Introduction
Illegal, unreported, and unregulated (IUU) fishing represents a significant threat to global marine ecosystems, undermining sustainable fisheries management, depleting fish stocks, and jeopardizing the livelihoods of millions who depend on the ocean for food and economic security. With an estimated 11 to 26 million tons of fish caught illegally each year, accounting for up to 15% of global catches (FAO, 2020), the scale of oceanic crime demands robust international cooperation and enforcement mechanisms. The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA), adopted in 2009 under the auspices of the Food and Agriculture Organization of the United Nations (FAO), stands as the first legally binding international treaty specifically targeting IUU fishing. By empowering port states to control access to their ports and prevent the landing of illegally caught fish, the PSMA aims to disrupt the economic incentives for IUU fishing and strengthen global efforts to conserve marine resources.
This article examines the PSMA as a pivotal tool in combating oceanic crime, exploring its key provisions, legal foundations, and implementation challenges. It delves into the treaty’s relationship with broader international legal frameworks, such as the Vienna Convention on the Law of Treaties (VCLT) of 1969, to assess its implications for state participation and treaty-making practices. Additionally, the article addresses the mechanisms through which a hypothetical country can legally enter into treaties like the PSMA, considering whether such a state follows a monist or dualist approach to international law and how treaty obligations are translated into national legislation. Through this analysis, the article seeks to provide a comprehensive understanding of the PSMA’s role in curbing IUU fishing and its significance in the landscape of international marine governance.
The Global Challenge of IUU Fishing
Illegal, unreported, and unregulated fishing encompasses a range of activities that contravene national and international fisheries laws. Illegal fishing refers to activities conducted in violation of a state’s laws or regional fishery management organization (RFMO) regulations. Unreported fishing involves catches that are not reported or misreported to relevant authorities, while unregulated fishing occurs in areas or for species where no management measures exist (FAO, 2001). Collectively, IUU fishing undermines conservation efforts, distorts market fairness, and exacerbates overfishing, particularly in developing coastal states with limited enforcement capacities.
The economic and ecological impacts of IUU fishing are profound. Economically, it results in billions of dollars in annual losses, with estimates suggesting a global cost of up to $23.5 billion per year (Agnew et al., 2009). Ecologically, it contributes to the collapse of fish stocks, disrupts marine biodiversity, and threatens food security in vulnerable regions. Socially, it disadvantages law-abiding fishers and perpetuates labor abuses, including human trafficking and forced labor on fishing vessels (EJFoundation, 2021). Addressing IUU fishing thus requires not only stronger enforcement at sea but also mechanisms to prevent illegally caught fish from entering global markets—a gap that the PSMA seeks to fill.
The Port State Measures Agreement: A Legal Framework to Combat IUU Fishing
Adopted on November 22, 2009, and entering into force on June 5, 2016, the PSMA is a landmark treaty aimed at closing loopholes exploited by IUU fishing operators. As of 2023, over 100 states have become parties to the agreement, signaling broad international commitment to tackling oceanic crime (FAO, 2023). The PSMA’s primary objective is to prevent vessels engaged in IUU fishing from using ports to land their catches, offload supplies, or refuel, thereby disrupting their operations and blocking illicit fishery products from reaching national and international markets.
The treaty establishes a set of binding obligations for port states, focusing on control measures and information sharing. Key provisions include requirements for vessels seeking port entry to provide advance notice and information about their fishing activities (Article 9), authorization procedures to assess whether vessels are engaged in IUU fishing (Article 11), and the authority to deny port entry or services to vessels suspected of illegal activities (Article 11.1). Additionally, port states must conduct inspections of vessels, gear, and catch to verify compliance with international and national regulations (Article 13). The PSMA also emphasizes cooperation and information exchange among states and RFMOs to identify and monitor vessels involved in IUU fishing (Article 6).
One of the PSMA’s innovative aspects is its focus on port states—historically a weak link in fisheries enforcement—rather than flag states, which are often unable or unwilling to control their vessels due toflags of convenience practices. By shifting responsibility to port states, the PSMA creates a choke point for IUU fishing operations, as vessels must eventually dock to offload their catches. This approach is particularly effective in disrupting the economic viability of IUU fishing, as denying market access renders illegal catches unprofitable (FAO, 2016).
Legal Basis for Treaty Accession and State Participation
For a country to legally enter into treaties such as the PSMA, it must adhere to international legal norms governing treaty-making, as well as its own constitutional and legal frameworks. The process typically involves several stages: signature, ratification, acceptance, or approval, followed by the deposit of instruments of ratification with the treaty’s depository—in the case of the PSMA, the Director-General of the FAO (Article 26 of the PSMA). These steps ensure that a state expresses its consent to be bound by the treaty under international law.
