    [Senate Treaty Document 112-4]
    [From the U.S. Government Publishing Office]

    112th Congress
    1st Session                     SENATE                     Treaty Doc.
    112-4
    _______________________________________________________________________

                        AGREEMENT ON PORT STATE MEASURES

                   TO PREVENT, DETER, AND ELIMINATE ILLEGAL,

                      UNREPORTED, AND UNREGULATED FISHING

                                   __________

                                    MESSAGE

                                      from

                         THEPRESIDENTOFTHEUNITEDSTATES

                                  transmitting

       AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER, AND ELIMINATE
      ILLEGAL, UNREPORTED, AND UNREGULATED FISHING, DONE AT THE FOOD AND
      AGRICULTURE ORGANIZATION OF THE UNITED NATIONS, IN ROME, ITALY, ON
                     NOVEMBER 22, 2009 (THE ``AGREEMENT'')

     November 14, 2011.--Treaty was read the first time, and together with
    the accompanying papers, referred to the Committee on Foreign Relations
              and ordered to be printed for the use of the Senate

                             LETTER OF TRANSMITTAL

                                  ----------

                                               The White House,
                                         Washington, November 14, 2011.
    To the Senate of the United States:
        I transmit herewith, for the advice and consent of the
    Senate to its ratification, the Agreement on Port State
    Measures to Prevent, Deter, and Eliminate Illegal, Unreported,
    and Unregulated Fishing, done at the Food and Agriculture
    Organization of the United Nations, in Rome, Italy, on November
    22, 2009 (the ``Agreement''). I also transmit, for the
    information of the Senate, the report of the Department of
    State with respect to the Agreement.
        The Agreement established, for the first time at the global
    level, legally binding minimum standards for port states to
    control port access by foreign fishing vessels, as well as by
    foreign transport and supply ships that support fishing
    vessels. The Agreement also encourages Parties to apply similar
    measures to their own vessels. Involved Federal agencies and
    stakeholders strongly support the Agreement. The Agreement
    establishes practical provisions to prevent fish from illegal,
    unreported, and unregulated fisheries from entering the stream
    of commerce. If widely ratified and properly implemented, the
    Agreement will thereby serve as a valuable tool in combating
    illegal, unreported, and unregulated fishing worldwide.
        The legislation necessary to implement the Agreement will
    be submitted separately to the Congress. I recommend that the
    Senate give early and favorable consideration to this Agreement
    and give its advice and consent to ratification.

                                                          Barack Obama.
                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                            Washington, March 18, 2011.

    The President,
    The White House.
        The President: I have the honor to submit to you, with a
    view to its transmission to the Senate for advice and consent
    to ratification, the Agreement on Port State Measures to
    Prevent, Deter and Eliminate Illegal, Unreported and
    Unregulated Fishing, done in Rome, Italy, on November 22, 2009
    (the ``Agreement'').
        The Agreement establishes the first legally binding global
    minimum standards for port States to control port access by
    foreign fishing vessels, as well as transport and supply ships
    that support fishing vessels. The Agreement also encourages
    Parties to apply similar measures to their own vessels.
        States, on their own and through regional mechanisms, have
    in recent years begun to limit and regulate access to their
    ports as a means to control illegal, unreported, and
    unregulated (IUU) fishing. The international community agreed
    to initiate a process within the United Nations Food and
    Agriculture Organization (FAO) to develop a legally binding
    instrument on port State measures. These negotiations concluded
    in August 2009. The Agreement was adopted by the FAO Conference
    and opened for signature on November 22, 2009; the United
    States was one of the first States to sign.
        The Agreement requires Parties to designate ports to which
    foreign vessels may request entry and to require such vessels
    to provide advance notice for such requests. Parties are
    generally required to deny port entry to vessels known to have
    engaged in or supported IUU fishing, as well as to prohibit
    vessels in their ports from landing, transshipping, packaging,
    or processing fish where there is evidence the vessels engaged
    in or supported IUU fishing. Additionally, the Agreement
    includes commitments to assist developing States Parties to
    fulfill their obligations under it.
        The Agreement establishes practical provisions to prevent
    IUU-caught fish from entering the stream of commerce. If widely
    ratified and properly implemented, the Agreement will thereby
    serve as a valuable tool in combating IUU fishing worldwide.
        The Agreement is not self-executing. The recommended
    legislation necessary to implement the Agreement will be
    submitted separately to the Congress.
        An overview of the Agreement, including a detailed article
    by article analysis, is enclosed with this report. The U.S.
    Department of State, the U.S. Department of Commerce, the U.S.
    Coast Guard, environmental NGOs, and the U.S. fishing industry
    strongly support the Agreement. The U.S. Department of Commerce
    and the U.S. Coast Guard join the Department of State in
    recommending that the proposed Agreement be transmitted to the
    Senate as soon as possible for its advice and consent to
    ratification.
        Respectfully submitted,
                                                Hillary Rodham Clinton.
        Enclosure: As stated.

