he phrase “Illegal, Unreported and Unregulated (IUU) Fishing” is used prolifically in the spheres of ocean governance, maritime security, and marine conservation. Often it is invoked as a catch-all term for undesirable fisheries activity, even including fishing that, while legal, is perceived to be unsustainable or inequitable. At the same time, particularly in the law enforcement space, considerable effort goes to distinguishing IUU fishing from “fisheries crime”—the use of the fisheries sector to commit other crimes.
While there are already a plethora of challenges involving IUU fishing, fisheries crime and the broader problem of overfishing, there is a new issue that bears attention: state-protected illicit fishing. This is the use of state institutions and state assets to shield overseas fishing operations from another state’s law enforcement or regulatory interference. In other words, one state proactively attempts to prevent another state from stopping its nationals or vessels from engaging in IUU fishing or fisheries crime. This phenomenon is pernicious and growing, as it further complicates the interdiction of undesirable fishing activity and threatens both the health of the ocean and the rule of law in the maritime domain.
Diplomatic Pressure
In March 2017, the Solomon Islands arrested three “blue boats”—a distinctive blue wooden fishing vessel originating in Vietnam. Given the lack of refrigeration on these vessels, but a well-documented propensity for fishing far afield from Vietnamese waters, the blue boats have become known for fishing for high value reef species that can be dried on board and preserved without needing to be transshipped. It was this sort of unlicensed illegal operation that caused Solomon Islanders to notify authorities, who in turn conducted the arrest. The illicit nature of the operation was unmistakable, yet the response of the Vietnamese government was striking: it broke diplomatic relations with the Solomon Islands. In other words, the Vietnamese state used its diplomatic relations and the power to terminate them as a means of lending protection to the illicit actions of vessels flying its flag. Despite generally held principles about the global need to secure and govern the maritime space in a sustainable fashion, Vietnam demonstrated outrage at interference with a Vietnamese fishing operation, even though that operation was illegal.
Other states also use diplomatic pressure in a variety of ways, though often not so far as staking the entire relationship between states on the actions of illicit fishers. This diplomatic pressure not to stop illegal fishing denigrates cooperative efforts to secure, govern and develop the world’s oceans in a sustainable manner. It also indicates the importance of the economic benefit of these fishing activities. If they were not so valuable, it is unlikely that states would put diplomatic resources into protecting illicit ventures.
Audible Silence
In July 2020, Global Fishing Watch and Trygg Mat Tracking published a report demonstrating that a fleet of 192 Iranian fishing vessels had been fishing illegally in the waters of Somalia and Yemen between January 2019 and April 2020. This sizeable fleet was taking advantage of the governance challenges of the two countries, one a conflict-riddled “failed state” and the other a fractured state enduring both civil war and famine.
Mostly flagged in Iran, a state whose extraterritorial activities are rarely conducted without government awareness and condonement, this fleet could be a form of state-sponsored IUU fishing. Whether it is sponsored by Iran, however, is a separate concern from whether the state is protecting it. This image from Windward shows the number of fishing incidents by Iranian-flagged vessels inside the exclusive economic zones of Somalia and Yemen during that time.
The direct involvement in this activity by the Iranian government is unclear, but tacit protection of it is unmistakable. There has been a deafening silence from the government in responding—or not responding—to this matter. Even amid global calls for accountability and direct challenges from Somalia, Iran has not shown any interest in taking flag state responsibility for these offenses and assisting in addressing this unsustainable and transparently illegal activity. The November 2020 arrest of an Iranian vessel in Yemen’s waters, however, indicates that there has been no flag state pressure to cease and desist from this behavior. Audible silence, particularly by flag states, is perhaps not as obvious as some of the other protection measures discussed, but a key tactic nonetheless.
Development Leverage
State protection of illicit fishing is not limited to any region of the world. The European Union (EU) has negotiated Fisheries Partnership Agreements (FPAs) for many years with states around the world. Effectively block licensing agreements, these FPAs allow for EU-flagged vessels to share a quota and other requirements in exchange for a fee and various reporting, landing, and tax requirements.
