Too big to tackle? The persistent problem of pirate fishing and the new focus on port state measures.

• Author: Hagan, Sean A.

1. INTRODUCTION

   A war is raging in many of the world's oceans, as regulatory authorities attempt to thwart rogue fishing vessels from plundering global fish stocks. (1) Once an abundant resource, fish stocks are dwindling and many fisheries have reached their maximum production levels, threatening this fundamental food source. (2) A major contributor to the feeble state of the global fish inventory is Pirate Fishing, or Illegal, Unreported, and Unregulated (IUU) fishing. (3) IUU fishing includes illegal activities that do not comply with national, regional, or global fisheries conservation and management obligations and regulations. (4) IUU fishing wreaks havoc on countless local economies, resulting in billions of dollars in global economic loss annually. (5)

   This note traces the development of Pirate Fishing, chronicling its global economic impact and legislative responses, with a particular focus on the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures Agreement or PSMA) adopted by the Food and Agriculture Organization (FAO) of the United Nations in 2009. (6) This note evaluates the benefits and shortcomings of the PSMA and concludes that it is unlikely the legislation will substantially mitigate the occurrence of IUU fishing worldwide. (7)

2. FACTS

   1. IUU Fishing: A Global Resource Threatened

   Nations have battled for centuries over fishing rights, fishing regulations, and fishing grounds because people rely on fish as a food source. (8) Today, the world's oceans are in unprecedented peril from overfishing, which has exacerbated this historic conflict. (9) Ineffective regulations threaten fisheries despite longstanding concerns over human environmental impact and many governmental commitments to ensure sustainable natural resources. (10) At the heart of this problem is international IUU fishing. (11) In the late 1990s, the commission established under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) coined the term "IUU fishing," and today the phrase is frequently used among regional fisheries management organizations (RFMOs), policy makers, and fishermen to describe a broad array of illicit actions. (12) IUU fishing occurs when national or foreign vessels harvest fish from a state's jurisdictional waters without permission or fish in an area in violation of a conservation agreement, RFMO, or international law or treaty to which the vessel's flag state is a party. (13) IUU fishing threatens the sustainability of fish stocks on a global scale and accounts for USD23 billion in global economic loss annually. (14)

   Pirate fishing is economically driven, affecting a fishing industry worth USD110 billion worldwide, with the majority of the demand coming primarily from the European and Asian food markets. (15) Pirate fishing vessel operators enjoy a considerable commercial advantage over legal fishing vessels, as the pirate vessels are able to lower their costs and increase their profits by not paying for access to marine resources and not complying with licensing and other regulations. (16) The economic advantage gained by pirate fishermen is achieved at the expense of the world's poorest populations, which rely upon fish as their primary source of protein. (17)

   Historically IUU fishing issues were considered a problem primarily for developing countries, but IUU fishing occurs even in the most developed and wealthiest countries. (18) For example, IUU fishing has recently plagued the U.S. along its border with Mexico due in large part to the increased demand for shark fins. (19) This suggests that even when countries have substantial resources and well-developed scientific, administrative, legal, and management institutions in place, they still fail to address IUU issues in a comprehensive manner. (20)

   IUU fishing occurs because the benefits gained from violating regulations outweigh the risk of detection and potential consequences. (21) As the Organisation For Economic Co-Operation and Development (OECD) aptly pointed out in a 2005 work, "[e]ven in an industry as opaque as this, the bottom line is clear; fish pirates pursue their activities because it is profitable, and will keep pursuing it as long as their revenue exceeds their costs." (22) With the large financial incentives currently outweighing the risks, IUU fishing will persist anywhere fish can be sold into the lucrative seafood market unless effective legislative action is taken by key maritime countries. (23)

