UN Nippon Fellow 2016 at the UN Division on Ocean Affairs and the Law of the Sea
Indonesia has ratified the new UN agreement on port state measures to prevent, deter and eliminate illegal, unreported and unregulated fishing (PSM Agreement), which went into force on June 5. The proud announcement was made at last month’s UN meeting on the UN Fish Stock Agreement in New York.
The ratification by Indonesia, as an archipelagic state with abundant biodiversity, is significant for the effective implementation of the PSM Agreement. As of May 18, 30 states have ratified the agreement, fulfilling the minimum requirement of 25 states for the agreement’s entry into force.
The PSM Agreement is a timely tool to address illegal, unreported and unregulated fishing (IUU fishing) and to strengthen Indonesia’s existing measures, particularly those championed by the Maritime Affairs and Fisheries Ministry.
Indonesia’s policies for combating IUU fishing are very stringent. The sinking of fishing vessels has gained wide support, created a deterrent effect and helped to address declining fish stocks.
According to a 2014 report by the Food and Agriculture Organization (FAO), the proportion of marine fish stocks fished at a biologically sustainable intensity declined from 90 percent in 1974 to 71.2 percent in 2011, meaning 28.8 percent of fish stocks were overfished.
Small-scale fishermen are badly affected by ongoing fisheries crimes, which are the main cause of declining fish stocks and the degradation of marine ecosystems.
International law has a dual approach to combating IUU fishing by assigning responsibility to flag states and port states. The basic concept is that the farther a vessel is from coastal areas, the greater the responsibilities for the flag states and vice versa.
Flag state responsibility includes management and conservation measures in the high seas by aligning with regional fisheries management organizations.
Loopholes still need to be addressed, such as member countries’ commitment to implementing resolutions of these organizations.
These circumstances made the role of port states imperative in safeguarding the marine ecosystem, particularly against IUU fishing, in the last 10 years. The fundamental principle of port state responsibility is that foreign vessels are not authorized to anchor at ports without port state consent aside from under force majeure conditions.
This principle conforms to provisions of the UN Convention on the Law of the Sea (UNCLOS). Responsibilities of port states concerning IUU fishing are also stipulated in the 2001 FAO international plan of action to prevent, deter and eliminate IUU fishing. However, its application is not effective, as this instrument is not legally binding.
In combating IUU fishing, port state measures are considered more cost-effective and more secure than surveillance and law enforcement at sea. Port states have authority to, among other things, prevent and ban the distribution of fish from IUU fishing activities.
This measure unsurprisingly results in low prices for such fish, thereby significantly decreasing the revenue of those engaged in IUU fishing.
Generally, the PSM Agreement encompasses three stages: before entering a port, during docking at a port and after inspections. In the first stage, the port state can ban vessels from entering into its port if sufficient evidence of IUU fishing activities is found.
When anchored at the port, if the vessel is proven to have engaged in IUU fishing, port states are obliged to prohibit landing, trans-shipping as well as processing and packing of fish. After the refusal, notification is delivered to the flag state, regional fisheries management organizations and related international organizations.
This measure aims to widely disseminate information as soon as possible, so that other states can be aware of the situation and take concrete, real-time action.
As for the last resort, if there is convincing evidence that the vessel was engaged in IUU fishing, the vessel is banned from activities including refueling, logistics, maintenance and dry docking.
Indonesia’s commitment to become a party to the PSM Agreement should be appreciated. However, there are several policies to take into account in the years to come. First, Indonesia should consider ratifying the 2012 Cape Town Agreement. This agreement allows fishing vessels to have a unique identification number as part of efforts to create global records on fishing vessels.
With this unique ID, fishing vessels engaged in IUU fishing can be more easily identified. Second, Indonesia needs a regulation like the Lacey Act.
This act was adopted by the US in 1900 and bans, among other things, imports and exports of fish, wildlife or plants that are taken, possessed, transported or sold in violation of US law, state law or foreign law.
In the recent case of the US v. Begins, the US invoked the Lacey Act and imposed a US$ 24.5 million fine on a US company found to have illegally fished rock lobsters in South Africa and sent them to the US.
Some countries have adopted and applied this Act, such as Papua New Guinea and Micronesia. If Indonesia had this type of act, it would not only secure its natural resources but also assume its role of keeping environmental exploitation at a sustainable level.
The writer is a UN Nippon Fellow 2016 at the UN Division on Ocean Affairs and the Law of the Sea and a PhD Student at the Australian National Centre for Ocean Resources and Security, University of Wollongong. The opinions expressed in this article are those of the author and do not reflect the official stance of any institutions.
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Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.