The Indian Ocean Tuna Commission (IOTC),
DEEPLY CONCERNED about the continuation of illegal, unreported and unregulated fishing in the IOTC Area and its detrimental effect upon fish stocks, marine ecosystems and the livelihoods of legitimate fishers in particular in Small Island Developing States, and the increasing need for food security in the region;
CONSCIOUS of the role of the port State in the adoption of effective measures to promote the sustainable use and the long-term conservation of living marine resources;
RECOGNISING that measures to combat illegal, unreported and unregulated fishing should build on the primary responsibility of flag States and use all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market related measures and measures to ensure that nationals do not support or engage in illegal, unreported and unregulated fishing;
RECOGNISING that port State measures provide a powerful and cost-effective means of preventing, deterring and eliminating illegal, unreported and unregulated fishing;
AWARE of the need for increasing coordination at the regional and interregional levels to combat illegal, unreported and unregulated fishing through port State measures;
RECOGNISING the need for assistance to developing countries, in particular Small Island Developing States to adopt and implement port State measures;
TAKING NOTE OF the binding Agreement on port State measures to combat IUU fishing which was adopted and opened for signature within the framework of FAO in November 2009, and desiring to implement this Agreement in an efficient manner in the IOTC Area;
BEARING IN MIND that, in the exercise of their sovereignty over ports located in their territory, IOTC Contracting Parties and Cooperating Non-Contracting Parties (CPCs) may adopt more stringent measures, in accordance with international law;
RECALLING the relevant provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, hereinafter referred to as the Convention;
RECALLING the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 December 1995, the Agreement to Promote Compliance with International Conservation and Management Resolutions by Fishing Vessels on the High Seas of 24 November 1993 and the 1995 FAO Code of Conduct for Responsible Fisheries;
RECOGNISING recent achievements in developing a computerised communication system as provided for in Annex IV of Resolution 10/11 [superseded by Resolution 16/09] On port State measures to prevent, deter and eliminate illegal, unreported and unregulated fishing referred to as the e-PSM (electronic port State measures) application and the delivery of national training programme on the usage of this application;
ENSURING the uptake and gradual transition to full utilisation of the e-PSM application designed to facilitate compliance with this resolution;
ADOPTS, in accordance with the provisions of Article IX, paragraph 1 of the IOTC Agreement, the following:
Use of terms
For the purposes of this Resolution:
a) “fish” means all species of highly migratory fish stocks covered by the IOTC Agreement;
b) “fishing” means searching for, attracting, locating, catching, taking or harvesting fish or any activity which can reasonably be expected to result in the attracting, locating, catching, taking or harvesting of fish;
c) “fishing related activities” means any operation in support of, or in preparation for, fishing, including the landing, packaging, processing, transhipping or transporting of fish that have not been previously landed at a port, as well as the provisioning of personnel, fuel, gear and other supplies at sea;
d) “illegal, unreported and unregulated fishing” refers to the activities set out in paragraph 1 of the Resolution 09/03 [superseded by Resolution 11/03];
e) “port” includes offshore terminals and other installations for landing, transhipping, packaging, processing, refuelling or resupplying; and
f) “vessel” means any vessel, ship of another type or boat used for, equipped to be used for, or intended to be used for, fishing or fishing related activities.
The objective of this Resolution is to prevent, deter and eliminate IUU fishing through the implementation of effective port State measures to control the harvest of fish caught in the IOTC Area, and thereby to ensure the long-term conservation and sustainable use of these resources and marine ecosystems.
3.1 Each CPC shall, in its capacity as a port State, apply this Resolution in respect of vessels not entitled to fly its flag that are seeking entry to its ports or are in one of its ports, except for:
(a) vessels of a neighbouring State that are engaged in artisanal fishing for subsistence, provided that the port State and the flag State cooperate to ensure that such vessels do not engage in IUU fishing or fishing related activities in support of such fishing; and
(b) container vessels that are not carrying fish or, if carrying fish, only fish that have been previously landed, provided that there are no clear grounds for suspecting that such vessels have engaged in fishing related activities in support of IUU fishing.
