This article has been written by Mrinalini Shinde, Researcher at the Chair of US-American Law, University of Cologne
ABSTRACT
Illegal, unreported and unregulated fishing is one of the foremost threats to marine biodiversity. The primary aim of this article is to examine the phenomenon of crime in the fisheries sector, and its implication for the protection of marine biodiversity. The article also seeks to map the nexus between illegal fishing and other transnational criminal activities such as tax fraud, documentation fraud, money laundering, and human trafficking. The article discusses the multiple international treaties which govern the phenomenon of fisheries crime, and the role of international organisations such as the Interpol, and United Nations agencies in synthesising international action against it. Using examples from domestic jurisdictions, the article argues for a focussed shift in how countries approach fisheries crime, from treating it to a fisheries management issue to an issue of environmental crime and using the criminal justice system to prosecute the corporate crime that is deeply entrenched within the fisheries trade, if we are to effectively protect marine biodiversity.
Keywords: fisheries, crime, wildlife, international law, maritime
I. Introduction
Transnational environmental crime, including the illegal trade in timber, wildlife, fish and dumping of hazardous wastes, is estimated to be worth between twenty and forty billion USD annually. These crimes are not only violative of domestic and international law but also cause tremendous harm in terms of affecting public health, human rights, biodiversity and food supply.[1] Elliott defines transnational environmental crime as involving “the movement across borders of species, resources, and plants in contravention of domestic law or in violation of prohibition or regulation regimes established by multilateral environmental agreements.” Crimes under the United Nations Convention against Transnational Organized Crime (UNTOC) covers crimes committed in more than one state, wherein the derivation of profits, preparation, control, financing and actual commission of the crime occur across multiple jurisdictions.[2]
This article focuses on a sub-category of environmental crime relating to marine biodiversity, specifically fisheries crime, one that attracts the jurisdiction of multiple international instruments.[3] It discusses the prevalence of flags of convenience, which enables perpetrators, and impacts livelihoods. The main purpose of the article is to map the several crimes that take place along the value chain of fisheries and their nexus with other forms of transnational organised crime such as drug trafficking, tax fraud, piracy and human trafficking, and the commission of seafood fraud where consumers are sold illegally procured fish products with dubious origins. The article argues in favour of an approach rooted in criminal investigation and prosecution to counter the loss of marine biodiversity, owing to the pervasiveness of the crimes in the industry, as opposed to the current approach of treating it largely within the purview of fisheries management.
II. IUU Fishing
IUU Fishing is the term used to describe illegal, unreported and unregulated fishing, three kinds of fishing which take place outside the transparent and verifiable system of fisheries and is responsible for a heavy decline in global marine biodiversity across the years. It is estimated that currently, around twenty per cent of the world’s fisheries are illegal.[4] Illegal fishing is that which takes place in direct contravention of established law or obligations set forth by Regional Fisheries Management Organizations (RFMOs), unregulated fishing is where regulations for fishing do not exist, are not applied, or are insufficient or cases in which fishing vessels fly the flag of a country which is not a member of the relevant RFMO; unreported fishing refers to fishing in areas where regulation exists, but without reporting mechanisms or absence of penalty for failure to report catch.[5] The very nature of IUU fishing results in the lack of data regarding its prevalence and problems in estimating whether deterrent approaches in criminal and civil law are efficient in controlling it. [6]
Not only does it cause significant damage to the local economies[7], but IUU Fishing is also responsible for the taking of an estimated quantity of between eleven and twenty-six million tonnes of fish every year, leading to a decline in global fish stocks, and creating a significant quandary in estimation of global fish stocks, since its unreported nature leads to the formulation of global stocks which are far more optimistic than reality, which in turn leads to more fishing. Additionally, the illegal nature of the fishing deprives local especially artisanal fishing communities from fishing the resource on which they depend. There is also research which indicates that illegal fishing can be a driver that leads local citizens toward piracy.[8] The next section of the article will delve into the nexus between organized crime and illegal fishing, and the crimes committed across the value chain in the fisheries sector.
