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TOO BIG TO TACKLE? THE PERSISTENT PROBLEM OF PIRATE FISHING AND THE NEW FOCUS ON PORT STATE MEASURES I.

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 1. See John Vidal, Pirate Fishing Causing Eco Disaster and Killing Communities, Says Report, THE GUARDIAN, June 7, 2009, available at http://www.guardian.co.uk/ environment/2009/jun/08/pirate-fishing-eco-disaster-report. Poorer nations are disproportionately impacted by pirate fishing, often unable to police fishing activity or defend against pirate vessels destroying local fishermen’s equipment. Id. Angolan fisheries authorities report that confrontations with pirate fishing vessels have resulted in the ramming and sinking of boats, hurling of boiling water on boarding parties, and the disappearance and suspected murder of two inspectors while on observer duty aboard industrial trawler fishing vessels. Id. 2. See World Health Organization (WHO), Diet, Nutrition and the Prevention of Chronic Diseases: Report of a Joint WHO/FAO Expert Consultation, 916 WHO TECHNICAL REP. SER. § 3.5, at 22 (2003), available at http://whqlibdoc.who.int/trs/who_trs_ 916.pdf [hereinafter Joint WHO/FAO Report] (stating many of world’s fishing areas have reached maximum production potential and fully exploited fish stocks). Fish stocks are in danger from direct threats such as overfishing as well as indirect threats such as pollution and climate change. Id. § 3.5, at 22; id. § 3.7, at 27. Around 75% of the world fisheries are fully exploited, overexploited, or depleted, meaning that their maximum sustainable limits have been exceeded. See Jessica K. Ferrell, Controlling Flags of Convenience: One Measure to Stop Overfishing of Collapsing Fish Stocks, 35 ENVTL. L. 323, 325-26 (2005). 3. See Rachel Baird, Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence, 5 MELB. J. INT’L L. 299, 334 (2004) (citing IUU fishing as “one of the single biggest threats” to sustainable management fisheries). 4. See Nat’l Oceanic and Atmospheric Admin. (NOAA), Improving International Fisheries Management: Report to Congress, Pursuant to Section 403(a) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, at 8 (Jan. 2013), available at http://www.nmfs.noaa.gov/ia/iuu/msra_page/2013_ biennial_report_to_congress__jan_11__2013__final.pdf (describing international community’s use of term “IUU fishing”).

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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 II. A.

FACTS

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 5. David J. Agnew et al., Estimating the Worldwide Extent of Illegal Fishing, 4 PLOS ONE, Feb. 2009, at 4, available at http://www.plosone.org/article/info:doi/10. 1371/journal.pone.0004570 (crediting IUU fishing for up to $23.5 billion in global economic loss per year). 6. See infra pts. II-III. 7. See infra pts. IV-V. 8. See, e.g., RICHARD ADAMS CAREY, AGAINST THE TIDE: THE FATE OF THE NEW ENGLAND FISHERMAN 52 (Houghton Mifflin Co. 1999) (detailing early seventeenth century conflict between England and Netherlands over fishing for North Atlantic Herring); see Tracy Cooper, Picture This: Promoting Sustainable Fisheries Through Eco-Labeling and Product Certification, 10 OCEAN & COASTAL L.J. 1, 1 (2005) (noting use of fish for economic benefits and as major food source of world population since dawn of humanity). 9. See Ferrell, supra note 2, at 325-26 (noting around 75% of world fisheries are exploited, overexploited, or depleted, exceeding sustainable limits); Andrea Migone & Michael Howlett, From Paper Trails to DNA Barcodes: Enhancing Traceability in Forest and Fishery Certification, 52 NAT. RESOURCES J. 421, 427 (2012) (noting 80% of fish stocks were overfished in 2008); Fighting The Fish Pirates, FAO (April 5, 2002), http://www.fao.org/english/newsroom/news/2002/3500-en.html (stating pirate fishing problem cannot be ignored).

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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 10. See generally United Nations Conference on the Human Environment, June 5-16, 1972, Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1, available at http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97. The Conference on the Human Environment, also known as the “Stockholm Conference,” was the first major conference in which the United Nations addressed environmental issues and represented a turning point in international environmental politics. See JOHN BAYLIS, STEVE SMITH & PATRICIA OWENS, THE GLOBALIZATION OF WORLD POLITICS: AN INTRODUCTION TO INTERNATIONAL RELATIONS 322 (5th ed. 2011). Many of the environmental and sustainability concerns date to the 1970s. See Noah Vardi & Vincenzo Zeno-Zencovich, From Rome to Nice: A Historical Profile of the Evolution of European Environmental Law, 12 PENN ST. ENVTL. L. REV. 219, 220-21 (2004) (describing environmental protection movement global trend originating in U.S. during 1970s). 11. See Laurence Blakely, The End of the Viarsa Saga and the Legality of Australia’s Vessel Forfeiture Penalty for Illegal Fishing in Its Exclusive Economic Zone, 17 PAC. RIM L. & POL’Y J. 677, 680 (2008) (describing IUU fishing as “significant contributor” to issue of overexploited fish stocks). IUU fishing undermines sustainable fishing practices and creates unfair market competition to sustainable seafood. See U.S. DEP’T OF COMMERCE, NAT’L OCEANIC AND ATMOSPHERIC ADMIN. & NAT’L MARINE FISHERIES SERV., ILLEGAL FISHING: NOT IN OUR PORTS: PORT STATE MEASURES AGREEMENT AND IMPLEMENTING LEGISLATION 1 (2011), available at http:// www.nmfs.noaa.gov/stories/iuu/docs/now_port_state_handout_v1_11_16.pdf. (describing economic loss as result of IUU fishing). This in turn threatens both food security and socio-economic security in many parts of the world by economically impacting legitimate fisheries. Id. IUU fishing results in global economic losses of an estimated $10 to $23 billion annually, and can represent up to 40 percent of the total catch in some fisheries. Id. 12. See Comm’n for the Conservation of Antarctic Marine Living Res. (CCAMLR), Hobart, Austl., Oct. 27-Nov. 7, 1997, Report of the Sixteenth Meeting of the Commission, §§ 8.7-8.13, available at http://archive.ccamlr.org/pu/E/e_pubs/cr/97/ all.pdf (noting conservation measures discussed and enacted by the Commission); see also DARREN S. CALLEY, PUB. ON OCEAN DEV., MARKET DENIAL AND INTERNATIONAL FISHERIES REGULATION: THE TARGETED AND EFFECTIVE USE OF TRADE MEASURES AGAINST THE FLAG OF CONVENIENCE FISHING INDUSTRY 22 (2012) (identifying CCAMLR as regional fisheries organization responsible for coining phrase “IUU fishing”). Regional fisheries management organizations (RFMOs) are organizations comprised of coastal states and fishing nations formed to regulate and manage fisheries under international agreements and frameworks in a particular geographic region. See Paula Walker, Oceans in the Balance: As the Sharks Go, So Go We, 17 ANIMAL L. 97, 119 (2010) (describing RFMOs as inter-regional, inter-governmental organizations formed to develop regulations for managing fish resources for stakeholders). The power of RFMOs vary by organization; some perform a purely advisory role to governments while others have management powers and control obli-

