Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated FishingSenate Consideration of Treaty Document 112-4
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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.