THE ENFORCEMENT PROBLEM


Introduction

Although international law may impose a general obligation to protect and conserve the resources of the global ocean commons, under current international law it is generally the responsibility of the flag States to enforce these obligations. Unless a treaty is self-executing, each State must legislate treaty provisions into law and then enforce that law. All too often States fail to implement or enforce their treaty obligations. In addition, some States routinely exempt themselves from honoring certain treaty provisions they don't like. Both of these practices tend to undermine the effective implementation of environmental treaties. (Endnote 4.)

In order to counteract these practices, many international conventions that deal with conservation and the environment include provisions whereby the parties not only obligate themselves to carry out the terms of the convention, but also reserve the right to take unilateral measures to protect themselves and their resources from the acts of other States. The unilateral measures reserved by States may include prescribing stricter conservation standards than those provided by conventional international law. This treaty reservation practice is pervasive and to the extent that it is reinforced by the actions of States the "protective principle" can be considered a rule of customary international environmental law.

As a general rule the jurisdiction to enforce stricter standards can only be exercised where a State has personal or territorial jurisdiction. However, under the protective principle a State may also have jurisdiction over transnational acts that substantially affect its territory. Based on the ancient doctrine of self-defense, the protective principle permits a State to assert jurisdiction over a legal person (including corporate individuals) whose conduct outside a State's territory threatens its national interests (Levi 1979). The "Restatement (Third) of Foreign Relations Law of the United States" outlines the scope of this principle in section 402: "A state has jurisdiction to prescribe law with respect to... (3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests." (American Law Institute 1987) The protective principle is considered to be an application of the territorial effects principle. Some states, including the United States, take the view that if an extraterritorial act produces an effect within a state's territory, that state can assert jurisdiction on the basis of territoriality. However, the exercise of any such jurisdiction must not be unreasonable. (Endnote 5)

Practical Problems of Enforcement

There is a long history of illegal and unethical fishing activity by high seas driftnet vessels. Those activities included (1) under reporting catch and by-catch and keeping double sets of fishing logs, (2) misreporting the names, numbers and locations of fishing vessels, (3) unplugging, breaking or loosing transponders to avoid location detection, (4) harassing monitoring personnel, (5) illegally fishing in the EEZ's of other states (Taiwanese vessels have been impounded by Argentina, Australia, Indonesia, Malaysia, Philippines, South Africa, and Vietnam for such activity), (6) using squid driftnet vessels to illegally catch salmon in North Pacific in violation of the flag state's international agreements as well as customary international law, (7) transshipping illegal catches at sea or processing them into fish meal at sea so they cannot be identified, (8) reflagging vessels to circumvent treaty obligations (see below).

One hundred percent foreign observer coverage would minimize illegal fishing, although not the by-catch. However, observer coverage has been minimal. The United States did place a few observers on board Japanese salmon motherships and catcherboats operating in the North Pacific. Canadian and United States observers were also placed on a few of the squid driftnet vessels operating in the North Pacific, but less than 5% of the total fleet was monitored by non-flag state observers between 1989-1991. The 1990 Taiwan-US agreement called for only one observer for 166 Taiwanese driftnet vessels.

Examples of Unethical Reporting Practices

In 1988, the Japanese reported the incidental take of northern fur seal and Dall's porpoise by its salmon fisheries. Japan refused a request to report its incidental take of all marine mammal species, because, it said, Article X of its INPFC agreement did not require it. (INPFC 1988) Yet Japanese scientists have acknowledged that the driftnet fleets are probably significantly depleting the northern right whale dolphin. During the 1989 joint observer program, single Japanese observers consistently reported lower by-catch rates than teams of one Japanese and one United States observer (Larntz and Garrott 1991). The 1989 mortality estimates of several small cetaceans, including the pacific white-sided dolphin and Dall's porpoise, may have been underestimated due to the differences in reporting (Sidney Report 1991). During the 1990 joint observer program, a Canadian observer on board a Japanese squid vessel reported that "there were differences in the information provided by the vessel master and that obtained independently by the observer from the vessel's navigational equipment for 9 of 32 fishing operations, During these nine operations, the vessel was fishing out of bounds" (Joint Report - Japan Squid 1990).

