@BEARFOTOS

Self-study course:
Introduction to Port State Measures Agreement

At the end of this course, you will understand:

1. Port state jurisdiction in customary international law

2. Port state jurisdiction provisions in international instruments
3. Operational provisions of the PSMA
4. Links between PSMA and other international instruments
5. State and Regional Fisheries Management Organizations (RFMO)
practice
6. Challenges in implementing port State measures
Introduction
This course provides an overview of port State measures under international law including
treaties. It explains the 2009 FAO Agreement on Port State Measures to Prevent, Deter and
Eliminate Illegal Unreported and Unregulated Fishing (PSMA). It provides an overview of
the functions and mechanisms of the PSMA, which establishes global minimum standards
for port State measures to combat illegal, unreported and unregulated (IUU) fishing.

This course provides an overview of illegal unreported and unregulated (‘IUU’) fishing.
• Definition’ of IUU fishing
• Global-scale of IUU fishing
• Development of IUU fishing terminology
• International plan of action
• Regional efforts to combat IUU fishing
Part 1: Port State jurisdiction in customary
international law
Port State jurisdiction is primarily
regulated by customary international
law.
• Customary international law is the
part of international law developed
through state practice.
• There are only a few treaty provisions
other than the PSMA that concern port
State jurisdiction.
Ports are in internal waters
Fishing vessel access to and departure
from ports and activities in ports are
subject to terms and conditions laid down
by the port States
Introduction to Port State Measures Agreement
• Internal waters are part of the
sovereign area of the coastal State,
like lakes and rivers.
• Ports, harbours, roadsteads and
anchorages are normally located in
the State’s internal waters.
• A port State exercises sovereignty
and territorial jurisdiction in its internal
waters, as it would in an airport on
land.
• Sovereignty allows the port State to
prescribe conditions for the access
to, presence in and departure from
its port by foreign vessels.
Exceptions and limitations to port State
jurisdiction
There are limits to what a port State can do to enforce environmental and conservation
standards on foreign vessels that come into its ports. Some of these limits are customary
legal obligations and others are discretions that are common practice.

Port States must allow entry to a foreign
vessel in distress (discussed below)
seeking to enter their ports for the
purposes of refuge.
Port States must not exercise their
jurisdiction over foreign warships who
enjoy immunity under international
law, or discriminate arbitrarily between
foreign vessels simply on the basis of the
nationality, or contrary to other specific
international law obligations.

Port States generally choose not

to exercise jurisdiction over foreign
vessels in their ports without seeking
authorisation from the flag State
(although they can do so, see below).
Force Majeure/Distress
A precondition of distress is This is a rule that developed from the days
a “force majeure” such as a when sailing ships would experience maritime

Introduction to Port State Measures Agreement

storm, or other ‘act of God’ misfortune and require assistance to prevent
beyond the control of and not the loss of life and property. A majority of the old
created by the master of the standards originating in customary international
vessel. law still apply today.

A vessel under distress Distress must be demonstrated to a high

may be allowed port standard:
entry in accordance
with international law. • ‘It must be an urgent distress; it must
be something of grave necessity; such
as is spoken of in our books, where a
ship is said to be driven in by stress of
weather. It is not sufficient to say it was
done to avoid a little bad weather, or in
consequence of foul winds, the danger
must be such as to cause apprehension
in the mind of a reasonable man …
• ‘Then again, where the party justifies
the act upon the plea of distress, it
must not be a distress which he has
created himself, by putting on board
an insufficient quantity of water or of
provisions for such a voyage, for there the
distress is only a part of the mechanism
of the fraud, and cannot be set up in
excuse for it; and in the next place the
distress must be proved by the claimant
in a clear and satisfactory manner.’ (Per
@Dylan McLeod
Sir William Scott (Lord Stowell) The
Eleanor, (1809) Edw. 135)
Non-discrimination, sovereign immunity
and treaty arrangements
• A port State must not arbitrarily • A port State may enter into treaties
discriminate against foreign flagged that guarantee access and equal
vessels based on nationality when treatment for foreign merchant
granting access to its ports or vessels, e.g., European Union ports
exercising its jurisdiction in its ports. for EU flagged vessels.
However, the permission to a foreign
vessel to enter or be in port may be
suspended for the specific vessels of
a national if the port State is engaged
in an armed conflict with that nation.

