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Laundering Fish in the Global Undercurrents: Illegal, Unreported, and Unregulated Fishing and Transnational Organized Crime

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Abstract

With illegal, unreported, and unregulated fishing accounting for the removal of nearly one out of every eight fish from the oceans, illegal, unreported, and unregulated fishing is a problem of global proportion. A growing amount of illegal, unreported, and unregulated fishing is the result of expansion into new "business ventures" by transnational organized criminal groups that are easily facilitated within the margins of the law by unregulated access to flags of convenience, little regulation of transshipments, the existence of ports of convenience, and an active business in offshore shell companies and tax havens. This Article argues that part of the failure of states to respond to the growing illegal, unreported, and unregulated fishing crisis is a lack of effective governance by both vertical and horizontal government networks. In contrast, transnational criminal networks have functional and flexible governance networks that permit them to respond nimbly to changes in government enforcement. To address global illegal, unreported, and unregulated fishing, horizontal government networks should focus on addressing large-scale illegal, unreported, and unregulated fishing as a transnational crime problem and not as a fishery management challenge. Given the irreparable damage to both marine living resources and to fishery-related livelihood, illegal, unreported, and unregulated fishing should be regarded as a transnational "serious crime." Under the United Nations Convention against Transnational Organized Crime, states should create sanctions that explicitly identify illegal, unreported, and unregulated fishing by transnational syndicates as "serious crime" (requiring at least four years of imprisonment) and invest additional state funding in monitoring and enforcement of illegal, unreported, and unregulated fishing. This Article proposes a number of additional suggestions to strengthen the capacity of domestic government networks, including characterizing illegal, unreported, and unregulated fishing as a "serious crime" in national fisheries codes, harmonizing criminal laws on illegal, unreported, and unregulated fishing across jurisdictions, creating concurrent extraterritorial jurisdiction over large-scale illegal, unreported, and unregulated fishing crimes, and authorizing states to acquire information about "beneficial owners" of illegal, unreported, and unregulated vessels.
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Laundering Fish in the Global
Undercurrents: Illegal, Unreported, and
Unregulated Fishing and Transnational
Organized Crime
Anastasia Telesetsky
With illegal, unreported, and unregulated fishing accounting for the
removal of nearly one out of every eight fish from the oceans, illegal,
unreported, and unregulated fishing is a problem of global proportion. A
growing amount of illegal, unreported, and unregulated fishing is the result of
expansion into new “business ventures by transnational organized criminal
groups that are easily facilitated within the margins of the law by unregulated
access to flags of convenience, little regulation of transshipments, the existence
of ports of convenience, and an active business in offshore shell companies and
tax havens. This paper argues that part of the failure of states to respond to the
growing illegal, unreported, and unregulated fishing crisis is a lack of effective
governance by both vertical and horizontal government networks. In contrast,
transnational criminal networks have functional and flexible governance
networks that permit them to respond nimbly to changes in government
enforcement. To address global illegal, unreported, and unregulated fishing,
horizontal government networks should focus on addressing large-scale illegal,
unreported, and unregulated fishing as a transnational crime problem and not
as a fishery management challenge.
Given the irreparable damage to both marine living resources and to
fishery-related livelihood, illegal, unreported, and unregulated fishing should
be regarded as a transnational “serious crime.” Under the United Nations
Convention against Transnational Organized Crime, states should create
sanctions that explicitly identify illegal, unreported, and unregulated fishing by
transnational syndicates as “serious crime” (requiring at least four years of
imprisonment) and invest additional state funding in monitoring and
enforcement of illegal, unreported, and unregulated fishing. This paper
proposes a number of additional suggestions to strengthen the capacity of
domestic government networks, including characterizing illegal, unreported,
and unregulated fishing as a “serious crime” in national fisheries codes,
harmonizing criminal laws on illegal, unreported, and unregulated fishing
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across jurisdictions, creating concurrent extraterritorial jurisdiction over
large-scale illegal, unreported, and unregulated fishing crimes, and
authorizing states to acquire information about “beneficial owners” of illegal,
unreported, and unregulated vessels.
Introduction ..................................................................................................... 103!
I.! ! Competing Public Government and Criminal Networks ..................... 108!
A.!Challenges for States to Create Effective Vertical and
Horizontal Government Networks ............................................... 108!
B.!The Success of Criminal Networks .............................................. 111!
II.! ! Crime and the Law of International Fishing ........................................ 113!
A.!Low Start-Up Costs ...................................................................... 113!
B.!Flag Registries and Reflagging .................................................... 114!
C.!Crew Recruitment ........................................................................ 119!
D.!Transshipment and Resupply at Sea ............................................ 119!