3. HISTORY

   1. The Global Legislative Response to Pirate Fishing

      Governments throughout the world have long recognized IUU fishing as a universal concern, but have been largely unsuccessful in attempts to mitigate the problem through legislative means. (24) In November 2009, the Conference of the United Nations Food and Agriculture Organization (FAO) adopted the Port State Measures Agreement with the purpose of combating illegal fishing activities worldwide by ensuring that illegally harvested fish do not enter the stream of commerce. (25) By 2011, a number of countries had signed the treaty, including the U.S. (26) Momentum is building internationally as many states continue to sign the PSMA. (27) While the PSMA represents a large step forward in deterring IUU fishing, like the legislative responses before it, the PSMA falls short of adequately addressing the major issues underlying IUU fishing. (28)

      The international legal and policy framework that is currently in place to address Pirate Fishing consists of a complex and diverse range of instruments, both binding and nonbinding, that span various sectors such as shipping, trade, and environmental regulation. (29) Additional challenges include limited resources, environmental constraints, ecological factors, socioeconomic considerations, and technological enforcement capabilities that affect sustainable fisheries management. (30) In recent years, port state measures have become a popular tool in both binding and nonbinding instruments for promoting sustainability in fisheries. (31) This popularity is due to the economic reality that all commercially caught fish must eventually come to port before reaching the public market and the consumer's table. (32) Port state regulations offer many advantages, as they are cost-effective, efficient, and safer than traditional inspection protocols that require airplanes and sea vessels to conduct regulatory enforcement. (33)

      To be effective, port state measures require regional cooperation and harmonization. (34) A lack of harmonization results in "port-hopping" by IUU fishing vessels looking to land or transship catches to ports with relaxed regulations. (35) Where entire regions are off limits to IUU fishermen looking to land their catch, these fishermen are forced to unload their catch in ports that are farther away at considerable expense, which reduces the economic incentive to engage in IUU fishing. (36) Although this focus on port state measures is the most recent iteration of legislative responses to the problem of pirate fishing, the establishment of a global concern for the world's fisheries began as a result of environmental conservation efforts in the latter half of the 20th century. (37)

      1. The Environmental and Conservation Landmarks that Laid the Foundation for the Port State Measures Agreement

         The legislative responses to IUU fishing issues have developed alongside expanding environmental conservation concerns, which began in the 1960s and had fully developed by the 1970s. (38) In (1982), the United Nations Convention on the Law of the Sea (UNCLOS) became the first major international attempt to regulate the use of the world's oceans. (39) UNCLOS, aptly referred to as a "constitution for the oceans," is a broadbased instrument of global oceanic protection. (40) UNCLOS sets out the legal framework for all activities carried out in the world's oceans and seas. (41) Under UNCLOS, the flag state in which the vessel is registered is responsible for the vessel's activity. (42)

         In 1983, the United Nations convened the World Commission on Environment and Development to evaluate the effectiveness of implementing outcomes of the Stockholm Conference. (43) The Commission published a report defining sustainable development and suggesting a balance between economic growth and environmental issues. (44) In 1991, the FAO/ Netherlands Conference on Agriculture and the Environment, also known as the Den Bosch Conference, convened and adopted a Declaration and Agenda for Action on Sustainable Agriculture and Rural Development, which stimulated sustainable development concepts and laid the groundwork for the 1992 United Nations Conference on Environment and Development (UNCED), also known as Earth Summit. (45) UNCED adopted Agenda 21, which focused on sustainable development. (46) Chapter 17 of Agenda 21, entitled "Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources," addressed fisheries and other issues under eight main headings, ranging from sustainable development of coastal marine areas to strengthening regional and international cooperation and coordination. (47) Though nonbinding, Agenda (21) was highly influential in promoting a paradigm shift in the way nations thought about utilizing natural resources at a time when many of these resources were in danger of depletion due to overuse. (48)

         In response to low global fish stocks and a slow rate of implementation of Agenda 21, the 2002 World Summit on Sustainable Development (WSSD) convened and the summit adopted the Johannesburg Declaration on Sustainable Development and the Report of the World Summit on Sustainable Development Plan of Implementation (WSSD-POI). (49) The WSSD-POI differed from Agenda 21 in that it focused intensely on emerging fisheries' issues...