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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 gations. See Regional Fisheries Management Organisations (RFMOs), EUROPEAN COMMISSION, http://ec.europa.eu/fisheries/cfp/international/rfmo/index_en.htm (last visited Jan. 6, 2014) (describing RFMOs generally). The CCAMLR is an influential RFMO dedicated to the conservation of marine life in Antarctica. See About CCAMLR, COMM. FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES, (Oct. 3, 2013), http://www.ccamlr.org/en/organisation/about-ccamlr (last visited Jan. 6, 2014) (describing history and objective of CCAMLR). 13. See Katherine Weber, Can You Eat Your Fish & Save It Too? Improving the Protection of Pirated Marine Species through International Trade Measures, 25 J. LAND USE & ENVTL. L. 265, 266 (2010) (describing activities constituting IUU fishing). The term “flag state” commonly refers to the state in which a ship is registered. See, e.g., FAO, IMPLEMENTATION OF THE INT’L PLAN OF ACTION TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING 7 n. 13, available at ftp://ftp.fao.org/docrep/fao/005/y3536e/y3536e00.pdf (describing definition of “flag state”). IUU fishing is seen not only as a regulatory issue, but also as an environmental crime. See Mary George, Fisheries Protections in the Context of the Geo-Political Tensions in the South China Sea, 43 J. MAR. L. & COM. 85, 97 (2012) (describing IUU fishing as transnational crime). 14. See Agnew et al., supra note 5 (indicating IUU fishing accounts for up to $23 billion in economic loss annually for countries throughout world). 15. See (OCF) IUU Fishing & Traceability, INT’L CONSERVATION CAUCUS FOUNDATION (ICCF), (May 11, 2012), http://iccfoundation.us/index.php?option= com_content&view=article&id=419:iuu-fishing-a-traceability&catid=70:briefings2012&Itemid=81 (stating fishing industry is USD110 billion industry worldwide); People & Power, Pirate Fishing: People & Power Takes to the Seas Off Sierra Leone to Investigate the Multi-Million Dollar Illegal Fishing Trade, AL JAZEERA, http://www. aljazeera.com/programmes/peopleandpower/2012/01/201212554311540797.html (last modified Feb. 2, 2012, 8:36 AM) (noting “seafood hungry” markets of Europe and Asia); see also ICCFoundation, Congressional Staff Briefing: IUU Fishing & Traceability, YOUTUBE (May 17, 2012), http://www.youtube.com/watch?v=7YNPuZQ9jAg [hereinafter ICCF Congressional Staff Briefing]. 16. See David Drengk, Sierra Leone to be One of Many West African Countries Facing IUU Fishing in Alarming Proportions, EUFRIKA.ORG (Feb. 7, 2012), http:// www.eufrika.org/wordpress/sierra-leone-to-be-one-of-many-west-african-countries-

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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 outweighfacing-iuu-fishing-in-alarming-proportions (quoting “Through the Net” and describing commercial advantage held by IUU fisherman). 17. See Joint WHO/FAO Report, supra note 2, § 3.5, at 22-23 (stating approximately one billion people rely on fish as primary source of animal protein); see also Leticia M. Diaz & Barry Hart Dubner, Foreign Fishing Piracy vs. Somalia Piracy Does Wrong Equal Wrong?, 14 BARRY L. REV. 73, 80 (2010) (noting negative impacts of IUU fishing, robbing local people of invaluable protein source). 18. See Dirk Zeller, Peter Rossing & Sarah Harper, Dumb as a Cod Part II: The Case of IUU in the Baltic Sea, THE SEA AROUND US PROJECT NEWSLETTER (Fisheries Ctr. at the Univ. of B.C., Vancouver, Can.), Nov.-Dec. 2009, at 1-2, available at http:// www.seaaroundus.org/sponsor/images/newsletter_2.pdf (noting top three offenders of illegal, unreported fisheries catches are Poland, Sweden, and Denmark). 19. See Kevin Sieff, Quest for Shark Fins Brings Mexican Fisherman to American Waters, WASH. POST, March 16, 2011, available at http://articles.washingtonpost.com/ 2011-03-16/world/35259670_1_shark-fins-shark-fishermen-shark-meat (describing Mexican fisherman crossing into U.S. waters at night to illegally fish for sharks). 20. See Zeller, supra note 18, at 2 (noting failure of highly developed countries to address IUU fishing in comprehensive manner). 21. See ROB TINCH, IAN DICKIE & BRUNO LANZ, ECON. FOR THE EVN’T CONSULTANCY LTD (EFTEC), COSTS OF ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING IN EU FISHERIES 11 (2008), http://www.pewtrusts.org/uploadedFiles/ wwwpewtrustsorg/Reports/Protecting_ocean_life/eftec_Costs_IUU_Fishing.pdf (stating “only viable solution [to IUU Fishing] is to make it unprofitable through stronger governance measures”). 22. OECD, WHY FISH PIRACY PERSISTS: THE ECONOMICS OF ILLEGAL, UNREPORTED AND UNREGULATED FISHING 13 (2005), available at http://www.oecd.org/tad/

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ing 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 III. A.

HISTORY

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 fisheries/35493720.pdf (discussing economic and social effect of fish piracy); see also Ryan Cantrell, Finding Nemo . . . and Eating Him: The Failure of the United Nations to Force Internalization of the Negative Social Costs That Result from Overfishing, 5 WASH. U. GLOBAL STUD. L. REV. 381, 399 (2006) (providing economic analysis of IUU fishing). 23. See Sieff, supra note 19 (indicating IUU fishing families can make $5000 to USD10,000 monthly, and those arrested are often released a short time later). Many countries, including the United States, inadequately regulate the fishing industry and consumers are deceived into purchasing falsely labeled fish. See Beth Daley & Jenn Abelson, From Sea to Sushi Bar, a System Open to Abuse, THE BOSTON GLOBE, Oct. 24, 2011, available at http://www.boston.com/business/articles/2011/10/24/from_sea_ to_sushi_bar_a_system_open_to_abuse/ (indicating “[l]ax government oversight, industry indifference, and consumer ignorance allow mislabeling to flourish”). In many cases, DNA is the only way to be sure which species is being served. Id. (video determining local fish at restaurants is often not what customers ordered); see also Jenn Abelson & Beth Daley, On the Menu, but Not on Your Plate, THE BOSTON GLOBE, Oct. 23, 2011, available at http://www.boston.com/business/articles/2011/10/23/on_the_ menu_but_not_on_your_plate/ (reporting ubiquitous mislabeling of seafood and describing dramatic lack of oversight in seafood business); Beth Daley & Jenn Abelson, Accountability Lost in Murky Supply Chain, THE BOSTON GLOBE, Dec. 1, 2012, available at http://www.boston.com/business/news/2012/12/02/accountability-lostmurky-fish-supply-chain/qsCOA58QzQbjRqPaPSZs4H/story.html (indicating mislabeling easy to take place at expense of consumers who pay more for inferior seafood). 24. See U.N. Secretary-General, Oceans and the Law of the Sea: Rep. of the Secretary General, ¶¶ 249-250, U.N. Doc. A/54/429 (Sept. 30, 1999) (stating IUU fishing is “one of the most severe problems currently affecting world fisheries”). 25. See FAO Conference, Rome, It., Nov. 18-23, 2009, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO C 2009/LIM/11 Rev.1 (Nov. 22, 2009) (not yet in force) [hereinafter PSMA]. 26. Obama Submits to Senate International Treaty to Combat Illegal Fishing, RTT NEWS (Nov. 14, 2011, 10:57 PM), http://www.rttnews.com/1761282/obama-submits-to-senate-international-treaty-to-combat-illegal-fishing.aspx (describing U.S. leg-

