INTERNATIONAL LAW PROHIBITING
DEPREDATION OF THE HIGH SEAS


Piracy Against the Global Commons

International law has already banned certain lawless acts from the high seas, most notably piracy. Large-scale driftnet fishing has been referred to as "piracy" by many world leaders. Ian Brownlie (1990), the British international legal scholar, states that the "essential feature" of any definition of piracy must include "any act of depredation committed for private ends." Article 101(a)(ii) of UNCLOS defines piracy as "... any act of depredation, committed for private ends by the crew ... of a private ship ... and directed: ... against ... property in a place outside the jurisdiction of any State;" The living resources of the oceans beyond the jurisdiction of the coastal States are property held in common and in trust by mankind, for mankind. The massive depredation of the living resources of the global ocean commons by a few privately-owned driftnet fleets to maximize short term profits at the cost of long term sustainability satisfies the UNCLOS definition of "piracy".

A draft convention of the International Maritime Organization includes in its definition of piracy "unlawful acts committed against the safety of maritime navigation which endanger innocent human lives" and "jeopardize the safety of persons and property" (IMO Doc., n 86, p 11, para 1) (Birnie 1987). There have been numerous reports of illegal and dangerous acts committed by driftnet vessels, including (1) transmitting fake distress calls to find out where the albacore trolling fleet was fishing or to misdirect patrol boats, (2) failing to aid vessels in distress, including their own fishing, carrier and supply vessels, (3) failing to report a vessel in distress to avoid having patrol boats find out where the driftnet fleet was fishing, (4) operating unregistered, unflagged driftnet vessels, frequently changing radio call numbers, and frequently painting over vessel names and numbers to avoid having their movements detected, and (5) reflagging vessels to circumvent international treaty obligations.

In 1991, a New Zealand tuna company pulled two of its albacore trollers out of the South Pacific albacore fishing grounds a month early because of the danger caused by the actions of Taiwanese driftnet vessels. New Zealand and United States tuna boat captains reported that Taiwanese driftnet vessels were deliberately shooting nets into their paths. Two of the United States boats that continued to fish became entangled in the netting and their crews had to dive under the boats in heavy seas in order to free their propellers. In response to this hazard, most albacore vessels were equipped with knives mounted on their bows below the water line to cut through the nets, but this will only work if the trolling vessel approaches the driftnet at a ninety degree angle. Driftnets are very difficult to see in the water, particularly if there are any waves. On the evening of 24 February 1991 at 41 deg 36 min S, 150 deg 5 min W the Taiwanese fleet set their driftnets in the middle of the albacore trolling fleet while it was at rest. By morning two of the trollers had drifted over a net set by the Chi Ming #6 (CT60765 bow; BH2765 pilot house) and had become entangled (Vanderpool pers. comm.).

In addition, large sections of driftnets were frequently lost or cut loose deliberately by driftnet crews if a large marine mammal such as a whale was entangled. Lost sections of driftnet can form a mass many meters in diameter with trailing streamers, presenting not only a hazard to living marine resources by ghost fishing, but to fishing vessels and their crews as well. The propellers of vessels in the albacore tuna fleet were frequently fouled by these renegade nets and had to be cut free by the crews. The process took hours, even days, depending on how badly the machinery is entangled. Crewmen had to work in very cold, often rough water around razor sharp propellers, with their boat heaving up and down above them, and sharks frequently circling around them. Several fishermen were seriously hurt as a result and all lost fishing time and income due to net entanglement.

Unless the acts of the pirate driftnet vessels and their owners are subject to universal jurisdiction, there is no hope of enforcing the UNGA resolutions on driftnet fishing. The lawlessness of the driftnet fleets is open and notorious. Chai Ding Bong, owner of Taiwan's largest fleet of driftnet vessels, has claimed "nobody has any right to tell you what you can do in international waters." Taiwanese vessels have been photographed driftnet fishing without a flag, an act which renders them stateless vessels and no longer protected by flag state jurisdiction. Driftnet fishing is a multinational business and should be subject to multinational jurisdiction and sanctions. Driftnet fleets remain away from their home ports for months, sometimes years. They are refueled and resupplied at sea. Their multinational crews consist largely of indentured indigenous laborers. Their cargo is transferred to carrier vessels at sea or offloaded in foreign ports. Illegal catches of North Pacific salmon are routinely transhipped on the high seas beyond national jurisdictional bounds. The illegal cargo is then laundered through a number of different States.

