specified action to enforce a law of the foreign country against a contravention of a regional management measure on the high seas involving an Australian-flagged boat if:

(a) AFMA has authorised an authority of the foreign country under subsection (2) to investigate the alleged contravention; and

(b) the appropriate authority of the foreign country has communicated the results of the investigation to Australia; and

Revocation of authorisation by Attorney-General

(6) The Attorney-General may revoke in writing an authorisation he or she has given under this section.

Subdivision B—FSA boats on high seas

105E FSA boat contravening management measure on high seas

(1) A person is guilty of an offence if:

(a) the person intentionally uses an FSA boat; and

(b) the person intentionally contravenes an Australian regional management measure relating to the use of the boat; and

(c) the boat is on the high seas in an area covered by the regional organisation or arrangement that established the measure, and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 500 penalty units.

105F FSA boat fishing on high seas without flag state’s authority

(1) A person is guilty of an offence if:

(a) the person intentionally uses an FSA boat for fishing; and

(b) the boat is on the high seas in an area covered by a regional organisation or arrangement involving Australia, and the person is reckless as to that fact.

(2) The offence is punishable on conviction by a fine not more than 500 penalty units.

(3) Subsection (1) does not apply if the fishing is authorised by an authorisation (however described) issued under the law of the country of nationality of the FSA boat.

105G Attorney-General’s consent required for prosecution

(1) The Attorney-General’s written consent is required before a charge of an offence against this Subdivision can proceed to hearing or determination.

(2) Before granting such a consent, the Attorney-General must take into account any views expressed by the government of the country of nationality of the FSA boat alleged to be involved in the offence.

(3) Even though the Attorney-General has not granted such a consent, the absence of consent is not to prevent or delay:

(a) the arrest of the suspected offender or proceedings related to arrest (such as proceedings for the issue and execution of a warrant); or

(b) the laying of a charge against the suspected offender; or

(d) proceedings for remanding the suspected offender in custody or on bail.

(4) If the Attorney-General declines to grant consent, the court in which the suspected offender has been charged with the offence must permanently stay proceedings on the charge.

(5) In any proceedings, an apparently genuine document purporting to be a copy of a written consent granted by the Attorney-General in accordance with this section will be accepted, in the absence of proof to the contrary, as proof of such consent.

47 Subsection 106(1)

Omit “or subsection 95(5)”, substitute “, subsection 95(5) or section 105C or 105F”.

48 Subsection 106(2)

Omit “or 104”, substitute “, 104, 105A, 105B or 105E”.

49 Paragraph 108(c)

After “section 84”, insert “(as it applies of its own force or because of section 87, 87C or 87G)”.

50 After paragraph 168(2)(h)

Insert:

(ha) providing for the marking of Australian-flagged boats in relation to which fishing concessions or scientific permits allowing fishing outside the AFZ are in force; and

51 Paragraph 168(2)(l)

After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.

52 Schedule (heading)

Repeal the heading, substitute:

Schedule 1—Treaty on fisheries between the Governments of certain Pacific Island States and the United States of America

53 At the end of the Act

Add:

Schedule 2—Fish Stocks Agreement

Note: See subsection 4(1) (definition of Fish Stocks Agreement).

AGREEMENT FOR 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 overutilized; noting that there are problems of unregulated fishing, over-capitalization, 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 minimize the risk of long-term or irreversible effects of fishing operations,

Recognizing 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, paragraph 1(c), (d) and (e), of the Convention and

(ii) subject to article 47, to any entity referred to as an “international organization” 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 utilization;

(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 upon the target stocks;

(e) adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon 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) minimize 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 cautious 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 socio-economic conditions; and

(d) develop data collection and research programs 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. States 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 utilization 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 organization 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 organizations 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 organizations 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 organizations 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 over-exploitation 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 organization 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 organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement. States having a real interest in the fisheries concerned may become members of such organization or participants in such arrangement. The terms of participation in such organization 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 organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply.

5. Where there is no subregional or regional fisheries management organization 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 organization or enter into other appropriate arrangements to ensure conservation and management of such stock and shall participate in the work of the organization or arrangement.

6. Any State intending to propose that action be taken by an intergovernmental organization 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 organization or arrangement, consult through that organization 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 organization.