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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 islative response to Port State Measures Agreement). President Obama submitted the treaty to the U.S. Senate for its advice and consent. Id. 27. See More Countries Back Treaty to Deter Illegal Fishing: Signature by Russian Federation Brings Total to 16, FAO (Apr. 29, 2010), http://www.fao.org/news/story/en/ item/41879/icode/ (discussing increasing level of support); see also Lindsey Partos, Damanaki: New IUU Fishing Law Paying Off, SEAFOODSOURCE.COM, Jan. 11, 2011, http://www.seafoodsource.com/en/news/supply-trade/19202-damanaki-new-iuu-fishing-law-paying-off (discussing recent measures by EU to deter IUU fishing). Additionally, NOAA and the European Union have committed to addressing IUU fishing as a united front. See Joint Statement from Maria Damanaki, European Union Commissioner for Maritime Affairs and Fisheries, and Jane Lubchenco, Ph.D., United States Under Secretary of Commerce for Oceans and Atmosphere (May 30, 2012), available at http://www.nmfs.noaa.gov/stories/2012/05/docs/joint_statement_us_eu_ post_parliament.pdf (describing collaborative effort by European Union and United States to curtail IUU fishing). 28. See Mark Kinver, Ports ‘Failing to Halt Illegal Fishing,’ BBC NEWS (May 21, 2010), http://www.bbc.co.uk/news/10131041 (indicating failure of global measures to halt illegal fishing); see also David Jolly, Illegal Fisherman 4, Enforcement 0, N.Y. TIMES (Jan. 6, 2012), http://green.blogs.nytimes.com/2012/01/06/illegal-fishermen-4enforcement-0/ (reporting on recent failures in IUU enforcement in Africa and Latin America). 29. See MARY ANN E. PALMA ET AL., PROMOTING SUSTAINABLE FISHERIES: THE INTERNATIONAL LEGAL AND POLICY FRAMEWORK TO COMBAT ILLEGAL, UNREPORTED AND UNREGULATED FISHING 55 (2010) (describing complexity of global fisheries regulations). 30. Id. (describing factors that impact fisheries regulations). 31. See Port State Measures, FOOD AND AGRIC. ORG. OF THE UNITED NATIONS, http://www.fao.org/fishery/psm/en (noting growing reliance on port states to combat IUU fishing practices).

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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

32. See Dikdik Mohamad Sodik, Non-legally Binding International Fisheries Instruments and Measures to Combat Illegal, Unreported and Unregulated Fishing, 15 AUSTL. INT’L L.J. 129, 158 (2008) (discussing necessity of bringing fish to port); see also Press Release from Office of the Spokesperson, President Obama Submits Port State Measures Agreement to Senate (Nov. 14, 2011), available at http://www.state. gov/r/pa/prs/ps/2011/11/177154.htm (discussing importance of port state measures). 33. See PSMA, supra note 25, at Preamble (recognizing port state measures are “powerful and cost effective”). Port state measures eliminate the costs and dangers associated with boarding and inspecting vessels while at sea. See Eugene Proulx, High Seas Boarding and Inspection of Fishing Vessels: A Discussion of Goals, Comparison of Existing Schemes and Draft Language, FAO LEGAL PAPERS ONLINE # 33, Sept. 2003, at 3, http://www.fao.org/fileadmin/user_upload/legal/docs/lpo33.pdf (stating patrol vessels are expensive by nature and their utility has always been debated). 34. See FAO, A GUIDE TO THE BACKGROUND AND IMPLEMENTATION OF THE 2009 FAO AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING 5 (2012), available at http://www.fao.org/docrep/015/i2590e/i2590e00.pdf (describing necessity that all fisheries in geographic region achieve harmony by enforcing similar regulations). 35. See id. (describing likely occurrence of port hopping if states do not harmonize regulations). Port hopping poses a significant threat to the success of any portbased regulatory measures. See Halting IUU Fishing: Enforcing International Fisheries Agreements, OCEANA (Mar. 2004), http://oceana.org/en/eu/media-reports/publications/reports/halting-iuu-fishing-enforcing-international-fisheries-agreements (noting displacement of IUU fishing from well regulated ports to poorly regulated ports). 36. See supra note 34 (describing economic pressure placed on IUU vessels in areas with unified fishing regulation and enforcement).

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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 37. See id. (noting origin of port state measures in environmental conservation efforts). 38. See AMERICAN ENVIRONMENTALISM: THE U.S. ENVIRONMENTAL MOVEMENT, 1970-1990 3 (Riley E. Dunlap & Angela G. Mertig eds., 1992) (describing growth in conservation organizations, establishment of Environmental Protection Agency and Council on Environmental Quality); see also supra note 10 and accompanying text (describing beginning of global environmental awareness during 1970s). 39. United Nations Convention on the Law of the Sea (UNCLOS), U.N. Doc. A/ CONF.62/121 (Dec. 10, 1982) (amended in 1994), available at https://treaties.un.org/ doc/publication/UNTS/Volume%201833/v1833.pdf [hereinafter UNCLOS] (outlining laws of the sea). 40. See Jeanine B. Womble, Freedom of Navigation, Environmental Protection, and Compulsory Pilotage in Straits Used for International Navigation, 61 NAVAL L. REV. 134, 134 (2012) (indicating that UNCLOS is widely known as “a constitution for the oceans”); see also Harry N. Scheiber, Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation—and Frustration, 20 VA. ENVTL. L.J. 119, 124 (2001) (describing broad approach of UNCLOS as opposed to approach focused on codification for particular issues). 41. See United Nations Conference on Sustainable Dev., Issues Brief 4 – Oceans, UN-DESA, RIO+20, U.N. CONFERENCE ON SUSTAINABLE DEV., http://www.uncsd 2012.org/index.php?page=View&type=400&nr=216&menu=45 (last visited Jan. 13, 2014). 42. See UNCLOS, supra note 39, at art. 217(1) (requiring “[f]lag States [to] provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs”).

