Implementation of Port State Measures: Legislative Template Framework for Procedures Role of Regional Fisheries Management Organizations

Cover photograph and photographs on pages x, 96, 134 and 142 by Per Erik Bergh, Stop Illegal Fishing

Photograph on page 154 by IOTC Regional Observer Programme to Monitor Transhipment at Sea

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PREPARATION OF THIS DOCUMENT

Port State measures are the front line of attack against illegal, unreported and unregulated (IUU) fishing, whether it occurs in waters under national jurisdiction or the high seas. Implementation of these measures by all port States, using minimum standards agreed at global and regional levels, is of vital importance for the sustainability of the tuna and other fisheries resources occurring in all marine areas.

The entry into force of the FAO Agreement on port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing on 5 June 2016 reflected the successful culmination of global efforts to combat IUU fishing by setting harmonized minimum standards for measures to be taken at port. It targets IUU fishing and fishing related activities in support of such fishing, and its reach extends to areas within and beyond national jurisdiction. Many regional fishery management organizations (RFMOs) and some countries have been active in preparing for entry into force, but the development and adoption of national implementing legislation has become imperative.

This document provides a legislative template and related information for use by port States and, as appropriate, to facilitate those initial steps. The document was developed in the framework of the Common Oceans ABNJ Tuna Project funded by the Global Environment Facility and implemented by the FAO.

The Common Oceans ABNJ Tuna Project harnesses the efforts of a large and diverse array of partners, including the five tuna RFMOs, governments, inter-governmental organizations, non-governmental organizations and private sector.

The Project aims to achieve responsible, efficient and sustainable tuna production and biodiversity conservation in the ABNJ focusing on three thematic areas including:

•Improving management

•Combatting IUU fishing

•Protecting biodiversity

Under the second thematic area, the Project supports the implementation of port State measures, as well as other actions to empower States in their fight against IUU fishing.

Indian Ocean Tuna Commission Resolution 10/11 on Port State Measures to prevent, deter and eliminate illegal, unreported and unregulated fishing, has been superceded since the preparation of this document by Resolution 16/11 of the same name. The amendment recognised recent achievements in developing a computerised communication system as required in Annex IV of Resolution 10/11, referred to as the e-PSM (electronic port State measures) application, and the delivery of a national training programme on the usage of this application. The IOTC Resolution can be revised annually, and readers are advised to refer to the latest version on the IOTC website.

ACKNOWLEDGEMENTS

Support in the preparation and use of this publication is gratefully acknowledged. The Common Oceans ABNJ Tuna Project initiated the preparation of the document and coordinated guidance for its development. Reviews were provided by Teresa Amador (Ecosphere Consultants), Matthew Camilleri and Blaise Kuemlangan (FAO). Information and input was also provided by national experts, RFMO Secretariats and Stop Illegal Fishing, who also provided pictures. The legislative template was used in FAO workshops and IOTC training and legislative development on port State measures prior to its publication.

Swan, J. 2016. Implementation of port State measures – Legislative template, framework for procedures, role of regional fisheries management organizations. Rome, FAO.