Article 9

Subregional and regional fisheries management
organizations and arrangements

1. In establishing subregional or regional fisheries management organizations 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, paragraph 1, and the characteristics of the subregion or region, including socio-economic, geographical and environmental factors;

(c) the relationship between the work of the new organization or arrangement and the role, objectives and operations of any relevant existing fisheries management organizations or arrangements; and

(d) the mechanisms by which the organization 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 organization or arrangement shall inform other States which they are aware have a real interest in the work of the proposed organization or arrangement of such cooperation.

Article 10

Functions of subregional and regional
fisheries management organizations
and arrangements

In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations 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 organization 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 organization or arrangement; and

(m) give due publicity to the conservation and management measures established by the organization 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 organization, 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 organizations and arrangements

1. States shall provide for transparency in the decision-making process and other activities of subregional and regional fisheries management organizations and arrangements.

2. Representatives from other intergovernmental organizations and representatives from non-governmental organizations 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 organizations and arrangements as observers or otherwise, as appropriate, in accordance with the procedures of the organization or arrangement concerned. Such procedures shall not be unduly restrictive in this respect. Such intergovernmental organizations and non-governmental organizations shall have timely access to the records and reports of such organizations and arrangements, subject to the procedural rules on access to them.

Article 13

Strengthening of existing organizations
and arrangements

States shall cooperate to strengthen existing subregional and regional fisheries management organizations 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 organizations 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 organizations or arrangements:

(a) to agree on the specification of data and the format in which they are to be provided to such organizations 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 organizations, 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 organization 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, paragraphs 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 organizations and
non-participants in arrangements

1. A State which is not a member of a subregional or regional fisheries management organization 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 organization or arrangement, 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 authorize 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 organization or arrangement.

3. States which are members of a subregional or regional fisheries management organization or participants in a subregional or regional fisheries management arrangement shall, individually or jointly, request the fishing entities referred to in article 1, paragraph 3, which have fishing vessels in the relevant area to cooperate fully with such organization 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 organization 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 organization 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 authorize 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 means of fishing licences, authorizations 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, authorization 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 authorized to fish, or fishing on the high seas by vessels otherwise than in accordance with the terms and conditions of a licence, authorization or permit;

(iii) to require vessels fishing on the high seas to carry the licence, authorization or permit on board at all times and to produce it on demand for inspection by a duly authorized person; and

(iv) to ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States;

(c) establishment of a national record of fishing vessels authorized 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 release of such information;

(d) requirements for marking of fishing vessels and fishing gear for identification in accordance with uniform and internationally recognizable vessel and gear marking systems, such as the Food and Agriculture Organization 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 programs, inspection schemes, unloading reports, supervision of transshipment 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 authorized inspectors from other States;

(ii) the implementation of national observer programs 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; and

(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 transshipment on the high seas to ensure that the effectiveness of conservation and management measures is not undermined; and

(i) regulation of fishing activities to ensure compliance with subregional, regional or global measures, including those aimed at minimizing 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 organization or arrangement 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; and

(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 authorizations 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 organizations 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 organization 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 unauthorized 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 authorize 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 organization 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 organization 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 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 vessels 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.

2. 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.

3. 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 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 organization 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 authorized 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, States 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.

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) authorize the inspecting State to investigate.

7. 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 vessel. Alternatively, the flag State may authorize 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 organization 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, 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 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, 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 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 organization 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 organization 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 organization 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 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.

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 authorized 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 authorized 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; and

(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 authorization 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 transshipments 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 Organization 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.

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; 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.

Article 25

Forms of cooperation with
developing States

1. 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 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; and

(c) to facilitate the participation of developing States in subregional and regional fisheries management organizations 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; and

(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 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.

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 organizations 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, 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 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, paragraph 5, and article 16, paragraph 2.

3. 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 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, paragraph 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 recognized 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 organizations 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, paragraph 2(b), and shall remain open for signature at United Nations Headquarters for twelve months from the fourth of December 1995.

Article 38

Ratification

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.

Article 39

Accession

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.

Article 40

Entry into force

1. This Agreement shall enter into force 30 days after the date of deposit of the thirtieth instrument of ratification or accession.

2. For each State or entity which ratifies the Agreement or accedes thereto after the deposit of the thirtieth instrument of ratification or accession, this Agreement shall enter into force on the thirtieth 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 upon the entry into force of this Agreement for that State or entity or upon 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 harmonization 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 twelve months from the date of adoption, unless otherwise provided in the amendment itself.

