Background Document on The Negotiation of an International Instrument on Port State Measures to prevent, deter and eliminate Illegal, Unreported and Unregulated fishing

The Need for an International Agreement on Port State Measures

Given the difficulties inherent in combating illegal, unreported and unregulated (IUU) fishing, particularly as a result of flag States not exercising their responsibilities in respect of illegal operators, in recent years there has been an increasing global focus on the role of port State measures to deter IUU fishing. Such measures are perceived as an efficient and cost-effective instrument, along with a range of other instruments, in the fight against IUU fishing. They can enhance the effectiveness of other useful monitoring, control and surveillance (MCS) tools, such as vessel monitoring systems (VMS), regional licensing and trade-related means, and can provide an effective deterrent to the transshipping of IUU fish on the high seas.

There are a range of port State measures, including the designation of ports of landing; prohibition of entry into port; prohibition of landing, transshipping or accessing services in port; carrying out inspections in port; and the adoption of enforcement measures, such as vessel detention or seizure of catch and gear. Over the years, a range of port State measures have been adopted by a number of Regional Fisheries Management Organisations (RFMOs). These were foreshadowed in a number of international instruments, such as the 1993 Food and Agriculture Organization (FAO) Compliance Agreement, the 1995 U.N. Fish Stocks Agreement (UNFSA) and the International Plan of Action on IUU Fishing (IPOA-IUU), and they were recommended as an effective tool by the United Nations General Assembly’s (UNGA) Resolutions on Sustainable Fisheries.

Given the current challenges posed by IUU fishing, the worldwide expansion and harmonisation of port State measures was considered a necessary step. Acknowledging this, in 2007 the FAO Committee on Fisheries (COFI) asked members to develop a new legally binding instrument on port State measures. This initiative, which is nearly complete as a final text of the agreement, is likely to be adopted at the end of August 2009.  It will not only provide binding rules but also will help improve coordination among domestic and regional authorities, simplify enforcement, and facilitate a legal framework for those States that are not parties to certain RFMOs but do not want to allow IUU fish into their ports. The effectiveness of the agreement will strongly depend on its broad ratification and effective implementation, as well as the willingness of port States to share enforcement information.

The FAO Process Towards a Port State Agreement

• March 2005. COFI adopts the FAO Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing and agrees that follow-up work should be undertaken, especially to make the scheme operational.
• The FAO Model Scheme is a voluntary instrument providing minimum standards for a range of activities and requirements. A number of international organisations and forums promote or endorse it, including the UNGA, and call for a legally binding instrument setting minimum standards for port State measures..
• March 2007. COFI acknowledges the urgent need for a comprehensive suite of port State measures and encourages members to develop a new legally binding instrument based on the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) and the 2005 FAO Model Scheme.
• September 2007. FAO Expert Consultation in Washington, D.C., develops a Draft Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.
• June 2008—August 2009. Four rounds of negotiations on this agreement, based on the Draft from the Expert Consultation, are held at the FAO headquarters in Rome:
  • 23 – 27 June 2008
  • 26 – 30 January 2009
  • 4 – 8 May 2009
  • 24 – 28 August 2009.

• End of 2009. Expected date for adoption of the treaty. The treaty could either be adopted as an FAO treaty (under Article XIV of the FAO Constitution) or as a free-standing agreement. If adopted as an FAO treaty, FAO’s plenary body, the FAO Conference, can adopt it in November 2009. Once adopted, it will be open for signature. The treaty will enter into force once it has been ratified by at least 25 States.

Key Elements of the Draft Agreement on Port State Measures

Scope
The Draft Agreement applies to any foreign vessel that can be used for fishing or fishing-related activities; this includes reefers and cargo and container vessels carrying fish that have not been previously landed. The agreement also covers supply vessels that support vessels engaged in IUU fishing.

Obligations

• Prior to entry of a foreign flagged vessel into port, each party shall:
  • designate ports to which vessels may be permitted access; and
  • require advance notification and a minimum of information if a vessel wishes to enter its ports.

   

• When a State that is party to the agreement has sufficient proof that a vessel seeking entry into its port has engaged in IUU fishing or fishing-related activities (including vessels listed on IUU vessel lists), it shall deny entry into its ports unless it is taking enforcement actions as effective as port entry denial.

 

• Parties shall deny use of ports for landing, transshipping, processing of fish or for other port services when the party:

  • has reasonable grounds to believe that the vessel was engaged in IUU fishing; or
  • finds that the vessel is not duly authorised by the flag State or by the coastal State, or is not in compliance with the requirements of the relevant RFMO.

   

• Each party shall inspect a number of vessels in its ports necessary to achieve the objective of the Agreement. They shall do so in accordance with inspection guidelines provided in the Agreement.

 

• Parties are to transmit the results of inspection to the flag State and, as appropriate, to other States and organisations, and are to cooperate in establishing an information-sharing mechanism and in facilitating the exchange of information with existing databases relevant to the Agreement.

 

• Assistance needs to be provided to developing States with regards to the implementation of port State measures. An ad hoc working group shall be established to report on and make recommendations to the parties on such financial matters.

 

• The burden of proof rests with the owners or operators of the vessel. It is for them to establish that the catch was taken in a manner consistent with relevant conservation and management measures.