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6.1 Basic port State measures
6.2 Examples of some port State measures in use
6.3 Other Possibilities for coordination

IUU fishers ultimately need to bring their catch to port for landing or transshipment.[65] Some States, unwittingly or not, allow their ports to be used for this purpose and thereby facilitate IUU fishing. Other States, either on their own or in cooperation with like-minded States, have begun to limit and regulate access to their ports as a means to control IUU fishing. Increasing the strength and coordination of port State measures, as described in the IPOA-IUU, will be necessary.

International law generally recognizes that a State has full sovereignty with respect to ports in its territory. Generally speaking, a State may:

The international community has been developing port State measures for some time, primarily to promote compliance with vessel safety and environmental standards adopted under the auspices of the IMO.[67] Recent international instruments relating to fisheries have also begun to elaborate certain port State measures for the purpose of promoting compliance with fishery conservation and management standards. The use of port State measures for this purpose is now regarded as both a duty and a right.[68]

6.1 Basic port State measures

The IPOA-IUU builds upon these recent instruments in calling on all port States to develop and apply control measures to prevent, deter and eliminate IUU fishing.

Port State measures should be applied in a fair, transparent and non-discriminatory manner. In addition, a port State should treat any information obtained from foreign vessels in its port in accordance with any applicable confidentiality requirements.

A port State can implement some control measures even before vessels enter its ports. As set forth in paragraph 55 of the IPOA-IUU, a port State should require foreign fishing vessels seeking port access to provide at a minimum:

A port State should also require other foreign vessels involved in fishing-related activities to provide comparable data before entering port. Receipt of such data is particularly important in the case of transport vessels that may be carrying fish transshipped at sea.

By obtaining this information in advance of possible port entry, a port State will enhance its ability to determine whether the vessel has engaged in or supported IUU fishing. For example, a port State may have received earlier notification from another State or from a RFMO that a particular vessel was sighted fishing in a closed area or using prohibited fishing gear. Information obtained from a vessel seeking port entry may indicate that the vessel in question may be the one that was the subject of the earlier notice. If so, the port State could deny the request for access altogether or, alternatively, grant the vessel access but subject it to a thorough inspection while in port.

A State should only grant foreign fishing vessels access to its ports where the State has the capability to conduct vessel inspections. During such inspections, a port State should collect at least the following information, which should be provided to the flag State and, where appropriate, to the relevant RFMO:

The information collected in the course of a vessel inspection will give the port State an even stronger basis on which to determine whether the vessel has engaged in or supported IUU fishing. If the port State has reasonable grounds[69] for suspecting that a vessel in its port has done so, the IPOA-IUU calls on the port State:

In some circumstances, the port State may take additional action. For example, if the suspected IUU fishing may have taken place in waters under the jurisdiction of the port State, that State has the responsibility to exercise its jurisdiction as a coastal State to investigate and, if appropriate, prosecute and penalize those responsible for the IUU fishing.

Even where the suspected IUU fishing may have taken place in waters beyond the jurisdiction of the port State, the port State may take action against the vessel and its operators with the consent of, or at the request of, the flag State.

As the use of port State controls do not necessarily entail significant resources, they represent a promising avenue for implementation by developing States. During port visits, enforcement officials should, at the very least, board the vessels, examine their logbooks and collect other relevant information. This would not entail enormous financial costs but would require some training in boarding and inspection techniques. This could be a useful focus for assistance to developing States, discussed further in Section 9 of these guidelines.

6.2 Examples of some port State measures in use[70]

Measures Adopted by Individual States.

Canada generally denies port access to vessels that undermine conservation measures by fishing contrary to conservation regimes established by RFMOs of which Canada is a member.[71]

The European Union instructs its port authorities to allow vessels from non-EU States to offload fish that were caught on the high seas only if they have been satisfied that the fish have been caught outside the regulatory areas of any competent RFMO of which the European Community is a member, or that the fish have been caught in compliance with conservation and management measures adopted by the RFMO of which the Community is a member.[72]

Icelandic legislation bans the landing, transshipment and selling of catch in Icelandic ports from a foreign fishing vessel that has violated agreements on utilization and preservation of living marine resources to which Iceland is a party. Such vessels may not be provided with services within the Icelandic EEZ nor from Icelandic ports.[73]

Japan prohibits port calls by tuna longline vessels registered in certain States, following identification of those States by ICCAT as diminishing the effectiveness of resource management measures regarding Atlantic bluefin tuna.[74]

Norway denies port access to foreign fishing vessels that have taken part in an unregulated fishery on the high seas.[75]

Before a foreign fishing vessel enters a South African port, it must furnish the authorities with proof that it has complied with the reporting requirements of the flag State. When it has done so and has reported its current position, the authorities will consent to the vessel entering a South African port and will furnish it with a permit. However, the vessel is not normally permitted to offload its catch.