3.2 This Resolution shall be applied in a fair, transparent and non-discriminatory manner, consistent with international law.
3.3 Each CPC may utilise the e-PSM system, available via the IOTC website, to implement this Resolution. A trial period of three years from 2016 will be provided to allow for the delivery of a complete training programme and further improvement and development. CPCs shall encourage all stakeholders (vessel representatives, port States and flag States) to utilise, to the greatest extent possible, the e-PSM application to comply with this Resolution and provide feedback and inputs contributing to its development until 1st January 2020. At the sixteenth session of the Compliance Committee the success of this application shall be evaluated and consideration shall be given to making the use of this application mandatory and defining a period for implementation. After this date the possibility to submit an advance request for port entry manually in accordance with Article 6 will remain, should access to the Internet not be possible for any reason.
Integration and coordination at the national level
Each CPC shall, to the greatest extent possible:
a) integrate or coordinate fisheries related port State measures with the broader system of port State controls;
b) integrate port State measures with other measures to prevent, deter and eliminate IUU fishing and fishing related activities in support of such fishing, taking into account as appropriate the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing; and
c) take measures to exchange information among relevant national agencies and to coordinate the activities of such agencies in the implementation of this Conservation and Management Resolution.
Designation of ports
5.1 Each CPC shall designate and publicise the ports to which vessels may request entry pursuant to this Resolution. Each CPC shall provide a list of its designated ports to IOTC Secretariat before 31 December 2010, which shall give it due publicity on the IOTC website.
5.2 Each CPC shall, to the greatest extent possible, ensure that every port designated and publicised in accordance with point 5.1 has sufficient capacity to conduct inspections pursuant to this Resolution.
Advance request for port entry
6.1 Each CPC shall require the information requested in Annex I to be provided before granting entry to a vessel to its port.
6.2 Each CPC shall require the information referred to in point 6.1 to be provided at least 24 hours before entering into port or immediately after the end of the fishing operations, if the time distance to the port is less than 24 hours. For the latter, the port State must have enough time to examine the above mentioned information.
Port entry, authorisation or denial
7.1 After receiving the relevant information required pursuant to section 6, as well as such other information as it may require to determine whether the vessel requesting entry into its port has engaged in IUU fishing or fishing related activities in support of such fishing, each CPC shall decide whether to authorise or deny the entry of the vessel into its port and shall communicate this decision to the vessel or to its representative.
7.2 In the case of authorisation of entry, the master of the vessel or the vessel’s representative shall be required to present the authorisation for entry to the competent authorities of the CPC upon the vessel’s arrival at port.
7.3 In the case of denial of entry, each CPC shall communicate its decision taken pursuant to point 7.1, to the flag State of the vessel and, as appropriate and to the extent possible, relevant coastal States and IOTC Secretariat. The IOTC Secretariat may, if deemed appropriate to combat IUU fishing at global level, communicate this decision to secretariats of other RFMO's.
7.4 Without prejudice to point 7.1, when a CPC has sufficient proof that a vessel seeking entry into its port has engaged in IUU fishing or fishing related activities in support of such fishing, in particular the inclusion of a vessel on a list of vessels having engaged in such fishing or fishing related activities adopted by a regional fisheries management organisation in accordance with the rules and procedures of such organisation and in conformity with international law, the CPC shall deny that vessel entry into its ports.
7.5 Notwithstanding points 7.3 and 7.4, a CPC may allow entry into its ports of a vessel referred to in those points exclusively for the purpose of inspecting it and taking other appropriate actions in conformity with international law which are at least as effective as denial of port entry in preventing, deterring and eliminating IUU fishing and fishing related activities in support of such fishing.
7.6 Where a vessel referred to in points 7.4 or 7.5 is in port for any reason, a CPC shall deny such vessel the use of its ports for landing, transhipping, packaging, and processing of fish and for other port services including, inter alia, refuelling and resupplying, maintenance and drydocking. Points 9.2 and 9.3 of section 9 apply mutatis mutandis in such cases. Denial of such use of ports shall be in conformity with international law.