E.!Ports of Convenience/Ports of Noncompliance ........................... 120!
F.!Profitable Trading ........................................................................ 121!
G.!Summary ...................................................................................... 122!
III. !Existing State Responses to IUU Fishing to Intervene with
Criminal Networks ............................................................................... 124!
A.!Criminal Sanctions and Prosecutions under National Plans of
Actions ......................................................................................... 124!
B.!Port State MeasuresPort of Convenience Problem .................. 126!
C.!Transnational Organized Crime and National Fisheries Laws .... 127!
1.!Organized Crime Convention and IUU Fishing .................... 128!
2.!Criminalizing IUU Fishing Within the Domestic Laws of
the Top Five Fish Production Nations ................................... 132!
a.!Russia .............................................................................. 132!
b.!Japan ................................................................................ 134!
c.!China ............................................................................... 135!
d.!Taiwan ............................................................................. 137!
e.!United States ................................................................... 139!
f.!Summary ......................................................................... 141!
IV. !Necessary Domestic Interventions to Create Public Governance
Networks Capable of Competing with Criminal IUU Fishing
Networks .............................................................................................. 142!
A.!Prosecute IUU Fishing Operations as Violations of the
Organized Crime Convention ...................................................... 142!
B.!Harmonize Fishery Statutes to Designate IUU Fishing as a
“Serious Crime” ........................................................................... 146!
C.!Create Concurrent Extraterritorial Jurisdiction ............................ 148!
D.!Require Transparency Regarding Ownership of Flagged
Vessels .......................................................................................... 150!
E.!Summary ...................................................................................... 152!
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V.! ! Emerging International Networks for IUU Fishing Enforcement ....... 152!
A.!Multilateral Efforts: London Declaration on the Illegal
Wildlife Trade .............................................................................. 153!
B.!Interpol-Led Efforts: Project Scale and National
Environmental Security Task Forces ........................................... 154!
C.!Private International Network Efforts .......................................... 157!
Conclusion ....................................................................................................... 157!
INTRODUCTION
Managing stocks of living marine resources for the global food market is a
classic collective action problem. Sometimes referred to as “back of the
invisible hand” problems or free rider problems, most collective action
problems that involve natural resources share similar qualities.1 Take a physical
resource that is dispersed and largely independent of a legal property
framework. Add numerous independent actors who believe, for a variety of
historical reasons, that they are entitled to extract the resource. Top it off with a
weak governance system, including underenforcement. The result is an
unprecedented resource crisis.
In the case of fisheries, the collective action problem has been labeled
“illegal, unreported, and unregulated” (IUU) fishing by fishery managers.2 It is
a catchall term used to refer to those fishing activities that place undue and
uncontrolled pressure on sustainable marine production limits.3 IUU fishing is
not defined in the U.N. Convention on the Law of the Sea, the so-called
Constitution of the Oceans, but it is defined in the International Plan of Action
to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing
(IPOA-IUU).4 Unfortunately, the definition, in trying to be comprehensive,
ends up somewhat convoluted, and stocks have continued to largely decline
since the IPOA-IUU was negotiated in 2001.5
Copyright © 2014 Regents of the University of California.
1. RUSSELL HARDIN, COLLECTIVE ACTION 7 (1982).
2. See Illegal, Unreported, and Unregulated (IUU) Fishing, NOAA FISHERIES,
http://www.nmfs.noaa.gov/ia/iuu/iuu_overview.html (last visited Oct. 25, 2014).
3. See id.
4. Tommy Koh, A Constitution for the Oceans, in UNITED NATIONS CONVENTION ON THE LAW
OF THE SEA 1982: A COMMENTARY 11 (Myron Nordquist ed., 1985).
5. FOOD & AGRIC. ORG., UNITED NATIONS, INTERNATIONAL PLAN OF ACTION TO PREVENT,
DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING pt. II, § 3 (2001)
[hereinafter INTL PLAN OF ACTION], available at http://www.fao.org/docrep/003/y1224e/y1224e00.htm.
The Food and Agriculture Organization (FAO) Committee on Fisheries adopted the plan at its 24th
session on March 2, 2001. Id. The definition covers illegal fishing, unreported fishing, and unregulated
fishing separately. Id. pt. II, § 3. Though these subcategories are readily distinguishable, it is less clear
why the international community does not characterize illegal fishingas unlicensedfishing or
fishing in violation of an existing license, which would encompass all three categories of IUU fishing.