The United States of America generally denies foreign vessels the ability to land or transship fish in U.S. ports, except for a small number of ports located in U.S. insular territories, such as American Samoa and Guam, or pursuant to special agreements with other States. However, vessels identified as having engaged in large-scale driftnet fishing on the high seas, in contravention of UN General Assembly Resolution 46/216, are denied port access outright. The United States also prosecutes foreign vessels that are voluntarily in its ports for having fished in waters under the jurisdiction of another State in violation of that other State's laws or regulations.[76]

Cooperation Among States Involving in Port State Measures. Action by individual port States may not be sufficient to prevent, deter and eliminate IUU fishing. Ideally, coordinated action among port States - and among port States, flag States and coastal States - would be achieved, including through RFMOs.

For example, Norway and Canada entered into an agreement in 1995 recognising that fishing operations beyond the EEZ of each party for stocks which occur both within that zone and the area beyond must be conducted in a manner which does not undermine the effectiveness of applicable conservation and management measures. Each party will deny access to its ports to vessels that engage in activities that undermine such measures, except in cases of force majeure, and will prohibit the landing of the catch of such vessels.[77]

Port State Measures Adopted by RFMOs. Paragraph 63 of the IPOA-IUU calls upon States, acting through RFMOs, to consider schemes to restrict landings and transshipments of fish harvested by non-members of the RFMO:

States should consider developing within [RFMOs] port State measures building on the presumption that fishing vessels entitled to fly the flag of States not parties to a [RFMO] and which have not agreed to cooperate with that [RFMO], which are identified as being engaged in fishing activities in the area of that particular organization, may be engaging in IUU fishing. Such port State measures may prohibit landings and transshipment of catch unless the identified vessel can establish that the catch was taken in a manner consistent with those conservation and management measures.
In fact, a number of RFMOs have adopted port State schemes in recent years. Some of these schemes follow the approach suggested by paragraph 63 of the IPOA-IUU, in that they deal exclusively with situations involving access to ports of RFMO members by vessels of non-members. Other schemes involve port access by vessels of RFMO members as well. The following material summarizes the types of schemes that have been adopted to date.

NAFO has adopted a regime of port State measures that apply when vessels of NAFO members that have fished for NAFO-regulated stocks are voluntarily in the ports of other members. In such cases, NAFO members must ensure that inspectors are present and that an inspection of the offloading process takes place to verify the species and quantities caught and to collect a variety of related information. The port State must transmit the results of the inspection to the NAFO Secretariat and, upon request, to the flag State as well.[78]

In order to combat IUU fishing by vessels of non-members, NAFO has also adopted a Scheme to Promote Compliance by Non-Contracting Party Vessels with Conservation and Enforcement Measures Established by NAFO,[79] which commits the port States of NAFO to implement certain additional control measures. The Scheme presumes that a non-member vessel that has been sighted engaging in fishing activities[80] in the NAFO Regulatory Area is undermining NAFO conservation and enforcement measures. If such a vessel enters the port of a NAFO member, it must be inspected. The port State must prohibit the vessel from landing or transshipping fish unless the vessel can establish that the fish were caught outside the NAFO Regulatory Area or, for certain species only, if they were harvested in accordance with NAFO conservation and enforcement measures. The port States must report the results of such port inspections to the NAFO Secretariat, to all NAFO members and to the flag State of the vessel.[81]

ICCAT has adopted a number of port State measures to promote compliance with its conservation measures, including a port inspection scheme and restrictions on landings and transshipments of catches by non-member vessels.[82]

ICCAT's Revised Port Inspection Scheme,[83] which became effective in 1998, requires ICCAT members to carry out inspections of all tuna fishing vessels in their ports, including vessels of ICCAT members. In the case of apparent violations by a vessel registered in another State, the inspectors must draw up a report containing standardized information and transmit the report to the flag State and to the ICCAT Secretariat within ten days. If a vessel of the port State committed the apparent violation, the inspectors must draw up the same kind of report and transmit it to the ICCAT Secretariat in the same timeframe. In all such cases, the flag State must investigate and, where appropriate, prosecute those responsible, and inform the ICCAT Secretariat of actions taken in this regard.