Article 25 of the PSMA explicitly outlines the procedure for entry into force, stating that the agreement becomes binding for a state thirty days after the deposit of its instrument of ratification, acceptance, approval, or accession. This provision aligns with customary international law, as codified in the Vienna Convention on the Law of Treaties (VCLT) of 1969, particularly Article 11, which specifies that consent to be bound may be expressed through signature, ratification, or accession. Furthermore, Article 24 of the PSMA allows for accession by any state or regional economic integration organization, reinforcing the treaty’s inclusive approach to participation.
Beyond these procedural aspects, a country’s ability to enter into treaties is governed by its national constitution and legal system. While the PSMA does not prescribe specific domestic mechanisms for treaty adoption—leaving such matters to state sovereignty—international law requires states to ensure their internal processes are consistent with their treaty obligations (VCLT, Article 27). For a hypothetical country, this process would depend on whether it adopts a monist or dualist approach to international law, which determines how treaties are integrated into national legislation.
Monist vs. Dualist Approaches: Treaty Implementation in a Hypothetical Country
The relationship between international and domestic law varies significantly across states, primarily categorized into monist and dualist systems. In a monist system, international law is directly applicable within the domestic legal order upon ratification of a treaty, requiring no further legislative action for its provisions to take effect. This approach views international and national law as part of a unified legal framework, with treaties often holding supremacy over conflicting domestic laws (Kelsen, 1945). Countries like the Netherlands and France exemplify monist systems, where ratified treaties automatically become part of national law, subject to constitutional provisions.
In contrast, a dualist system treats international and domestic law as separate spheres. Treaties do not become enforceable domestically until they are incorporated through specific legislation, often requiring parliamentary approval or the enactment of enabling statutes (Dicey, 1915). The United Kingdom and Canada are classic examples of dualist states, where international agreements must be translated into national law via an act of parliament before they can be applied by courts or enforced by authorities.
For the purposes of this analysis, let us consider a hypothetical country with a dualist approach, similar to many common-law jurisdictions. In such a state, the government may sign and ratify the PSMA, but its provisions would not be enforceable domestically until parliament passes legislation incorporating the treaty into national law. This process typically involves drafting a bill that mirrors the treaty’s obligations—such as port entry controls and inspection requirements under Articles 9 and 13 of the PSMA—and subjecting it to legislative scrutiny and approval. Until this step is completed, the state remains bound by the treaty under international law but lacks the domestic legal framework to implement its commitments effectively.
This dualist approach can create delays in treaty implementation, as legislative processes may be slow or subject to political opposition. However, it also ensures that treaty obligations are aligned with national priorities and legal traditions, providing an opportunity for public debate and adaptation of international norms to local contexts. For instance, the hypothetical country might introduce additional penalties for IUU fishing vessels or establish specialized port inspection units as part of its implementing legislation, tailoring the PSMA’s requirements to its enforcement capacities.
In contrast, if the country followed a monist approach, the PSMA would become directly applicable upon ratification, bypassing the need for separate legislation. Courts and administrative bodies could immediately enforce its provisions, such as denying port access to vessels listed as engaged in IUU fishing under Article 11. However, even in monist systems, supplementary legislation or regulations may be necessary to clarify procedural details, such as designating competent authorities or establishing penalties for non-compliance.
Regardless of the approach, the translation of treaty obligations into actionable national law is critical for the PSMA’s success. States must establish clear institutional frameworks, allocate resources for port inspections, and train personnel to detect IUU fishing activities. Without effective implementation, the treaty’s goals of deterring oceanic crime remain unattainable, highlighting the importance of aligning domestic legal systems with international commitments.
The PSMA and the Vienna Convention on the Law of Treaties (VCLT) 1969
The Vienna Convention on the Law of Treaties (VCLT) of 1969 serves as the foundational framework for the formation, interpretation, and termination of treaties under international law. While the PSMA itself is not a “party” to the VCLT—since only states and international organizations can accede to treaties—the principles and rules of the VCLT apply to the PSMA as a matter of customary international law. This is significant because many provisions of the VCLT, such as those concerning treaty consent (Article 11), entry into force (Article 24), and the obligation to perform treaties in good faith (Article 26), reflect established norms binding on all states, whether or not they are formal parties to the VCLT (Sinclair, 1984).
The PSMA’s drafting and operation are consistent with VCLT principles, evident in its clear procedures for signature, ratification, and accession (Articles 24-26 of the PSMA) and its emphasis on state consent as the basis for legal obligation. For states entering into the PSMA, adherence to VCLT norms ensures that their participation is legally valid and recognized internationally. This relationship with the VCLT provides a template for other countries considering treaties with similar objectives, as it underscores the importance of transparent and consensual treaty-making processes.