This definition emphasizes the flag states responsibility to ensure that vessels have appropriate licenses
to fish wherever the vessel may be located and that vessel activities conform to the conditions of the
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The status quo is unacceptable if marine fisheries are to be part of the
legacy for future generations. Of the 395 marine fish stocks assessed by the
Food and Agriculture Organization (FAO) in 2009, 57.4 percent are at or very
close to maximum sustainable yield, 29.9 percent are overexploited, and only
12.7 percent were not yet fully exploited.6 One of the key reasons for a
potentially accelerated global fishery collapse is IUU fishing by large industrial
fishing vessels. Based on data from fifty-four countries on high seas catches
from 1980 to 2003, fishery biologists and managers estimate that from eleven
to twenty-six million tons of IUU fish are caught annually.7 If one assumes a
continuation of these trends and applies these numbers to the marine catch
estimates for 2006 to 2011, which suggest approximately seventy-seven to
eighty million tons per year, then somewhere between one-eighth to as much as
one-third of caught fish can be attributed to IUU fishing.8 The trade in illegal
fishing products linked to criminal activity is extensive and accounts for
somewhere between $10 billion and $23.5 billion a year.9 Based on estimates
of wild-caught seafood imported to the United States in 2011, this trade is a
problem even for countries with relatively well-developed enforcement
networks such as the United States, where 20 to 32 percent of the weight of
wild-caught seafood is estimated to be either illegal or unreported.10
States and others have developed numerous policy interventions to tackle
the known collective action problems of IUU fishing. They have entered a
variety of bilateral and multilateral international agreements. Some of these are
specific to the IUU problem, such as the IPOA-IUU, which encourages
signatories to develop National Plans of Actions to Combat Illegal, Unreported,
and Unregulated Fishing (NPOAs) within three years of adopting the IPOA-
IUU.11 Others are institution-building treaties creating Regional Fisheries
licenses. See also FAO, UNITED NATIONS, REVIEW OF THE STATE OF WORLD MARINE FISHERY
RESOURCES 1213 (2011) [hereinafter STATE OF WORLD MARINE FISHERY RESOURCES], available at
http://www.fao.org/docrep/015/i2389e/i2389e.pdf (identifying that in 2009 approximately 57.4 percent
of commercial fish stocks were fully exploited and that 29.9 percent were overexploited).
6. STATE OF WORLD MARINE FISHERY RESOURCES, supra note 5, at 13; see also Review of the
State of World Marine Fisheries Resources, FAO, http://www.fao.org/fishery/topic/166313/en (last
visited Sept. 18, 2014) (noting that the FAO selected 395 of the 584 stockterms from its 2009 reports
on the health of marine fishery resources, which represented 70 percent of the marine catch).
7. David J. Agnew et al., Estimating the Worldwide Extent of Illegal Fishing, 4 PLOS ONE, no.
2, Feb. 2009, at 1, 1 (2009), available at http://www.plosone.org/article/info:doi/10.1371/
journal.pone.0004570.
8. STATE OF WORLD MARINE FISHERY RESOURCES, supra note 5, at 3.
9. U.N. OFFICE ON DRUGS & CRIME, TRANSNATIONAL ORGANIZED CRIME IN THE FISHING
INDUSTRY 97 (2011) [hereinafter UNODC ORGANIZED CRIME STUDY], available at
https://www.unodc.org/documents/human-trafficking/Issue_Paper_-_TOC_in_the_Fishing_Industry.pdf.
Because it is very difficult to ascertain these numbers, some consider these estimates to be high. See,
e.g., DARREN S. CALLEY, MARKET DENIAL AND INTERNATIONAL FISHERIES REGULATION 149 (2012)
(citing losses of $1.5 billion to $2 billion).
10. Ganapathiraju Pramod et al., Estimates of Illegal and Unreported Fish in Seafood Imports to
the USA, 48 MARINE POLY 102, 105 (2014).
11. INTL PLAN OF ACTION, supra note 5, pt. IV, § 25.
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Management Organizations (RFMOs) designed to negotiate management
interventions either covering a particular stock or a specific geographical
region.12 A number of these RFMOs currently blacklist IUU fishing vessels.13
Transnational actors have also intervened with semimarket-based solutions
such as certification of sustainable stocks designed so that buyers will
preferentially purchase certain catches.14
Based on the numerous bilateral and multilateral legal agreements that
have been negotiated to address IUU fishing, we have a governance landscape
filled with many (perhaps too many) parties operating across a number of
vertical networks of RFMOs.15 But why have these well-intentioned
international cooperative efforts not netted better results? There are a number
of possible theories. On the data collection side, perhaps institutions such as the
FAO have collected more refined data than previously possible, making it
easier to detect IUU fishing. So perhaps IUU fishing is being effectively
combatted and we are seeing more effective collective responses. On the
institutional side, it is also possible that there are simply too many actors
involved in efforts to combat IUU fishing, resulting in little individual
accountability and no chain of command in terms of strategy and decision
making.16 While both of these hypotheses might warrant further investigation,
this Article focuses on explaining how the ineffectiveness of governance
networks are an important driver of the IUU fishing problem.