Illegal Fishing Activity and Enforcement Efforts

In addition to the boundaries established by the INPFC for the salmon mothership and landbased driftnet fisheries, Canada and the United States concluded cooperative monitoring and enforcement agreements with Japan, the Republic of Korea, and Taiwan to limit the time and areas where the squid driftnet fleets could fish in order to minimize the incidental take of North American salmon. The agreements also provided that 1) satellite transmitters would be placed on driftnet vessels to allow for real-time location monitoring, (2) Japanese, Taiwanese and South Korean enforcement vessels would be deployed to patrol the driftnet fishing grounds, (3) there would be an exchange of enforcement observers, and (4) gear and vessels would be marked for ease of identification (UN Secretary General's Report 1990). As mentioned previously, the former Soviet Union also concluded agreements with Japan restricting the Japanese driftnet catch of Asian salmon.

Despite these agreements driftnet vessels from Japan, Taiwan and the ROK were caught violating the squid/salmon boundaries and illegally fishing for and selling Asian and North American salmon on several occasions. In December 1989, the Taiwan government ordered all Taiwanese driftnet vessels to install transponders so that their locations could be tracked by satellite. By October 1990, at least 60 vessels were no longer transmitting signals (EII 1991). In response to the numerous violations, there were numerous complaints and numerous pledges by the Japanese, South Korean and Taiwanese governments to increase their enforcement efforts, yet subsequently there was little evidence that the illegal activity decreased. Taiwan deployed only three patrol boats in the entire North Pacific during the 1991 season. None of the driftnet States utilized overflight surveillance. With the exception of Alaska, whose stocks are now mostly protected from driftnet fishing, by 1991, the numbers of salmon returning to their native streams to spawn in Asia and North America were at a record low. The amount of salmon being offered for sale by Asian fish brokers was at a record high.

In order to enforce the fishing agreements and the U.N. moratorium, Canada and the United States utilize both overflight and boarding inspections. However, only a small fraction of the high seas of the North Pacific can be monitored using these methods and bad weather may limit flight surveillance and may keep enforcing vessels in port. Fishing vessels can be monitored by satellite if they carry transponders on board. In 1990, a "substantial" number of transponders were supposed to be installed on Japanese driftnetters. The 1990 Taiwan-US agreement required all Taiwanese driftnet vessels to carry satellite transponders, although all too often the transponders "broke down" or were "lost" at sea. However, it is possible to monitor driftnet vessels by getting a sonar trace of their engine activity. Driftnet vessels exhibit a unique pattern over a 24 hour period as they lay and retrieve their nets.

Although the governments of Japan, the Republic of Korea, and Taiwan enacted regulations prohibiting their driftnet vessels from taking salmon and instituted port inspections, salmon illegally caught by "squid" vessels were frequently transferred to carrier vessels at sea and transported to Southeast Asia for cold storage and processing. The United States employs undercover agents to stop importation and sale of illegally caught salmon.

Violations of the International North Pacific Fishing Agreements

Hundreds of violations of the INPFC salmon agreements by "squid" driftnet vessels and seafood brokers were reported by the enforcing agencies. In 1987, the United States presented to Japan evidence of 96 violations by squid driftnet vessels fishing east of 170 degrees and north of the temperature boundary. Many of the vessels had their numbers covered to avoid identification (U.S. Congress 1987). The Japanese government reportedly documented only two violations in the same area. That same year United States enforcement agents seized almost 273,000 kilograms of salmon allegedly caught by Taiwanese squid vessels and illegally exported from Taiwan.