Article 228(1) of UNCLOS, relating to pollution committed by vessels beyond the territorial sea, allows injured coastal States to impose penalties if the flag State "has repeatedly disregarded its obligations to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels." The flag States of the large-scale driftnet fleets have repeatedly demonstrated an inability to enforce effectively the provisions of their international fishing agreements or even their own regulations. States whose marine resources are threatened by large-scale driftnet fishing as well as pollution have the right under both the protective principle (see The Enforcement Problem - Introduction) and the precautionary principle to take action.

The precautionary principle recognizes that human activities impacting the environment often have negative consequences that cannot be fully anticipated or conclusively proven in advance. The precautionary principle mandates that an action should not be undertaken if there is a likelihood of significant harm to the environment. Most national laws that protect a State's environment are based on the precautionary principle. In the United States examples include the National Environmental Policy Act (NEPA), 42 U.S.C. sec. 4332, the Marine Mammal Protection Act, 16 U.S.C. sec. 1361 (1) and (3), The Endangered Species Act, 35 U.S.C. sec. 1531 et seq. and the Fishery Conservation and Management Act, 16 U.S.C. sec 1801 et seq. The precautionary principle places the burden of proving that significant harm is unlikely to occur on those who propose to act.

"In the context of wildlife, the principle demands that when the impact of a proposed action upon a species is not known, the benefit of the doubt should be given to the species and the action should not be undertaken until it can be shown that the action will not impose an unacceptable cost or loss to the species" (Favre unpubl. 1993).

In the international context the precautionary principle has been widely mandated. In 1987, the ministers at the Second International Conference on the Protection of the North Sea accepted the "principle of precautionary action" as necessary "even before a causal link has been established by absolutely clear scientific evidence." (Gundling 1990). In 1992, the precautionary principle was incorporated into Agenda 21 pursuant to the UN Conference on Environment and Development. Principle 15 of the Rio Declaration states that:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

At the 1993 UN Conference on Straddling and Highly Migratory Fish Stocks coastal States advocated use of the precautionary principle as widely as possible in fisheries management, while the deep water fishing nations argued that it should not automatically be made applicable. The U.N. driftnet resolutions are based on the precautionary principle, as are several other international conventions, including the 1993 Convention for the Protection of the Marine Environment in the Northeast Atlantic (article 2(2)), the 1992 U.N. Convention on Biological Diversity, the 1991 Protocol on Environmental Protection to the Antarctic Treaty (article 3), the 1991 Bamako Convention dealing with hazardous waste within Africa (article 4(3)(f), and the 1991 U.N. Convention on Environmental Impact Assessment in a Transboundary Context. Under this growing body of international law States not only have the power, but the obligation to take affirmative steps to prevent not only their own nationals, but all others from degrading global marine resources.

Human Rights Abuses by Driftnet Fleet Owners

There have been numerous reports in Taiwan of the mistreatment of the multinational crews aboard Taiwanese driftnet boats so severe that the crews mutinied against the captain and officers. Abuses on board ship have included unhealthy and unsafe working conditions, severe beatings, imprisonment in storerooms, and working 1618 hour days, seven days a week, for months on end. At least 38 South African crewmen working on Taiwanese driftnet vessels each had up to 10 fingers amputated due to frostbite from working in subzero freezers without insulated gloves; some lost toes as well (The Argus Cape Town, 12 Sept. 1990). Crewmen injured at sea are frequently kept on board for economic reasons rather than taken promptly to the nearest port to receive medical attention. Sometimes crewmen are reported "missing" at sea. All of these acts are violations of international laws on human rights.

The crews on Taiwanese vessels are composed of mostly young aboriginal men from the Taiwanese highlands and foreign nationals. Most had no previous experience at sea when hired and signed labor contracts they couldn't read. Foreign crews are recruited from the Philippines, Indonesia, Thailand, Burma, Mauritius, South Africa, and the People's Republic of China. When they are not out fishing, foreign crews are usually kept on floating "hotels", beyond the reach of immigration authorities. Statistics compiled by the Grassroots Women Workers Centre in Taipei indicate that there were over 8,000 foreign fishermen employed on Taiwanese vessels in 1990 (PTC 1991).

