IUU Antarctic Toothfish: worth its weight in Gold and maybe even a little more!

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Today I read this little tidbit in Todays media report from the Southland Times and found myself astouned (although not surprised). $1800? That is only 1,691,594.421 won! In Korean terms it is even less!

Southland Times. 19 Feb. 2012

The vessel, Insung No 7, which took 339% more than its limit of Antarctic toothfish was exposed in an official report in which nations including New Zealand, the European Union and the US demanded Seoul clean its act up in the wake of “many incidences” of non-compliance involving its flagged vessels. The vessel, Insung No 7, a sister ship to Insung No 1 which sank in the Southern Ocean in December 2010 with the loss of 22 men, is owned by one of Korea’s biggest fishing companies. In the recent Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) meeting  Nations expressed:

great concern regarding the 339 percent over-catch, the intentional nature of the actions and concern that the monetary penalty imposed was insignificant in comparison to the value of the 35 tonnes of toothfish which Korea concluded had been taken illegally and was estimated by Members to be worth US$500 000.”

In addition CCAMLR noted on the record that:

This was one of many incidences of non-compliance by the Korean-flagged vessels in addition to the loss of life caused by the sinking of the Insung No. 1 and suggested Korea consider reviewing its domestic arrangements to provide for the imposition of more appropriate sanctions on those responsible for vessels flying Korean flag,” the commission decided.”

Ultimately, Insung 7 was not entered on the CCAMLR black list as an IUU vessel as CCAMLR decisions have to be reached by consensus. Korea was the only hold out (see http://www.michaelfield.org).

There are significant drivers in addition to the lack of enforcement jurisdiction by other fishing states and coastal states, against boats engaged in IUU fishing, one significant driver is that IUU fishing pays. The huge profit gained ($600K) gained here by the Korean vessel verses the minimal fine imposed by the Korean government is evidence that IUU fishing pays. I mean one large sushi-grade migrating trans-boundary fish like bluefin tuna can reach up to USD$300,000 on the Japanese market.  The economic gain from such transactions is such that it is often within a fisherman’s best interests [even that of a state] to engage in IUU fishing. This article is just evidence that IUU fishing pays.

I like the approach of this story – well the back story really – where those fishing vessels the fall short of what we (NZ, Austr. and other CCAMLR states) deem as un seaworthy could be subject to a Coastal/fishing state imposed penalty. This is a start! But what of vessels from distant water fishing nations (DWFNs) that are ‘ship shape‘ so to speak? The  problem is a complicated one. Although it‘s common knowledge that there are simply too many boatschasing too few fish, the problem of over-fishing the high seas is inextricably linked to many other factors; centred on a game of cat and mouse between Regional Fisheries Management Organisations (RFMOs) and IUU fishermen, where the former has the functional jurisdiction to exercise governance over high Seas stocks, and the latter able to hide in holes in the International Law of the Sea.

RFMOs have overtime become the primary mechanism by which the high seas are regulated. This is no easy feat to try and govern in the absence of government. Even though RFMOs in accordance with UNCLOS have the functional jurisdiction to regulate high seas fisheries, they lack the hard jurisdiction by which to promote compliance with sustainable measures and regulations, obviate inconsistent flag state policies, or even enforce high seas fishing regulations in the face of flag states who thumb their noses at RFMO conservation measures. Even other states like New Zealand and Australia who wholly comply with RFMO measure by following international sustainability guidelines, directives and conservation measures prescribed by CCAMLR are powerless against those who don’t. Furthermore the job of the RFMOs (like CCAMLR) is made more challenging still by having been forced to rely on flag states to enforce compliance of vessels flying their flags on the high seas due to the principle of exclusive flag state jurisdiction. Which as we have seen here in the case of the Korean Government,  problematic. The fine of $1800 against $600K worth of fish is almost congratulatory.

Other DWFNs and coastal states are almost powerless when it comes to enforcing transgressions on the high seas (and yes the Ross Dependency EEZ is still the high seas… for now – Although New Zealand could entertain publicly proclaiming it subject to New Zealand national jurisdiction, like the Aussies have done – but this is another blog entry) because of the presence of lacunae in that high seas governance framework, that enables IUU fishing to continue.

Why are other fishing states and coastal states powerless? Here is the rub as I see it. It comes down to international legal ‘quid pro quo‘ and the UN Convention on the Law of the Sea (UNCLOS). Very simplistically put – in order for coastal states to have increased exclusive economic jurisdiction of the resources adjacent to their coastlines (the EEZ) those countries should guarantee the freedom of other states to free access to any resources beyond those exclusive economic resource zones (EEZ).  And that is what happened.

The first Big UNCLOS provision is:

The Principle of Freedom Fishing on the High Seas whereUNCLOS amongst other things including freedom of navigation, guarantees freedom to fish the High Seas to all States;
―Article 87 – Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
[…]
(e) freedom of fishing, subject to the conditions laid down in section 2; […]
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
This provision is unequivocal in it scope – and guarantees freedom to fish to all states ―whether coastal or land-locked.‖

Although a states right to fish on the high seas is guaranteed by UNCLOS, it must be pointed out that that right is not completely unfettered. Freedom to fish on the high seas is conditional on the other provisions laid down in the convention (which most importantly includes a duty to co-operate and conserve fish stocks).

The second Big UNCLOS provision is:

The Principle of Exclusive Flag State Jurisdiction on the High Seas
―Article 94 Exclusive Flag State Jurisdiction on the High Seas Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.‖

Furthermore this freedom is further buttressed by Article 91 of UNCLOS which states that “every state fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag“. So what can we do? We’ve all agreed on the rules!

Antarctic Toothfish is a lucrative species! Its big money. And because of this, IUU fishers are incentivised to non-comply. And even though we don’t have jurisdiction over other flagged vessels, that fish this exceedingly ugly fish, we do have jurisdiction over our ports and our markets, where toothfish may be landed. The upshot is we have control over one of the main drivers – $$$!  Except of course when the fish is landed in a flagged port – as is probably the case here, in Korea.

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2 thoughts on “IUU Antarctic Toothfish: worth its weight in Gold and maybe even a little more!

  1. I agree. IUU operators pay and they pay very good. In fact, the only way to stamp out with IUU fishing activities (from catch to sell) passes for eliminate the economic incentive for vessels that engage it, strengthening the port state systems (the matter of my thesis 😉 to avoid the access of the IUU catch and fish products to the market. Unfortunately, it seems to be that the “blame & shame system” of RFMO’s black lists doesn’t work good enough as we wish and the national fines systems leave much to be desired (in comparison with the catch on board, fines are ridiculous. Cases are uncountable). The basis equation of Agnew & Barnes (Agnew & Barnes, Economic aspects and drivers of IUU Fishing: Building a framework, 2004):
    IUU incentive ^ profit from IUU fishing = benefit from IUU fishing – cost of IUU fishing
    It’s, in my humble opinion, the clearest expression of the actual situation. The keystone from which start to work to eliminate that profitability is, I repeat, fortifying the port state controls, especially by a widespread applying the 2009 FAO Port State Agreement as for an obligatory and minimum standards set for the countries that, like Korea, undermine the most basics international laws. If Peru, that is not UNCLOS neither FSA member has signed the Agreement (3rd March 2010), maybe there is still hope.

  2. Pingback: Toothfish Piracy | champagnewhisky

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