TABLE OF CONTENTS

Preparation of this document

Acknowledgements

Acronyms

Executive Summary

1. INTRODUCTION AND BACKGROUND

1.1 Port State measures

1.2 Legislative implementation of port State measures

1.3 Challenges and checklists for the development of national legislation

1.4 Potential support for implementation

2. FAO AGREEMENT AND IOTC RESOLUTION

2.1 Introduction to the FAO Agreement and IOTC Resolution

2.2 Framework of the FAO Agreement and IOTC

2.3 Resolution Summary of trends in national implementing legislation

3. LEGISLATIVE TEMPLATE FOR THE IMPLEMENTATION OF PORT STATE MEASURES - CORE PROVISIONS

3.1 Introduction

3.2 Approach to evidentiary standards

3.3 Legislative template

4. LEGISLATIVE TEMPLATE FOR THE IMPLEMENTATION OF PORT STATE MEASURES - SUPPORTING PROVISIONS

4.1 Introduction

4.2 Legislative template

5. FRAMEWORK OF NATIONAL PROCEDURES TO SUPPORT PORT STATE MEASURES

5.1 Introduction

5.2 Role of interagency cooperation

5.3 Framework of procedures

5.4 General

6. ROLE OF REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS

6.1 Use of Terms relating to RFMOs in the FAO Agreement

6.2 Assessment of evidence of IUU fishing in relation to RFMOs

6.3 RFMO role to develop procedures for identifying ports of non-compliance

6.4 Communication and notification requirements

6.5 Role of the RFMO Secretariat

6.6 Strengthening RFMO port State measures: the role of performance reviews

6.7 Implementation of port State measures by tuna-RFMOs

6.8 Implementation of port State measures by select RFMOs

7. CONCLUSIONS

ANNEXES

I. AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING

II. RESOLUTION 10/11 ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING

III. COMPARISON OF REQUIREMENTS RELATING TO COMMUNICATION, NOTIFICATION AND TRANSMITTAL OF INFORMATION TO RFMOS — IOTC RESOLUTION/FAO AGREEMENT

IV. TUNA — RFMO PERFORMANCE REVIEW RECOMMENDATIONS ON PORT STATE MEASURES AND SUBSEQUENT DEVELOPMENTS

V. CONSERVATION AND MANAGEMENT MEASURES RELEVANT TO PORT STATE MEASURES — TUNA-RFMOS

VI. CONSERVATION AND MANAGEMENT MEASURES RELEVANT TO PORT STATE MEASURES — SELECT RFMOS

TABLES

1. Development and implementation of the FAO Agreement

2. Summary comparison of the FAO Agreement and IOTC Resolution

3. Guide to using the Legislative Template

4. Indicative interagency procedures for port State measures

5. FAO Agreement - Requirements for assessment by national authorities of evidence of IUU fishing and fishing related activities relevant to RFMOs

6. FAO Agreement – Requirements relating to communication, notification and transmittal of information to RFMOs

7. CMMs on port State measures – Indicative Secretariat roles

8. Indicative CMMs of tuna-RFMOs relevant to port State measures

ACRONYMS

EXECUTIVE SUMMARY

The entry into force of the FAO Agreement on port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing on 5 June 2016 reflected the successful culmination of global efforts to combat IUU fishing by setting harmonized minimum standards for measures to be taken at port. It targets IUU fishing and fishing related activities in support of such fishing, and its reach extends to areas within and beyond national jurisdiction. Many RFMOs and some countries have been active in preparing for entry into force, but the development and adoption of national implementing legislation has become imperative.

At regional level, several RFMOs have adopted various requirements and minimum standards of the FAO Agreement in conservation and management measures (CMMs) that are legally binding on their members. In 2010, the Indian Ocean Tuna Commission (IOTC) adopted Resolution 10/11 on port State measures that is almost identical to the FAO Agreement. Other RFMO CMMs vary in the extent of implementation of its requirements, as described in this document. There is ongoing review and strengthening of the CMMs relating to port State measures within many RFMOs, in part encouraged by their performance reviews.

This document focuses on the implementation of two legal instruments - the FAO Agreement and IOTC Resolution – which, as noted above, are almost identical. Together, they are legally binding on a wide range of countries.

At national level, the process of preparing for entry into force of the FAO Agreement, as well as implementation of relevant RFMO CMMs, has been challenging for many countries. The objective of this document is twofold: to meet those challenges by providing generic legislative templates for the development of national legislation; and to explain broader context of port State measures.

Legislative templates are provided for implementing the core and supporting provisions respectively; they are generic, and can be adapted to different legal systems, institutions and instruments. The core provisions are those implemented directly from the FAO Agreement, and as appropriate the IOTC Resolution, and the supporting provisions are those that relate to areas such as enforcement information and evidence. The latter reflect best practices and are important for backstopping aspects of the core provisions; they may already be in national fisheries legislation or may be used for strengthening existing provisions. Explanatory notes are given for each core and supporting provision.

In order that the broader context of port State measures can be better understood as national legislation is developed, this document also describes the development of port State measures, a framework for national procedures and the role of RFMOs.

1INTRODUCTION AND BACKGROUND

1.1 Port State measures

Port State measures are the front line of attack against illegal, unreported and unregulated (IUU) fishing, whether it occurs in waters under national jurisdiction or the high seas. Implementation of these measures by all port States, using minimum standards agreed at global and regional levels, is of vital importance for the sustainability of the tuna and other fisheries resources occurring in all marine areas.

Port State measures are considered to be among the most robust and cost-effective tools in the global arsenal to combat IUU fishing. They impose major sanctions, including denial of entry into port or use of port and could lead to further investigation, prosecution, license revocation and inclusion on an RFMO IUU vessel list, as well as market-related measures.