In 1988, 86 Japanese and five South Korean driftnet vessels were found north and/or east of the squid driftnet boundary in North Pacific in only 11 U.S. Coast Guard surveillance flights. Sixty four of the Japanese vessels were fishing when sighted and most had their registration numbers covered to prevent identification. The ROK government had not yet established boundaries for its vessels. In that year United States agents seized almost 250,000 kilograms of illegally caught salmon. Also in 1988, the Soviet Union seized three Taiwan driftnet vessels reportedly carrying nine million pounds of immature salmon (Anderson 1989). Tokyo police revealed that a Japanese fishing company in Hokkaido purchased more than 4.7 million pounds of salmon on the high seas from a Taiwanese fishing vessel between June 1987 and September 1988 for US$7.5 million. The salmon was marketed to fish processors for US$14.9 million. An estimated 600 tons of pink salmon went to Thailand in 1988 and U.S. Senator Murkowski bought back frozen chum salmon from Singapore that laboratory tests indicated had originated in the Puget Sound area of Washington State. Copies of telex and fax messages sent from Taipei, Taiwan to a European fish broker indicated that illegally-caught North Pacific salmon were being heavily marketed in Europe. (Table 23)

In the first nine months of 1989, 37 Taiwanese, 26 Japanese and 12 South Korean driftnet vessels were spotted north of the squid driftnet boundary by the U.S. Coast Guard. One Taiwanese vessel, the Cyi Yang No. 1, was observed cutting loose eight kilometers of driftnet before it fled. The net was not recovered. In June 1989, a Taiwanese driftnetter, the Ta Chieh No. 3, was caught by the U.S. Coast Guard with several metric tons of illegal salmon aboard; it was video taped dumping approximately two metric tons overboard as the Coast Guard cutter approached. It had been fishing in a prohibited area 500 miles south of the Aleutian Islands. In October 1989, the Sung Ching No. 1 returned home, accompanied by a Taiwanese patrol boat, after Taiwanese and U.S. inspectors found her holds filled with salmon.

In January 1989, U.S. agents arrested a U.S. seafood broker and his Japanese partner in the State of Washington after the two agreed to supply a Canadian undercover agent with 24 million pounds of Taiwanese-caught salmon over two years. To get around an agreement between Canada, Japan and the United States that limits imports of North Pacific salmon only with one another, they had arranged to ship the fish under a Japanese label from Singapore or Hong Kong to Nova Scotia. There the product was to be relabeled and exported, supposedly to Korea, but actually to Japan as a product of Canada. Alternatively it was to go Europe as a Canadian product. In April 1989, the U.S. government announced that 22 individuals and companies, more than half of which were Japanese, had been charged with smuggling millions of pounds of illegal salmon into the United States. The fish had been caught with Taiwanese driftnets in the North Pacific, transshipped at sea, sent to cold storage warehouses in Hong Kong or Singapore. From there the frozen salmon was to be smuggled into the United States, often with a brief stopover at a Japanese port, carrying a false label saying it was a product of Japan. The salmon was then to be trucked to the State of Washington were it was to be relabeled and exported to Japan as a product of the United States.

In July 1989, a Taiwanese businessman was arrested in Seattle trying to sell U.S. undercover agents 500 tons of illegally caught salmon for $1.3 million. Originally he had offered to sell them 2,500 tons. The man said he had been brokering illegal salmon for five years. Also arrested were the captains of two Taiwanese fishing vessels who were to transfer the illegally-caught salmon to the purchasers.

In April 1990, a Japanese squid driftnetter, the Daian Maru No. 65, was intercepted by the U.S. Coast Guard north of squid grounds with 12 metric tons of salmon in its hold. In May 1990, the Soviet Union seized 12 driftnet vessels illegally fishing for Soviet salmon east the Kurile Islands. They were first spotted fishing south of the Aleutian Islands by the U.S. Coast Guard. Each vessel was painted with the North Korean flag. In fact, all the vessels were owned by Japanese nationals and between 140 and 170 of the 200 fishermen were Japanese. The vessels had been reflagged to avoid complying with several international agreements and protocols regulating salmon fishing in the North Pacific concluded between Canada, Japan, the Soviet Union and the United States. Shoho Fisheries of Kushiro, Japan, maintained the Fisheries Agency in Tokyo was consulted about the deal. The salmon was destined for the Tokyo wholesale fish market. Several months later Japan announced that it had decided not to prosecute because the boat owners did not make any profits, since the fish were unloaded in North Korea. In 1990, United States agents also arrested Japanese fish broker who arranged to ship and re-label 11,000 metric tons of illegally caught salmon through Canada and back to Japan.