There is no guaranteed standard wage. Crews from Taiwan earn an average of US$370-$450 per month and may get a small share of the catch; foreign crews earn half that amount and do not get a share of the catch. The agency which recruits the crew may charge each fisherman up to US$3500 for its "services". The amount owed is generally subtracted from payments that are supposed to be made to the man's family while he is away at sea. Required labor insurance coverage may also be subtracted from wages. As a result of these and other deductions a fisherman's family may not receive a wage payment for over a year.

The crew of a vessel caught fishing in the EEZ of another State is frequently detained in foreign prisons, although under international maritime law the trespass is the sole responsibility of the owner and captain of the vessel. During detention the crew and their families receive no pay. Detention is often prolonged because Taiwan does not have normal diplomatic relations with many countries and the owner generally haggles over the amount of the fine. In eleven years, 1980 to 1990 inclusive, 716 Taiwanese high seas vessels of all types and 6,947 of their crew were detained for fishing illegally in foreign EEZs (Fishermen's Service Center 1991). This probably represents only a small fraction of the total amount of illegal fishing actually committed by Taiwan nationals. Finally, and most recently, former Taiwanese driftnet vessels have been used to transport human cargos of illegal aliens from the PRC to the United States and elsewhere.

Mandates by International Conventions, Resolutions and Conferences

UN Conference on Straddling and Highly Migratory Fish Stocks
In July 1993, the United Nations convened a conference to discuss the sustainable management of straddling and highly migratory stocks. Over 100 governments participated, along with 16 UN agencies and 60 NGOs. The discussion focused on the need to use innocuous fishing techniques to avoid waste, discards, accidental catches, particularly of endangered species.

Chapter 17 of Agenda 21 Adopted by the United Nations Conference on Environment and Development (UNCED) on June 14, 1992 (the Oceans Chapter), Chapter 17 mandates inter alia the protection and management of the marine environment, the sustainable use and conservation of living marine resources, and regional and international cooperation and coordination to prevent environmental degradation and waste of marine resources. The UNCED agreements emphasize that a precautionary approach should be taken to prevent ecological degradation as marine resources are developed and managed.

The Cancun Declaration on Responsible fishing (May 1992) The Declaration establishes general guidelines for a responsible fishing code and was developed in light of the Cancun Declaration recommendations, particularly number six, which establishes the necessity of applying selective fishing techniques that would tend to minimize bycatches of non target species.

Convention for the Protection of the Marine Environment of the North-East Atlantic (1993) The Convention prohibits the dumping of unprocessed fish from fishing vessels, which includes the dumping of unwanted bycatch by driftnet vessels.

World Charter for Nature, General Assembly Resolution 37/7 28 October 1982. Vote: 111 for (including Japan), 1 against, 18 abstaining. The general principles of this resolution mandate that "Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist. Function 10 of the resolution specifies that "natural resources shall not be wasted, but used with a restraint appropriate to the principles set forth in the present Charter, in accordance with the following rules: (a) Living resources shall not be utilized in excess of their natural capacity for regeneration."

The Migratory Bird Conventions Japan and the United States are parties to the bilateral 1972 Migratory Bird Convention which prohibits the taking of migratory birds in the territories of both countries (Migratory Bird Convention 1972). In the United States the Convention is implemented in part in the Migratory Bird Treaty Act, 16 U.S.C. sections 703-712. The Annex to the Convention lists 189 protected species; virtually all are species listed in Code of Federal Regulations (50 C.F.R. sec. 10.13)) implementing the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). In addition to prohibitions, the convention also includes some affirmative duties. The Migratory Bird Convention mandates that each contracting party "shall (a) [s]eek means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas..." (article 6(a)). Article 6(a) also specifies that "[e]ach Contracting Party agrees to take measures necessary to carry out the purposes of this Convention." Of the 800,000 seabirds estimated to die each year in the driftnets of the Japanese mothership and landbased salmon fisheries of the North Pacific, many belong to species that are listed in the Migratory Bird Convention Annex (U.S. Congress 1987). Data from the 1989 Canadian-Japan-United States squid driftnet observer program included birds from at least five species listed in the Annex (331 Laysan albatrosses, 38 northern fulmars, 20 horned puffins, 5 tufted puffins, and 17 Leach's storm petrels). Ghost driftnet data has also reported catches of listed birds. In one mass of tangled driftnet Degange and Newby (1980) identified birds from six listed species (4 Laysan albatrosses, 15 northern fulmars, 15 tufted puffins, 14 sooty shearwaters, 40 slender-billed (short tailed) shearwaters and several fork-tailed storm petrels).

