[Senate Executive Report 113-1]
[From the U.S. Government Publishing Office]
113th Congress Exec. Rept.
SENATE
2d Session 113-1
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AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER, AND ELIMINATE
ILLEGAL, UNREPORTED, AND UNREGULATED FISHING (TREATY DOC. 112-4)
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March 13, 2014.--Ordered to be printed
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Mr. Menendez, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 112-4]
The Committee on Foreign Relations, to which was referred
the Agreement on Port State Measures to Prevent, Deter, and
Eliminate Illegal, Unreported, and Unregulated Fishing (Treaty
Doc. 112-4) (the ``Agreement''), done at the Food and
Agriculture Organization of the United Nations, in Rome, Italy
on November 22, 2009, and signed by the United States on that
date, having considered the same, reports favorably thereon
with one declaration, as indicated in the resolution of advice
and consent, and recommends that the Senate give its advice and
consent to ratification thereof.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Agreement.......................2
IV. Implementing Legislation.........................................5
V. Committee Action.................................................5
VI. Committee Recommendation and Comments............................5
VII. Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The Agreement, the first global treaty focused specifically
on illegal, unreported and unregulated fishing (IUU), will
implement legally binding minimum standards for port states to
control port access by foreign fishing vessels, as well as the
foreign transport and supply ships that support fishing
vessels, and encourages Parties to apply similar measures to
their own fishing vessels. The Agreement establishes practical
provisions such as standardized ship inspections and better
communication between ports concerning vessels associated with
illegal fishing, so as to prevent fish from illegal,
unreported, and unregulated fisheries from entering the stream
of commerce.
II. Background
IUU fishing has had a severe impact on the sustainability
of marine resources, as well as the ecosystem in which they
reside. Developing coastal nations that rely upon fish as a
staple food have encountered great difficulty due to the
depletion of fish stocks and the resulting loss in local
employment. In recent years many countries, either on their own
or working through local regional mechanisms, have begun to
combat IUU fishing by limiting and regulating vessel access to
their ports. The international community organized a collective
process through the United Nations Food and Agriculture
Organization (FAO) to develop a legally binding instrument to
combat IUU fishing. The Agreement was adopted by the Food and
Agriculture Conference on November 22, 2009. There were 23
original signatories to the Agreement, including the United
States.
III. Summary of Key Provisions of the Agreement
Overall, the Agreement requires Parties to designate ports
to which foreign vessels may request entry, and to deny entry
to vessels known to have engaged in IUU fishing. Parties must
also inspect enough vessels in their ports to achieve the
objectives of the Agreement, take appropriate action against
vessels where clear evidence exists of engagement in IUU
fishing, and communicate the results of such inspections to
other states. The Agreement also seeks to assist developing
State Parties in carrying out the Agreement by encouraging
assistance from other State Parties. A detailed article-by-
article discussion of the Agreement may be found in the Letter
of Submittal from the Secretary of State to the President,
which is reprinted in full in Treaty Document 112-4. A summary
of the key provisions of the Agreement is set forth below.
Article 1 of the Agreement defines ``illegal fishing'' as
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, in
contravention of international laws, or by vessels of a State
member of a Regional Fishery Management Organization (RFMO), in
contravention of that RFMO's conservation and management
measures. ``Unreported fishing'' is fishing that has either not
been reported, or is misrepresented to the relevant authority.
``Unregulated fishing'' is fishing done in areas regulated by
an RFMO when the vessels do not belong to member states of that
RFMO, or in an area where there are no conservation and
management measures, and the vessels fail to conserve living
marine resources under international law. ``Fish'' is defined
as all species of living marine resources, and ``fishing
related activities'' includes fishing, landing, packaging,
processing, transshipping, and provisioning of personnel, fuel,
gear and other supplies at sea.
Article 3 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, with exceptions in certain circumstances for
container vessels, as well as for neighboring state vessels
engaged in artisanal fishing for subsistence. A Party is not
required to apply the Agreement to its own flag vessels, and
the Agreement does not apply to non-marine areas such as lakes
and internal waters. Fishing need only fit one of the IUU
categories to be considered IUU fishing. Parties are also
required to encourage other entities to apply measures
consistent with the Agreement.