       Agreement on Port State Measures to Prevent, Deter and Eliminate
                  Illegal, Unreported and Unregulated Fishing

                                    OVERVIEW

        The Agreement on Port State Measures to Prevent, Deter and
    Eliminate Illegal, Unreported and Unregulated Fishing, done in
    Rome, Italy, November 22, 2009 (the ``Agreement''), establishes
    the first legally binding global minimum standards for port
    States to control port access by foreign fishing vessels, as
    well as foreign transport and supply ships that support such
    fishing vessels. The Agreement also encourages Parties to apply
    similar measures to their own vessels.
        Article 1, Use of terms, contains several definitions.
    Among the most important of those is the definition of
    ``illegal, unreported, and unregulated fishing'' (IUU), which
    the Agreement notes refers to the activities outlined in
    paragraph 3 of the United Nations Food and Agriculture
    Organization's (FAO) 2001 International Plan of Action to
    Prevent, Deter, and Eliminate Illegal, Unreported, and
    Unregulated Fishing (IPOA). The IPOA provides a reasonable and
    widely accepted description of activities that constitute IUU
    fishing. The specific reference in Article 1 to the 2001 IPOA
    would not incorporate any future changes to the description of
    IUU fishing in the IPOA.
        The definition of IUU fishing incorporated by reference
    into the Agreement applies to the following activities: Illegal
    fishing is fishing conducted by vessels in waters under the
    jurisdiction of a State, without permission of that State or in
    contravention of the State's laws and regulations; by vessels
    of a State member to a Regional Fisheries Management
    Organization (RFMO) in contravention of that RFMO's
    conservation and management measures; or in contravention of
    other relevant international laws. Unreported fishing is
    fishing that has not been reported, or that has been
    misreported to the relevant national authority or to a relevant
    RFMO. Unregulated fishing is fishing in an area managed by an
    RFMO, when done by vessels that are not flagged to one of the
    Members of that RFMO and when done in a manner that is
    inconsistent with or in contravention of the RFMO's management
    measures. Unregulated fishing also includes fishing in an area
    or on stocks for which there are no conservation and management
    measures, where that fishing is done in a manner inconsistent
    with States' responsibilities to conserve living marine
    resources under international law. There are certain
    clarifications made to the application of the IUU definition in
    Article 3, Scope, that are described further below.
        Also of note in this Article are the broad definitions of
    ``fish'' (all species of living marine resources), and
    ``fishing related activities'' (including not only fishing and
    landing, but also ``packaging, processing, transshipping . .
    .'' and ``provisioning of personnel, fuel, gear and other
    supplies at sea''). The latter definition furthers the core
    purposes of the Agreement of combating IUU fishing by
    addressing not just the fishing vessels, but also supply and
    transport vessels that support IUU fishing.
        Article 2, Objective, notes the straightforward objective
    of the Agreement is to ``prevent, deter, and eliminate IUU
    fishing through the implementation of effective port State
    measures . . .''
        Article 3, Application, requires a Party to apply the
    Agreement to all vessels not entitled to fly that Party's flag
    that are seeking to use its ports. It carves out exceptions for
    vessels from a neighboring State engaged in artisanal fishing
    for subsistence and, in certain circumstances, for container
    vessels. A Party is not required to apply the Agreement to its
    own flag vessels. A Party may choose not to apply the Agreement
    to vessels chartered by its nationals exclusively for fishing
    in areas under that Party's national jurisdiction. Article 3,
    paragraph 3, provides that the Agreement applies to ``fishing
    conducted in marine areas that is illegal, unreported or
    unregulated . . .''. Thus, the Agreement would not apply to
    non-marine areas such as the Great Lakes or other internal
    waters. Just as importantly, the use of the disjunctive ``or''
    with respect to IUU fishing in paragraph 3, in conjunction with
    the reference in the definition of IUU fishing to ``activities
    set out'' in the IPOA (rather than simply adopting the IPOA
    definition), clarifies that a fishing activity need only
    qualify as one of the categories (illegal, unreported, or
    unregulated) to be IUU fishing. Finally, Article 3 also
    requires Parties to encourage other entities to apply measures
    consistent with the Agreement and provides that those that may
    not otherwise become Parties, such as Taiwan, may express a
    commitment to act consistently with the Agreement.
        Article 4, Relationship with international law and other
    international instruments, provides that the Agreement will not
    prejudice ``rights, jurisdiction, and duties of Parties under
    international law.'' This Article specifies that the Agreement
    does not affect a Party's jurisdiction over its internal,
    archipelagic, or territorial waters, or its rights over its
    Exclusive Economic Zones and continental shelf. It also
    specifies that by joining the Agreement, Parties would not bind