Force majeure or distress
Nothing in this Resolution affects the entry of vessels to port in accordance with international law for reasons of force majeure or distress, or prevents a port State from permitting entry into port to a vessel exclusively for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
Use of ports
9.1 Where a vessel has entered one of its ports, a CPC shall deny, pursuant to its laws and regulations and consistent with international law, including this Conservation and Management Resolution, that vessel the use of the port for landing, transhipping, packaging and processing of fish that have not been previously landed and for other port services, including, inter alia, refuelling and resupplying, maintenance and drydocking, if:
a) the CPC finds that the vessel does not have a valid and applicable authorisation to engage in fishing or fishing related activities required by its flag State;
b) the CPC finds that the vessel does not have a valid and applicable authorisation to engage in fishing or fishing related activities required by a coastal State in respect of areas under the national jurisdiction of that State;
c) the CPC receives clear evidence that the fish on board was taken in contravention of applicable requirements of a coastal State in respect of areas under the national jurisdiction of that State;
d) the flag State does not confirm within a reasonable period of time, on the request of the port State, that the fish on board was taken in accordance with applicable requirements of a relevant regional fisheries management organisation; or
e) the CPC has reasonable grounds to believe that the vessel was otherwise engaged in IUU fishing or fishing related activities in support of such fishing, including in support of a vessel referred to in point 7.4, unless the vessel can establish:
i. that it was acting in a manner consistent with relevant IOTC Resolutions; or
ii. in the case of provision of personnel, fuel, gear and other supplies at sea, that the vessel that was provisioned was not, at the time of provisioning, a vessel referred to in point 4 of paragraph 7.
9.2 Notwithstanding point 9.1, a CPC shall not deny a vessel referred to in that point the use of port services:
a) essential to the safety or health of the crew or the safety of the vessel, provided these needs are duly proven; or
b) where appropriate, for the scrapping of the vessel.
9.3 Where a CPC has denied the use of its port in accordance with this paragraph, it shall promptly notify the flag State and, as appropriate, relevant coastal States, IOTC or other regional fisheries management organisations and other relevant international organisations of its decision.
9.4 A CPC shall withdraw its denial of the use of its port pursuant to point 9.1 in respect of a vessel only if there is sufficient proof that the grounds on which use was denied were inadequate or erroneous or that such grounds no longer apply.
9.5 Where a CPC has withdrawn its denial pursuant to point 9.4, it shall promptly notify those to whom a notification was issued pursuant to point 9.3.
Levels and priorities for inspection
10.1 Each CPC shall carry out inspections of at least 5% of landings or transhipments in its ports during each reporting year.
10.2 Inspections shall involve the monitoring of the entire discharge or transhipment and include a cross-check between the quantities by species recorded in the prior notice of landing and the quantities by species landed or transhipped. When the landing or transhipment is completed, the inspector shall verify and note the quantities by species of fish remaining on board.
10.3 National inspectors shall make all possible efforts to avoid unduly delaying a vessel and ensure that the vessel suffers the minimum interference and inconvenience and that degradation of the quality of the fish is avoided.
10.4 The port CPC may invite inspectors of other CPC to accompany their own inspectors and observe the inspection of landings or transhipment operations of fishery resources caught by fishing vessels flying the flag of another CPC.