For non-parties to the VCLT, customary international law still governs their interactions with the PSMA, meaning they must follow similar procedures for ratification or accession to ensure their commitments are binding. This universality of treaty law principles facilitates broader participation in the PSMA, as states can rely on established norms to guide their engagement, even if they have not formally acceded to the VCLT. For example, a state negotiating accession to the PSMA would be expected to follow due process in expressing consent and ensuring domestic compatibility, as required under customary law mirrored in VCLT Articles 11 and 27.
The PSMA’s alignment with VCLT principles also informs other countries on best practices for entering into international agreements. It highlights the necessity of clear legal authority to negotiate and ratify treaties, the importance of publicizing treaty commitments to ensure transparency, and the obligation to implement treaty provisions in good faith. States looking to join or collaborate with the PSMA can draw on these norms to streamline their accession processes, ensuring their participation contributes effectively to the global fight against IUU fishing.
Implementation Challenges and Opportunities
While the PSMA offers a robust framework for combating IUU fishing, its effectiveness hinges on consistent and coordinated implementation across diverse national contexts. One major challenge is the varying capacity of port states to enforce the treaty’s provisions. Developing countries, which often host key ports used by IUU fishing vessels, may lack the financial resources, trained personnel, or technological infrastructure to conduct thorough vessel inspections or maintain comprehensive databases of IUU fishing activities (Swan, 2016). For instance, implementing Article 13, which mandates inspections of vessels and catches, requires significant investment in port facilities and expertise—resources that may be scarce in resource-constrained states.
Another challenge lies in the issue of flag state accountability. While the PSMA targets port states, flag states retain primary responsibility for controlling their vessels under international law, as outlined in the United Nations Convention on the Law of the Sea (UNCLOS). Flags of convenience, where vessels register in states with lax regulations to avoid oversight, remain a persistent loophole. The PSMA does not compel states to apply its measures to their own flagged vessels (Article 3.3), potentially limiting its impact unless complemented by stronger flag state enforcement or RFMO cooperation (Hosch, 2019).
Despite these challenges, the PSMA presents significant opportunities for enhancing global fisheries governance. Its emphasis on information sharing and international cooperation (Article 6) fosters a networked approach to enforcement, enabling states to collaborate in identifying and blacklisting IUU fishing vessels. Regional and global initiatives, such as the FAO’s Global Record of Fishing Vessels, complement the PSMA by providing tools to track vessel activities and ownership, thereby supporting the treaty’s implementation (FAO, 2020). Moreover, capacity-building programs supported by the FAO and donor states help address resource gaps, offering training and technical assistance to developing countries to strengthen their port state measures.
Broader Implications for Oceanic Crime and International Cooperation
The PSMA’s focus on disrupting the supply chain of IUU fishing has broader implications for addressing other forms of oceanic crime, such as human trafficking, drug smuggling, and environmental pollution often associated with illegal fishing operations. By denying port access to suspicious vessels, states can deter a range of illicit activities that exploit the anonymity of the high seas. This holistic impact underscores the treaty’s role as a cornerstone of marine security and sustainable development, aligning with global goals such as the United Nations Sustainable Development Goal 14 (Life Below Water).
Furthermore, the PSMA exemplifies the power of international cooperation in tackling transnational challenges. Its success relies on collective action, as no single state can eliminate IUU fishing in isolation. The treaty’s growth to over 100 parties by 2023 reflects a shared recognition of the urgency of the issue and the value of multilateral solutions (FAO, 2023). For countries considering accession, the PSMA offers a tested framework for enhancing national maritime governance while contributing to global conservation efforts—a dual benefit that incentivizes participation.
Conclusion
The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing represents a groundbreaking effort to combat oceanic crime by targeting the economic lifelines of IUU fishing operations. Through its innovative focus on port state controls, as articulated in key provisions such as Articles 9, 11, and 13, the PSMA disrupts the market access of illegally caught fish, deterring perpetrators and fostering sustainable fisheries management. Its legal foundations, aligned with customary international law and principles of the Vienna Convention on the Law of Treaties, provide a robust model for state participation and treaty-making, guiding countries on how to engage with such agreements effectively.
For a hypothetical country, the process of entering into the PSMA involves navigating both international norms and domestic legal systems, influenced by whether it adopts a monist or dualist approach to treaties. In a dualist system, translating the PSMA into national law requires legislative action, while a monist system enables direct application upon ratification—yet both approaches underscore the need for effective implementation to achieve the treaty’s objectives. Challenges such as capacity constraints and flag state loopholes persist, but opportunities for collaboration and capacity building offer pathways to strengthen enforcement.
Ultimately, the PSMA stands as a testament to the potential of international law to address global environmental and security threats. By curbing IUU fishing, it protects marine ecosystems, supports economic equity, and reinforces the rule of law on the high seas. As more states join and refine their implementation strategies, the PSMA can serve as a blueprint for future treaties targeting transnational oceanic crimes, ensuring that the world’s oceans remain a shared resource for generations to come.
References
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