To give a historical example, the EU FPA with the archipelagic state of São Tomé and Príncipe in central Africa in 2013 included a block license for sixteen Spanish and twelve French tuna seiners plus five Spanish and one Portuguese longliner to fish. It was based on an annual catch of 7,000 metric tons, and while the EU paid 682,500 Euros for that agreement, there were a range of other requirements, as well. These included ensuring that 20% of the seamen involved were nationals of São Tomé and Príncipe, and that all catch was reported so that tax could be paid on it. While Spanish and French vessels were regularly detected fishing in the São Tomé’s waters in 2013, as would be expected under the license, they reported zero (0) catch that year, and thus paid no additional tax. In discussions with the São Tomé authorities at the time, many indicated a begrudging understanding that this practice was tolerated because of the benefit received from EU development projects like the road that was built connecting the north to south of the main island. Whether intentional or not, the EU was avoiding obligations using the leverage inherent in being a development partner. The implications of this approach are concerning, as it means that land-based development may be used as an excuse for maritime exploitation of fisheries resources—a model that others, besides the EU, can employ.
Coast Guard Protection
While diplomatic pressure, audible silence, and development leverage may all be applied to protect illicit fishing, there is no clearer nor more concerning example of this phenomenon than the physical protection of illicit fishing operations by the law enforcement or military forces of the state conducting them.
On multiple occasions in December 2019 and January 2020, the Indonesian BAKAMLA (Coast Guard) had high-profile engagements with Chinese Coast Guard vessels that it found inside the Indonesian exclusive economic zone off the Natuna Islands of the Riau Archipelago—the northernmost territory of Indonesia. In these encounters—some filmed and visible online—BAKAMLA found the Chinese Coast Guard among Chinese fishing vessels that were engaged unlicensed fishing. The following Windward images show the vessel tracks of two Chinese Coast Guard vessels in December and January 2020 inside the Indonesian exclusive economic zone off Natuna.
While it is not illegal for a foreign Coast Guard vessel to enter the EEZ of another state or even engage in training operations or enforcement operations for piracy, slavery, illegal broadcasting, or counter-narcotics, it is illegal for them to interfere with the fisheries enforcement of that coastal state. The coastal state’s jurisdiction over the living and non-living marine resources of the EEZ cannot be interfered with by a foreign government’s military or law enforcement agencies.
The apparent use of the Chinese Coast Guard to protect Chinese fishing operations in the Natuna EEZ is not the only example of this physical protection of illicit fishing. Other states employ different models. A state may use, for example, a Coast Guard vessel stationed outside the EEZ as a look-out to alert their state’s fishers to the incoming presence of a coastal state law enforcement asset, encouraging them to retreat before being caught. Even in a multinational context, a state may use intelligence or even operational planning as a means of ensuring that its own fishers avoid detection and interdiction. This phenomenon needs to be monitored carefully, particularly as it poses tremendous challenges to states with imbalanced power, resources, and assets.
Given the economic value of fisheries, many who engage in some form of this activity see it not as “state protected illicit fishing” but as guarding the economic interests of the state. The problem with this logic is that it is using state power to protect illicit action extraterritorially. That cuts at the foundations of the international system of the sea, undermines the principles of the United Nations Convention on the Law of the Sea, and denigrates the rule of law. At the same time, it perpetuates unsustainable practices that further harm our oceans and deplete fish stocks.
As the effort to stop IUU fishing, fisheries crime, and overfishing continues, the fourth category of state protected illicit fishing needs to be added to the mix. When trying to do its job to secure and govern the maritime domain, a coastal state’s coast guard should never have to worry about having to face another state as well as criminals. In the fisheries context, states should be supporting sustainability and legality—not criminality.