In Australia, there has been an observed decline in IUU fishing since 2006, and while this can be partly attributed to the fortified border security in Australian waters, Field discusses the other possible causes for this decline such as an increase in the global prices of fuel and the excessive overfishing having led to lowered stocks of target species, which in turn reduced IUU fishing.[9] It could also be attributed to the possibility that the IUU vessels shifted their operations to the waters off the Indonesian or Papua New Guinea coasts, with relatively lower security, but geographically close enough to fish the same target species.[10]
Incidence of IUU fishing depends not only on the laxness of the regime where the fishing takes place, but also on the nature of the port of landing; ports where vessels are able to enter and exist discreetly, offload catch and transfer it to the market easily, are ideal havens for IUU fishing. Ideal havens are not usually just determined by the relative economic development of the port, but by the lack of stability and efficacy of the government as crime is rampant in unstable political regimes and in corrupt bureaucracies.[11]
Australia, New Zealand, South Africa, Norway and Spain have made it an offence for their nationals to engage in illegal fishing in the High Seas, extending their jurisdictions beyond their exclusive economic zones, whereas the United States, through the Lacey Act, introduced ‘long arm’ legislation to prohibit the import and export of any fish that have at any point been procured through activities in violation of international law.[12]
Flags of Convenience
Flags of Convenience (FOCs) are flags of countries which usually do not have RFMO membership and are “willing to have a vessel on its national register without undertaking fully its obligations” allowing the vessel “to exert Flag State jurisdiction and control”.[13] Under UNCLOS,[14] flag states are permitted exclusive jurisdictions in the high seas over vessels, and the right to fish in the high seas is subject to the obligations of the State whose flag the ship is registered under. Often, the real owners of the fishing operations are anonymous because they operate using shell companies which use the FOCs.[15] FOCs allow vessels to engage in IUU fishing as they are not required to abide by the obligations, licensing fees and taxes set forth by the RFMOs, and they remain immune to the jurisdiction of international law. The International Transport Workers’ Federation maintains a list of FOCs, and of the thirty-two flags listed, twenty-nine belong to developing nations.[16] Economic conditions in developing nations make them especially vulnerable to IUU fishing, especially when their flags are used, consequently leading to a loss of revenue from fishing, which is estimated to be between five and ten billion USD annually.[17] Often the governments of developing nations suffer from insufficient financial resources for advanced law enforcement at sea and customs, and patrolling personnel, contributing to their vulnerability to IUU fishing.[18]
The term FOC is now often interchangeably used with the term ‘flags of not compliance’ (FONC), in order to make the distinction between different kinds of flag bearing states, who operate open registers because some of the FOC nations continue to contravene international obligations and tend to possess vessels with poorer labour standards. [19]
This disparity in economic status of nations and lack of equity in trade is demonstrated by the fact that the two regions which are subject to the maximum scourge of IUU fishing are sub-Saharan Africa and Southeast Asia, which lose, respectively over one billion USD and three billion USD annually, whereas the largest importer of fish is the European Union, followed by other developed countries including Japan, United States and South Korea, which are consequently also target destinations of illegally caught fish.[20]
Liddick sums up this inequity perfectly in saying, “In sum, those who run commercial fishing registries are often pleased to arrange to have vessels flagged to nations that have little capacity (or interest) in enforcing territorial and regional fishing regulations- it is thus that the costs of IUU fishing are reduced, profits maximized, and revenue otherwise intended for local populations (and legitimate fishing operators) diverted.”[21]
Impact on livelihoods
Illegal fishing also has a direct impact on the livelihoods of local and subsistence fishermen and indigenous communities because these communities depend on marine protein for survival and income, they do not have the technological inputs to compete with the large-scale illegal fishing operations which operate largely in areas that are lower in income and have lower levels of protection. It is important to note that around ninety-five per cent of fishermen live in developing nations, further illustrated the global North-South divide in the fisheries sector.[22]
In the attempt to counteract these effects on local fishermen, the FAO introduced the Sustainable Fisheries Livelihoods Programme in West Africa. In another initiative, local fishermen in Kayar, Senegal entered into an agreement that they would stop racing each other for catch to improve market value and prevent overexploitation of local stocks.[23] In Australia, to prevent overexploitation in lobster fisheries, the local government privatised the industry, and introduced ‘rights based catch shares’, fixed tradeable permits to fish, which incentivised the fishermen to not overfish as it would reduce subsequent catch.[24]
The next section delves into the details of fisheries crime, which is the focus of this article, to illustrate the multiple criminal activities which take place within the value chain of fisheries.
III. Applicable International Law and Institutions
The foremost international legislation governing the oceans is the United Nations Convention on the Law of the Sea (UNCLOS) which demarcates maritime zones, and the rights within them. Under UNCLOS, the high seas are beyond national jurisdictions, and all States are allowed to fish in them, but with an obligation to control vessels in order to protect the marine environment. [25] The UN Fish Stocks Agreement[26] places an emphasis on regional fishery management organisations (RFMOs) with different member states, to regulate fishing practices and document catch and ensure sustainable exploitation. RFMOs maintain registries of fishing vessels[27] and can also set internal stringent sanctions for lack of compliance of regulations by member states. [28] However, due to the negligible consequences for poor RFMO performance, and the actions of RFMOs being driven by trade concerns rather than conservation, excessive reliance on a management-based approach to fisheries has led to the current biodiversity crisis in the marine environment. [29]
The Food and Agricultural Organisation of the United Nations, also takes responsibility for ensuring the sustainable supply of marine food and has enacted several instruments such as the Code of Conduct for Responsible Fisheries,[30] FAO International Plan of Action on IUU Fishing (IPOA-IUU), [31] and the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA).[32] The UN Convention on Transnational Organized Crime (UNTOC)[33] has mandate over all organised transnational crimes including fisheries crimes, and provides the legal infrastructure necessary for addressing the criminal networks that operate within fisheries.[34] Under the UNTOC Resolutions, the United Nations Office on Drugs and Crime is required to extend assistance to member states to combat organised crime at sea.[35]
The Interpol, as an international police organisation, is responsible for carrying out several fact-finding investigations on fisheries crime, has recently launched the Project SCALE to combat fisheries crimes, and has begun to issue ‘purple notices’ for shipping vessels found to engage in fisheries crimes.[36] The Interpol is also leading the effort to use forensic and genetic tracing methods to investigate cases of IUU fishing.[37] The International Labour Organisation Convention Concerning Forced or Compulsory Labour[38] also provides a framework to address the labour violations and human trafficking that takes place in fisheries, further enhanced by the ILO Convention Concerning Work in the Fishing Sector (Work in Fishing Convention adopted in 2007 which sets standards for commercial workers in the fisheries sector.[39]
The Convention on International Trade in Endangered Species of Wild Fauna and Flora[40] governs illegal fishing from trade sanctions-based approach against wildlife crime, whereas the Convention on the Conservation of Migratory Species of Wild Animals[41] is applicable to conserving the habitats and migratory routes of migratory aquatic species and minimising the threats these species face, including that of IUU fishing.