In adopting the Revised Port Inspection Scheme, ICCAT noted that:

most ICCAT recommendations can only be enforced during off-loading, and therefore this is the most fundamental and effective tool for monitoring and inspection.... The purpose of the port inspection scheme is to ensure individual vessel compliance as well as to facilitate overall monitoring of each party's fisheries for ICCAT species. ICCAT hopes that the parties will actually exceed these minimum standards [set forth in the Scheme] in order to effect timely and accurate monitoring of landings and transshipments, check compliance with ICCAT management measures, ensure quotas are not exceeded, and collect data and other information on landings and transshipments.
In 1998, ICCAT also adopted a measure similar to NAFO's Scheme to Promote Compliance by Non-Contracting Party Vessels.[84] Any vessel of a non-member that is sighted in the ICCAT Convention Area and may be fishing is presumed to be undermining ICCAT conservation measures. If the vessel voluntarily enters the port of an ICCAT member, it must be inspected. If the inspection reveals that the vessel has onboard any species that are the subject of ICCAT conservation measures, the vessel may not land or transship any fish unless it establishes that the fish were caught outside the Convention Area or in compliance with the ICCAT measures. The port State must transmit the results of the inspection to the ICCAT Secretariat, which will send the information to all ICCAT members and to the flag State as well.

Although NEAFC has not yet adopted a general requirement to conduct port inspections of all fishing vessels, its Scheme to Promote Compliance by non-Contracting Party vessels with Recommendations established by NEAFC closely parallels the NAFO Scheme.[85]

IOTC, in a report of 28 July 1999 to FAO, commented that IUU fishing for tunas can probably only be curbed by port State measures aimed at the activities of flag of convenience vessels, but that Port States must be prepared to forego benefits from transshipment activities related to IUU fishing. Although IOTC has not yet adopted a general requirement for port State inspections or other general controls, an IOTC resolution calls on IOTC members and those with cooperating status to refuse port access to "flag of convenience vessels, which are engaged in fishing activities diminishing the effectiveness of measures adopted by IOTC."[86]

CCAMLR has also not yet adopted a general port inspection scheme, but has adopted a scheme similar to NAFO's scheme relating to non-member vessels.[87] CCAMLR's Catch Documentation Scheme for Dissostichus spp., discussed in Section 7 of these guidelines, also requires action on the part of port State officials.

Paragraph 63 of the IPOA-IUU seeks to promote the sorts of schemes already adopted by NAFO, NEAFC, ICCAT and CCAMLR for addressing non-member fishing through the use of port State measures. In one important respect, however, the IPOA-IUU suggests an improvement in these sorts of schemes. The relevant decisions of these RFMOs each depend on the actual sighting of a non-member vessel in order to trigger the presumption that the vessel has been undermining the RFMO's measures. The capacity of States to make such sightings is very limited, unfortunately, especially where the RFMO has responsibilities relating to fisheries over vast ocean areas (as in the case of ICCAT, CCAMLR and a number of other RFMOs).

With this problem in mind, the IPOA-IUU suggests that the presumption in question should be triggered when a non-member vessel is identified as being engaged in fishing activities. This broader term would allow the presumption to be triggered when, for example, the analysis of trade data suggests that a vessel is engaged in IUU fishing in waters under the responsibility of a given RFMO.

6.3 Other Possibilities for coordination

In order to prevent, deter and eliminate IUU fishing within a given region, the possibility of additional agreements on port State measures should be considered. Ideally, such agreements would involve members of any RFMO as well as non-members whose ports are known to be used for landing or transshipping fish regulated by the RFMO.

It is also recommended to formalize co-operation among RFMOs. Such cooperation would be essential in areas where IUU fishing is the concern of two or more regional bodies. For example, the conservation and management of fish resources in the Atlantic Ocean is the responsibility of several RFMOs. A comprehensive port State system would mean that IUU fishing within the area of responsibility of one RFMO should trigger action by port States that are members of other RFMOs.