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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 dif43. Report of the World Commission on Environment and Development: Our Common Future, ch. 1, ¶ 51, U.N. Doc. A/42/427; 42d Sess., Annex (1987), available at http://www.un-documents.net/ocf-01.htm (explaining “[n]o single blueprint of sustainability will be found, as economic and social systems and ecological conditions differ widely among countries [and] [e]ach nation will have to work out its own concrete policy implications”). 44. See id. 45. See FAO, supra note 34, at 2 (describing Den Bosch Conference as providing foundation for UNCED and adopting a Declaration and Agenda on Sustainable Agriculture and Rural Development). 46. See id. (noting development of Agenda 21). 47. See id. 48. See id., at 2-3 (describing impact of Agenda 21 in shifting nations’ approach to conservation of natural resources). 49. See Basic Information, JOHANNESBURG SUMMIT 2002, http://www.un.org/ jsummit/html/basic_info/basicinfo.html (last visited Jan. 13, 2014); see generally Re-

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fered from Agenda 21 in that it focused intensely on emerging fisheries’ issues, set time-bound objectives, and referenced the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOAIUU).50 2.

The Increased Use of Port State Measures in the PostUNCED Era

In the early 1990s, the international community mobilized in response to rampant noncompliance with fisheries’ conservation efforts, resulting in the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993 FAO Compliance Agreement).51 The 1993 FAO Compliance Agreement supports sustainable fisheries by imposing obligations and restrictions on the manner in which high seas fishing vessels collect their catch, requiring parties to maintain detailed records and submit those records to the FAO for inclusion in a global registry.52 Additionally, the 1993 FAO Compliance Agreement imposes mandatory notification requirements when there are reasonable grounds for believing that a vessel in port has conducted activities that undermine international conservation and management measures.53 In 1995, the FAO adopted the Code of Conduct for Responsible Fisheries (FAO Code of Conduct) to set international standards for the conservation, development, management, and port of the World Summit on Sustainable Development, Aug. 26-Sept. 4, 2002, U.N. Doc. A/CONF.199/20 (2002), available at http://www.un.org/jsummit/html/documents/ summit_docs/131302_wssd_report_reissued.pdf. 50. See generally Report of the World Summit on Sustainable Development, supra note 49. 51. See Christopher J. Carr, The Ecosystem Approach: New Departures for Land and Water: Fisheries Management: Recent Developments in Compliance and Enforcement for International Fisheries, 24 ECOLOGY L.Q. 847, 851 (1997) (describing international community mobilization against fisheries conservation threats); see also FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Res. 15/93, 27th Sess., at Preamble (Nov. 24, 1993), available at http://www.fao.org/docrep/meeting/003/x3130m/ X3130E00.htm, [hereinafter FAO Compliance Agreement] (detailing FAO Compliance Agreement). 52. See Carr, supra note 51, at 851-52 (describing two important ways FAO Compliance Agreement assists in maintaining sustainable fisheries). 53. See FAO Compliance Agreement, supra note 51, at art. III, ¶ (1)(a).

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utilization of fisheries’ resources.54 The FAO Code of Conduct is voluntary and has a broad framework that applies to both binding and nonbinding agreements.55 It is widely regarded as an advancement toward unified standards for the world’s fisheries.56 The 1995 FAO Code of Conduct addresses seven thematic areas and serves as a benchmark for institutions assessing fisheries’ regulatory instruments.57 Article 8.3 addresses the use of port state measures for fishing operations, but this idea is still evolving and has consequently placed port states in a very passive role; namely, providing assistance to flag states.58 In 1995, UNCLOS was updated to address the migration of fish species between different countries’ exclusive economic zones, under the UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish Stocks Agreement).59 This highly influential fisheries management tool expanded and clarified elements of the 1982 UNCLOS.60 Implementation of the 1995 UN Fish Stocks Agreement focused on the regional fisheries management organizations (RMFOs) by seeking to establish regional regulation continuity.61 The 1995 UN Fish Stocks 54. See FAO, CODE OF CONDUCT FOR RESPONSIBLE FISHERIES 1 (1995), available at ftp://ftp.fao.org/docrep/fao/005/v9878e/v9878e00.pdf. 55. See id., at art. 1 (indicating scope of 1995 FAO Code of Conduct). 56. See Christopher J. Carr & Harry N. Scheiber, Dealing with A Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries, 21 STAN. ENVTL. L. J. 45, 69 (2002) (describing 1995 FAO Code of Conduct as globalizing national standards for conservation and management of fisheries). 57. See FAO, supra note 34, at 7 (characterizing 1995 FAO Code of Conduct’s impact). 58. See id., at 8 (outlining limited role of port state measures in 1995 FAO Code of Conduct). 59. See generally United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, July 24-Aug. 4, 1995, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. Doc. A/CONF.164/37 (Sept. 8, 1995) [hereinafter 1995 UN Fish Stocks Agreement] available at http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N95/274/67/PDF/N9527467.pdf?OpenElement (providing principles for management and conservation of fish stocks based on precautionary approaches and scientific information). 60. Id. (indicating focus on migratory fish species, with title mentioning 1982 United Nations Convention). 61. See id. at Pt. III (outlining importance of regulation continuity).

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Agreement’s compliance and enforcement provisions are innovative in that being a member effectively authorizes RFMO inspectors to board and inspect high seas fishing vessels.62 Additionally, where regulators believe a vessel has committed a violation and the flag state has failed to respond as required under the 1995 UN Fish Stocks Agreement, the inspectors may remain on board to secure evidence and bring the vessel to port.63 The 2001 FAO IPOA-IUU expanded the role the port state plays in fisheries management.64 Although nonbinding, the IPOA-IUU was the first global initiative against IUU fishing and related activities, focusing on preventing, deterring, and eliminating IUU fishing by providing states with the power to utilize RFMOs.65 The IPOA-IUU is often referred to as a comprehensive toolbox of measures that are available to combat IUU fishing.66 Despite the fact that the IPOA-IUU increased emphasis on port state measures, the voluntary nature of the instrument severely limits its deterrent effect.67 The next major legislative attempt at targeting IUU fishing was the FAO Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (2005 FAO Model

62. See Carr, supra note 51, at 852-53 (describing innovative nature of Fish Stocks Agreement). 63. See Carr, supra note 51, at 852-53 (describing ability to board vessels during enforcement of Fish Stocks Agreement). 64. See FAO Council, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, sec. III, ¶ 9.1 (2001) [hereinafter IPOA-IUU], available at ftp://ftp.fao.org/docrep/fao/012/y1224e/y1224e00.pdf (noting role of states and regional fisheries in implementing IPOA); see also Judith Swan, Port State Measures: Examining the Value, Implementation and Challenges of Port State Measures for the Southern African Region, www.STOPILLEGALFISHING.COM, available at http://www.stopillegalfishing.com/doc/publication/eng/port_state_measures.pdf (indicating expanded role of port states under IPOA-IUU). 65. See George, supra note 13, at 87 (stating objectives of IPOA-IUU). 66. See Ferrell, supra note 2, at 330 (discussing voluntary FAO agreements like the IPOA-IUU being useful as “toolboxes”); FAO, STOPPING ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING (2002), ftp://ftp.fao.org/docrep/fao/004/y3554E/ y3554E00.pdf (describing IPOA-IUU as “toolbox” permitting catered approach that discriminates among fisheries). 67. See Blaise Kuemlangan & Michael Press, Preventing, Deterring and Eliminating IUU Fishing: Port State Measures, 40 ENVTL. POL’Y AND L., Nov. 2010, at 263 (noting voluntary nature of IPOA-IUU has deleterious effect on IPOA-IUU’s potency and recommending further action).