The EU has enacted its Common Fisheries Policy (CFP) which mandates that fishing activities by EU vessels takes place in an environmentally sustainable manner nursing food supply and addressing economic, social and employment benefits. It has also enacted regulations[42] specifically to address IUU fishing.[43]
IV. Impact on Biodiversity
Apart from directly leading to loss of revenue, and the plethora of crimes across the value chain, the foremost consequence of IUU fishing and fisheries crime is the direct and often irreversible impact it has on marine biodiversity. Over three-fourths of the world’s fish stocks are reported to be fully exploited or overexploited leading to several marine species acquiring endangered or threatened status.[44]
Sharks as a category of fish are poached extensively to satisfy the demand for their meat and especially their fins. Across the oceans, sharks occupy “an important ecological niche” and as apex predators, their survival is responsible for ensuring the stability of populations lower in the food chain. Unregulated shark fisheries have almost without exception led to the fisheries collapsing over time, for example the overfishing of porbeagle sharks in the North West Atlantic Ocean in the 1960s led to a collapse in the population which required thirty years to recover, which were then subsequently overfished in only three years. This slow recovery is attributed to the low reproductive capacity of cartilaginous fish like sharks, long period required for maturity (sandbar sharks mature at 13 years of age, tiger sharks at 12 years and dusky sharks reach maturity by 20-25 years), and long intervals between gestation. However, these nuanced biological characteristics do not feature in the budgeting process of large scale fisheries, leading to indiscriminate culling of sharks, especially if they are only being killed for their fins. A method suggested by conservationists to rectify these fishing patterns is to introduce fishing quotas based on individual species, specific to the behaviour and reproductive capacity of those species, which can be possible with genetic identification techniques and greater investment in estimating the size of individual populations.[45]
An example of such exploitation was in the case of jack mackerel fishery in the Southern Pacific Ocean. While states were negotiating an agreement for the South Pacific Regional Fisheries Management Organization (SPRFMO), thirty million metric tonnes of stocks of the mackerel dropped to less than three million, in the interim period of the negotiations, with a biomass decline of over ninety per cent, had the stocks faced no fishing. [46]
As discussed previously, the South African abalone (Haliotis midae) is a species which was particularly overfished due to the high prices it brings, and this overfishing had significant ecological ramifications. The abalone is a grazer which lives in the subtidal marine ecosystem near the shores. The abalone has a commensal relationship with sea urchins, as the spines of the urchins protect juvenile abalone from predators. Limiting the size of individuals caught (minimum legal size) is fundamental to the principle of abalone fishing, is essential to maintaining its reproduction cycle, as smaller sized individuals tend to congregate in areas with higher reproductive rates near the shores, whereas larger species are found at greater depths. However, samples of poached species confiscated show that majority of poached species are undersized, and it has been found that there has been collapse of both abalone and urchin populations.[47]
Illegal methods of fishing can also have devastating effects on marine ecosystems. For instance, the illegal driftnet fishing used in the Mediterranean Sea leads to the killing of several thousand marine mammals annually; illegal fishing methods also trap and kill marine birds, including albatrosses; the use of explosives to deter whales from approaching fish catch is detrimental to cetaceans and other species; sodium cyanide used to stun fish to capture them live causes damage to coral reefs.[48]
Over half the coral reefs in South East Asia have been lost due to the use of explosives or ‘blast bombing’ as it reduces the reproductive capacity of corals by eighty per cent, while the sodium cyanide kills coral polyps. Illegal fishing is also responsible for the catching of many non-target species, which get entangled in the gillnets, such as turtles. These species called ‘bycatch’ and it has been found that around forty per cent of turtle mortality is due to bycatch. Albatrosses are victims of illegal longline fishing. The killing of bycatch species not only disrupts the food chain by jeopardising the survival of predators who depend on them, but also, if discarded back into the ocean, create putrefied, sterile zones in the water.[49]
The widespread poaching of large predators like whales have ‘cascading effects’ in the ecosystem, as in the case of the seven hundred thousand tonnes of whales killed in the Gulf of Maine, impacting the food web. The killing of target species through overfishing, the killing of sawfish and rays as bycatch led to an increase in snappers and squid due to lack of predation. Decline in mackerel and herrings in targeted fishing has led to declining whale populations.[50]
The linkages between uncontrolled exploitation of marine resources and loss of biodiversity have been long established, especially the threat to species in developing nations, which are, as previously discussed the sites of maximum IUU fishing. The speed with which the international market in species operates undermines existing institutions in charge of safeguarding those species, [51] increasing the need to prosecute the destruction of species as an environmental crime issue, as opposed to being limited within the sphere of international trade regulation.