Article 4 specifies that the Agreement does not bind
Parties to the standards of RFMOs to which they are not
members, and does not impact a Party's jurisdiction over its
internal and territorial waters, or its rights over its
Exclusive Economic Zone and continental shelf.
Article 5 requires Parties to integrate fisheries-related
port measures within their existing system of port controls,
and to coordinate its port measures with other efforts to
combat IUU fishing.
Article 6 obligates a Party to cooperate and exchange
information with relevant states, the FAO, and other RFMOs and
international organizations, and obligates a Party to take
measures in support of conservation and management measures
adopted by other States or relevant international
organizations.
Article 8 obligates Parties to require from all vessels not
entitled to fly the Party's flag information which includes
their intended port of call, port state, estimated date and
time of arrival, purpose of landing, port and date of last port
call, the name and type of the vessel, as well as their contact
information and owners, their flag State, their international
radio call sign, other appropriate identifications, relevant
fishing and transshipment authorizations, as well as the total
catch onboard, and total catch to be offloaded.
Article 9 requires a Party, once it has received the
relevant information required by Article 8, to make a decision
whether or not to authorize entry to a port and communicate
that decision to a vessel. When a Party has sufficient proof
that a vessel has engaged in IUU fishing, the Party is required
to deny that vessel entry. Sufficient proof means, in
particular, the vessel's inclusion on a RFMO IUU list. The
Party denying entry is required to communicate that decision to
the vessel's flag State and any relevant RFMOs and
international organizations. However, a Party may allow such a
vessel port entry if it is for the purposes of inspecting the
vessel and taking any other appropriate action under
international law.
Article 11 summarizes circumstances where a Party is
required to deny a vessel already within its port the use of
that port for fishing related activities and other port
services, save for services essential to the safety and health
of the crew and the vessel. These circumstances can include
lack of authorization for the vessel's activities from its flag
State, or failure by the flag State to confirm that the vessel
engaged in fishing pursuant to relevant RFMO measures, or
reasonable grounds to believe the vessel was engaged in IUU
fishing or fishing-related activities.
Article 12 requires Parties to inspect enough vessels in
its ports to achieve the objectives of this Agreement, and
encourages Parties to agree on minimum levels of inspection
through RFMOs, the FAO, or elsewhere. In determining which
vessels to inspect, a Party must give priority to vessels
denied entry or use of another port in accordance with the
Agreement, requests from other relevant Parties, States or
RFMOs that particular vessels be inspected, and other vessels
for which there are clear grounds to suspect IUU fishing.
Article 13 identifies minimum requirements for carrying out
inspection, including that the inspectors be properly qualified
and examine all relevant areas of the vessel, attempt to avoid
undue delay, interference and inconvenience, and ensure that
inspections are conducted in a fair, transparent and non-
discriminatory manner. The master of the vessel, in turn, must
render inspectors all necessary assistance and information.
Article 15 states that Parties shall transmit the results
of each inspection to the flag State of the inspected vessel
and, if appropriate, to relevant Parties, States, RFMOs, the
FAO and other international organizations.
Article 18 states that if, after an inspection, there are
clear grounds for believing that a vessel has engaged in IUU
fishing, the inspecting Party must promptly notify the flag
State and other appropriate entities, and deny the vessel the
use of its port for fishing related activities, unless use of
the port is essential for the safety or health of the crew or
vessel.
Article 19 requires that, upon request, information be
provided to an affected vessel with regard to legal recourse
under a Party's national laws. Further, in light of any loss or
damage, an affected vessel can access information about the
right to seek compensation. The Article only requires that
information be provided, and does not require any Party to
create a right of action.