In 1991, illegal driftnet fishing continued. In March, the Japanese Fishery Agency reported the illegal importation of substantial amounts of salmon that had been taken by Taiwanese fishing vessels in the North Pacific and laundered through the PRC. In May, 553 metric tons of salmon illegally caught by some 50 Taiwanese driftnet vessels were transferred to the Chinese mainland and Thailand, repackaged in Chili, and then offered for sale in Canada and the U.S. for $1.14 million. On June 19, 1991, U.S. Coast Guard overflights sighted 18 driftnet vessels fishing 120 nautical miles north of the squid zone and 21 Taiwanese driftnet vessels on June 24, 1991. On July 8, 1991, a Canadian Air Forces Maritime Pacific Command (CAFMPC) plane spotted and photographed eight unflagged driftnet vessels operating north of 42 deg N. On July 13, 1991 a CAFMPC plane spotted 27 Asian driftnetters fishing 1500 miles east of Japan and as far north as 60 deg N. Most were Japanese, some were Taiwanese, one was South Korean. In July 1991, 21 Taiwanese and 17 South Korean driftnet vessels were documented fishing 75 nm north of the squid fishery zone by the U.S. Coast Guard. A Taiwanese enforcement vessel was sighted near the illegal fleets, but reportedly took no action to stop the driftnetting. As a consequence the U.S. Secretary of Commerce certified Taiwan and the ROK for violation of bilateral agreement with the U.S. A conservative estimate of the total illegal trade in salmon and steelhead trout from all sources is estimated at more than 30,000 metric tons a year (22,000,000 individuals averaging three pounds each).

In 1990, at least five Taiwanese driftnet vessels were taken to Hong Kong and leased or sold to the People's Republic of China (PRC) (South Seas Digest 18/1/91). In May 1991, a PRC vessel, the Luo Ling No. 3, was spotted driftnetting in the North Pacific by the Canadian Maritime Forces in violation of UNGA Resolution 44/225. In July 1991, the PRC government said it had ordered all its vessels to end driftnetting. In September 1991, a joint flight of U.S. and Canadian officials observed and photographed 16 boats from the PRC driftnet fishing 300-400 miles north of the squid fishing area. The photographs show salmon on the decks and two Chinese cargo vessels nearby.

In 1992, the U.S. government reported an apparent decline in the number of high seas driftnet vessels illegally harvesting salmon in the North Pacific (High Seas Salmon Enforcement 1992). U.S. officials attributed the decline to several factors, including the U.N. driftnet ban, the rise in the price of tuna relative to salmon, and the Russian Federation's sale of EEZ salmon harvesting rights to the Japanese. However, sources indicated that much of the pirate driftnet fleet moved into the Russian EEZ to illegally fish along side the legal Japanese.

In 1992, the U.S. - Canadian joint patrol forces again encountered pirate salmon vessels flying the flag of the PRC and intelligence sources indicated that, as in 1991, pirated high seas salmon were being stored at locations within the PRC and brokered from there and other East Asian States. The lack of U.S.-PRC fisheries agreement allowing at-sea boardings, along with present U.S. enforcement policy precluded any U.S. attempts to board those vessels in international waters. In one five month period 56 Japanese, 14 Taiwanese, 10 ROK, and 6 PRC driftnet vessels were observed fishing close to or within the prohibited North Pacific high seas salmon zone. In addition, 22 Japanese vessels were observed with covers over their names and international radio call signs (IRCS) so they could not be identified; they conducted evasive maneuvers when they were overflown by U.S. aircraft. One Panamanian vessel and one vessel posing as Panamanian, but believed to be a reflagged Japanese or Korean vessel were also sighted. A Taiwanese vessel was boarded and cited for failing to properly display its IRCS or to mark its fishing gear.