The global demand for target species like Atlantic Southern Bluefin Tuna, jack mackerel, and Pacific Bluefin Tuna have led to overfishing of these species, and around ninety per cent of global stocks of fisheries are fully exploited or overexploited. Commercial fishing operations also lead to by-catch, incidental and accidental capture of non-target species such as marine turtles, sharks, cetaceans and seabirds, exacerbating the health of the marine ecosystems. Since there is no data on landings of IUU fishing, it leads to further undocumented loss of species, leading to overestimation of stocks, and further unsustainable exploitation of those stocks.[52]
v. Fisheries Crime in the Value Chain
The value chain in the fisheries sector is layered and consists of several stages of procurement and production, involving several entities from the fishermen, fisheries companies, governments and consumers. It is crucial to understand this value chain, both to identify the spaces wherein crimes can take place and to initiate the legal responses necessary to combat those crimes. IUU fishing, which deals with the actual procurement of fish, is only a primary criminal activity that takes place in the value chain, and this section will discuss the multiplicity of those crimes, including but not limited to piracy, drug trafficking, human trafficking, tax crimes, documentation fraud, seafood fraud and corruption.
The value chain in fisheries involves several stages:
- Preparation: This includes obtaining licenses, registration of vessels and hiring of personnel. [53]
- Fishing: The fishing stage involves the actual operation of the vessel, obtaining the catch, recording and reporting the catch to the respective authorities.[54]
- Processing: The first stage includes the cleaning, filleting of the fish, and the second stage involves manufacturing fish-based products.[55]
- Landing: The process of offloading the catch and evaluating the nature and value of the catch is reported.[56]
- Transportation: Moving the catch from the point of origin, to the port of landing and to subsequent points of processing and sale is part of transportation.
- Sale: The contracts for transactions in the trade of the fish, including the accounting and payment of taxes, are part of the sale process. [57]
The extensive value chain described therefore possesses several spaces within which criminal activities can be perpetrated. While IUU fishing addresses the problem of crime in the actual fishing stage, several crimes occur overlapping with the stages in the value chain[58] such as human trafficking during the procurement of personnel, or tax crime in the sale and accounting process, or drug trafficking in the transportation and sale process.
Nexus between Fisheries and Organised Crime
Organised crime in the fisheries sector acts as a “non-traditional security (non-military) threat” similar to other forms of organised crime in its modus operandi such as involving multiple layers of corporate entities and use of bribery and violence, and extensive networks. It is especially difficult to control in the case of fisheries due to the fundamental fact that fish itself cannot be banned as an illegal substance or cannot be proved to have detrimental effects unlike drugs, or counterfeit currency, therefore it is difficult to implement the organised crime analogy in practice. However, due to the impact it has on legal fisheries who rely on the same stocks, and consequently affects the economic strength of local fishermen, it is necessary to deal with it as organised crime, economic and environmental.[59]
Moreover, in several instances established organised crime networks and syndicates engage in illegal fishing as part of their larger portfolio of criminal activities, especially when the value of certain rare species is extremely high like abalone or sturgeon, similar to contraband. Caviar for example, due to its small size and easy transportability, and extremely high value in the market (retail price is around five thousand USD per kilogram), is an example of such a product. It is estimated that Russian crime syndicates in the 90s earned around four million USD annually from illegally exporting seafood, and is evidenced by the fact that in Japan, there was an import of one billion USD worth of seafood from Russia, when in Russian only showed one-sixth that amount in its trade figures, indicating that around eighty per cent of the import was illegally sourced. Illegal fishing of abalones involves profits of over eighty million USD annually, and involves the operation of several criminal gangs from Russia, China and Asia.[60]
Illegal fishing also involves the use of violence towards its ends, as seen by the violence in the illegal trade in caviar. In 1996, fifty- four guards from the Russian government in charge of combatting the caviar trade were killed in a bombing, dozens of Russian officials in charge of anti-poaching initiatives were murdered in the 90s.[61] An example of the extensive networks that organised crime in fisheries is seen in the trade of pipefish and seahorses (high value species in the international market) in India where the species are usually caught as bycatch, traded to middlemen, and then shipped to Southeast Asia where there is a high demand for the species, and this transportation is done in connection with traders in Sri Lanka and other neighbouring countries.[62]
Corporate Liability
Using several strata of corporate entities across different countries is a key feature of organized crime in the fisheries sector. This is especially relevant in the context of FOCs because hidden ownership of vessels, using FOCs makes it extremely difficult to trace the beneficial ownership of illegal operations, and their countries of origin, and tracing the flow of capital which could be housed in a separate tax haven all together. These layers make it difficult for the investigation and prosecution of fisheries crimes across the world as the entities exist in multiple jurisdictions. [63]
As Griggs and Lugten describe it, “[a] typical IUU fishing operation will consist of the secret beneficial owners purchasing an outdated, barely seaworthy vessel, refitting the vessel with state-of-the-art technology, and then registering the vessel in a FOC State.”[64] Once a company is registered as the front company, shell companies buy shares in these companies to keep the ownership details hidden. The problem of hidden ownership is exacerbated by the sanctity of the law on corporate legal entity and the impermeability of the corporate veil, wherein all the entities within the value chain are distinct and cannot be held liable for infractions of other entities. Thus, IUU fishing and fisheries crimes call for a serious revision of existing corporate law if we are to hold beneficial owners liable for captured vessels engaging in fisheries crimes, by effectively attaching liability to parent entities.[65]