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Scheme).68 The purpose of the 2005 FAO Model Scheme is to promote, reinforce, and facilitate the implementation of effective action by port states to prevent, deter, and eliminate IUU fishing.69 Some fisheries were apprehensive about a mandatory agreement and this voluntary model scheme acted as a transitory step between the 2001 IPOA-IUU and the binding 2009 FAO PSMA.70 B.

The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA)

In November 2009, the Conference of the FAO adopted the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures Agreement or PSMA).71 The purpose of the treaty is to combat illegal fishing activities worldwide by focusing on the ports to ensure that illegally harvested fish do not enter the stream of commerce.72 The PSMA relies heavily upon the premise that all fish, wherever caught, must eventually come to a port to be unloaded, sold, and processed.73 Port-based enforcement efforts have the added benefit of being highly efficient and cost-effective compared to the large expenditure of time and resources required to monitor and inspect vessels at sea.74 68. See generally FAO, MODEL SCHEME ON PORT STATE MEASURES TO COMILLEGAL, UNREPORTED AND UNREGULATED FISHING (2007), ftp://ftp.fao.org/ docrep/fao/010/a0985t/a0985t00.pdf [hereinafter 2005 FAO Model Scheme]. 69. Id., at vii (noting purpose of 2005 FAO Model Scheme). 70. See FAO, supra note 34, at 13 (noting concern over implementing mandatory agreement); see also Judith Swan, Port State Measures to Combat IUU Fishing: International and Regional Developments, 7 SUSTAINABLE DEV. L. & POL’Y 38, 43 (2006) (describing 2005 FAO Model Scheme as a “steppingstone”). 71. See Press Release, FAO, Groundbreaking Treaty on Illegal Fishing Approved, U.S. State News, (Nov. 30, 2009, 12:56 PM) (detailing FAO’s approval of PSMA). 72. See PSMA, supra note 25, at pt. 1, art. 2 (identifying objective of PSMA). 73. See Sodik, supra note 32 (describing need to deliver fish to ports). It is important to note that the majority of the previous agreements targeting IUU fishing focused on regulating the activities of fishing vessels while at sea, and relied on flag states for enforcement. See, e.g., UNCLOS, supra note 39, at art. 94 (noting duties of flag states in monitoring their vessels). 74. See Port State Measures Agreement, FOOD AND AGRIC. ORG. OF THE UNITED NATIONS, http://www.fao.org/fishery/topic/166283/en (last updated Mar. 8, 2013) (outlining benefits to ratifying and implementing PSMA); see also Press Release, FAO, New Treaty Will Leave ‘Fish Pirates’ Without Safe Haven (Sept. 1, 2009), http://www. BAT

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The Key Elements of the PSMA

The PSMA provides an international minimum standard on which countries and RFMOs can base their own port state regulatory policies and measures.75 The potency of the PSMA’s deterrent effect lies in its potential to reduce the financial incentives of IUU fishing by making it difficult to land or dock a vessel and bring illegal fish to market.76 The PSMA is groundbreaking because, unlike prior treaties targeting pirate fishing, once the PSMA is ratified by twenty five signatories and enters into force, it will be the first legally binding international treaty designed solely to combat IUU fishing.77 The principal goal of the PSMA is to deter IUU fishing by targeting economic incentives, making IUU fishing inefficient and risky to pursue.78 The PSMA is an improvement over previous attempts to mitigate IUU fishing.79 However, the PSMA presents a number of challenges related to implementation, and

fao.org/news/story/en/item/29592/icode/ (portraying port state measures as effective and cost-effective weapons in fight against pirate fishing). 75. THE PEW ENV’T GRP., PRELIMINARY FINDINGS FROM A GAP ANALYSIS: A COMPARISON OF RFMO PORT STATE MEASURES WITH THE FAO AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (2010) http://www.pewenvironment.org/ uploadedFiles/PEG/Publications/Report/Preliminary%20Findings%20from%20a%20 Gap%20Analysis.pdf (characterizing PSMA regulations as standard for all RFMO regulations). 76. See Stefan Flothmann et al., Closing Loopholes: Getting Illegal Fishing Under Control 328 SCI. 1235, 1235 (2010) available at http://www.pewtrusts.org/uploaded Files/wwwpewtrustsorg/Reports/Protecting_ocean_life/6.%20PSP%20Closing%20 Loopholes.pdf?n=3882 (discussing opportunity of port states to substantially reduce profitability of IUU fishing operations by denying port access to IUU fishing vessels). 77. See KRISTI´N VON KISTOWSKI ET AL., THE PEW ENV’T GRP., PORT STATE PERFORMANCE: PUTTING ILLEGAL, UNREPORTED AND UNREGULATED FISHING ON THE RADAR 2, 5 (2010), http://www.pewenvironment.org/uploadedFiles/PEG/Publications/Report/PortStatePerformance-SciencePaper-2011.pdf (noting growing support for port state measures leading up to negotiation of PSMA). 78. See Contemporary Practice of the United States Relating to International Law: Brief Notes: United States Supports New Convention to Combat Illegal Fishing, 103 AM. J. INT’L L. 770, 776 (2009) (noting hope that PSMA will cause risk and cost to increase, and dissuade IUU fishing) 79. Press Release, European Union, Fisheries: European Union and United States Agree to Strengthen Cooperation to Combat Illegal Fishing (Sept. 7, 2011), available at http://europa.eu/rapid/press-release_IP-11-1007_en.htm?locale=en (describing agreement as important step toward achieving goals).

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initial findings indicate that RFMOs have been slow to implement the PSMA properly.80 2.