In 1992, U.S. officials also concluded their ongoing investigation into an international conspiracy to launder high seas salmon, begun in 1989, when the U.S. presented its investigative case package to the government of Japan. Several Japanese companies and businessmen were implicated. According to the evidence, in 1989, Japanese investors hired two fish brokers in Japan to launder high seas salmon. The salmon were caught by Taiwanese driftnet vessels in the North Pacific, transferred at sea to a freighter, and shipped through the Panama Canal to St. Pierre Miquelon, a small French island off the eastern coast of Canada. Once there, the fish were boxed as "Redfish, product of France" and shipped back through the Panama Canal to Japan. Shipping documents presented to the port authorities in Japan listed the product as "Atlantic Salmon". Twelve hundred metric tons (2.64 million pounds) of illegal salmon and steelhead were eventually smuggled to three companies in Japan. The Japanese government informed the U.S. that one of the companies involved received a "substantial fine" (High Seas Salmon Enforcement 1992).

The United Nations moratorium on all high seas driftnet fishing went into effect on January 1, 1993. Canada, Japan, Taiwan and the United States continued their surveillance efforts in the North Pacific. Enforcement officials expected to find either stateless vessels operating independent of any nation, or vessels flagged in a third party nation where penalties for driftnet fishing would not be substantial enough to deter illegal activity. During the first five months of surveillance four driftnet vessels were sighted, three of which were boarded with the permission of the flag state. All had driftnet on board. Two were flying the flag of the PRC under a joint venture agreement with Taiwan (Yingyu 601 and Yingyu 602), one was flying an Honduran flag (Sarn Fa No. 37), and one was stateless (Dayuanyu 206). The Yingyu 601 was fishing 800 miles south of Adak, Alaska, on May 10. The Yingyu 601 and Yingyu 602 were told to return to the PRC. The Dayuanyu 206, whose PRC registry was revoked in 1992, was physically turned over to PRC authorities on the high seas. The Sarn Fa No. 37 escaped. It was later determined that the vessels were part of a PRC-Taiwanese cooperative venture company based in Guangdong Province.

Illegal Driftnet Fishing in the South Pacific

In 1992, New Zealand reported several allegations of driftnet fishing activity within the South Pacific region (UN Secretary-General's Report 1992). In March 1991 a number of ocean-going sailboats reported they had been hassled by driftnet vessels northeast of French Polynesia. One vessel sighted marked driftnets. In July 1991, HMNZS Tui identified a 400 ton driftnet vessel pulling in nets in FSM waters. There was no visible name or call sign on the vessel and the vessel did not respond when radioed. In August 1991, there were reports that driftnet vessels passed through Noumea port in New Caledonia. In March-May 1992, scientific observers on board albacore troll vessels operating in the high seas east of New Zealand reported fresh driftnet damage among troll-caught albacore. The Forum Fisheries Agency reported that it had received one confirmed report of large-scale pelagic driftnet fishing in the South Pacific region during 1992. In June 1992, a Taiwanese vessel equipped with driftnet gear was apprehended in the Gulf of Papua (Submission of FFA to the Secretary-General dated 17 September 1992).

Illegal Driftnet Fishing in the Indian Ocean

In 1992, Australia stated that it was seriously concerned about operations of the Taiwanese driftnet fleet in the Indian Ocean (UN Secretary-General's Report 1992). Australia reported that there was an unqualified by-catch of the highly depleted southern bluefin tuna by Taiwanese large-mesh vessels fishing for albacore in the southern Indian Ocean and that continued driftnet predation could seriously undermine the conservation and management measures being developed by Australia, Japan, and New Zealand. The countries bordering the Indian Ocean are also working towards the establishment of a regional fishery management body, the Indian Ocean Tuna Commission, and Australia expressed concern that the continued use of driftnets in the Indian Ocean would deplete the albacore stocks before a tuna management regime could be put into place.