By making it more difficult to market fish, the economic incentive to engage in IUU fishing is reduced. In addition, many countries have decided to prohibit trade with countries that do not have port State measures in place. By reducing financial gains from IUU fishing the international community was of the view that the incentive to engage in such fishing would be reduced. Used in combination with other tools, port State measures should reduce the level of IUU fishing globally.

The measures integrate other monitoring, control and surveillance (MCS) tools such as catch documentation schemes (CDS), consolidated vessel lists and electronic monitoring systems, and encourage integration among all national agencies responsible for port inspections. They call for the exchange of information with - and among – RFMOs, coastal States, flag States and international organizations, leading to more effective fisheries conservation and management and conservation on a global basis.

Port State measures are based on agreed minimum legal and operational standards and criteria. For example, they set out requirements for denial of entry into, or use of port by vessels that may have been involved in IUU fishing or related activities such as transhipment or supply. Implementation of the minimum standards in national legislation, based on international and regional agreement, is essential for the success of the measures.

Operational matters, such as decisionmaking, reporting, assessment of reports, inspections and communications, may be elaborated in agreed procedures; however, the procedures must have a firm basis in national legislation for matters such as vessel reporting, authorities of fisheries inspectors and evidence. Even properly trained inspectors can only operate effectively when they have the relevant legal authority.

The global governance framework for the legislative template is the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (FAO Agreement, or FAOA), in ANNEX 1.¹ It was developed through FAO processes spanning nearly a decade, described in Table 1 below, and entered into force on 5 June 2016.²

At regional level, RFMOs play a key role in implementing port State measures through adopting legally binding CMMs, as described in section 6 below. At the time the FAO Agreement entered into force in June, 2016, a wide range of RFMOs had adopted CMMs addressing various aspects of port State measures, while a few were still seeking to agree on a CMM. Several RFMOs had initiated or carried out reviews to update and align their CMMs with the minimum standards and scope of the FAO Agreement, in part encouraged by their performance reviews. Although significant progress had been made, many RFMOs had yet to implement in their CMMs the full range of minimum standards in the FAO Agreement. To some extent, this is attributable to the different mandates and objectives of the various Commissions and aims of their members, as well as their regional orientation.

An exemplary step was taken in 2010 by the IOTC through adoption of Resolution 10/11 on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IOTC Resolution or IOTCR),¹⁰ in ANNEX II. The IOTC Resolution is almost identical to the FAO Agreement and is legally binding on the 32 IOTC Members. Because the FAO Agreement and IOTC Resolution (the instruments) have the broadest, and almost identical scope, they form the basis for the legislative template and are elaborated in this document.

Another exemplary step was taken in the 2016 NEAFC Scheme of Control and Enforcement which applied the FAO Agreement, mutatis mutandis, as a minimum standard for port State control of foreign fishing vessels and non-Contracting Party vessels.¹¹ It requires Contracting Parties to cooperate in its effective implementation of the FAO Agreement and will take effect when all NEAFC NEAFC Contracting Parties become party to the FAO Agreement.

Nationally, a number of countries have adopted or initiated legislation to implement port State measures in general, as described in section 2.3 of this document. However, most of the existing legislation takes a piecemeal approach to port State measures and does not contain the range of minimum standards required under the instruments.

Capacity development initiatives to promote implementation of the FAO have been ongoing. In this regard, COFI, in June, 2014, expressed its appreciation of FAO’s efforts in conducting the global series of regional capacity-development workshops to prepare for the entry into force of the Agreement, described in Table 1.¹² The workshops were held in collaboration with relevant regional and international organizations to assist developing States in strengthening and harmonizing port State measures and becoming Party. The aim was to bring the FAOA into force as soon as possible and ensure that it gained the widest possible international acceptance.¹³

There is a clear need for comprehensive harmonized legislation that implements all relevant aspects of the FAO Agreement or, as applicable, the IOTC Resolution. The objective of this document is to inform and facilitate the legislative reviews and strengthening in order that countries are prepared to discharge their legal obligations under the FAO Agreement and applicable RFMO CMMs.

To achieve this objective, this following are presented in six sections in this document:

•an introduction and background to legislative implementation, noting challenges and checklists and potential support for developing countries (this section);

•an overview of the FAO Agreement and IOTC Resolution , which explains the framework and trends in national implementing legislation (section 2);

•a legislative template for implementing