    themselves to the measures of RFMOs to which they are not
    members.
        Article 5, Integration and coordination at the national
    level, requires a Party to integrate fisheries-related port
    measures within its larger system of port controls, to
    integrate its port measures with other efforts to combat IUU
    fishing, and to coordinate activities amongst its national
    agencies in implementing the Agreement.
        Article 6, Cooperation and exchange of information,
    provides basic obligations for a Party to cooperate and
    exchange information with relevant States, the FAO, and other
    international organizations and regional fisheries management
    organizations. In addition to the information exchange, each
    Party is obligated ``to the greatest extent possible'' to take
    measures in support of conservation and management measures
    adopted by other States or relevant international
    organizations. This obligation reflects the fact that the
    minimum standards in port measures established by the Agreement
    (and to be applied by the Parties for vessels not entitled to
    fly its flag) are intended to combat fishing that is IUU
    because it is inconsistent with the flag State or coastal
    State's laws, or inconsistent with the measures of a relevant
    RFMO. Finally, Parties are obligated to cooperate at sub-
    regional, regional, and global levels to promote the effective
    implementation of the Agreement.
        Article 7, Designation of ports, obligates Parties to
    designate and publicize ports to which vessels can request
    entry under the Agreement, and, to the greatest extent
    possible, to ensure that those ports have sufficient capacity
    to conduct inspections pursuant to the Agreement.
        Article 8, Advance request for port entry, obligates
    Parties to require from a vessel not entitled to fly its flag,
    at a minimum, the information listed in Annex A sufficiently in
    advance to allow adequate time to examine that information,
    before granting entry to that vessel into its port.
        Article 9, Port entry, authorization or denial, requires
    that when a Party has received the relevant information to be
    provided under Article 8, and such other information as it may
    require, it will make a decision whether to authorize entry,
    and communicate that decision to the vessel. When a Party has
    ``sufficient proof' that a vessel has engaged in IUU fishing or
    fishing-related activities, the Party is required to deny that
    vessel entry into its ports. ``Sufficient proof'' in particular
    includes a vessel being on the IUU list of a relevant fisheries
    management organization, adopted in accordance with the
    procedures of that organization and in accordance with
    international law. If entry is denied, the Party denying entry
    is required to communicate that decision to the vessel's flag
    State, and, if relevant, coastal States, RFMOs, and other
    international organizations. A Party may allow such vessel
    entry into its port for purposes of inspecting the vessel and
    taking other appropriate action in conformity with
    international law that is at least as effective as denial of
    port entry in preventing, deterring, and eliminating IUU
    fishing or fishing-related activities.
        Article 10, Force majeure or distress, provides that the
    Agreement does not affect the entry of vessels into port for
    reasons of force majeure or distress, in accordance with
    international law.
        Article 11, Use of ports, outlines circumstances where a
    Party is required to deny a vessel that is already in its port
    the use of the port for landing, transshipping, packaging,
    processing, and other port services (e.g., refueling,
    drydocking, etc.). Such circumstances include: lack of
    authorization for the vessel's activities from its flag State,
    or from a relevant coastal State; receipt of clear evidence
    that the fish on the vessel was taken in contravention of
    applicable coastal State requirements; failure by the flag
    State to confirm that the vessel took fish onboard in
    accordance with relevant RFMO measures; or the existence of
    reasonable grounds to believe the vessel was engaged in IUU
    fishing or fishing-related activities. This Article also
    confirms that Parties will not deny such vessels the use of
    port services essential to the safety or health of the crew,
    the safety of the vessel, or, where appropriate, the scrapping
    of the vessel.
        Article 12, Levels and priorities for inspection, provides
    that each Party shall inspect an unspecified number of vessels
    in its ports necessary to ``achieve the objective of this
    Agreement.'' This allows a Party to tailor the level and
    frequency of inspections to the circumstances in its particular
    port(s) or to particular fisheries. The Article also provides
    that Parties shall seek to agree on minimum levels of
    inspection, as appropriate, through RFMOs, the FAO, or
    otherwise. The process of seeking such agreement has already
    begun at RFMOs in the year since the text of the Agreement was
    finalized. Finally, the Article outlines priorities for
    determining which vessels should be inspected, giving priority
    to vessels denied entry or use of port, vessels that other
    relevant Parties or entities request be inspected, and vessels
    for which clear grounds exist for suspecting a vessel has
    engaged in IUU fishing or fishing-related activities.