Taiwanese driftnet vessels have been documented illegally fishing in the Somalian EEZ as far back as 1991. In the spring of 1992, two Taiwanese vessels, the Yue-Sa No.3 and the Chian Yuein No.232 were detained by Somalian fishermen and the Somalian Salvation Democratic Front (SSDF). There were additional sightings in 1993.

On April 24, 1993, a 300-400 ton Taiwanese driftnet vessel, the Chin Lai, was observed offloading fish in Singapore. Although the hydraulic equipment normally used to set driftnets was visible, no nets were seen. According to a crew member the Chin Lai's nets were "in China, stored safely." He admitted the fish had been caught with driftnets in the Indian Ocean. He said the ship would not be going back to Taiwan to be inspected or re-outfitted with legal fishing gear; instead, the ship would return to the PRC to pick up her nets before proceeding on to the North Pacific to fish for tuna. The Singapore port authority had no record of the Chin Lai having entered Singapore waters, but said it was not uncommon for Taiwanese vessels not to report their presence while in port.

In May 1993, another fully equipped Taiwanese driftnet vessel, the Chin Tzan, docked in Singapore. Before leaving Singapore both the Chin Lai and the Chin Tzan changed their names, removed their Taiwanese flags, hoisted Honduran flags, and were observed with driftnet on board. According to Taiwan's Council of Agriculture (COA), neither the Chin Lai, (now the Sea Breeze), nor the Chin Tzan, (now the Titan #1), is legally registered in Honduras. Apparently they merely purchased flags. COA reported that both vessels are owned by the same person, but managed by different fishing companies. The Chin Lai is managed by the Chin Lai Fishing Co. of Kaohsiung, Taiwan. The vessels' owner was interviewed and stated that the Chin Lai and the Chin Tzan planned to go to Pingtan Island in the PRC's Fujian province prior to going to the North Pacific. After reviewing the evidence and interviewing the owners, the Taiwanese government suspended the fishing licenses of the Chin Lai and the Titan No. 1 and revoked the captains and crew' professional licenses for three months for violation of Taiwan's fishing regulations.

The Fishermen's Service Centre in Kaohsiung, Taiwan, estimates that during the first half of 1993, as many as 50 Taiwanese-owned driftnet vessels may have been operating in the North Pacific and another 16 in the Indian Ocean. The fishing companies assert that they are not violating the UN moratorium because Taiwan is not a member of the UN and thus is not required to abide by its rules. The government of Taiwan, however, does not share this view. Well aware that disregard of the UN moratorium could influence its relations with other countries, Taiwan has made an effort to dismantle at least some of the driftnet fleet and to submit the remainder to departure inspections. A buy-back program for older vessels has been in place since 1990, which are scuttled to make artificial reefs. Low interest loans are available to refit newer vessels. However, as far as prosecution is concerned, the Taiwanese government has indicated that it is not inclined to prosecute unless a vessel is actually caught driftnetting; mere possession of gear, nets and fish is apparently not enough. The Taiwanese government has sent three patrol boats to the North Pacific, but none to the Indian Ocean.

In the Spring of 1994, there were reports of Taiwanese driftnet vessels based in the PRC ports of Shanghai, Dalian in Liaonning Province, Yan Tai in Shan Dong Province, and in the outlying islands of Xiamen. The director of the Agriculture Council's Fisheries Department said in an interview that one of the problems for the deep sea fleets was that the Chinese had no concept of conservation and that education efforts were required (World Fishing 1992). The chairman of the China Fisheries Association, Chu Ming, stated that wildcat Taiwanese deep sea fishing vessels also continue to breach the territorial waters of other States, a practice that would have to be stopped (World Fishing 1992).


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