What are port state measures?
Illegal Unreported and Unregulated (IUU) fishing is a global threat to sustainable fisheries and to the management and conservation of fisheries resources and marine biodiversity. As a tool to combat IUU fishing, the importance of enhanced port state control has increasingly gained ground throughout the last decennium. The growing reliance on port states to combat non-sustainable fishing practices stems to a great extent from the failure of flag states to effectively control fishing operations carried out by vessels flying their flag.
Port State Measures (PSM) are requirements established or interventions undertaken by port states which a foreign fishing vessel must comply with or is subjected to as a condition for use of ports within the port state. National PSM would typically include requirements related to prior notification of port entry, use of designated ports, restrictions on port entry and landing/transhipment of fish, restrictions on supplies and services, documentation requirements and port inspections, as well as related measures, such as IUU vessel listing, trade-related measures and sanctions. Many of these measures have in recent years seen their inclusion and development in international instruments.
National legal frameworks for PSM
Along with international and regional initiatives aiming at implementing and enforcing PSM, individual states are rapidly adopting such measures. Whether it is the implementation of PSM schemes adopted by Regional Fisheries Management Organizations (RFMOs) or nationally adopted PSM, national legal frameworks and their implementation are crucial in enabling port states to apply PSM to combat IUU fishing.
National legal frameworks should empower national authorities to take adequate enforcement action against vessels involved in IUU fishing in their own ports, with a view to contributing to undermining fishing activities that are not carried out in accordance with conservation and management measures adopted by RFMOs, other states and the port state itself.
International law basis and developments
It is a principle of customary international law that a foreign vessel, with the exception for reasons of force majeure or distress, has no right of access to the internal waters and ports of a state. As state jurisdiction is applied to the extent of its territory, there is however some uncertainty regarding the extent to which a port state might exercise jurisdiction over a foreign vessel for behaviour carried out outside its territory. It has thus been considered crucial to empower port states through treaties so that they can exercise such jurisdiction.
Since the adoption in 1982 of the Unites Nations Convention on the Law of the Sea, which to a very little extent addresses port state jurisdiction – and then primarily in the context of marine pollution – there has been a progressive development of international law in the area of fisheries-related PSM, including through the adoption of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas in 1993 (FAO Compliance Agreement) and the Agreement for the Implementation of the provisions of the United Nations Conventions on the Law of the Sea of 10 December 1982 Relating to the Conservation and the Management of Straddling Fish Stocks and Highly Migratory Fish Stocks in 995 (UN Fish Stocks Agreement).
Voluntary instruments, namely the FAO Code of Conduct for Responsible Fisheries (the Code) and in the International Plan of Action to prevent, deter and eliminate IUU Fishing (IPOA-IUU) also encourage implementation of PSM as tools to combat IUU fishing. A number of port state duties are provided for under article 8.3 of the Code, while the IPOA-IUU, which urges a stronger and broader reliance on PSM, calls on states, individually and collectively, to put into practice a whole suite of PSM described in paragraphs 52-64.
Following the entering into force of the FAO Compliance Agreement, the UN Fish Stock Agreement and the adoption of the IPOA-IUU, FAO initiated the work of developing standards for control in fishing ports. In 2005, the FAO Committee on Fisheries (COFI) endorsed the Model Scheme on Port State Measures to Combat IUU Fishing, which recommends international minimum standards for PSM, requiring appropriate implementation at the regional or national level. The same session of COFI also called upon FAO to establish a database on port state measures to combat IUU fishing in consultation with its members – the basis upon which the FAO database on PSM has been established.
Acknowledging the urgent need for a comprehensive suite of PSM to combat IUU fishing, COFI endorsed in 2007 the global call for a binding agreement on PSM based on the Model Scheme and the IPOA-IUU.
The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (trilingual) was approved by the FAO Conference at its Thirty-sixth Session on 22 November 2009. The Agreement aims to prevent illegally caught fish from entering international markets through ports. Under the terms of the treaty, foreign vessels will provide advance notice and request permission for port entry, countries will conduct regular inspections in accordance with universal minimum standards, offending vessels will be denied use of port or certain port services and information sharing networks will be created.