Port State Measures to Become Hard Law

On 1 September 2009, the Food and Agriculture Organisation of the UN announced that 91 member states agreed to adopt a treaty on port state measures (PSM). The adoption of the treaty agreement is historic as it will be the first binding international agreement to combat illegal fishing by effectively terminating access to ports by IUU fishing and support vessels . The Treaty on PSM explicitly recognizes that its success is substantially dependent on –

• increased regional and inter-regional co-ordination of measures to implement port state measures;
• the effective use of communication technologies, databases, networks and global records that support port state measures; and
• financial, technological and other support for developing and island states.

The Treaty places significant emphasis on issues relating to transparency and information sharing amongst port states. A number of articles focus on these elements, including -

• Article 3 – Application: Sub-article 2 requires that the treaty be applied in a fair, transparent and non-discriminatory manner and consistent with international law.
• Article 5 – Integration and co-ordination at national level: Article 5 requires parties “to the greatest extent possible” to integrate, share and co-ordinate information to ensure the effective implementation of port state measures.
• Article 6 – Cooperation and exchange of information: Article 6 obligates parties to cooperate and exchange information – with due regard to confidentiality requirements – with relevant states, FAO, other international and regional organizations.
• Article 7 – Designation of Ports: Article 7 requires parties to designate and publicize the ports to which foreign flagged vessels may request entry.
• Article 8bis – Port Entry: Sub-articles 2 and 3 require that where a vessel has been denied entry or where there is sufficient proof that the vessel has committed an act of IUU fishing, then the decision to refuse the vessel entry must be communicated to specified entities and the vessel should be listed on a public IUU listing in accordance with national, regional or international law.
• Article 9 – Use of Ports: Should the port state party concerned decide to withdraw or change its decision regarding port entry, this decision too must be communicated to each of the organizations initially advised of its decision under article 8.
• Articles 12, 13 & 14 – Inspections: The treaty puts in place a set of minimum inspection standards (Annexures B, C and E). Annexure C stipulates the format for an inspection report which must be completed by an inspector of the port state. Furthermore, the inspection must be transparent. Inspection results must as a minimum be transmitted to other relevant State Parties, RFMO’s, FAO and other relevant international organizations.
• Article 15 – Electronic Exchange of Information: Article15 encourages parties to establish an electronic information sharing mechanism to facilitate the exchange of information for the proper implementation of this treaty.
• Article 18 – Information on recourse: Article 18 stipulates that the public has a right to access information on the recourse taken against any foreign flagged vessel in terms of national laws and regulations.

The following 91 states participated in the discussions and agreed to the final text:

• Algeria, Angola, Argentina, Australia, Bangladesh, Benin, Brazil, Bulgaria, Burkina Faso, Burundi, Canada, Central African Republic, Chile, China, Cook Islands, Costa Rica, Cote d'Ivoire, Cyprus, Congo DR, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, European Community, Fiji, France, Gabon, Gambia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea Bissau, Haiti, Honduras, Iceland, India, Indonesia, Iran, Ireland, Italy, Japan, Kenya, Kiribati, Kuwait, Lesotho, Libya, Madagascar, Malaysia, Malta, Marshall Islands, Mauritania, Mexico, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Norway, Oman, Panama, Papua New Guinea, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Samoa, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Slovenia, Somalia, South Africa, Spain, Sudan, Sweden, Tanzania, Thailand, Togo, Tunisia, Turkey, Uganda, Ukraine, USA, Uruguay, Venezuela, Viet Nam, Zambia and FAO Associate Member, Faeroe Islands.

The PSM agreement will become binding international law once the 25th member state of the FAO deposits its ratified instrument with the Director-General of the FAO. The complete PSM Treaty agreement is available from Feike.