Corruption
As is necessary for organized crime to flourish, corruption of authorities and officials is central to the perpetration of fisheries crimes and pervades every stage of the value chain. [66] From the very outset, licensing and registration of ships is vulnerable to corruption, especially in the exploitation of scientific research quotas. For example, in 2005, corruption in licensing in the Solomon Islands cost the exchequer around nine million USD. There is also significant conflict of interest between licensing officials and the fishing industry. In the case of U.S. v. Bengis,[67] the US government prosecuted fourteen South African officials for falsification of quotas and catch documentation in rock lobster fisheries, and the court held them guilty of the offences.[68] IUU ships often land their catches specifically in jurisdictions with corrupt officials, in order to avoid the risk of detection or consequences. [69]
In a study conducted by Interpol on IUU fishing in West Africa, experts cited different forms of corruption which contribute to fisheries crime, such as bribery of field-level law enforcement officers, fraudulent licensing at the middle or higher levels of fisheries authorities which causes significant loss to the exchequer as licensing fees are paid to private accounts and the embezzlement of fines collected by authorities in cases of violations.[70]
Piracy
Under UNCLOS, the definition of piracy includes “illegal acts of violence or detention committed on the high seas against ships or aircraft”[71]and is a threat to the safety of vessels and crews across the high seas. The Interpol in its study on West Africa, discussed how there has been a rise in piracy along the West African coast, and the methods include kidnapping, torture and killing of crew. While theft of oil is the most attractive crime in such incidents, several pirate vessels have been arrested for illegal fishing, demonstrating the link between piracy and illegal fishing.[72]
Another issue of tackling piracy in fisheries crimes is that the actual operatives on the vessels are low-level members of pirate organisations, and the actual supervisors and ‘bosses’ are housed safely in foreign territories. The focus should not just be on these absolute lower-rung operatives, but on instigators, by undermining the profits in illegal fishing. In a High Level Workshop conducted by the World Bank, Interpol and UNODC, it was reported that by S. Yikona that only around two per cent of profits from pirate attacks go to the actual crew on the vessel whereas thirty to fifty per cent are pocketed by the handlers and financiers on land.[73]
Seafood Fraud
Seafood fraud is the mislabelling of marine food sold to consumers, and it involves cheating consumers of their right to know exactly what they are eating, and where it was sourced from. Due to the cartelization of food companies, the extensive value chain with multiple actors and the widespread multi-national food conglomerates which sell the final food products in most urban areas in major markets, this kind of fraud often violates both criminal law and can attract civil remedies under tort and consumer law. Bulk shipments of fish often have a mix of legally and illegally captured fish, at a stage which is already difficult to trace origins, and this gets increasingly difficult as the fish move further along the processing stages and leads to mislabelling. The packaging systems allow for illegal fish to be easily concealed, or entering the market as fishmeal for aquaculture fisheries, as in a UK case in which a supplier admitted to using non-target fish caught illegally in Thailand, as fishmeal for prawn fisheries.[74]
Illegal Trade in Drugs
As discussed previously, organized crime in entrenched in the drug trafficking, and there are established links between the drug trade and the fisheries crimes, because fishing vessels are often used to transfer shipments of illegal substances. Interpol reveals that in 2007, Spanish officials intercepted around seven tonnes of cocaine on fishing vessels traveling from Venezuela to Senegal, and in 2013, 400 kilograms of cocaine was seized in Ghana from a Guyanese fishing vessel. Cocaine especially is often sent from South America to West Africa in fishing vessels. It is important to note that depleting fish stocks resulting in low income from fisheries, leads to fishermen using their fishing vessels to engage in drug and human trafficking for additional income.[75] Fishing vessels have been used in the cannabis trade between Morocco and Europe.[76] In Costa Rica, in 2011, the police investigated a smuggling operation where cocaine was being shipped from South America to Central America and Mexico, in which used shipping boats. Drugs have also been found towed away inside the caught sharks. Of the cocaine seized worldwide between 2007 and 2010, one fifth involved fishing vessels. In spite of South Africa banning abalone harvesting, illegal abalone is bartered for drugs like methamphetamines.[77] The rise in illegal harvesting of abalone in South Africa can be attributed to the fact that the black market provided extremely high value for the species, which was an income opportunity seized by a traditionally socially and economically oppressed community. But over time, new entrants who were not local, such as Chinese outfits and gangs from Cape Town entered the trade, who were deeply entrenched within the illegal drug trade as well. [78] In Australia, illegal abalone fishing is aided by motorcycle gangs and criminal networks which conduct the barter of abalone for weapons and drugs.[79]
Tax Crime
Since the trade in fisheries is a global trade sector, and not an illegal enterprise all together such as the trade in cocaine, the legal trade in fish allows several ways in which white collar crimes especially relating to taxation, can be perpetrated. This includes crimes such as evasion of export and import duties, fraudulent VAT rebates, evasion of income tax on fisheries income, and social securities fraud. The three major ways in which the sector is involves in tax crime is: [80]
- Disguising origin of fish: Since fisheries work in quotas in the waters of each country, using fraudulent information on catch can be used to fish in excess of permissible quotas. Additionally, landing the fish in a country and reporting it as having been caught there, to trade with the European Union, would attract a six per cent import duty than landing the fish in the EU directly.[81]
- Under-declaration: Companies under-report their catch to pay lower duties, by producing two sets of invoices, one for inspection and one with actual value of the catch. Companies owning vessels under different flags have underreported the catch and then redistributed it across different vessels to stay within individual quotas of each flag.[82]
