Breaking Laws on the Sea

By Laura Major and Alana Lancaster
Thunder over Jeffreys Bay

Thunder over Jeffreys Bay, South Africa. Photo: Jandré Van Der Walt

Sustainable Development Goal 14, Life Below Water, aims include increasing the coverage of marine protected areas, addressing overfishing, and dealing with the impacts of pollution and climate change. The framework for the goal acknowledges the critical significance of the ocean as a source of food and livelihood.

Illegal activities which occur on the ocean can compromise the resource, damage its ecosystems and their services, as well as cause harm to the living marine organisms within, thus undermining our ability to reach SDG 14. Controlling such activities requires effective regulation of ‘illegal’ activities on the ocean. But when and how do activities become illegal? Who becomes criminal and why? To what benefit or disadvantage?

These were the questions discussed by a panel of experts during the ‘Breaking Laws on the Sea’ online event, held during UN World Oceans Week 2020 (recording here).

This blog post summarises the main points of discussion from that event.

Background Info 

A discussion around laws of the sea will by necessity include a focus on the United Nations Convention on the Laws of the Sea (UNCLOS), since the convention provides a framework for law as it relates to the ocean. UNCLOS, broadly speaking, sets out whether  activities on the ocean will be governed by principles relating to the high seas (e.g., vessels outside the coastal states territorial limit are  subject to the jurisdiction of the flag state). UNCLOS also provides a framework which provides the conditions for complementing and collaborating international maritime, biodiversity and environmental conventions. UNCLOS also defines the limits of territorial waters of the coastal state and therefore at which point in the ocean, activities will fall specifically under the regulations set by the Coastal State or whether it is subject to shared or international jurisdiction.

Fundamental to the topic of illegal activities  which occur on the sea is the  need to consider their occurrence across the maritime zones and that their regulation may be governed by laws unrelated to the ocean; for instance, drug smuggling / trafficking may also fall under areas of criminal law; fisheries activities may also be regulated by trade or corporate law, and so on. The title of the panel is Breaking Laws on and not of the sea precisely in recognition of this intricate yet intrinsic attribute of the law of the sea regime.

The panel was organised by an interdisciplinary team of Early Career Researchers of the One Ocean Hub. Our conversations leading up to the panel focused on an unease with the purpose and effectiveness of   regulation of ‘illegal’ activities on the ocean. When and how do activities become illegal? Who becomes criminal and why? To what benefit or disadvantage? We invited four expert speakers to comment on these questions as they relate to fisheries crime and the smuggling illicit goods:

Key points of discussion

Fair and effective regulation, surveillance and action to limit IUU (Illegal, Unregulated, Unreported) fishing is an ongoing and critical issue. Watch the Environmental Justice Foundation documentary: Stolen at Sea

The UN’s Food and Agriculture Organization cites IUU fishing as responsible for the loss of 11-26 million tonnes of fish each year, estimated to have an economic value of US 10-23 million billion dollars. IUU fishing often involves techniques and catches that damage ecosystems and contravene regulations designed to ensure sustainable fisheries. Hidden fisheries activities may also contravene trade and labour laws that are designed to protect the well-being of fishers.There was a general agreement during the panel that the concept of IUU fishing is a ‘catch-all’ term which obscures the complexity and range of activities that fall under the label. Effective research and advocacy must think more broadly about who is and is not criminalized and why, in working towards more sustainable oceans governance.There was consensus among the discussants for more efficacious regulation, surveillance and enforcement by legislators to reduce IUU fishing. To this end, the panel debated whether this objective could be achieved in a fair and effective manner without a comprehensive paradigm shift . This is because many of the attempts to curb IUU fishing exacerbate the structural inequalities that drive ‘illegal’ activities (such as criminalizing already marginalized individuals and populations). This includes legislation and legislative action which does not address fair access to the ocean nor address issues such as corruption amongst lawmakers and regulatory authorities.One such example which is prevalent and which the Ghana Hub is tackling is saiko fishing. Saiko is a term for the trade in by-catch fish that takes place across the decks of industrial trawlers and small-scale fishing fleets in Ghana and constitutes a complex illustration of breaking laws on the sea. Almost all the stages of the saiko trade are illegal yet the practice continues openly, in part because disrupting the trade would leave many impoverished people without a livelihood and food security. This is the reality, even as the trawling that produces the by-catch is one of the main reasons for the decline in fish stocks in the first place.There is also a need to look at the difference between activities across scales. We often hear about small-scale fishers subject to law enforcement action but much less about surveillance and enforcement for larger commercial operations. Perhaps this is because larger vessels often have the mobility, technology, and know how to be able to avoid breaking the law by moving in and out of zones of marine regulation. For example, by adopting a ‘flag of convenience’: changing national registration by varying the flag the vessel sails under – as flags are switched so the vessel falls under the domestic law of that Flag State, regardless of the ships position on the High Seas. Larger marine operations are also usually regulated by abstract economic interests. For example, larger foreign owned vessels take advantage of fuel subsidies that allow them to operate for longer further out at sea. These subsidies are often an outcome of bilateral investment agreements between developing and developed countries.The concepts of flags of convenience and subsidies are examples of activities which which straddle the fence on legality and illegality. Vessels may abide by existing laws of the respective states, even as their activities may degrade oceans, impact biodiversity and drastically reduce fish stocks for others. If these activities compromise the viability of the legal economies of fishing amongst adjacent communities, then they are also indirect catalysts for illegal activities on the sea.