• Vessels that have sovereign immunity,

such as warships, flagships, coast
guard vessels, and vessels that are
marked as being on government non-
commercial service, are exempt from
the port State’s jurisdiction. However,
the port State can request such a
vessel to leave the port on threat of
the exercise of such jurisdiction.
Internal affairs of vessel

Introduction to Port State Measures Agreement

@tawatchai07

• A State has full jurisdiction over a • The discretion to exercise port State
foreign vessel in its port (excepting jurisdiction is usually asserted over
warships, or vessels subject to other the foreign vessel nevertheless when
treaty arrangements) but generally the ‘peace and good order’ of the
chooses not to exercise its jurisdiction port is threatened or affected by the
over the foreign vessel’s internal presence of the foreign vessel, such
administration. as due to trafficking in contraband or
other serious crimes.
• A port State may also elect to exercise
its jurisdiction when the flag State
requests the assistance of the port
State. It is more efficient to promote
compliance with environmental and
conservation standards if the flag
and port States choose to cooperate
in the regulation of the vessel.
Part 2: Relevance of Port State Measures
to Fisheries Enforcement
Weak flag State controls A flag State, may lack the resources or the will to actively
police the activities of vessels flying its flag when they are away at sea, especially when
they are in far distant waters.

• A vessel remains under the jurisdiction of its flag State when it is at sea. Many vessels
spend most of their time at sea.
• Some flag States are notorious for disinterest in ensuring that their vessels are
compliant with international environmental protection regulations or fisheries
conservation standards. Often, these flag States are termed ‘flags of convenience’
or ‘flags of non-compliance’ and vessels avoiding oversight choose to register with
such States.

Evolution of the application of port State measures to fisheries

Port State measures against foreign vessels were originally conceived in the 1970s, as
a legal strategy to enforce ship safety and pollution controls on merchant vessels that
were not being properly enforced by flag States. In the 2000s, the legal strategy of port
State measures was extended beyond marine environmental standards to fisheries
conservation.
Part 2: Relevance of Port State Measures
to Fisheries Enforcement

Introduction to Port State Measures Agreement

Port States fisheries enforcement
cooperation
“Proactive use of port state jurisdiction can be an effective weapon against IUU [illegal,
unreported and unregulated] fishing operations.” High Seas Task Force – Closing the
Net (OECD 2006, p. 15) “Enhanced port State controls can act as a disincentive to IUU
operators by increasing the cost of their operations (e.g. by forcing them to seek out
more remote and, hence, more costly ports).” OECD-FAO Proceedings of Workshop:
Globalisation and Fisheries (OECD 2007 p.153)
Part 3: Port State jurisdiction provisions in
international instruments
Port State measures to combat IUU
fishing can be thought of as a fabric
stretched upon an existing legal
framework. Pre-existing customary
international law and international
treaties form that legal framework which
apply to ports and vessels entry and use
of ports.

Customary international law on port

State measures was described in Part 1,
above. The law focused mostly on port
State sovereignty and exceptions and
limitations concerning vessel safety.

