While the world reacted to the US withdrawal from the Paris Agreement on June 2, the first meeting of the parties to a landmark global marine environmental agreement was held three days later with the FAO Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing [hereafter, “Port State Measures Agreement or PSMA”]. This first global treaty to combat IUU fishing recognizes that “measures to combat IUU fishing should build on the primary responsibility of flag States and use all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market related measures, and measures to ensure that nationals do not support or engage in IUU fishing” (PSMA, Preamble, paragraph 3), and is designed “to prevent, deter and eliminate IUU fishing through the implementation of effective port State measures, and thereby to ensure the long-term conservation and sustainable use of living marine resources and marine ecosystems.” (PSMA, Article 2).
IUU fishing endangers food security, community livelihoods, and marine environments in many developing countries around the world, particularly in hotspots in West Africa and the Asia-Pacific, causing annual estimated losses worldwide at around USD $23.5 billion to developed and developing coastal States, including the United States and the European Union. IUU fishing directly impoverishes local fishing communities, which in West Africa, for example, is estimated at around USD$ 1.3 billion a year. IUU fishing also exacerbates the problem of unsustainable fishing in the world, where 53% of the world’s fisheries are already fully exploited, and a further 32% are overexploited and depleted. The Food and Agriculture Organization (FAO) and the UN Environmental Programme (UNEP) cautioned in 2009 that the destructive impacts of IUU fishing include, among others, the “extinction (or high risk of extinction of the resource and/or the productive ecosystem and its biodiversity.” (p. 7 of FAO/UNEP Expert Report). The prevalence of IUU fishing in the world is illustrated in the map below (source here), where regional hotspots for IUU fishing are in the Eastern Pacific, the Northwest Pacific, West Africa, Southeast Asia, and Pacific Islands:
To date, not all States implicated in the key IUU hotspots are parties to the Port State Measures Agreement (PSMA), which to date are only Australia, Barbados, Chile, Costa Rica, Cuba, Dominica, the European Union (as a member organization), Gabon, Guinea, Guyana, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Saint Kitts and Nevis, Seychelles, Somalia, South Africa, Sri Lanka, Sudan, Thailand, Tonga, the United States of America, Uruguay, and Vanuatu. This post discusses some of the key features of the PSMA, which focus on harmonizing standards for States’ domestic control of their ports, and the coordinated enforcement of international rules to prevent and penalize IUU fishing.
Parties apply the measures under the PSMA to foreign vessels seeking entry to their ports, with some qualifications. (PSMA, Article 3). The PSMA does not prejudice parties’ sovereign rights to their maritime and territorial areas, respects States’ exercise of sovereignty over their ports, and ensures consistency with States’ preexisting obligations and international maritime standards and rules, especially those under the International Maritime Organization (PSMA, Article 4). It encourages States to cooperate and coordinate on port State measures and exchange information (PSMA, Articles 5 and 6).
Port State Measures
With respect to port entry authorizations and identification procedures and requirements, port States can additionally obtain information from foreign ships “to determine whether the vessel requesting entry into the port is engaged in IUU fishing” (PSMA, Article 9), and possibly deny port entry for vessels determined to have engaged in IUU fishing or related activities [PSMA Article 9(4)], without, of course, affecting international rules on entry into force of vessels in ports in cases of force majeure or distress [PSMA Article 10]. Further restrictions can be imposed on foreign vessels already in port where the port State has “reasonable grounds to believe that the vessel was otherwise engaged in IUU fishing or fishing related activities” [PSMA Article 11(1)(e)]. Port States are also mandated to comply with agreed upon minimum levels of inspection of vessels [PSMA Article 12(2)], with transparency in the transmittal of inspection results to the flag State of the inspected vessel [PSMA Article 15]. The port State can pursue other actions after inspection, including notifying the flag State and appropriate regional fisheries management organizations (RFMOs), or denying the vessel the use of the port for landing, transshipping, packaging and processing of fish and other port services such as refueling, resupplying, maintenance, and dry-docking. [PSMA, Article 18].
IUU inspections procedures by port States are expected to be fair and nondiscriminatory and transparent [PSMA, Article 13(h)]. Annex B to the PSMA outlines the ten mandatory procedures that inspectors should follow in conducting vessel inspection to ascertain if the vessel has engaged in IUU fishing activities.
Role of Flag States
Flag States should require vessels entitled to fly their flags to “cooperate with the port State in inspections” carried out under the PSMA. [PSMA, Article 20(1)]. If flag States have “clear grounds to believe that a vessel entitled to fly its flag has engaged in IUU fishing or fishing related activities in support of such fishing and is seeking entry to or is in the port of another State”, they shall request the port State to inspect the vessel or take other measures under the PSMA. [PSMA Article 20(2)]. When flag States receive inspection reports indicating that there are clear grounds to believe that vessels entitled to fly their flags have engaged in IUU fishing, they are required to immediately investigate, and upon sufficient evidence, take the necessary enforcement actions in accordance with the flag States’ domestic laws and regulations. [PSMA Article 20(4)]. Flag States must also notify other Parties to the PSMA and other port States and RFMOs of the measures they have taken pursuant to the PSMA. [PSMA Article 20(5)].
Special Requirements of Developing States
The PSMA also notably takes into account special requirements of developing States, which may not have the same level of port facility or capabilities to implement PSMA measures. To this end, the PSMA allows for the provision of technical and financial assistance, and other cooperative arrangements, to developing countries so as to enable them to join the PSMA, and to be able to innovate and adapt their respective ports for implementation of PSMA measures. [PSMA Article 21]. Annex D of the PSMA, in particular, discusses information systems and computerized communications that port States must establish to implement the PSMA. Annex E of the PSMA provides guidelines for training inspectors to implement the PSMA, such as training on ethics; health, safety and security issues; applicable laws and national regulations, areas of competence and conservation and management measures of relevant RFMOs and applicable international law; collection, evaluation, and preservation of evidence; general inspection procedures; analysis of information required for validation of information by the master of the vessel; vessel boarding and inspection; verification and validation of information related to landings, transshipments, processing, and fish remaining onboard; identification of fish species, vessels and gear; electronic tracking systems; and post-inspection follow up actions.
Any PSMA party can initiate “consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible.” [PSMA Article 22(1)]. Should consultations fail, then, “the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.” [PSMA Article 22(2)] If the dispute remains unresolved, then “any dispute of this character not so resolved shall, with the consent of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources.” [PSMA Article 22(3)].
What is particularly landmark from the design of the PSMA is the standardization of inspection procedures and measures at port by port States (traditionally the exclusive domain of domestic laws); the reporting, investigation, and enforcement duties of flag States (again traditionally the purview of domestic laws); and the technical and funding facility created to realistically assist many countries who have different port enforcement capabilities with varying port facilities and systems. This model of involving port States in a global cooperation with flag States and RFMOs – while also creating realistic opportunities for assistance to port States challenged by resource and technological constraints – should be similarly considered for other transnational organized crimes at sea, such as human trafficking and smuggling of migrants at sea, illegal drug trafficking at sea, arms smuggling, piracy and armed robbery, as well as to apprehend other perpetrators of marine environmental crimes.