Extraterritorial Port State Measures: The Basis and Limits of Unilateral Port State Jurisdiction to Combat Illegal, Unreported and Unregulated Fishing

Abstract

Sustainable fisheries demands the eradication of illegal, unreported and unregulated (IUU) fishing. The first legally-binding treaty at the global level to target IUU fishing, the Port State Measures Agreement (PSMA), places the implementation of port state measures at its heart. Apart from article 218 of the United Nations Convention on the Law of the Sea (UNCLOS), port state jurisdiction (PSJ) is the largely customary jurisdiction applied against visiting foreign vessels in or on their way to port. This raises questions for the international legal bases and law of the sea limitations when port state measures are implemented to address foreign extraterritorial IUU fishing. A doctrinal synthesis, analysis and restatement of PSJ will remove current legal ambiguities that may be inhibiting international law’s development. Legal positivism provides the theoretical stance underpinning the methods employed in this manuscript. Port state measures at the global, regional and state level are collected and analysed through the lenses of state jurisdiction and the law of the sea regime. By examining the case of port state measures concerning (in-part) extraterritorial foreign vessel conduct, this manuscript demonstrates that emerging trends of ‘territorial extension’ found within the international law of jurisdiction are equally applicable to port offences. The territorial element of in-port conduct is crafted as the offence for the question of jurisdiction, yet defined extraterritorial conduct remains an essential underlying element triggering the territorial offence. On the other hand, prescribing and enforcing conditions of port privilege must be separated into a domaine reserve-based exception to state jurisdiction if territoriality is to maintain any integrity as an ordering nexus. Both must be exercised in compliance with the rather specific, and therefore narrow, limits and safeguards of the law of the sea. For port state measures the limits include the treaty-based obligations to prescribe and enforce certain conditions of port privilege. These minimum standards are now generally accepted and of increasing global application. This manuscript incorporates an example from the law of the sea into the debate on what the positive law of territorial jurisdiction is. It will therefore be of interest to not only academics, scholars and practitioners within the fields of port state enforcement, fisheries regulation and the law of the sea, but more generally to those concerned with the law of jurisdiction.