Treaty laws also contribute, either by

codifying or by elaborating customary
international law. The most important
treaty laws that elaborate customary
international law on port State measures
are described below.
At first, treaty law was concerned
with maritime safety issues but then
was extended to encompass marine
environment protection. Recent
developments in port State measures go
further again to address the conservation
and management of fisheries resources.
Safety of Life at Sea Convention 1973
(SOLAS)
SOLAS is a convention adopted by the
International Maritime Organization
(IMO) that sets out safety standards for
merchant vessels. These are enforced
by flag States and by port States
through systems of inspections by ship
surveyors in ports applying the SOLAS
Consolidated Regulations. However,
they do not apply to fishing vessels
(except some fish freezer vessels).
Download PDF
The Torremolinos International Convention
Introduction to Port State Measures Agreement
for the Safety of Fishing Vessels 1997,
however, sets out safety standards for
fishing vessels and the circumstances
under which a fishing vessel may proceed
to sea following a port inspection. Its
Protocol of 1993 sets out requirements
for fishing vessel certification and a port
State control regime. These were the first
port State measures for fishing vessels
(although concerning their safety and
pollution controls rather than fishing).
Despite the Cape Town Agreement of
2012 on their implementation, neither
has entered into force. The Cape Town
Agreement is expected to enter into force
in 2022.
 Law of the Sea Convention 1982
A port State can protect its port from
threats posed by a foreign vessel coming
into port, even while the incoming foreign
vessel is still in its territorial seas: Art 25(2)
In the case of ships proceeding to internal
waters or a call at a port facility outside
internal waters, the coastal State also
has the right to take the necessary steps
to prevent any breach of the conditions
to which admission is subject.
@FAO/Max Valencia
1993 FAO Compliance Agreement
Introduction to Port State Measures Agreement
The FAO Agreement to Promote
Compliance with International
Conservation and Management
Measures by Fishing Vessels on the
High Seas places a duty upon the port
State to notify the flag State of offences
by flagged vessels: Art V(2) When a
fishing vessel is voluntarily in the port
of a Party other than its flag State, that
Party, where it has reasonable grounds
for believing that the fishing vessel has
been used for an activity that undermines
the effectiveness of international
conservation and management
measures, shall promptly notify the flag
State.
1995 UN Fish Stocks Agreement
The UNFSA elaborated the duty of port States. UNFSA’s scope covers fish stocks that
straddle exclusive economic zones and the high seas, and fish stocks which are highly
migratory. Its focus is on sub-regional, regional and global cooperation for fisheries
conservation and management of these fish stocks. Article 23 provides that:

FAO Agreement Port State Measures

Agreement (PSMA)

The PSMA is the culmination of global

cooperation to elaborate a framework
for port State measure to ensure
compliance with international fisheries
conservation and management
standards. It is discussed in detail below.
Part 4: Introduction to PSMA
The FAO Agreement on Port State
Measures to Prevent, Deter and Eliminate
Illegal Unreported and Unregulated
Fishing (PSMA) was opened for
signature on 22 November 2009 (until 21
November 2010) and entered into force
after the deposit of the 25th instrument
of ratification on 5 June 2016.
• The PSMA contains 37 articles, set
out in 10 parts, and 5 annexes.
Overview of FAO PSM Agreement
The PSMA sets out innovative minimum
measures and a compliance assurance
system to prevent, deter and eliminate
IUU fishing.
• Its emphasis is on the denial of entry
into port for foreign fishing vessels
that are not compliant with fisheries
conservation and management
measures. Part 2 addresses entry into
port, Part 3 concerns the use of ports,
and Part 4 focuses on inspections
in port and follow-up actions such
as exchange of information. Part 5
Download PDF
elaborates on the role of the flag State,
Part 6 explains the requirements of
developing States, Part 7 reinforces
Introduction to Port State Measures Agreement
the peaceful settlement of disputes,
Part 8 explains the role of non-parties
to the agreement, Part 9 discusses
monitoring, review and assessment
in collaboration with FAO, and Part
10 concludes with final provisions
that instructs States how to become
Parties to the PSMA.
The five PSMA Annexes (A-E) set out
implementation details:
A. Information to be provided in advance
by vessels requesting port entry;
B. Port State inspection procedures;
C. Report of the results of the inspection;
D. Information systems on port State
measures; and
E. Guidelines for the training of
inspectors.
As of October 2021, there are 70 parties
to the PSMA: http://www.fao.org/port-state-
measures/background/parties-psma/en/
Applicability of PSMA
• A ‘port’ in the fisheries context
includes offshore terminals and
other installations for landing,
transshipping, packaging, processing,
refuelling, and resupplying (Art 1(g)).
• Fishing operations are divided into
fishing and fishing-related activities.
Fishing itself is defined as searching
for, attracting, locating, catching,
taking or harvesting fish. In contrast,
fishing-related activities are defined
as activities in preparation for or
in support of fishing, including
provisioning of personnel, fuel gear
and other supplies at sea, as well
as landing, packaging, processing,
transshipping or transporting (of fish
that have not been previously landed
at port).
• Foreign fishing vessels of a
neighbouring State that are engaged
in artisanal fishing for subsistence
if the flag State and port State
cooperate to ensure the vessels do
not engage in IUU fishing or fishing
related activities associated with
same;
• Container vessels that are not
carrying fish;
• if carrying fish, container vessels
only carrying fish that was previously
landed, so long as there are no clear
grounds for suspecting that such
vessels have engaged in fishing
related activities in support of IUU
fishing, and
• Vessels chartered by a State’s own
nationals exclusively for fishing in
areas under its national jurisdiction
and operating under its authority
(optionally at the choice of each State
party).
 Links between the PSMA and the
International Plan of Action on IUU fishing

