Saving Nemo I: International Laws on Unsustainable Fishing

Rebecca SE Tan

23 June 2022

(Sneak Preview of Article)

Introduction

Unsustainable fishing constitutes an immense threat to society – fishing provides for 17% of global animal protein intake and creates jobs for over 59 million people. [1] Hence, the fact that 90% of the world’s marine stocks are fully exploited, overexploited, or already depleted is a cause for great concern. [2]

While there are many different ways to solve this problem, including state measures, consumer behaviour changes, and the help of NGOs, I would like to discuss the role of international laws, since a synergistic approach by different nation-states may be able to provide more extensive protection of fish stocks. In this post, I’ll mainly be focusing on two critical international laws – the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 2009 Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA). I believe the importance of these two laws lies in their establishment of jurisdiction, in order to grant authority to various stakeholders for better control of fish stocks. Here, I would also like to point out that this post equates combating illegal fishing as a means to combat unsustainable fishing as well. This assumption is based on the fact that illegal fishing utilises unsustainable fishing methods or encourages fishing at an unsustainably high level. [3][4] In addition, illegal fishing may also undermine the efforts of other sustainable fisheries such as through creating greater economic pressures on sustainable fishing. [5]

UNCLOS (1982)

The 1982 UNCLOS emphasised the role of flag states in combatting unsustainable fishing. [6] Flag states refer to the state which registers ships and permits them to fly their flag. [7] On one hand, UNCLOS granted jurisdiction of vessels to flag states – under Article 94, states are explicitly granted authority over the ships flying their flags. [8] On the other hand, this power does not come without responsibility. Article 217 compels states to ensure compliance of their vessels. [9] Since every vessel has to be registered to a state, the UNCLOS essentially set in place a system for all vessels to be regulated. [10]

Another key feature of UNCLOS is the creation of the 200-mile exclusive economic zones (EEZ). [11] With the EEZ, states are incentivised to enforce conservation measures within their own zones, the way you might treat your own belongings better than those that are communally shared. In response, some states opted to regulate quotas for fishing or even enforce by-catch requirements. [12]

However, despite the important reforms UNCLOS made on the views of states towards their surrounding seas and fishing, it was insufficient to dent overfishing trends. [13] With globalisation, links between flag states and fishing fleets can be tenuous. [14] For example, fishing fleets may simply choose to register with “flags of convenience” - states who are unlikely or unable to enforce regulations. [15] Even if a vessel was registered to a sustainably-conscious flag state, they would be hard-pressed to control vessels landing cargo outside their borders. [16] This exact problem gave rise to the PSMA, which was designed to reduce these loopholes.

PSMA (2009)

Beyond flag state jurisdiction in UNCLOS, the PSMA extends authority to the states whose ports are being used to offload cargo, otherwise known as ‘port states’. [17] This extension is intended to work hand in hand with the still emphasised role of flag states. [18] For example, Article 20 details the role of flag states in ensuring their vessels cooperate with port state inspections. [19] With this revision of roles, vessels that have registered with ‘flags of convenience’ would face greater challenges as they would also need to pass port inspections. [20] Proper implementation would hence greatly reduce the economic incentive of illegal fishing, as much more effort would be required to sneak illegal fish stocks into national and international markets. [21]

However, unlike the UNCLOS, the PSMA has a pretty low participation rate, with only 74 ratifications as of today. [22] The existence of non-participants creates dangerous loopholes – illegal operators may simply enter the international market through these unregulated ports, effectively removing any economic disincentives. [23] Beyond non-signatories, participants also need to be able to effectively implement their controls, such as preventing bribery or negligence. [24]

Discussion

While imperfect, I do think that the UNCLOS and PSMA set important guidelines for the fishing industry by investigating the nuances of unsustainable fishing and giving legal teeth to various stakeholders. While such international laws may face difficulties in their implementation - such as a gap in the traceability of fishing stocks or the collective action problem - I believe these laws at least concretise the normative idea that each state should have a defined role to play.

Another potential international effort may come in the form of a global trade ban for unsustainably sourced fish. What do you guys think about this solution? Do you think it is feasible? What would such an agreement entail? Do share your views below!

Author's note: Click on the "Sustainable Fishing" tag at the bottom for related articles!

References

[1] FAO. (2020). The State of World Fisheries and Aquaculture 2020. FAO. [2] UNCTAD. (2017). A Man-made Tragedy: The Overexploitation of Fish Stocks | UNCTAD. Unctad.org. [3] Wahyuningrat, Haryanto, T., & Rosyadi, S. (2018). Practices of Illegal Fishing in Pemalang Region: A Policy Analysis. E3S Web of Conferences, 47(E3S Web Conf.), 06010. [4] Churchill, R. (2019). International Trade Law Aspects of Measures to Combat IUU and Unsustainable Fishing. Strengthening International Fisheries Law in an Era of Changing Oceans. [5] Flothmann, S., von Kistowski, K., Dolan, E., Lee, E., Meere, F., & Album, G. (2010). Closing Loopholes: Getting Illegal Fishing Under Control. Science, 328(5983), 1235–1236. [6] Swan, J. (2002). FAO Fisheries Circular No. 980. [7] Honniball, A. N. (2016). The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States? The International Journal of Marine and Coastal Law, 31(3), 499–530. [8] United Nations. (1982). United Nations Convention on the Law of the Sea. [9] Ibid. [10] OECD. (2019). The OECD Glossary of Statistical Terms. Oecd.org. [11] United Nations. (2012). United Nations Convention on the Law of the Sea of 10 December 1982. Un.org. [12] Gezelius, S. S., & Raakjær, J. (2008). Making fisheries management work: implementation of policies for sustainable fishing. Springer. [13] Ritchie, H., & Roser, M. (2021). Fish and Overfishing. Our World in Data. [14] Churchill, R. R. (2000). The Meaning of the “Genuine Link” Requirement in Relation to the Nationality of Ships. [15] Moore, M. S. (2017). Lowering Flags of Convenience for Fish Poachers. Pacific Standard. [16] Telesetsky, A. (2015). Scuttling IUU Fishing and Rewarding Sustainable Fishing: Enhancing the Effectiveness of the Port State Measures Agreement with Trade-Related Measures. [17] Honniball, A. N. (2021). The Right of Access to Port and the Impact of Historic Fishing Rights. Asian Yearbook of International Law, Volume 25 (2019), 105–129. [18] Telesetsky, A. (2015). Scuttling IUU Fishing and Rewarding Sustainable Fishing: Enhancing the Effectiveness of the Port State Measures Agreement with Trade-Related Measures. [19] FAO. (2016). Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Revised Edition. [20] Ryngaert, C., & Ringbom, H. (2016). Introduction: Port State Jurisdiction: Challenges and Potential. The International Journal of Marine and Coastal Law, 31(3), 379–394. [21] PEW. (2018). The Port State Measures Agreement: From Intention to Implementation. Pew.org. [22] FAO. (n.d.). FAO Treaties Database. Www.fao.org. Retrieved June 23, 2022. [23] Flothmann, S., von Kistowski, K., Dolan, E., Lee, E., Meere, F., & Album, G. (2010). Closing Loopholes: Getting Illegal Fishing Under Control. Science, 328(5983), 1235–1236. [24] Coalition of Legal Toothfish Operators. (2011, February 20). The Alphabet Boats (2002). COLTO.