        Article 13, Conduct of inspections, specifies minimum
    requirements for carrying out inspections. These include that
    inspectors be properly qualified and examine all relevant areas
    of the vessel, and that Parties require from the vessel master
    all necessary assistance and information. Parties must make all
    positive efforts to avoid undue delay to the vessel, and to
    facilitate communications with the master of the vessel, ensure
    inspections are fair, transparent, and nondiscriminatory, and
    not interfere with the ability of the master to communicate
    with the vessel's flag State. Minimum functions of the
    inspectors are included in Annex B of the Agreement, which
    provides, inter alia, that the inspector should verify the
    vessel's identification documentation, flag and markings, and
    authorizations for conducting fishing or fishing-related
    activities. Inspections must also encompass review of other
    documentation (such as VMS data), fishing gear and any fish on
    board, and an evaluation of whether there is clear evidence for
    believing the vessel was conducting or supporting IUU fishing
    or fishing-related activities.
        Article 14, Results of inspections, requires Parties, at a
    minimum, to include the information in Annex C in each
    inspection report.
        Article 15, Transmittal of inspection results, specifies to
    which entities inspection reports are to be sent, including the
    vessel's flag State, and, as appropriate, other Parties,
    States, RFMOs, and the FAO or other international
    organizations.
        Article 16, Electronic exchange of information, provides
    that each Party, where possible, must establish an electronic
    communication mechanism to facilitate implementation of the
    Agreement. Annex D outlines specific elements of such an
    electronic communication mechanism. This Article also
    encourages Parties to establish a centralized mechanism
    (preferably at the FAO) for such purposes.
        Article 17, Training of inspectors, requires inspectors to
    be properly trained, taking into account guidelines for such
    training set out in Annex E.
        Article 18, Port State actions following inspection,
    provides that if, following an inspection, there are ``clear
    grounds'' for believing a vessel engaged in IUU fishing or
    fishing-related activities, then the inspecting Party shall
    notify the flag State and other appropriate entities, and deny
    use of the port and port services to the vessel, other than
    those services essential for the safety or health of the crew
    or the safety of the vessel. This Article also confirms that
    nothing in the Agreement prevents a Party from taking other
    measures in conformity with international law.
        Article 19, Information on recourse in the port State,
    requires that information be provided to an affected vessel
    upon request with regard to potential recourse under a Party's
    national laws, as well as information on whether, in the event
    of loss or damage caused by unlawful action by the port State,
    there is any right to seek compensation under the Party's
    national laws. The Article is only a requirement to provide
    information on existing remedies. It does not create a right of
    action for an affected vessel, nor does it require any Party to
    create a right of action.
        Article 20, Role of flag States, specifies duties of a
    Party with regard to vessels entitled to fly its flag. The
    duties include: requiring such vessels to cooperate with port
    States; requesting port States to investigate such a vessel if
    the Party has clear grounds to believe the vessel was involved
    in IUU fishing; encouraging such vessels to utilize the ports
    of States that are acting in accordance with the Agreement;
    conducting investigations following up on inspections conducted
    by port States that indicate clear grounds to believe that such
    a vessel was involved in IUU fishing; reporting on actions
    taken in its role as flag State against such vessels determined
    to have engaged in IUU fishing; and ensuring that measures
    applied to such vessels are at least as effective as measures
    applied to foreign flag vessels pursuant to the Agreement.
        Article 21, Requirements of developing States, requires
    Parties to provide assistance to developing States Parties to
    enhance their ability to implement effective port State
    measures, and to ensure that a disproportionate burden is not
    imposed upon them. While no particular form of assistance is
    mandated, examples of such assistance include providing
    technical and financial assistance through bilateral and
    multilateral channels. Parties are required to cooperate to
    establish funding mechanisms, and to create an ad hoc working
    group to report and make recommendations to the Parties on the
    development of assistance opportunities.
        Article 22, Peaceful settlement of disputes, provides that
    any Party may seek consultations with any other Party or
    Parties on any dispute with regard to the interpretation or
    application of the Agreement, and, where the dispute is not
    resolved through such consultations, requires such Parties to
    consult with a view to settling it through the peaceful means
    of their choice. The Article also provides that the parties to
    a dispute that is not resolved through such consultations may
    refer the dispute to the International Court of Justice, the
