Combatting illicit fishing will require countries to develop common regional approaches to legal authorities and adjudication in order to fully take advantage of new enforcement capabilities.
Lawlessness across the oceans is a significant problem with implications for U.S. national security and the rule of law globally. Sophisticated, global criminal networks take advantage of the ocean’s vast area to hide their activities. Indeed, according to a 2016 intelligence community assessment, 15 to 30 percent of global fishing catch is illegal and often supported by transnational organized criminal networks that also engage in human rights abuses, forced labor, tax evasion, and weapons and drug trafficking. To effectively combat this global problem, we need to integrate policy regionally and globally.
Over the last decade, great strides have been made to tackle lawlessness on the seas. The Port States Measures Agreement, which bans vessels engaged in illegal fishing from using ports in member nations to land their catch entered into force in 2016. While more countries should join the treaty (more than 60 nations plus the European Union have signed so far), it has narrowed a key gap in international dockside enforcement.
The last few years have also seen extraordinary advancement in the use and availability of high-tech tools and hardware to detect illegal fishing activities. From wave gliders to autonomous undersea vehicles, aerial drones to satellites, we are in the midst of a transparency revolution. Global Fishing Watch, a partnership between Google, Oceana, and Skytruth, Inc., in 2016 created the first-ever, publicly available map of global fishing activity. Vulcan Technology, an organization founded and supported by the late Paul Allen, is developing a system called SkyLight that uses satellite imagery and machine learning algorithms to help countries detect Illegal, Unregulated, and Unreported (IUU) activity. It is currently being used in several countries, including Palau and Gabon.
But dockside enforcement and transparency alone is not enough. Without enforcement activities that hold criminals legally accountable, IUU fishing will continue to represent a global problem. The lack of consistent enforcement laws and practices that span regions, timely and tough adjudication, and widespread communication of enforcement successes is making effective enforcement much more difficult today.
To be effective, enforcement agencies and personnel need clear and consistent regional mandates and broad enforcement powers. Regions must work together to establish similar goals with law enforcement authorities to achieve them. Moreover, neighboring nations must enter into explicit and broad enforcement agreements—like shipriders—that allow them to work together. Without aligned national goals and legal authorities for enforcement, the illegal fishers that work in the open ocean are easily able to evade law enforcement of any single nation.
Step one to improving international enforcement is to harmonize goals and authorities within regions through joint regional enforcement operations. Navies and coast guards should work together to develop regional enforcement training, tools, and operations. This joint action would provide more comprehensive coverage and make it more difficult for illegal fishers to evade the law by moving from jurisdiction to jurisdiction. This type of regional cooperation is beginning to occur but much more needs to be done, and the U.S. government should support these efforts by providing even more training, support, and cooperation with U.S. assets already operating in that theater.
Enforcement efforts must also lead to timely legal action against illegal fishers, supported by admissible evidence made possible by new technologies and the imposition of appropriate and tough penalties. There are simple legal principles that need to be consistent across a region for cooperation to be easy and to ensure fairness. For example, many nations do not explicitly permit the use of electronic evidence (such as satellite data) to be used to prosecute illegal fishing, and their courts may be reluctant to allow such evidence without explicit authority to admit it in court. Often evidentiary laws were drafted before high-tech tools like satellite imagery were widely available, making them inadmissible in court in many countries. Regional authorities should also seek to harmonize evidentiary rules, procedures for bringing cases to trial, and penalties for violators.
Likewise, authorities must ensure that legal action against perpetrators is applied quickly and equally—consistent application of the law will decrease the incentives for illegal fishers to “forum shop” by choosing the most lax jurisdiction for their nefarious activities. Indonesian Fisheries Minister Susi Pujiastuti’s high profile tactic of blowing up ships caught fishing illegally in Indonesian waters gained international attention and has been effective in local waters. But it has had little impact on illegal fishing operations outside Indonesian jurisdiction.
Finally, for enforcement to be effective, it must deter. Key to deterrence is ensuring that enforcement successes are communicated effectively so that international criminals think twice about whether to continue despite the risk of arrest. A united front within a region, with well-publicized joint operations, would go a long way in deterring illegal activity. The enforcement outcome must demonstrate that violators will be prosecuted and the consequences are real, costly and lasting. Minister Susi’s penalty of destroying the vessels engaged in illegal fishing had an immediate deterrent effect and would have been even more effective if it were regional in scope.
Adopting any of these steps presents its own sets of challenges and each must be applied in the context of a given nation’s own mix of policy and legal structure. Nevertheless, there are many resources available to help interested nation’s do so. Among the most important intergovernmental organizations in this process are Interpol and the several Regional Fisheries Management Organizations, which provide critical assistance in developing cases against IUU fishing operations. As an example, Interpol’s February 2018 report “International Law Enforcement Cooperation in the Fisheries Sector” provides practical guidance for law enforcement and describes all the current laws and treaties that can support regional cooperation on fisheries enforcement.
Another good example of institutional guidance is the Environmental Law Institute’s 2016 report on Legal Tools for Strengthening Marine Protected Area Enforcement. This report included “model” statutory provisions that can be adopted across regions to ensure that enforcement is effective. Developed in partnership with the National Geographic Pristine Seas Project, the report covers practical issues such as the authority to pursue illegal vessels across national boundaries, legal presumptions, penalties against corporate vessel owners, forfeiture and seizure, and sale of illegal proceeds that have been retained by the arresting government.
Updating and coordinating enforcement laws and practices may not be as flashy as high-tech tools or as muscular as adding manpower, but make no mistake, these legal and policy improvements are “force multipliers.” Future efforts to strengthen ocean security and governance should harmonize regional and international laws, thereby making enforcement actions easier for everyone involved—except the pirates.