- Hidden Sales: One of the most common types of tax fraud is evasion through hidden sales, basically trading outside the books in the black market.[83]
- Re-invoicing fraud: By using offshore companies or shell companies, the fish is traded for low value to an intermediary company which then sells it to the customer. The on-shore company ends up showing only a small profit and is taxed marginally while retaining most of the profit under control of the same ownership. This is also used to commit VAT fraud using multiple entities to claim VAT rebate.[84]
Human Trafficking and Labour Violations
The fisheries sector is often plagued by human trafficking and violations of labour laws and standards, and is inherent to illegal fishing operations, wherein human trafficking fuels criminal activity.[85]
Primarily, both legal and illegal fishing operations often use illegal labour aboard its vessels, employing trafficked slave labour, subjecting those on board to abuse, exploitation, sexual exploitation, child labour and violence.[86] Decreasing catch for local fishermen leads to their vulnerability to such trafficking for meagre income; there have been cases in Thailand where men from Thailand, Burma and Cambodia are sold like slaves to fishing vessels, and they remain aboard for several years without payment and working eighteen to twenty-hour days, forced to starve.[87] Similar to other organized crime, cheap labour from developing countries is used aboard fishing ships, while subjecting the workers to very poor health and safety conditions, furthering the North-South disparity in income generated from the natural resources. [88]
In a study conducted on fisheries crime in Indonesia, fishermen interviewed revealed that 46 per cent worked between 16 and 20 hours daily, and 32 per cent worked between 21-24 hours daily. [89] Since their documents were confiscated, and 75 per cent of the interviewees said that they were not allowed free movement inside or outside the vessel, they were made to live in unhygienic quarters and did not have access to sufficient food, water or medicine.[90] They were also subject to physical beating and one interviewee admitted to having witnessed some fishermen being killed and thrown overboard.[91] Similar behavior of abuse, forced labour and imprisonment have been reported in vessels off the coast of West Africa.[92]
Another grave offence within fisheries is that of child labour, and it is estimate that several million children are employed in fisheries and aquaculture globally. Studies in Thailand and El Salvador have documented the abuse and hazards that children are subject to as part of fisheries. Owners of larger boats have been known to destroy the gear and boats of smaller fishermen in a conflict over the limited resources, and there if reported violence arising out of these conflicts. There are also reports of the practice of “fish-for-sex” in Southern Africa, where sexual exploitation of women and girls is traded for access to fish.[93]
VI. Conclusion
This article has illustrated the multiplicity of crimes that exist within the fisheries sector, and the multiple international jurisdictions that govern it. While fisheries remain a source of crucial protein for the masses, its indiscriminate and illegal exploitation is linked not only with loss of marine diversity and destruction of marine ecosystems, but it is also linked with economic losses for states, human rights violations and the illegal trade in drugs. The term ‘fisheries crime’ is not defined in international law as of now. There is an urgent neeed for international legislation or coordinated efforts across extant international conventions, to target the phenomenon across the value chain in a synthesized fashion, aided and coordinated by organisations with existing infrastructure such as the Interpol, FAO and the UNODC is the need of the hour. As recommended by the UNODC, national administrations must follow a multi-door approach to combatting fisheries crime due to its extensive value chain, such as continual coordination within administrative offices, between tax authorities and fishing authorities and trade monitoring agencies and further coordination with criminal law enforcement.[94] Fisheries crime is not primarily a question of fisheries management as is the current perception, through the control exercised by RFMOs, or as environmental crime, but as a specific “marine living resource crime” embedded within extant mechanisms against piracy, tax crime, human rights abuse, drug trafficking and smuggling.[95] This would also help steer the approach from one based on fines viewed as sunk costs in fisheries business to that of seizing assets, and breaking down the supply chain, directly affecting profits and functioning, making it less lucrative for illegal operations.[96]
[1] See generally Duncan Brack, The Growth and Control of International Environmental Crime, 112 Envtl Health Persp. 80 (2004).
[2] Lorraine Elliott, Fighting Transnational Environmental Crime, 66 J. Int’l Aff. 87, 89 (2012).
[3] Abdullah Al Arif, An Introduction to International Fisheries Law Research, Globalex, February 2018, http://www.nyulawglobal.org/globalex/International_Fisheries_Law.html (last visited Mar. 15, 2018). Conventions include: United Nations Convention on Transnational Organised Crime, Nov. 15, 2000, 40 ILM 335 (2001) (UNTOC), United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (UNCLOS); Convention on the Conservation of Migratory Species of Wild Animals, Jun. 23, 1979, 1651 U.N.T.S. 333 (CMS); Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 (CITES); the Convention on the Conservation of Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79 (CBD); International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72 (ICRW); Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, 1329 U.N.T.S. 47 (CALMR); United Nations 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, Aug. 4, 1995, 2167 U.N.T.S. 88.
[4] Johan Bergenas & Ariella Knight, Green Terror: Environmental Crime and Illicit Financing, 35 SAIS Rev. Int’l Aff. 119, 121 (2015).
[5] Jeremy Haken, Transnational Crime in the Developing World, Global Fin. Integrity 43 (2011).
[6] Sana Abusin & Rashid Hassan, Determinants of frequency of violating fishery regulation in dynamic deterrence models, 12-13 https://www.researchgate.net/publication/267397487_Determinants_of_frequency_of_violating_fishery_regulation_in_dynamic_deterrence_models (last visited Mar. 15, 2018).
[7] Christian Nellemann et al., (eds.), The Environmental Crime Crisis – Threats to Sustainable Development from Illegal Exploitation and Trade in Wildlife and Forest Resources, UNEP Rapid Response Assessment 18 (2014) https://www.cbd.int/financial/monterreytradetech/unep-illegaltrade.pdf (last visited Mar. 15, 2018).