A regional system of port State measures could also entail common procedures for inspection, qualification requirements for inspection officers and agreed consequences for vessels found to be in non-compliance. Possible common elements could also include, in addition to denial of port access and/or landing and transshipment of catch, denial of requests for fishing access to coastal State waters and denial of requests for vessel registration.[88]

[65] When used in these guidelines, the term “port” includes off-shore terminals.
[66] The IPOA-IUU reaffirms a well-known exception to this rule; i.e. that a State should allow a vessel to enter its port for reasons of force majeure or distress or for rendering assistance to those in danger or distress. However, the rendering of assistance to a vessel in distress would not normally require a port State to allow a vessel to land or transship fish in its port.
[67] For further discussion, see “Regional Port State Control Agreements: Some Issues of International Law,” by Ted L. McDorman.
[68] See, e.g. the UN Fish Stocks Agreement, article 23; Code of Conduct, article 8.3; and the FAO Compliance Agreement, article V.2.
[69] Paragraph 59 of the IPOA-IUU calls for certain actions by a port State when it has “reasonable grounds” to suspect that a vessel has engaged in or supported IUU fishing. Paragraph 56 calls upon a port State to deny a vessel the ability to land or transship fish in port when it has “clear evidence” that the vessel has engaged in IUU fishing.
[70] Much of the information in this subsection is drawn from T. Lobach, supra note 34.
[71] See Coastal Fisheries Protection Act (R.S.C. 1970, c.C.21) Sections 3 and 4, and Coastal Fisheries Protection Regulations (C.R.C., 1978, c. 413), Section 5.
[72] See EU Control Regulation 2847/93, as amended.
[73] See Article 3 of Act No 228 April 1998 concerning fishing and processing by foreign vessels in Iceland’s exclusive fishing zone.
[74] M. Komatsu, supra note 20.
[75] Regulation No. 1130 of 23 December 1994 concerning the entry into and passage through Norwegian territorial waters.
[76] The Lacey Act, supra note 21, allows the United States Government to prosecute persons subject to U.S. jurisdiction for harvesting fish in violation of foreign law.
[77] Agreement between the Government of the Kingdom of Norway and the Government of Canada on Fisheries conservation and enforcement (signed 30 June 1995).
[78] See Part VII of the NAFO Conservation and Enforcement Measures (NAFO/FC doc. 01/1).
[79] NAFO/GC Doc. 97/6, attached as Appendix III to these guidelines.
[80] The NAFO Scheme defines “fishing activities” quite broadly to include, “fishing, fish processing operations, the transshipment of fish or fish products, and any other activity in preparation for or related to fishing in the NAFO Regulatory Area.” As such, the Scheme applies not only to fishing vessels but also to other types of vessels that engage in related activities, including transport vessels.
[81] This Scheme has been put into practice. In 1999, for example, non-member vessels sighted fishing in the NAFO Regulatory Area attempted to land fish in the Faroe Islands but were prohibited from doing so as they could not prove that the fish were caught outside the NAFO Regulatory Area or in accordance with the NAFO conservation and enforcement measures.
[82] Certain other ICCAT measures call on its members (and those with cooperating status) to take action as port States, including Resolution 94-9 on Vessel Sighting (calling for the collection of information on non-member tuna vessels in ports) and Resolution 96-13 on Improving Completeness of Task I Statistics (similarly calling for collection of information on foreign vessels in port and transmission of such information to the ICCAT Secretariat).
[83] ICCAT Recommendation 97-10, attached as Appendix IV to these guidelines.
[84] ICCAT Recommendation 98-11 (Ban on Landings and Transhipments), entered into force June 21, 1999.
[85] The NEAFC Scheme was adopted in 1998 and entered into force 1 July 1999. See Annex F of the Report of the Seventeenth Annual meeting of NEAFC.
[86] IOTC Resolution 99/02, Calling for Actions Against Fishing Activities by Large Scale Flag of Convenience Longline Vessels.
[87] Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures, Conservation Measure 118/XVII of the Schedule of Conservation Measures in force (2000/2001).
[88] The Joint FAO/IMO Ad hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters, which met in Rome 9-11 October 2000, recognized that the mechanism of international or regional Memoranda of Understanding relating to port State control over fishing vessels could be used as an important and effective tool for enhancing fisheries management and for addressing the issue of IUU fishing. Existing regional MOUs for vessels safety and pollution control may provide useful models for port state control over fishing vessels. In addition, national and international experts in these maritime fields may have experience that could benefit the development of analogous instruments and procedures for combating IUU fishing.

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