Port State Measures - Legislative Template and Related Information / by Francisco Blaha

I wrote many times about how good it has been to maintain friends in FAO, since they produce a lot of upper-level analysis and thinking in support of the frameworks, like PSMA, so here is another good example.

 I'm not too smart... but I have friends that are :-)

I'm not too smart... but I have friends that are :-)

This one comes by courtesy of my friend Julien Million (part of the ABNJ crew) who made me aware of this new publication by Judith Swan, who was a mentor  when I started consulting work almost 17 years ago.

They just published a report/manual calledImplementation of Port State measures - A legislative template; Framework for procedures; The role of RFMOs, that can be downloaded from here. The objective of this document is twofold: to meet those challenges by providing generic legislative templates for the development of national legislation; and to explain broader context of Port State measures.

It is a substantive piece and a de rigour reading for everyone working (like me) on the implementation of PSMA and adjacent topics.

The entry into force of the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing on 5 June 2016 reflected the successful culmination of global efforts to combat IUU fishing by setting harmonised minimum standards for measures to be taken at port. It targets IUU fishing and fishing related activities in support of such fishing, and its reach extends to areas within and beyond national jurisdiction.

Port State measures impose major sanctions, including denial of entry into port or use of port and could lead to further investigation, prosecution, license revocation and inclusion on an IUU Vessel List of a regional fisheries management organization (RFMO). The measures complement other monitoring, control and surveillance (MCS) tools such as catch documentation schemes, consolidated vessel lists and electronic monitoring systems. They also call for exchange of information with - and among - RFMOs, leading to more effective CMMs.

Many RFMOs and some countries have been active in preparing for entry into force, but the development and adoption of national implementing legislation has become imperative. At regional level, several RFMOs have adopted various requirements and minimum standards of the FAO Agreement in conservation and management measures (CMMs) that are legally binding on their members. In 2010, the Indian Ocean Tuna Commission (IOTC) adopted Resolution 10/11 on Port State measures that is almost identical to the FAO Agreement. Other RFMO CMMs vary in the extent of implementation of its requirements, as described in this document.

There are ongoing reviews and strengthening of the CMMs relating to Port State measures within many RFMOs, in part encouraged by their performance reviews. This document focuses on the implementation of two legal instruments - the FAO Agreement and IOTC Resolution – which, as noted above, are almost identical. Together, they are legally binding on a wide range of countries. At national level, the process of preparing for entry into force of the FAO Agreement, as well as implementation of relevant RFMO CMMs, has been challenging for many countries.

Legislative templates are provided for implementing the core and supporting provisions respectively; they are generic, and can be adapted to different legal systems, institutions and instruments.

The core provisions are those implemented directly from the FAO Agreement, and as appropriate the IOTC Resolution, and the supporting provisions are those that relate to areas such as enforcement information and evidence. The latter reflect best practices and are important for backstopping aspects of the core provisions; they may already be in national fisheries legislation or may be used for strengthening existing provisions.

Explanatory notes are given for each core and supporting provision. In order that the broader context of Port State measures can be better understood as national legislation is developed, this document also describes the development of Port State measures, a framework for national procedures and the role of RFMOs.