The shaky foundations of the FAO Port State Measures Agreement: how watertight is the legal seal against port access for foreign fishing vessels?

The Port State Measures Agreement aims to influence fishing vessels’ high seas activities, normally under the exclusive jurisdiction of their flag States, by withholding access to parties’ ports to unload catch and resupply. This works inter partes, but many flag States are unlikely to become party to it. The Agreement assumes States may nonetheless exclude foreign vessels from their ports, giving parties leverage to impose conditions derived from it on vessels of non-parties seeking access. But this assumption is valid only if the port State retains its right to exclude; many have bargained it away, in old bilateral treaties or as World Trade Organization members with freedom of transit obligations. The settlement on terms favourable to the European Union of both the Swordfish and Herring disputes, representing the flag State in one and port States in the other, suggests that market power vulnerable to abuse, not jurisdictional authority, may have been the decisive factor.