Conduct of inspections
11.1 Each CPC shall ensure that its inspectors carry out the functions set forth in Annex II as a minimum standard.
11.2 Each CPC shall, in carrying out inspections in its ports:
a) ensure that inspections are carried out by properly qualified inspectors authorised for that purpose, having regard in particular to section 14;
b) ensure that, prior to an inspection, inspectors are required to present to the master of the vessel an appropriate document identifying the inspectors as such;
c) ensure that inspectors examine all relevant areas of the vessel, the fish on board, the nets and any other gear, equipment, and any document or record on board that is relevant to verifying compliance with relevant Conservation and Management Resolutions;
d) require the master of the vessel to give inspectors all necessary assistance and information, and to present relevant material and documents as may be required, or certified copies thereof;
e) in case of appropriate arrangements with the flag State of the vessel, invite the flag State to participate in the inspection;
f) make all possible efforts to avoid unduly delaying the vessel to minimise interference and inconvenience, including any unnecessary presence of inspectors on board, and to avoid action that would adversely affect the quality of the fish on board;
g) make all possible efforts to facilitate communication with the master or senior crew members of the vessel, including where possible and where needed that the inspector is accompanied by an interpreter;
h) ensure that inspections are conducted in a fair, transparent and non-discriminatory manner and would not constitute harassment of any vessel; and
i) not interfere with the master’s ability, in conformity with international law, to communicate with the authorities of the flag State.
Results of inspections
Each CPC shall, as a minimum standard, include the information set out in Annex III in the written report of the results of each inspection.
Transmittal of inspection results
13.1 The port State CPC shall, within three full working days of the completion of the inspection, transmit by electronic means a copy of the inspection report and, upon request, an original or a certified copy thereof, to the master of the inspected vessel, to the flag State, to the IOTC Secretariat and, as appropriate, to:
a) the flag State of any vessel that transhipped catch to the inspected vessel;
b) the relevant CPCs and States, including those States for which there is evidence through inspection that the vessel has engaged in IUU fishing, or fishing related activities in support of such fishing, within waters under their national jurisdiction; and
c) the State of which the vessel’s master is a national.
13.2 The IOTC Secretariat shall without delay transmit the inspection reports to the relevant regional fisheries management organisations, and post the inspection report on the IOTC website.
Training of inspectors
Each CPC shall ensure that its inspectors are properly trained taking into account the guidelines for the training of inspectors in Annex V. CPC shall seek to cooperate in this regard.
Port State actions following inspection
15.1 Where, following an inspection, there are clear grounds for believing that a vessel has engaged IUU fishing or fishing related activities in support of such fishing, the inspecting CPC shall:
a) promptly notify the flag State, the IOTC Secretariat and, as appropriate, relevant coastal States, and other regional fisheries management organisations, and the State of which the vessel’s master is a national of its findings; and
b) deny the vessel the use of its port for landing, transhipping, packaging and processing of fish that have not been previously landed and for other port services, including, inter alia, refuelling and resupplying, maintenance and drydocking, if these actions have not already been taken in respect of the vessel, in a manner consistent with this Conservation and Management Resolution.
15.2 Notwithstanding point 15.1, a CPC shall not deny a vessel referred to in that point the use of port services essential for the safety or health of the crew or the safety of the vessel.
15.3 Nothing in this Resolution prevents a CPC from taking measures that are in conformity with international law in addition to those specified in points 15.1 and 15.2, including such measures as the flag State of the vessel has expressly requested or to which it has consented.
Information on recourse in the port State
16.1 A CPC shall maintain the relevant information available to the public and provide such information, upon written request, to the owner, operator, master or representative of a vessel with regard to any recourse established in accordance with its national laws and regulations concerning port State measures taken by that CPC pursuant to sections 7, 9, 11 or 15, including information pertaining to the public services or judicial institutions available for this purpose, as well as information on whether there is any right to seek compensation in accordance with its national laws and regulations in the event of any loss or damage suffered as a consequence of any alleged unlawful action by the CPC.
16.2 The CPC shall inform the flag State, the owner, operator, master or representative, as appropriate, of the outcome of any such recourse. Where other Parties, States or international organisations have been informed of the prior decision pursuant to sections 7, 9, 11 or 15, the CPC shall inform them of any change in its decision.
Role of CPCs flag States
17.1 Each CPCs shall require the vessels entitled to fly its flag to cooperate with the port State in inspections carried out pursuant to this Resolution.