[8] Klaas Sander et al., Conceptualizing maritime environmental and natural resources law enforcement– The case of illegal fishing, 11 Envtl Dev. 112, 114 (2014).
[9] Iain C. Field et al., Protein mining the world’s oceans: Australasia as an example of illegal expansion-and-displacement fishing, 10 Fish & Fisheries 323, 325-326 (2009).
[10] Id.
[11] Nerea Marteache et al., Factors influencing the choice of a safe haven for offloading illegally caught fish: a comparative analysis of developed and developing economies, 4 Crime Sci. 1, 48-49 (2015).
[12] Diane Erceg, Deterring IUU fishing through state control over nationals, 30 Marine Pol’y 173, 174-175 (2006).
[13] Organisation for Economic Co-operation and Development (OECD), Fish Piracy Combating Illegal, Unreported and Unregulated Fishing: Combating Illegal, Unreported and Unregulated Fishing 175 (2004).
[14] United Nations Convention on the Law of the Sea art. 92, Dec. 10, 1982, 1833 U.N.T.S. 397.
[15] Jessica K. Ferrell, Controlling Flags of Convenience: One Measure to Stop Overfishing of Collapsing Fish Stocks, 35 Envtl. L. 323, 347 (2005).
[16] Haken, supra note 5 at 43.
[17] Id. at 44-45.
[18] Id.
[19] Dana D. Miller & U. Rashid Sumaila, Flag use behavior and IUU activity within the international fishing fleet: Refining definitions and identifying areas of concern, 44 Marine Pol’y 204, 205 (2014).
[20] Haken, supra note 5 at 45.
[21] Don Liddick, The dimensions of a transnational crime problem: the case of IUU fishing, 17 Trends in Organised Crime 290, 298 (2014).
[22] Stephen F. Pires & William D. Moreto, Preventing Wildlife Crimes: Solutions That Can Overcome the ‘Tragedy of the Commons’, 17 European J. Crim. Pol’y & Res. 101, 114 (2011).
[23] Id. at 115.
[24] Id.
[25] Bernd Cordes & California Environmental Associates, Illegal, Unreported and Unregulated (IUU) Fishing: A Whitepaper 1, 13 (2015) https://www.packard.org/wp-content/uploads/2016/03/Packard-White-Paper-on-IUU-for-Packard-websiite.pdf (last visited Mar. 15, 2018).
[26] United Nations 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, Aug. 4, 1995, 2167 U.N.T.S. 88.
[27] Kristina M. Gjerde et al., Ocean in peril: Reforming the management of global ocean living resources in areas beyond national jurisdiction, 74 Marine Pollution Bull. 540, 545 (2013).
[28] Efthymios D. Papastavridis, Crimes at Sea: A Law of the Sea Perspective, in La criminalité en mer = Crimes at Sea 50-51 (Efthymios D. Papastavridis and Kimberly N. Trapp eds., 2014).
[29] Gjerde et al., supra note 27 at544.
[30] FAO Doc. 95/20/Rev/1; 1995 WTS 3.
[31] Kaija Metuzals et al., One Fish, Two Fish, IUU, and No Fish: Unreported Fishing Worldwide, in Handbook of Marine Fisheries Conservation and Management 167 (R. Quentin Grafton et al. eds., 2009).
[32] Jade Lindley& Erika J. Techera, Overcoming complexity in illegal, unregulated and unreported fishing to achieve effective regulatory pluralism, 81 Marine Pol’y 71, 73 (2017).
[33] UN Doc. A/55/383 at 25 (2000); 40 ILM 335 (2001).
[34] Anastasia Telesetsky, Laundering Fish in the Global Undercurrents: Illegal, Unreported, and Unregulated Fishing and Transnational Organized Crime, 41 Ecology L. Q. 939, 965-967 (2015).
[35] Eve de Coning & Gunnar Stolsvik, Combating Organised at Sea: What Role for the United Nations Office on Drugs and Crime, 28 Int’l J. Marine & Coastal L. 189, 191 (2013).
[36] Dana D. Miller & U. Rashid Sumaila, IUU Fishing and Impact on the Seafood Industry, in Seafood Authenticity and Traceability 90 (Robert Hanner and Amanda Naaum eds., 2016); Henrik Österblom & Örjan Bodin, Global Cooperation among Diverse Organizations to Reduce Illegal Fishing in the Southern Ocean, 26 Conservation Biology 638, 647 (2012); Henrik Österblom, Catching Up on Fisheries Crime, 28 Conservation Biology 877, 878 (2014).
[37] Markus Burgener, Illegal Fishing, Another Form of Wildlife Crime, 80 WCO News 26, 28 (2016).
[38] 39 U.N.T.S. 55.
[39] Lindley & Techera, supra note 32 at 74.
[40] 993 U.N.T.S. 243.
[41] 1651 U.N.T.S. 333.
[42] Council Regulation (EC) No. 1005/2008.
[43] Antonia Leroy et al., The EU restrictive trade measures against IUU fishing, 64 Marine Pol’y 82, 85-86 (2016).
[44] Papastavridis, supra note 28 at 47-48.
[45] Janet Raloff, Clipping the Fin Trade: Research and policy initiatives could take a bite out of shark exploitation, 162 Sci. News 232 (2002).
[46] Gjerde et al., supra note 27 at541.
[47] Maria Hauck & Neville A. Sweijd, A case study of abalone poaching in South Africa and its impact on fisheries management, 56 ICES J. Marine Sci. 1024, 1026 (1999).
