[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.