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Beyond IUU Fishing & Fisheries Crime: State-Protected Illicit Fishing
March 25, 2021
T
he phrase “Illegal, Unreported and Unregulated (IUU) Fishing” is used prolifically in the spheres of ocean governance, maritime security, and marine conservation. Often it is invoked as a catch-all term for undesirable fisheries activity, even including fishing that, while legal, is perceived to be unsustainable or inequitable. At the same time, particularly in the law enforcement space, considerable effort goes to distinguishing IUU fishing from “fisheries crime”—the use of the fisheries sector to commit other crimes.
While there are already a plethora of challenges involving IUU fishing, fisheries crime and the broader problem of overfishing, there is a new issue that bears attention: state-protected illicit fishing. This is the use of state institutions and state assets to shield overseas fishing operations from another state’s law enforcement or regulatory interference. In other words, one state proactively attempts to prevent another state from stopping its nationals or vessels from engaging in IUU fishing or fisheries crime. This phenomenon is pernicious and growing, as it further complicates the interdiction of undesirable fishing activity and threatens both the health of the ocean and the rule of law in the maritime domain.
Diplomatic Pressure
In March 2017, the Solomon Islands arrested three “blue boats”—a distinctive blue wooden fishing vessel originating in Vietnam. Given the lack of refrigeration on these vessels, but a well-documented propensity for fishing far afield from Vietnamese waters, the blue boats have become known for fishing for high value reef species that can be dried on board and preserved without needing to be transshipped. It was this sort of unlicensed illegal operation that caused Solomon Islanders to notify authorities, who in turn conducted the arrest. The illicit nature of the operation was unmistakable, yet the response of the Vietnamese government was striking: it broke diplomatic relations with the Solomon Islands. In other words, the Vietnamese state used its diplomatic relations and the power to terminate them as a means of lending protection to the illicit actions of vessels flying its flag. Despite generally held principles about the global need to secure and govern the maritime space in a sustainable fashion, Vietnam demonstrated outrage at interference with a Vietnamese fishing operation, even though that operation was illegal.
Other states also use diplomatic pressure in a variety of ways, though often not so far as staking the entire relationship between states on the actions of illicit fishers. This diplomatic pressure not to stop illegal fishing denigrates cooperative efforts to secure, govern and develop the world’s oceans in a sustainable manner. It also indicates the importance of the economic benefit of these fishing activities. If they were not so valuable, it is unlikely that states would put diplomatic resources into protecting illicit ventures.
Audible Silence
In July 2020, Global Fishing Watch and Trygg Mat Tracking published a report demonstrating that a fleet of 192 Iranian fishing vessels had been fishing illegally in the waters of Somalia and Yemen between January 2019 and April 2020. This sizeable fleet was taking advantage of the governance challenges of the two countries, one a conflict-riddled “failed state” and the other a fractured state enduring both civil war and famine.
Mostly flagged in Iran, a state whose extraterritorial activities are rarely conducted without government awareness and condonement, this fleet could be a form of state-sponsored IUU fishing. Whether it is sponsored by Iran, however, is a separate concern from whether the state is protecting it. This image from Windward shows the number of fishing incidents by Iranian-flagged vessels inside the exclusive economic zones of Somalia and Yemen during that time.
The direct involvement in this activity by the Iranian government is unclear, but tacit protection of it is unmistakable. There has been a deafening silence from the government in responding—or not responding—to this matter. Even amid global calls for accountability and direct challenges from Somalia, Iran has not shown any interest in taking flag state responsibility for these offenses and assisting in addressing this unsustainable and transparently illegal activity. The November 2020 arrest of an Iranian vessel in Yemen’s waters, however, indicates that there has been no flag state pressure to cease and desist from this behavior. Audible silence, particularly by flag states, is perhaps not as obvious as some of the other protection measures discussed, but a key tactic nonetheless.
