Ocean supplement: Policing the sea

Enforcement is critical to the successful protection of marine reserves. Without it, conservation measures, no matter how well-thought out, are of no use.

The term “enforcement” conjures up images of patrol craft stopping and boarding a vessel—of police leading to fines, confiscation or, incarceration.

But this is not a cost effective or long-term solution to the problem of illegal fishing in remote marine areas or on the high seas. Patrol vessels and aircraft are expensive and in the rare instance when an illegal fishing vessel is intercepted, the costs of the adjudication proceedings incurred by the prosecuting government can be substantial. An alternative to this traditional view of enforcement must be found—enforcement must evolve. The starting point is to decide whether the aim of enforcement action is to prosecute violators or prevent illegal fishing.

Prosecution requires evidence collection and legal representation capable of presenting a case in the jurisdiction in question. When a vessel is seized, the government becomes responsible for the vessel, cargo and crew, which leads to substantial further costs. In 2013 the seizure of a fishing vessel caught illegally using high seas driftnets in the North Pacific cost the United States over $2m.

Prevention is significantly less expensive than legal proceedings, but would require a tougher legal regime that allowed action, but without the need to intercept fishing vessels or conduct complex adjudication procedures.

Some of these regimes already exist. The global community has long recognised the threat of illegal, unreported and unregulated (IUU) fishing and has taken steps to end it. Much of the global effort has focused on international and regional regulations that provide a mechanism to combat illegal fishing, such as the United Nations Fish Stocks Agreement, the development of Regional Fisheries Management Organisations and Port State Control measures. The US, European Union and others have developed legislation that punishes vessels that engage in illegal fishing. These instruments could be an additional tool to punish illicit behaviour and act as a deterrent. One particularly strong rule is the EU’s IUU Regulation, which entered into force in 2010. This measure prevents access to the EU market if a country cannot certify that fish caught by its flagged vessels is legally caught. When the European Commission determines that a flag state cannot certify fisheries products as legally caught, the first step is a warning. If flag states then take sufficient action they are readmitted to the EU’s markets. If not their fisheries products can be banned from the EU.

Since the introduction of this rule, the EU has issued warnings to over 15 nations about illegal fishing. Most have responded by working with the EU to clamp down on illegal fishing. European Commissioner for Environment, Maritime Affairs and Fisheries, Karmenu Vella, noted that: “By using our market weight, the EU is getting important players on board. Both Korea and the Philippines have taken responsible action, amended their legal systems and switched to a proactive approach against illegal fishing.”

The legal regime to underpin enforcement efforts such as this will in part rely on a system of detection methods, where vessels can be identified remotely.

For remote marine areas, including the Pitcairn Islands, another significant step would be the designation of Exclusive Economic Zones (areas in which a country has rights over the exploitation of resources) as marine reserves.

The zones surrounding these remote regions already have in place a form of legal control on fishing activity. These mechanisms are reliant upon boarding and inspecting vessels, which puts a great burden on resources. The burden of enforcement would be greatly alleviated if the presence of a fishing vessel without authorisation alone constituted a violation. The ability to document a violation by mere presence could significantly increase protection with minimal costs.

No longer is it necessary to board a vessel to prosecute—and no longer is presence defined by physical means alone. Through the range of existing and evolving international, regional and national legal mechanisms, enforcement can be achieved without the need for vessels, aircraft and lengthy and expensive adjudication procedures. The concept of enforcement has evolved. For the health of the seas it must continue to do so.