Introduction to Port State Measures Agreement

The IPOA-IUU is a voluntary instrument
adopted in 2001. It sets out diverse
measures including market related
measures applicable to flag, coastal
and port States, as well as international
and regional fisheries research and
management organisations [see FAO
@FAO/Max Valencia
eLearning module on IUU Fishing]. The
PSMA transposes many of the IPOA-
IUU voluntary commitments into a
legally binding agreement, particularly
concerning port States (at paras 52-64).
Part 5: Port access authorization, fishing
vessel inspection and information
exchange
prior to port entry, which the vessel
must provide early enough to allow
the information to be examined,
and then the authorities consider
it together with other relevant
information to determine whether
the fishing vessel has engaged in IUU
fishing (art. 8).
• Decide whether to authorise or
deny port access. Vessels that have
engaged in IUU fishing or that are on
an international IUU fishing vessel
list, may be denied access. When
access is denied, the Port State
must notify the flag State and other
relevant States and organisations.
Nevertheless, a suspect vessel may
be allowed entry into port for the
Port access authorization
purpose of inspecting it (art. 9).
In setting out conditions for fishing
vessels to be granted access to ports,
Part 2 of the PSMA establishes that port
States must:

• Designate and publicise the ports

to which fishing vessels may
request entry, inform the FAO of the
designations and ensure that their
ports can conduct inspections (art. 7).
• Request fishing activities information
Port access authorization

Introduction to Port State Measures Agreement

Part 3 of the PSMA prescribes the
If there is sufficient proof that
conditions for allowing use of ports. A
the grounds of denial were
port State must deny a fishing vessel the
inadequate, erroneous or are
use of its ports for landing, transshipping,
no longer applicable, then
packaging, processing, including
the denial of use must be
refuelling, resupplying, maintenance
withdrawn and the withdrawal
and drydocking, if:
must be communicated to the
same recipients the denial was
• the vessel is not authorised by its flag
communicated.
State to fish or the flag State doesn’t
confirm that the fish catch was taken
legally, or
• a coastal State has not authorised it
to fish or has clear evidence that its
laws were breached by the manner
of fishing (art. 11).
Information requests and inspections of
fishing vessels
Article 8 of the PSMA requires port States to request advance information from foreign
fishing vessels seeking port access. The minimum standard for information to be
specified (i.e. more can be specified) is set out in Annex A, which includes:
• fishing and transshipment • identities of vessel owners,
authorisations, • vessel certificate of registration and
• total catch on board, • purpose of its port visit.

In Part 4 of the PSMA, inspections and follow-up actions by port States are prescribed.