4. Articles 38, 39, 47 and 50 apply to all amendments to this Agreement.

5. Amendments to this Agreement shall enter into force for the States Parties ratifying or acceding to them on the thirtieth 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 thirtieth 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; and

(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 in international
organizations

1. In cases where an international organization 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 organization in this Agreement, except that the following provisions of that Annex shall not apply:

(a) article 2, first sentence; and

(b) article 3, paragraph 1.

2. In cases where an international organization 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 organization in this Agreement:

(a) at the time of signature or accession, such international organization 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 organization has no responsibility; and

(iii) that it accepts the rights and obligations of States under this Agreement;

(b) participation of such an international organization shall in no case confer any rights under this Agreement on member States of the international organization;

(c) in the event of a conflict between the obligations of an international organization under this Agreement and its obligations under the agreement establishing the international organization 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 authorized 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 standardizing 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 programs, 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 organization 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 organizations 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 organizations or arrangements should request non-members or non-participants to provide data concerning relevant fishing activities by vessels flying their flag;

(e) such organizations 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 organization or arrangement; and

(f) scientists of the flag State and from the relevant subregional or regional fisheries management organization 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 organization 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 Organization 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; and

(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 organization 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; and

(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 standardizing 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); and

(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; and

(c) crew size.

Article 5

Reporting

A State shall ensure that vessels flying its flag send to its national fisheries administration and, where agreed, to the relevant subregional or regional fisheries management organization 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, facsimile or satellite transmission or by other means.

Article 6

Data verification

States or, as appropriate, subregional or regional fisheries management organizations or arrangements should establish mechanisms for verifying fishery data, such as:

(a) position verification through vessel monitoring systems;

(b) scientific observer programs to monitor catch, effort, catch composition (target and non-target) and other details of fishing operations;

(c) vessel trip, landing and transshipment reports; and

(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 organizations or arrangements. Such organizations 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 organization 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 Organization of the United Nations. Where a subregional or regional fisheries management organization 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.

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Commonwealth of Australia Bills

FISHERIES LEGISLATION AMENDMENT BILL (NO. 1) 1999

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Enforcement

100A Offence of using foreign boat for fishing in AFZ

101A Offence of having foreign boat equipped for fishing

101B Using boat outside AFZ to support illegal foreign fishing in AFZ

Subdivision A—Forfeiture by court order

Subdivision B—Automatic forfeiture of things used in offences

106A Forfeiture of things used in certain offences

Subdivision C—Dealing with things seized as automatically forfeited

106B Application of this Subdivision

106C Notice of seizure

106D Dealing with thing before it is condemned

106E Thing condemned if not claimed in time

106F Dealing with claim for thing

106G Condemnation of thing if it is claimed

106H Dealing with thing after it is condemned

Subdivision D—Giving false or misleading information

Subdivision E—Obstruction of officers

Subdivision F—Enforcement action prevails over admiralty action

108A Seizure or forfeiture has effect despite admiralty proceedings

Schedule 2—Implementing the Fish Stocks Agreement

16A AFMA to meet obligations under Fish Stocks Agreement

42A Fishing concession condition to facilitate boarding

87A Officers’ powers: FSA boat on high seas after illegally fishing in AFZ

87B Officers’ powers: FSA boat illegally fishing on the high seas

87C Officers’ powers: FSA boat in Australian waters

87D Officers’ powers: FSA boat in foreign country or waters

87E Limits on exercising certain powers in relation to FSA boats

87F Procedures relating to exercise of powers on FSA boat

87G Officers’ powers: Australian-flagged boat beyond AFZ

87H Officers’ powers: boat on high seas without nationality

87J Use of force to exercise powers relating to boat

88A Release of FSA boats being investigated for high seas offences

Division 5A—Offences in places beyond the AFZ

Subdivision A—Australian-flagged boats beyond the AFZ

105A Australian-flagged boat with fish on high seas

105B Australian-flagged boat on high seas equipped for fishing

105C Australian-flagged boat fishing in foreign waters

105D Authorising foreign officials’ action affecting Australian-flagged boats

Subdivision B—FSA boats on high seas

105E FSA boat contravening management measure on high seas

105F FSA boat fishing on high seas without flag state’s authority

105G Attorney-General’s consent required for prosecution

Schedule 1—Treaty on fisheries between the Governments of certain Pacific Island States and the United States of America

Schedule 2—Fish Stocks Agreement