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