The Fur Seal Convention (1957) Japan is also a party, along with the former Soviet Union, Canada, and the United States, to the 1957 Interim Convention on the Conservation of North Pacific Fur Seals prohibiting the taking of fur seals in the North Pacific Ocean (Fur Seal Convention 1957). The Fur Seal Conventions empowers any party to board and inspect another party's fishing vessel anywhere except territorial waters if there is reasonable cause to suspect that the vessel is violating the prohibition against sealing (article 6). Pelagic "sealing" is defined as the killing, taking, or hunting in any manner whatsoever of fur seals at sea" (article 1). If the suspicion is well founded, the vessel may be seized and the persons on board arrested. Judicial proceedings, however, are left to the flag State. In the United States, this treaty has been enacted into law in the North Pacific Fur Seals Act, 16 U.S.C. sections 11511175. Although the National Marine Fisheries Service (NMFS) has issued permits to salmon driftnet fishermen for the incidental taking of fur seals and sea lions, NMFS was enjoined by an order of the United States District Court in Washington, D.C. from issuing a permit for the 1988 season (Kokechik Fishermen's Assoc. v. Secretary of Commerce, 839 F.2d 795 (D.C. Cir. 1988)). The Court ruled that northern fur seals incidentally taken by the Japanese mothership salmon driftnet fleet are depleted below optimum levels and that the Marine Mammal Protection Act (MMPA) prohibits the issuance of a permit to take any such depleted marine mammals.

The International Whaling Convention (IWC 1946) In 1990, the International Whaling Commissions (IWC) reaffirmed the Indian Ocean Whale Sanctuary, which had been invaded by the Taiwanese large-mesh driftnet fleet, and passed a resolution supporting the UN driftnet moratorium.

The Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention 1979) The purpose of the Bonn Convention is to protect populations of migratory wild animals that regularly cross national boundaries. Article 5(a) states that "Parties that are Range States of a migratory species listed in Appendix I shall prohibit the taking of animals belonging to that such species." Appendix I of the Convention includes the monk seal, whales, certain species of sea turtles and seabirds. Article 1(h) defines "Range State' as including "a State, the flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species."

The Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES 1973) CITES aims to discourage international trade of threatened and endangered species. Article 1(e) specifies that international trade includes "the transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State." CITES Appendix I includes all species threatened with extinction which are or may be affected by trade. CITES Appendix II includes all species which may become threatened unless trade is strictly regulated. The known by-catch of the North Pacific driftnet fisheries alone includes three species of turtles listed in CITES Appendix I and 15 species of cetaceans listed in CITES Appendix II. Scientists have concluded that "[t]he annual mortality rates for the three species of sea turtles due to driftnet fishing may not be sustainable by these endangered or threatened populations and may be placing them at increasing risk" (U.S. Summary 1991).

The Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention 1979) The preamble of the Bern Convention recognizes "the essential role played by wild flora and fauna in maintaining biological balances" and notes "that numerous species of wild flora and fauna are being seriously depleted and that some of them are threatened with extinction" and that "co-operation should be established to protect migratory species in particular ...."

Appendix II of the convention lists the strictly protected species, which includes a large number of cetaceans and seabirds. States parties to the convention are to take legislative and administrative measures that prohibit the deliberate killing of the listed species (Article 6). Appendix III lists protected species, including all the cetaceans not mentioned in Appendix II. Article 8 requires that States parties shall prohibit the use of all indiscriminate means of killing and the use of all means capable of causing serious disturbance to populations of these species. Appendix IV lists prohibited means and methods of killing and included nets used on a large-scale or in a non-selective manner.

Recently several conservation organizations challenged a regulation that authorized the use of non-selective nets in the Italian driftnet fishery in the Mediterranean as a violation of the Bern Convention. Their argument was upheld by an Italian administrative court who suspended the regulation. The judgment was confirmed by the Council of State (UN Secretary General's Report 1990).


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