Port States are to inspect an agreed Minimum standards for inspections

minimum number of vessels sufficient
to combat IUU fishing, with priority
given to suspected IUU fishing vessels
(art. 12).
• Suspect vessels are those that were
previously denied use of a port, or for
which there are grounds to suggest
were engaged in IUU fishing, or are
subject to inspection requests by
other authorities.
Download PDF
are set out in Annex B and are to be
conducted by certified inspectors (art.
13).
• Inspection procedures include:
verifying vessel documentation,
flag and markings; verifying fishing
authorisations; reviewing records in
the vessel such as logbooks, catch,
transshipment and trade documents;
examining fishing gear; determining
the character of the fish harvest; and
evaluating whether the vessel has
engaged in illegal, unreported or
unregulated fishing or fishing-related
activities.
Part 6: Supplementary measures
The PSMA promotes a series of measures to supplement port State inspections and
make them more effective. Fundamentally, these are information sharing and capacity
building, as well as supportive flag State actions.

Introduction to Port State Measures Agreement

Information sharing
Port States are to communicate inspection reports to flag States and other relevant
parties (art. 15), and to engage in information sharing, particularly by electronic means,
through a designated authority, in accordance with an international communication
coding system set out in Annex D (art. 16).

More broadly, PSMA parties are to cooperate in exchanging information between

themselves and with FAO, other international organisations and RFMOs (art. 6). FAO
has established a series of online tools that are operational resources for information
exchange, http://www.fao.org/port-state-measures/operational-resources/en/,
including:

1 PSMA–IUU Application for the http://www.fao.org/fishery/port-state-

Registration of Designated Ports and measures/psmaapp/?locale=en
Contact Point
2 Database on port State measures (Port- ht t p : //w w w. fa o . o r g /f i s h e r y/ p s m /
Lex) collection/en
3 Information System of the Global Record http://www.fao.org/global-record/
of Fishing Vessels, Refrigerated Transport information-system/en/
Vessels and Supply Vessels.
4 High Seas Vessel Authorization Record http://www.fao.org/figis/vrmf/hsvar/
Capacity building

To develop the capacity of developing countries to

implement the PSMA, Part 6 sets out obligations to
create an ad hoc working group to establish funding
mechanisms, to provide technical assistance and to
cooperate broadly (art. 21).

• The PSMA Assistance Fund is international instruments and

established under the auspices of FAO.
It comprises of a trust fund, to which
national applications for assistance can
be made, and a capacity development
umbrella programme.
Mechanisms already established
and operational to support PSMA
implementation by port, flag and coastal
States are the:
• FAO Global Capacity Development
Programme to support implementation
of the PSMA and complementary
regional mechanisms. This umbrella
programme was endorsed in
2016. It provides USD 15 million for
implementation activities including
assistance with national policy,
legislation, training and coordination.
• FAO Technical Cooperation
Programmes support a wide range
of agricultural strengthening projects,
including port State measures to
combat IUU fishing.
Flag State measures
Flag States play an important role.
Under the PSMA (art. 20), flag States
are to:
• R  equire their vessels to cooperate
with Port State authorities;
• R  equest port States to inspect their
vessels suspected of IUU fishing
operations; and
• I nvestigate and take enforcement
action against their vessels when
port inspection reports indicate the
vessels were engaged in IUU fishing.
See web page
FAO Voluntary Guidelines on Flag State
Introduction to Port State Measures Agreement
Performance, adopted in 2013, specify
supplementary flag State actions. The
Guidelines address:
• Flag State obligations to maintain
a record of their registered vessels
together with information on their
authorization to fish, such as the
species they may fish for and the
type of gear they may use;
• Monitoring, control and surveillance
activities, such as vessel monitoring
systems and observers; and
• Information exchange so that
flag states can deny applications
to register vessels that are “flag-
hopping” or that have been reported
for IUU fishing.
Download PDF
Market related measures

@DavidVives

Market States are the ultimate destination for fish and fish products. They also have a
role in combating IUU fishing, by restricting fish and fish products of suspected IUU
fishing from gaining access to its market. Port State reports of IUU fishing vessels
can form evidence for restricting market access for fish products associated with
these vessels.