17.2 When a CPC has clear grounds to believe that a vessel entitled to fly its flag has engaged in IUU fishing or fishing related activities in support of such fishing and is seeking entry to or is in the port of another State, it shall, as appropriate, request that State to inspect the vessel or to take other measures consistent with this Resolution.
17.3 Each CPC shall encourage vessels entitled to fly its flag to land, tranship, package and process fish, and use other port services, in ports of States that are acting in accordance with, or in a manner consistent with this Resolution. CPCs are encouraged to develop fair, transparent and non-discriminatory procedures for identifying any State that may not be acting in accordance with, or in a manner consistent with, this Resolution.
17.4 Where, following port State inspection, a flag State CPC receives an inspection report indicating that there are clear grounds to believe that a vessel entitled to fly its flag has engaged in IUU fishing or fishing related activities in support of such fishing, it shall immediately and fully investigate the matter and shall, upon sufficient evidence, take enforcement action without delay in accordance with its laws and regulations.
17.5 Each CPC shall, in its capacity as a flag State, report to other CPCs, relevant port States and, as appropriate, other relevant States, regional fisheries management organisations and FAO on actions it has taken in respect of vessels entitled to fly its flag that, as a result of port State measures taken pursuant to this Resolution, have been determined to have engaged in IUU fishing or fishing related activities in support of such fishing.
17.6 Each CPC shall ensure that measures applied to vessels entitled to fly its flag are at least as effective in preventing, deterring, and eliminating IUU fishing and fishing related activities in support of such fishing as measures applied to vessels referred to in point 3.1.
Requirements of developing States
18.1 CPCs shall give full recognition to the special requirements of CPCs developing States in relation to the implementation of this Resolution. To this end, IOTC should provide assistance to CPCs developing States in order to, inter alia:
a) enhance their ability, in particular the least-developed among them and small island developing States, to develop a legal basis and capacity for the implementation of effective port State measures;
b) facilitate their participation in any international organisations that promote the effective development and implementation of port State measures; and
c) facilitate technical assistance to strengthen the development and implementation of port State measures by them, in coordination with relevant international mechanisms.
18.2 IOTC shall give due regard to the special requirements of developing CPCs port States, in particular the least-developed among them and small island developing States, to ensure that a disproportionate burden resulting from the implementation of this Resolution is not transferred directly or indirectly to them. In cases where the transfer of a disproportionate burden has been demonstrated, CPCs shall cooperate to facilitate the implementation by the relevant CPCs developing States of specific obligations under this Resolution.
18.3 IOTC shall assess the special requirements of CPCs developing States concerning the implementation of this Resolution.
18.4 IOTC CPCs shall cooperate to establish appropriate funding mechanisms to assist CPCs developing States in the implementation of this Resolution. These mechanisms shall, inter alia, be directed specifically towards:
a) developing and enhancing capacity, including for monitoring, control and surveillance and for training at the national and regional levels of port managers, inspectors, and enforcement and legal personnel;
b) monitoring, control, surveillance and compliance activities relevant to port State measures, including access to technology and equipment; and
c) listing CPCs developing States with the costs involved in any proceedings for the settlement of disputes that result from actions they have taken pursuant to this Resolution.
Duties of the IOTC Secretariat
19.1 The IOTC Secretariat shall without delay post on the IOTC website:
a) the list of designated ports;
b) the prior notification periods established by each CPC;
c) the information about the designated competent authority in each port State CPC;
d) the blank copy of the IOTC Port inspection report form.
19.2 The IOTC Secretariat shall without delay post on the secure part of the IOTC website copies of all Port inspection reports transmitted by port State CPCs.
19.3 All forms related to a specific landing or transhipment shall be posted together.
19.4 The IOTC Secretariat shall without delay transmit the inspection reports to the relevant regional fisheries management organisations.
This Resolution shall be applied to CPCs’ ports within the IOTC area of competence. The CPCs situated outside the IOTC area of competence shall endeavour to apply this Resolution.
This Resolution supersedes Resolution 10/11 on Port State Measures to prevent, deter and eliminate illegal, unreported and unregulated fishing.