    International Tribunal for the Law of the Sea, or arbitration,
    but only with the consent of all of the Parties to that
    dispute.
        Article 23, Non-Parties to this Agreement, specifies that
    Parties must encourage non-Parties to join or to act consistent
    with the Agreement, and must take fair, non-discriminatory, and
    transparent measures to deter the activities of non-Parties
    that undermine the Agreement.
        Article 24, Monitoring, review and assessment, requires
    Parties, through the framework of the FAO, to ensure regular
    review and monitoring of the implementation of the Agreement,
    and specifically to convene a meeting of the Parties for this
    purpose four years after the entry into force.
        Article 25, Signature, specifies that the Agreement will be
    open for signature by all States and regional economic
    integration organizations (REIOs) from November 22, 2009 to
    November 21, 2010. During this period, the Agreement was signed
    by 22 States and one REIO, the European Union.
        Article 26, Ratification, acceptance or approval, states
    that the Agreement is subject to ratification, acceptance, or
    approval by the signatories, and that such instruments are to
    be deposited with the Depositary.
        Article 27, Accession, provides that the Agreement will be
    open to accession by all States or REIOs, reflecting the
    objective of global coverage for the Agreement, and that all
    instruments of accession are to be deposited with the
    Depositary.
        Article 28, Participation by Regional Economic Integration
    Organizations, provides for the participation of either an REIO
    and/or its member States, and is drawn from the 1995 UN Fish
    Stocks Agreement. It specifies that at the time of signature or
    accession, an REIO must either declare that it has competence
    for its member States for all matters governed by the
    Agreement, or, if there is mixed competence between the REIO
    and its member States. When the European Union (currently the
    only REIO) signed the Agreement, it declared sole competence
    for its member States.
        Article 29, Entry into force, provides for the entry into
    force thirty days after the twenty-fifth deposit of an
    instrument of ratification, acceptance, approval, or accession.
    As of February 1, 2011, no such instruments have been
    deposited.
        Article 30, Reservations or exceptions, precludes making
    ``reservations or exceptions.'' The article is drawn from
    Article 42 of the 1996 UN Fish Stocks Agreement, which reflects
    standard practice (and terminology) in fisheries-related
    agreements.
        Article 31, Declarations and statements, confirms that
    Article 30 does not preclude States from making declarations or
    statements at the time of their signature, ratification,
    acceptance, or approval for the purpose of harmonizing their
    laws and regulations with the Agreement, so long as those
    declarations or statements do not purport to exclude or modify
    the legal effect of the provisions of the Agreement.
        Article 32, Provisional application, provides for
    provisional application of the Agreement by those States that
    so notify the Depositary.
        Article 33, Amendments, provides that amendments will be
    adopted and approved only by the Parties to the Agreement, not
    by the FAO or its bodies. Parties may propose amendments two
    years after the Agreement enters into force. Amendments may be
    adopted only by consensus and will enter into force for those
    Parties that have ratified, accepted, or approved them 90 days
    after the deposit of instruments of ratification, acceptance,
    or approval from two-thirds of the Parties based on the number
    of Parties on the date of the amendment's adoption, and
    thereafter for other Parties 90 days following deposit of their
    instrument of ratification, acceptance, or approval.
        Article 34, Annexes, provides that the annexes are an
    integral part of the Agreement. It also specifies that
    amendments to the annexes may be adopted by two-thirds of the
    Parties present at a meeting where the proposed annex amendment
    is considered. An annex amendment enters into force for Parties
    that accept the annex amendment on the date that the depositary
    receives notice of acceptance from one-third of the Parties
    based on the number of Parties on the date of adoption of the
    amendment, and thereafter for other Parties on the date of
    receipt by the Depositary of their acceptance. The expedited
    procedure for amending annexes reflects the technical and
    administrative nature of the annexes, which include
    specification of the information to be provided when a vessel
    is requesting port entry, an outline of port inspection
    procedures, a form for reporting the results of a port
    inspection, description of information systems, and guidelines
    for training port inspectors.
        Article 35, Withdrawal, notes that a Party may withdraw
    from the Agreement anytime after the Agreement has been in
    force for that Party for one year. Withdrawal becomes effective
    one year after receipt by the Depositary of the notice of
    withdrawal.
        Article 36, The Depositary, designates the Director-General
    of FAO as Depositary for the Agreement and sets forth the
    functions of the Depositary.
        Article 37, Authentic texts, establishes the Arabic,
    Chinese, English, French, Russian, and Spanish texts as equally
    authentic.