The Current State of Affairs

The FAO has described the PSMA as a groundbreaking, “milestone achievement” in combating IUU fishing.81 Nevertheless, it is still rife with problems, and there has been little substantive progress, despite years of awareness of the negative impact of pirate fishing; now the issue has reached the point of international crisis, with significant global economic and environmental consequences.82 In recognition of this problem, the FAO and the international community have responded with several legislative efforts, including the UNCLOS, UNCED, 1995 UN Fish Stocks Agreement, IPOA-IUU, 2005 FAO Model Scheme, and most recently the PSMA.83 Ultimately, even though many countries recognize pirate fishing as a problem, they are rarely willing to dedicate the necessary resources to constrain the illegal activity.84 Instead, governments choose short-term economic and political goals over long-term preservation of the world’s sustainable marine resources.85 80. See infra Part IV-C-2 (outlining challenges to implementation of PSMA); supra note 75 (noting preliminary studies indicate disparity between port state measures utilized by RFMOs and PSMA standards). 81. See supra note 71 (offering praise to PSMA). 82. See ENVTL. JUSTICE FOUND., PIRATE FISHING EXPOSED: THE FIGHT AGAINST ILLEGAL FISHING IN WEST AFRICA AND THE EU 7 (2012), http://ejfoundation.org/sites/default/files/public/Pirate%20Fishing%20Exposed.pdf (describing investigation results, indicating IUU fishing in Sierra Leone and laundering of illegal catch in Europe); The Pew Env’t Grp., Executive Summary: Effective Measures to Combat Illegal, Unreported and Unregulated Fishing, Port State Performance project, http:// www.portstateperformance.org/index.php/_templates/content/execsummary (last visited Jan. 15, 2014) (concluding system lacks accountability and universality, marked by failure in closing loopholes exploited by IUU fishing operations); see also Jolly, supra note 28 (describing recent incidents of IUU fishing). 83. See supra Part III (detailing numerous legislative responses to IUU fishing). 84. See Global Campaign to End Illegal Fishing, THE PEW CHARITABLE TRUSTS, http://www.pewtrusts.org/our_work_detail.aspx?id=940 (last visited Jan. 18, 2014) (noting governmental reluctance to provide financial support). 85. See MARTIN TSAMENYI ET AL., FAIRER FISHING?: THE IMPACT ON DEVELOPING COUNTRIES OF THE EUROPEAN COMMUNITY REGULATION ON ILLEGAL, UNREPORTED AND UNREGULATED FISHERIES 65 (Commonwealth Econ. Paper Ser., Econ. Paper No. 86, 2009) (indicating short-term economic and political gains for countries not taking action against IUU fishing).

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A 2010 study supports this assertion that governments choose short-term economic and political goals, finding that many countries have failed to follow through on their UNCLOS commitments and their commitments under the WSSD-POI to rebuild fish stocks to levels that could produce the maximum sustainable yield by 2015.86 Dr. Froese, one of the authors of the 2010 study, stated that the analysis showed little change in the declining fish stocks trend because the 2002 WSSD in Johannesburg established a 2015 deadline for rebuilding fish stocks to a level of maximum sustainable yield.87 The study attributed the lack of progress to the nonbinding instruments from the past decade, which did not include any real consequences for countries that did not meet agreed-upon targets.88 In addition, public pressure appears to have had very little impact in motivating delinquent countries to enforce proper fishing regulations.89 The National Oceanic and Atmospheric Administration (NOAA) issues a periodic report to Congress identifying countries with vessels that are known to engage in IUU fishing; these documented IUU cases similarly suggest that countries are not motivated to enforce fishing regulations.90 For example, the NOAA identified Italy as a state that has failed to make changes, noting that Italian vessels have been cited on 114 distinct occasions in two years for the illegal use of driftnets to target large species of fish, such as the Atlantic bluefin tuna.91

86. See Daniel Cressey, Europe Cannot Keep Its Promises on Fish Stocks: Even with Total Cessation of Fishing, UN Target Would Still Be Missed, NATURE INT’L WKLY. J. OF SCI., Jan. 22, 2010, http://www.nature.com/news/2010/100122/full/news. 2010.27.html (noting Europe’s failure to meet goals set to rebuild fish stocks to sustainable levels by 2015). The 2010 study on these goals was published by Rainer Froese (Leibniz Institute of Marine Sciences) and Alexander Proelb (WaltherSchucking ¨ Institute of International Law), in the journal, FISH AND FISHERIES. Id. 87. See Cressey, supra note 86. 88. See id. (indicating sanctions for missing legally obligatory 2015 target are “sadly, very little beyond temporary embarrassment”). 89. See Jo Benn et al., U.S. Names Illegal Fishing Countries, Now Must Act, THE PEW CHARITABLE TRUSTS: ENVTL. INITIATIVES, Jan. 17, 2013, http://www. pewenvironment.org/news-room/other-resources/us-names-illegal-fishing-countriesnow-must-act-85899443791 (stating governments must do more than publicly identify offenders to stop IUU fishing). 90. See id. (noting details from NOAA report). See also supra note 4 (detailing 2013 NOAA report). 91. See Benn, supra note 89 (noting Italy’s failure to make changes).

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ANALYSIS

Global Fish Stocks Are at the Tipping Point

The occurrence of pirate fishing has reached pandemic levels and poses a global threat to the sustainability of the world’s fish stocks, which are a major, protein-rich food source, relied upon by many countries.92 With up to 75% of the world’s fisheries depleted beyond maximum sustainable limits, the dire circumstances of the world’s decreasing fish populations cannot be understated.93 Since the 1970s, there has been a growing global concern regarding the maintenance of sustainable natural resources, including global fish stocks.94 Pirate fishing has severely hampered these conservation efforts by pushing fish stocks to the brink of collapse.95 Pirate fishing is a problem that cannot be ignored; it is not a problem strictly plaguing developing countries, but rather a global crisis which requires the immediate collaborative efforts of many nations in order to maintain this valuable and sustainable food source.96 B.

The Global Legislative Responses Have Proved Ineffective

The legislative responses to IUU fishing have intensified over time.97 UNCLOS had a major impact on the way the world uses oceanic resources, and was highly effective in creating the legal framework for regulating activities that take place on the ocean.98 Additionally, the 1983 World Commission on Environment and Development helped to carve a path for sustainable fisheries and economic development by producing a valuable report defining sustainable development and identifying the need to achieve a balance between economic growth and sus92. See Joint WHO/FAO Report, supra note 2, § 3.5 at 22-23 (describing countries’ reliance on protein rich fish). See also supra note 9 (referencing role IUU fishing plays in exacerbating depletion of fish stocks). 93. See supra note 9 (describing fragile state of decimated fish stocks and threatened sustainability of fisheries worldwide). 94. See supra notes 10, 38 (indicating concern over sustainable fisheries emerged out of environmental movements). 95. See supra note 11 (describing conflict between fish stocks sustainability efforts and pirate fishing). 96. See supra note 9 (stating pirate fishing cannot be ignored); see also Agnew et al., supra note 5 (suggesting IUU fishing costs world billions in global economic loss). 97. See supra Part III (detailing history of global legislative responses to IUU fishing). 98. See supra notes 39-40 (discussing structure and influence of UNCLOS).