[48] Liddick, supra note 20 at 303.
[49] Gohar A. Petrossian, Preventing illegal, unreported and unregulated (IUU) fishing: A situational approach, 189 Biological Conservation 39, 39 (2015).
[50] Paul K. Dayton et al., Environmental effects of marine fishing, 5 Aquatic Conservation Marine & Freshwater Ecosystems 205, 215-216 (1995).
[51] Hampus Eriksson et al., Contagious exploitation of marine resources, 13 Frontiers in Ecology & Env’t 435, 439 (2015).
[52] Gjerde et al., supra note 27 at 540.
[53] United Nations Office on Drugs and Crime (UNODC), Stretching the Fishnet: Identifying Opportunities to Address Fisheries Crime 9 (2017) fishcrime.com/wp-content/uploads/2017/07/Stretching-the-Fishnet.pdf (last visited Mar. 15, 2018).
[54] Id.
[55] Id.
[56] Id.
[57] Id. at 10.
[58] Id. at 11.
[59] Henrik Österblom et al., Illegal fishing and the organized crime analogy, 26 Trends in Ecology &Evolution 261, 261 (2011).
[60] Liddick, supra note 20 at p. 295.
[61] Id. at 296.
[62] Deepak Samuel, Killing for Pleasure: Illegal Trade in Marine Life, WWF Newsl. IND, Illegal Wildlife Trade in India Special Issue 15, 16 (2014).
[63] Österblom, supra note 35 at 877; Eve de Coning and Emma Witbooi, Towards a new ‘fisheries crime’ paradigm: South Africa as an illustrative example, 60 Marine Pol’y 208, 213 (2015).
[64] L. Griggs & G. Lugten, Veil over the nets (unravelling corporate liability for IUU fishing offences), 31 Marine Pol’y 159, 160 (2007).
[65] Id. at p. 162.
[66] Maragaret E. Beare, Corruption and organized crime: Lessons from history, 28 Crime, L. & Soc. Change 155, 167 (1997).
[67] United States v. Bengis, No. 13-2543 (2d Cir. 2015). USDC for the Southern District of N.Y.
[68] Liddick, supra note 21 at 297.
[69] Gohar A. Petrossian et al., Where do “Undocumented” Fish Land? An Empirical Assessment of Port Characteristics for IUU Fishing, 21 European J. Crim. Pol’y Res. 337, 339-340 (2015).
[70] Interpol, Environmental Security Sub-Directorate, Project SCALE, Study on Fisheries Crime in the West African Coastal Region 25-26 (2014) https://www.interpol.int/content/download/27590/369574/…/3/…/WACS%20EN.pdf (last visited Mar. 15, 2018).
[71] United Nations Convention on the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397.
[72] Christian Bueger & Jan Stockbruegger, Pirates, Drugs and Navies, 161 RUSI J. 46, 48 (2016).
[73] Report of the High Level Workshop Combatting Transnational Organised Crime at Sea – following the money trail and pursuing networks and organisers of maritime crime (2014) http://www.intertanko.com/upload/99025/Combatting%20Transnational%20Organised%20Crime%20at%20Sea%20-%20report.pdf (last visited Mar. 15, 2018).
[74] Ganapathiraju Pramod et al., Estimates of illegal and unreported fish in seafood imports to the USA, 48 Marine Pol’y 102, 106-107 (2014).
[75] Interpol, supra note 70 at 29.
[76] Bergenas & Knight, supra note 4 at 121-122.
[77] Liddick, supra note 21 at 296.
[78] Serge Raemaekers et al., Review of the causes of the rise of the illegal South African abalone fishery and consequent closure of the rights-based fishery, 54 Ocean & Coastal Mgmt. 433, 438 (2011).
[79] Katherine M Anderson & Rob McCusker, Crime in the Australian Fishing Industry: Key Issues, 297 Trends and Issues in Crime & Crim Just. 1, 2-3 (2005).
[80] Organisation for Economic Co-operation and Development, Evading the Net: Tax Crime in the Fisheries Sector 26-27 (2013) http://www.oecd.org/ctp/crime/evading-the-net-tax-crime-fisheries-sector.pdf (last visited Mar. 15, 2018).
[81] Id.
[82] Id.
[83] Id. at 28.
[84] Id.
[85] Kennedy Gastorn, Transnational Organized Crime at Sea: Smuggling and Trafficking of Migrants and Drugs 4 (2017) www.aalco.int/Transnational%20Organized%20Crimes%20at%20Sea%20final.pdf (last visited Mar. 15, 2018); See also, Interpol, supra note 70 at 28.
[86] Liddick, supra note 21 at 296.
[87] Justin S. Brashares et al., Wildlife Decline and Social Conflict, 345 Science 376, 376 (2014).
[88] Haken, supra note 5 at 45.
[89] Ioannis Chapsos and Steve Hamilton, Illegal fishing and fisheries crime as a transnational organized crime in Indonesia, Trends in Organised Crime 1, 11 (2018), https://doi.org/10.1007/s12117-018-9329-8 (last visited Mar. 15, 2018).
[90] Id.
[91] Id.
[92] Interpol, supra note 70 at 29.
[93] Blake D. Ratner et al., Fishing for justice: Human rights, development, and fisheries sector reform, 27 Global Envtl. Change 120, 124 (2014).
[94] UNODC, supra note 53 at 12-13.
[95] Gjerde et al, supra note 27 at 545.
[96] Sander et al., supra note 8 at119.