• The European Union, for example, has established a legal and policy regime on
restricting market access for products from IUU fishing.

[This topic will be explored further in a module on Market State Measures.]

Part 7: Implementation Challenges

Regional implementation

Introduction to Port State Measures Agreement

Regional Fishery Bodies (RFBs) are
vital for international cooperation for
the conservation and management
of straddling and highly migratory fish
stocks. RFBs including RFMOs play an
important role in the implementation
of international fisheries instruments
including the PSMA.

Even though certain members of a RFMO

are not parties to the PSMA, they help
with the implementation of the PSMA by
applying complementary conservation
and management measures (CMM)
adopted by the RFMO. For example the
Western and Central Pacific Fisheries
Commission (WCPFC) have implemented
CMM 2017-02: “Conservation and
Management Measure on minimum
standards for Port State Measures” and
The Commission for the Conservation
of Antarctic Marine Living Resources
(CCAMLR) requires the application of
minimum standards for port inspections.
Port State capacity
Implementation of the PSMA requires
substantial inspection infrastructure, data
collection, and international information
harmonisation and exchange, which can
be challenging to achieve. Port States
need to develop these capacities to
combat IUU fishing.
Some specific challenges faced by port
States in the implementation the PSMA
include:
Ineffective application of port State
measures in the wider system of port
State controls. This may be caused by
several factors, including:
• Lack of inspection training and
personnel;
• Poor information exchange system
between ports and government
agencies; or
• Corruption of port inspectors.
Non-harmonised port State measures
can obstruct coordination between port
States. Lack of harmonisation may be
due to:
• Non-application of shared minimum
standards, or
• Differentiated measures applied to
domestic and foreign vessels.
Port State measures may be constructed
as barriers to competitive trade instead
of being fair, transparent and non-
discriminatory.
• Examples of inspections that
are disguised barriers include
unnecessarily long delays, prohibitive
costs, and arbitrarily differentiated
treatment of flag States.

Ports of non-compliance can be gaps

through which IUU fish harvests leak into
the supply chain:

• Some ports known for not applying

PSMA minimum standards, termed
‘ports of convenience’, specifically
attract IUU fishing vessels to obtain
cheap fish or corrupt payments.
Final Summary
Port State measures to combat IUU
fishing rely on a legal framework
inclusive of customary international law
and treaties. Customary international law
deals mostly with port State sovereignty
and its exceptions. Treaty laws elaborate
upon the customary international law and
evolved from dealing mostly with issues
concerning marine safety environment
protection to now include conservation
and management of fisheries resources.
Introduction to Port State Measures Agreement
The PSMA is the only treaty dealing
solely and in detail with port State
measures to combat IUU fishing. It sets
out the following measures:
• Designation of ports;
• Advanced notice of entry of foreign
fishing vessels;
• Authorization or denial of entry of
foreign fishing vessels into ports;
• Inspection of foreign fishing vessels;
• Denial of use of ports by foreign
fishing vessels including landing and
transshipment of catch from IUU
fishing activities; and
• Notification of measures to flag States
and relevant regional organisations.
Final Summary
Port State measures under the PSMA Challenges to implementation remain
should be applied in a fair, transparent but are gradually being addressed.
and non-discriminatory manner and
in accordance with international law.
They should be applied without unduly
delaying or interfering with foreign
fishing vessels. Denial of port access
or use applies when there are clear
grounds for believing that a vessel has
conducted IUU fishing.

Supplementary measures to assist the

implementation of port State measures
include:

• Information sharing
• Flag State obligations
• Market related measures
• Port inspection capacity building
assistance
• Denial of port entry for IUU fishing
vessels
• Assistance for Developing States to
implement the PSMA Resources of this course are from: freepik.com