Article 20 requires that Parties compel cooperation with
inspections from vessels entitled to fly their flag. When a
flag State has clear grounds to believe that one of its vessels
has engaged in IUU fishing activities and is seeking entry to
or is in the port of another state, it shall, if appropriate,
request that the State inspect the vessel or take other
appropriate measures. Each Party must encourage their vessels
to fish and conduct related activities in a manner in
accordance with this Agreement, and to develop transparent and
non-discriminatory procedures for identifying any State not
acting in accordance with this Agreement. Each Party shall also
report to other Parties, RFMOs and the FAO on the actions taken
in respect to vessels entitled to fly its flag that have been
determined to have engaged in IUU fishing.
Article 21 requires Parties to assess the special
requirements of developing States Parties in enacting this
Agreement, and provide assistance to developing State Parties
to enhance their ability to implement effective port measures.
Article 22 provides for a Party to seek consultations with
any other Party or Parties in the event of a dispute over an
interpretation or application of the agreement. If the dispute
is not resolved through such consultations, Parties may, with
the consent of all parties, refer the dispute to the
International Court of Justice, the International Tribunal of
the Law of the Sea, or arbitration.
Article 24 requires Parties to utilize the framework of the
FAO to ensure regular review and monitoring of the
implementation of the Agreement, and to convene the Parties for
this purpose 4 years after the Agreement has entered into
force.
Article 28 provides for the participation of either a
Regional Economic Integration Organization (REIO) or its member
states. At the time of signature or accession, the REIO must
specify either that it has competence for some or all matters
governed by the Agreement.
Article 29 provides that the Agreement enters into force
thirteen days after the twenty-fifth deposit of an instrument
of ratification, acceptance, approval or accession.
Articles 30 and 31 preclude making reservations or
exceptions, but not declarations or statements to the
Agreement, so long as those declarations or statements do not
purport to exclude or modify the legal effect of the
Agreement's provisions.
Article 33 provides that amendments will be adopted and
approved only by Parties to the Agreement. Amendments may be
proposed 2 years after the Agreement enters into force, and may
be adopted only by consensus. Amendments enter into force for
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.
IV. Implementing Legislation
Legislation will be needed to implement this Agreement. The
executive branch has indicated that it will soon provide
proposed legislation to the appropriate congressional
committees.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the Agreement on February 12, 2014, at which it heard testimony
from David Balton, the Deputy Assistant Secretary for Oceans
and Fisheries at the Department of State, as well as from
Russell Smith, the Deputy Assistant Secretary for International
Fisheries at the Department of Commerce, and Rear Admiral
Frederick J. Kenney, Judge Advocate General and Counsel for the
United States Coast Guard. The committee also heard testimony
from a panel of private sector witnesses: Mark Gleason,
Executive Director of the Alaska Bering Sea Crabbers; Mark P.
Lagon, Global Politics and Security Chair of Georgetown
University and Adjunct Senior Fellow for Human Rights at the
Council on Foreign Relations; and Raymond Kane, Outreach
Coordinator for the Cape Cod Commercial Fishermen's Alliance.
On March 11, 2014, the committee considered the Agreement and
ordered it favorably reported by voice vote, with the
recommendation that the Senate give its advice and consent to
its ratification.
VI. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
proposed Agreement is in the interest of the United States and
urges the Senate to act promptly to give advice and consent to
its ratification. The committee believes the Agreement is of
direct and critical interest to United States fishing concerns,
as well as U.S. conservation organizations, U.S. consumers, and
those who reside in vulnerable developing coastal countries.
The Committee on Foreign Relations has included one
declaration in the recommended resolution of advice and
consent. The declaration states that the Agreement is not self-
executing. This statement means that the Agreement will have
domestic effect through implementing legislation and
regulations thereunder. Prior to the 110th Congress, the
committee generally included such statements in the committee's
report, but in light of the Supreme Court decision in Medellin
v. Texas, 128 S. Ct. 1346 (2008), the committee determined that
a clear statement in the Resolution is warranted. A further
discussion of the committee's views on this matter can be found
in Section VIII of Executive Report 110-12.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of 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, and Signed by the United
States on November 22, 2009 (the ``Agreement'') (Treaty Doc.
112-4), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
The Agreement is not self-executing.