What drives crime and criminality on and in the ocean? Watch the TRAFFIC documentary: Empty Shells: Inside the illegal abalone trade

Criminality is a complex domain and there are many reasons why activities deemed illegal or criminal take place. Breaking laws on the sea by small-scale sectors or actors may be due to poverty; historical inequalities that have persisted across generations; aspirations and dreams for the future; resistance to absent, unrecognised, or harmful state activities; kinship and broader social entanglements; and losing access rights to adjacent waters. Each of these may drive people to use resources ‘illegally’.If you are not going to deal with the structural inequality, and the poverty, and the food [in]security within communities, you won’t be able to deal with the illegal poaching and fishing … no matter how strong you come, with whatever force you come with, with whatever policy you come with, you have to deal with the underlying issues – Moenieba Isaacs [43:00].Crime rates are higher amongst impoverished communities and in the detailed discussion around the poaching of abalone (a species of South African shellfish) the panel referenced the ongoing impact of South Africa’s history of racism and social injustice on both intractable poverty and criminal activities within many communities. Poaching is usually extremely risky; many poachers are injured or killed in the course of their activities. Arrest will usually lead to further personal injury, including imprisonment. Despite these risks poaching continues, often in a context in which many people have little opportunity to realise their aspirations for a better life through legal means.A focus on reasoning by those engaging in criminal activity is also one-sided – there is a demand for these goods in large quantities, and consequently, poaching is still a viable way of earning money. This adds additional complication to any story of crime, as once poached or illegally fished items leave the hands of small-scale poachers, and usually enter markets which are operated legally. As a result abalone which is harvested illegally and sold as illegal goods then enter, for example, the Chinese markets a legal commodity, where they fetch a high priceThis is in contradistinction to the issue of narcosubmarines, as arguably all stages of this operation are deemed illegal at international, regional and national levels.Watch a section of the documentary titled ‘Narco Subs’Narco Submarines: Vessels, usually submarine, built for the purpose of smuggling narcotics via ocean routesJavier Guerrero has spent many years researching the traffic of narcotics produced in South America to point of sale, most often in North America, via marine routes. One of the most intriguing aspects of this trade is the use of submerged or semi-submerged vessels built for the purpose of smuggling the drugs along ocean corridors. This is an extremely dangerous activity as not only is there little hope of rescue if the ‘narco submarine’ flounders but these activities have become a focus in many countries’ efforts to stem the illegal drugs trade. As a result, there are heavy penalties for those who are caught.The battle between narcotics smugglers and marine law enforcement is often presented by authorities as a race against technology, which it is in many senses, as each ‘side’ tries to remain one step ahead of the other’s innovations in either vessel design or tracking.However, the enforcement priorities of authorities often neglects the important circumstances in which an illegal activity has becomes ‘normalized.’ As posited by Javier, for many actors in narcosmuggling, this is not considered exceptional, as many of the actors belong to impoverished and marginalised groups. In many cases, communities may lack basic amenities and receive little social and economic support from the state. In the absence of functioning economic and social systems and legislation sensitive to the realities, the black and white perception as to whether the activity is legal or illegal may be obsolete. Instead, people may make their decisions based on kinship with a practice and because it is familiar and easy to become involved with.In many ways the closing discussion around illegal fishing and narcotrafficking encapsulated the critical themes that ran through the discussion. That is, that regulation is so far falling short of fair and equitable practice – systemic structural inequalities result in the easy criminalization of the poor. Regulation, surveillance, and enforcement often operate in a legislative regime which compounds this issue, particularly because it has resulted in a myopic rather than holistic focus. There was consensus that often systems did not take into account nor address factors fundamental to driving these activities from a small scale perspective. Accordingly, the focus either directly or indirectly shifts to prosecuting small-scale fishers even as large marine operations appear to be laying out the conditions for this criminality.

The event raised many questions which are inextricable to transforming towards inclusive and integrated ocean governance. The next discussion in the Hub’s event series on breaking laws on the sea will focus on global supply chains, external market incentives and customary practices. Discussants will examine whether localised enforcement is the most effective approach;  both in attempts to curb illegal activities that have a transnational reach and in preventing those practices that are most damaging for ocean ecosystems. The session will draw upon expertise from within the One Ocean Hub and from the United Nations Nippon Fellows network to assess  whether tools and solutions could emerge from a shift in perspective on illegal activities on the sea.

The follow-up webinar, Breaking Laws on the Sea II will take place 4 November.