Development Leverage
State protection of illicit fishing is not limited to any region of the world. The European Union (EU) has negotiated Fisheries Partnership Agreements (FPAs) for many years with states around the world. Effectively block licensing agreements, these FPAs allow for EU-flagged vessels to share a quota and other requirements in exchange for a fee and various reporting, landing, and tax requirements.
To give a historical example, the EU FPA with the archipelagic state of São Tomé and Príncipe in central Africa in 2013 included a block license for sixteen Spanish and twelve French tuna seiners plus five Spanish and one Portuguese longliner to fish. It was based on an annual catch of 7,000 metric tons, and while the EU paid 682,500 Euros for that agreement, there were a range of other requirements, as well. These included ensuring that 20% of the seamen involved were nationals of São Tomé and Príncipe, and that all catch was reported so that tax could be paid on it. While Spanish and French vessels were regularly detected fishing in the São Tomé’s waters in 2013, as would be expected under the license, they reported zero (0) catch that year, and thus paid no additional tax. In discussions with the São Tomé authorities at the time, many indicated a begrudging understanding that this practice was tolerated because of the benefit received from EU development projects like the road that was built connecting the north to south of the main island. Whether intentional or not, the EU was avoiding obligations using the leverage inherent in being a development partner. The implications of this approach are concerning, as it means that land-based development may be used as an excuse for maritime exploitation of fisheries resources—a model that others, besides the EU, can employ.
Coast Guard Protection
While diplomatic pressure, audible silence, and development leverage may all be applied to protect illicit fishing, there is no clearer nor more concerning example of this phenomenon than the physical protection of illicit fishing operations by the law enforcement or military forces of the state conducting them.
On multiple occasions in December 2019 and January 2020, the Indonesian BAKAMLA (Coast Guard) had high-profile engagements with Chinese Coast Guard vessels that it found inside the Indonesian exclusive economic zone off the Natuna Islands of the Riau Archipelago—the northernmost territory of Indonesia. In these encounters—some filmed and visible online—BAKAMLA found the Chinese Coast Guard among Chinese fishing vessels that were engaged unlicensed fishing. The following Windward images show the vessel tracks of two Chinese Coast Guard vessels in December and January 2020 inside the Indonesian exclusive economic zone off Natuna.
While it is not illegal for a foreign Coast Guard vessel to enter the EEZ of another state or even engage in training operations or enforcement operations for piracy, slavery, illegal broadcasting, or counter-narcotics, it is illegal for them to interfere with the fisheries enforcement of that coastal state. The coastal state’s jurisdiction over the living and non-living marine resources of the EEZ cannot be interfered with by a foreign government’s military or law enforcement agencies.
The apparent use of the Chinese Coast Guard to protect Chinese fishing operations in the Natuna EEZ is not the only example of this physical protection of illicit fishing. Other states employ different models. A state may use, for example, a Coast Guard vessel stationed outside the EEZ as a look-out to alert their state’s fishers to the incoming presence of a coastal state law enforcement asset, encouraging them to retreat before being caught. Even in a multinational context, a state may use intelligence or even operational planning as a means of ensuring that its own fishers avoid detection and interdiction. This phenomenon needs to be monitored carefully, particularly as it poses tremendous challenges to states with imbalanced power, resources, and assets.
Given the economic value of fisheries, many who engage in some form of this activity see it not as “state protected illicit fishing” but as guarding the economic interests of the state. The problem with this logic is that it is using state power to protect illicit action extraterritorially. That cuts at the foundations of the international system of the sea, undermines the principles of the United Nations Convention on the Law of the Sea, and denigrates the rule of law. At the same time, it perpetuates unsustainable practices that further harm our oceans and deplete fish stocks.
As the effort to stop IUU fishing, fisheries crime, and overfishing continues, the fourth category of state protected illicit fishing needs to be added to the mix. When trying to do its job to secure and govern the maritime domain, a coastal state’s coast guard should never have to worry about having to face another state as well as criminals. In the fisheries context, states should be supporting sustainability and legality—not criminality.