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tainability.99 UNCED solidified this sustainable development concept by adopting Chapter 17 of Agenda 21, which centered around the protection of the world’s oceans with an eye to sustainable practices, but the focus had not yet narrowed to fisheries conservation exclusively.100 Following UNCED, the fisheries’ conservation efforts intensified with the WSSD-POI, which zeroed in on emerging fisheries’ issues; efforts also increased with the 1993 FAO Compliance Agreement, which increased catch accountability and required mandatory reporting of suspected pirate fishing vessels.101 Both of these efforts were in response to slow implementation of Agenda 21, and sought to advance fisheries’ conservation efforts.102 The 1995 FAO Code of Conduct and the 1995 UN Fish Stocks Agreement were two major milestones in fisheries conservation effort.103 The voluntary 1995 FAO Code of Conduct was influential in that it created a broad, baseline framework that became a benchmark upon which later agreements could build.104 The 1995 UN Fish Stocks Agreement provided significant enforcement power: it expanded the authority of UNCLOS to allow inspectors to board and inspect high seas fishing vessels, and it permitted inspectors to remain on board and bring suspected IUU fishing vessels to port.105 The 2001 IPOA-IUU, which provides a variety of tools to combat IUU fishing, was the first agreement specifically targeting pirate fishing.106 With this toolkit in place, the international community moved toward stronger regulations by promulgating the 2005 FAO Model Scheme, which paved the way for international consensus as to the efficacy of a binding agreement on 99. See supra note 43 (describing advancement of sustainable concepts by World Commission on Environment and Development’s 1987 report). 100. See supra notes 5, 34 (describing UNCED’s contribution to fisheries management concepts and global cost of IUU). 101. See generally supra note 49 (describing provisions of WSSD-POI). 102. See generally id. and accompanying text (discussing progression of international fisheries management efforts). 103. See supra notes 54, 59 and accompanying text (highlighting 1995 FAO Code of Conduct and 1995 UN Fish Stocks Agreement). 104. See supra note 56 (explaining framework of 1995 FAO Code of Conduct). 105. See Carr, supra note 51, at 852-53 (detailing expansion of regulatory power under 1995 UN Fish Stocks Agreement). 106. See Ferrell, supra note 2, at 330; George, supra note 13, at 87 (articulating objectives and utilization of IPOA-IUU).

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port state measures.107 These legislative advances had little impact on the overall occurrence of pirate fishing, but successfully created the proper environment for the development of the binding PSMA in 2009.108 C.

The PSMA: Game Changer or Simply Another Failed Legislative Attempt to Curb Pirate Fishing?

It is unclear whether the PSMA is successfully fulfilling its purpose of preventing, deterring, and eliminating IUU fishing.109 While the PSMA achieved major advancements that previous legislation had failed to accomplish, there are still significant barriers in place which the PSMA does not adequately address.110 1.

Advancements Under the PSMA

The first advancement is the binding nature of the PSMA.111 Prior to the passage of the PSMA, there was a patchwork of binding and nonbinding agreements related to fisheries management, but there had never been a binding agreement dedicated exclusively to eliminating IUU fishing.112 The binding nature of the PSMA marks a previously unparalleled level of commitment from its signatories to address the global pirate fishing crisis.113 The second advancement is the focus on port state measures and the resultant benefits.114 Previous enforcement measures utilized significant resources, including boats and planes, in implementing fishing regulations.115 Enforcement took place on the open ocean, which presented numerous financial, safety, 107. See Swan, supra note 70, at 38 (highlighting 2005 FAO Model Scheme as building opportunity for international consensus on binding fisheries agreements). 108. See, e.g., id. at 38, 43 (referring to 2005 FAO Model Scheme as steppingstone for international collaboration). 109. See supra note 27 (noting persistent IUU fishing issues despite momentum of PSMA). 110. See supra note 82 and accompanying text (describing examples of failure to curb pirate fishing). 111. See supra note 71 (emphasizing binding nature of PSMA). 112. See id. (pointing out novelty of PSMA). 113. See id. (referring to PSMA as “milestone achievement”). 114. See supra note 33 (discussing framework of PSMA and value of focusing efforts on regulatory measures at ports). 115. See Proulx, supra note 33, at 3-4 (noting enforcement by boat).

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and logistical challenges.116 Concentrating regulatory efforts at ports is cost-effective, safer, and more logistically efficient, as entry through the port is a necessary step in the supply chain from ocean to table.117 It is surprising how long it has taken for regulators, legislators, and heads of state to identify this bottleneck in the supply chain and its potential to produce superior protection against IUU fishing.118 This method of port state regulation is not novel in regulatory regimes.119 The third advancement was targeting the economic incentives that drive IUU fishing.120 Pirate fishing occurs because it is lucrative and because the benefits outweigh the risks.121 It is a matter of simple economics; with the potential for high reward and low risk under present regulatory regimes, IUU fishermen will continue to disregard regulations until the penalties are increased or the benefits are decreased.122 The PSMA does both by increasing the chances of being caught and by closing ports to IUU fishermen, which causes IUU fisherman to travel increased distances to land their catch, which in turn reduces profitability.123 However, like previous international legislation, the PSMA falls short in addressing several key issues.124 2.

Remaining Key Challenges

Despite several advancements, two major challenges stand in the way of proper implementation of the PSMA.125 The first key challenge is achieving uniformity in regulation.126 The PSMA will not be effective unless all the countries in a given 116. See id., at 3-4, 22 (pointing out challenges of on-water enforcement). 117. See id., at 13, 15 (noting RFMO preference for port state measures). 118. See supra note 71 (emphasizing novelty of PSMA). 119. See Swan, supra note 70, at 38 (noting use of port state measures for over two decades in comprehensive regulatory regimes). 120. See supra note 21 (indicating necessity of stronger governmental measures targeting profitability of IUU fishing); see also Flothmann et al., supra note 76 (noting opportunity of port states to reduce profitability of IUU fishing). 121. See Cantrell, supra note 22, at 398-99 (providing economic analysis of IUU fishing). 122. See id., at 394-96 (describing economic incentives of IUU fishing). 123. See OCEANA, supra note 35 (noting displacement of IUU fishing to farther ports due to PSMA measures). 124. See Cantrell, supra note 22, at 384 (noting UN measures have only partially remedied problems posed by IUU or FOC fishing). 125. See infra Part IV-C-2 (describing challenges of PSMA). 126. See, e.g., Swan, supra note 64 (describing uniformity issues in global legislative response to IUU fishing).

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region actively enforce it.127 David Doulman, Senior Fishery Liaison Officer in the United Nations Fisheries and Aquaculture Department, stated that “the effectiveness of port state measures depends in large part on how well countries implement them,” and noted the importance of ensuring that countries have the means and knowledge to enforce the PSMA.128 It is critical that countries in a given region achieve uniformity because gaps in enforcement allow IUU fishing vessels to offload their illicit catch and resupply at “ports of convenience” where controls are either not in place or not exercised.129 This process is known as “port hopping” and it poses a major threat to proper enforcement of the PSMA and to the reduction of pirate fishing.130 The PSMA creates a baseline, permitting countries to adopt more restrictive measures; but, regulatory uniformity across regions and countries is necessary so that fishermen can successfully follow a simplified, uniform set of regulations, which will in turn facilitate successful enforcement.131 If regulations are entirely uniform across countries, it will ease logistical challenges for fisherman who otherwise would be juggling many different regulations and requirements, depending on where they land their catch.132 David Schorr, the Manager of Fisheries Governance for the World Wildlife Fund (WWF), highlighted this point during a May 2012 U.S. Congressional Briefing on IUU Fishing and Traceability, stating, “we need the big market countries like the U.S. and the E.U. to cooperate on how they are closing their borders to IUU fish, because if they do it in totally different ways, the result is going to be a nightmare for business, and it will be an ineffective solution.”133 127. See ICCF Congressional Staff Briefing, supra note 15 (indicating necessity of uniformity in success of PSMA). 128. See Press Release, supra note 74 (quoting David Doulman expressing concerns regarding PSMA). 129. See generally Swan, supra note 70, at 38 (describing importance of building consensus on binding agreements to avoid perpetuating IUU fishing through “ports of convenience”). 130. See OCEANA, supra note 35 (describing displacement of IUU fishing from well regulated ports to poorly regulated ports). 131. See Doulman & Swan, supra note 35, at 5 (describing potential for port hopping). 132. See id., at 5 (illustrating problem of port hopping). 133. ICCF Congressional Staff Briefing, supra note 15.

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The Pew Environment Group also confirmed the necessity of uniformity during its six-year-long study, conducted to compare the port state measures established by ten RFMOs with the port state measures established by the PSMA.134 The report found that the “[p]ort [s]tate measures will only be truly effective in challenging IUU fishing if they are enforced in a uniform manner across the globe.”135 Unfortunately, this creates an all or nothing scenario in which the highest level of participation among neighboring coastal states is necessary in order to create a comprehensive and effective regulatory regime that does not permit illegal fish to enter regional ports.136 The second key challenge is implementing effective traceability programs, which will increase accountability.137 David Schorr addressed traceability during the May 2012 U.S. Congressional Staff Briefing, stating “we cannot stop IUU fishing unless we solve this problem [of traceability].”138 Traceability requirements have been implemented in the European market, which uses a catch certification scheme requiring traceability of all seafood products imported into and exported out of the European Union.139 However, issues still exist, as critics have been quick to point out the potential for improper and fraudulent certification.140 Under the PSMA, the captain authenticates a catch by producing a catch certification card, but the certification card does not identify the fish in any specific way.141 This provides the opportunity for corruption and the creation of false certificates, as it is easier to create a false certificate than it is to change or modify a unique identification system on a load of fish.142 134. See supra note 75 (highlighting necessity of uniform enforcement of PSMA). 135. See id. (discussing necessity of uniformity). 136. See id. (noting effectiveness of port state measures will depend upon uniform enforcement). 137. See ICCF Congressional Staff Briefing, supra note 15 (indicating that traceability will increase accountability). 138. See id. (addressing importance of traceability). 139. See Partos, supra note 27 (lauding EU catch certification program as successful but recognizing drawbacks). 140. See id. (describing potential problems with implementing catch certification system). 141. See id. (discussing catch certification process). 142. See Migone & Howlett, supra note 9, at 426-27 (describing potential for corruption).

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The PSMA has failed to address traceability measures to an adequate degree, and the PSMA should have included provisions requiring traceability of the actual catch.143 Improved methods of identification are necessary, as the fish industry has rampant, institutionalized, deceptive practices, most notably the common practice of selling less expensive fish species to consumers labeled as species that are more expensive.144 Identification techniques such as DNA barcoding should be utilized in regulation of the fishing industry; these methods are already employed in the agricultural production and meat industries to track specific produce and cuts of meat.145 These techniques make it possible to use molecular markers to trace the origins of timber, fish, coffee, organic foods, meat, and other products, which can expose a potentially illegal origin or production process.146 There are also other ways in which products can be tracked, such as ecolabeling, which is gaining support in the marine fisheries context.147 3.

The PSMA Is a Start, but Not a Solution

The PSMA is a milestone in the effort to mitigate IUU fishing because it is binding and focuses on port state measures instead of on-water enforcement.148 However, while the PSMA is groundbreaking in certain respects, the full impact of its implementation remains undetermined.149 Legislation is only effective where there is proper implementation, and it is unclear whether this newest legislative response to IUU fishing will achieve proper implementation and compliance.150 There are 143. See, e.g., id., at 435-36 (explaining benefits of traceability). 144. See Daley & Abelson, From Sea to Sushi Bar, supra note 23 (detailing reasons mislabeling flourishes); see also Daley & Abelson, On the Menu, but Not on Your Plate, supra note 23 (comparing lack of oversight in seafood industry to more regulated food industries such as meat); Daley & Abelson, Accountability Lost in Murky Supply Chain, supra note 23 (indicating corrupt business practices at expense of consumers). 145. See Migone & Howlett, supra note 9, at 440 (describing traceability techniques in agricultural production and meat industries). 146. See id., at 433 (noting use of molecular markers in traceability). 147. See Cooper, supra note 8, at 48 (indicating application of eco-labeling in marine fisheries context is gaining support). 148. See supra note 71 (describing important IUU strategy changes in PSMA). 149. See Kinver, supra note 28 (indicating global regulation efforts lack capability to stop pirate fishing). 150. See id. (noting Dr. von Kistowski’s remarks “[i]t is not enough to have something on paper . . . [w]e saw that there was inadequate implementation . . . and

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still significant hurdles in place and, to date, the PSMA measures have been largely ineffective; these failings are principally due to the lack of a genuine commitment from countries to eradicate IUU fishing.151 V.

CONCLUSION

The world’s fish stocks are in their final death throes from years of overfishing, significantly exacerbated by the IUU fishing practices of pirate fishermen.152 The many legislative efforts of the FAO and various countries have failed to curb the wake of destruction that pirate fishermen have left on the world’s fish population.153 The PSMA is the newest approach, providing significant advances in efficiency and enforcement power; yet, despite these advancements, pirate fishing persists on a large scale.154 The PSMA falls short in adequately addressing the issues of uniformity in regulation and traceability, resulting in the continued laundering of illegally caught fish in the world’s major seafood markets.155 While the international community has significantly increased efforts to mitigate pirate fishing, countries need to prioritize this issue and follow through on the commitments they have made under various international treaties to protect our disappearing fisheries.156 Sean A. Hagan

compliance was far from perfect”). Dr. von Kistowski was also quick to point out the fact that even when the binding PSMA comes into force, all countries may not ratify it, which will create the potential for loopholes. See id. 151. See Tsamenyi, supra note 85 (discussing short-term incentives to avoid implementation of anti- pirate fishing regulations). 152. See supra note 10 (describing current state of world fisheries). 153. See supra Part IV.B (describing failure of legislative efforts). 154. See supra note 82 (comparing legislative advancements with persistent IUU problems). 155. See supra Part IV.C (analyzing problems with current legislation and calling for further advancements). 156. See supra note 75 (indicating necessity of regulation uniformity).

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