This Article will test a legal framing theory by arguing that insufficient
attention has been given to understanding large-scale IUU fishing as a
transnational organized criminal activity.17 Until recently, IUU fishing had
generally been regarded as a fishery resource management problem rather than
as an egregious criminal act. Part of this mischaracterization may be a result of
12. See Regional Fisheries Management Organisations (RFMOs), EUROPEAN COMMISSION,
http://ec.europa.eu/fisheries/cfp/international/rfmo/index_en.htm (last visited Nov. 8, 2014).
13. These include the Commission for the Conservation of Antarctic Marine Living Resources,
the Inter-American Tropical Tuna Commission, the International Commission for the Conservation of
Atlantic Tunas, the Indian Ocean Tuna Commission, the Northwest Atlantic Fisheries Organisation, the
North East Atlantic Fisheries Commission, the South East Atlantic Fisheries Organisation, and the
Western and Central Pacific Fisheries Commission. About, COMBINED IUU VESSEL LIST, http://iuu-
vessels.org/iuu (last visited Sept. 18, 2014). Lists of IUU vessels can be accessed centrally at a website
maintained by Trygg Mat, a Norwegian sustainable fish foundation. See COMBINED IUU VESSEL LIST,
http://iuu-vessels.org/iuu/iuu/search (last visited Oct. 25, 2014).
14. MSC Certified Fish to Eat, MARINE STEWARDSHIP COUNCIL, http://www.msc.org/cook-eat-
enjoy/fish-to-eat (last visited Sept. 18, 2014).
15. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 13 (2004) (defining vertical networks as
networks between national government officials and their supranational counterparts).
16. See generally Ibo van de Poel et al., The Problem of Many Hands: Climate Change as an
Example, 18 SCI. & ENGINEERING ETHICS 49 (2012).
17. The criminal component of IUU fishing is beginning to receive some international attention.
In February 2013, Interpol held a conference to address fisheries crime. 1st INTERPOL International
Fisheries Enforcement Conference, INTERPOL, http://www.interpol.int/Crime-areas/Environmental-
crime/Events/Meetings/1st-INTERPOL-International-Fisheries-Enforcement-Conference (last visited
Sept. 18, 2014).
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IUU fishing being a broadly dispersed phenomenon spread across a number of
different groups. There are arguably three types of IUU fishing: opportunistic
overfishing by usually law-abiding fishing interests who usually obtain permits
and comply with management measures but occasionally underreport actual
catches; overfishing by traditional artisanal fishing groups who may be
unaware of modern fishing regulations or may be living at true subsistence
levels; and overfishing by premeditated industrial businesses. Efforts to end
IUU fishing have tended to focus resources on creating incentives for usually
law-abiding fishing entities. With broad policy efforts focused on creating
territorial use-rights fisheries and assigning individual take quotas, fishery
managers have been making some headway in reducing IUU fishing.18 These
ideas work for communities who want to be stakeholders in fishery
management and are open to exploring cooperative regulation in order to
conserve resources. However, not all IUU fishers are willing to accept
responsibility for the long-term management of fishery resources, perhaps
because many IUU fishing operations simply do not care about the industry’s
long-term sustainability.19 For criminal participants, overfishing is a relatively
low-capital, high-reward business. It is both an alternative to illicit markets
such as drugs and human trafficking, and an indirect facilitator of these illegal
businesses.20
In a recent U.N. Office on Drugs and Crime (UNODC) report on
transnational organized crime and fishing focused on overextraction, the
authors attempt to distinguish between criminal groups who fish and fishing
groups who commit crimes. They suggest that the former category consists of
transnational organized crime groups that ordinarily engage in drug smuggling
but have now diversified into valuable marine species, such as abalones and
shark.21 The latter group encompasses “legal” transnational fishing companies
who are also committing “organized marine living resource crimes,” such as
overharvesting the Patagonian toothfish.22 Yet the distinction between the two
categories is meaningless. The UNODC’s second category of transnational
fishing companies should also be regarded as transnational organized crime
groups and, as will be argued below, prosecuted for committing “serious
crimes.” It does not matter that the transnational fishing companies do not have
illicit side businesses.
18. See generally Edward Allison & Frank Ellis, The Livelihoods Approach and Management of
Small-Scale Fisheries, 25 MARINE POLY 377 (2001); Cindy Chu, Thirty Years Later: The Global
Growth of ITQs and Their Inuence on Stock Status in Marine Fisheries, 10 FISH & FISHERIES 217
(2009).
19. Cf. UNODC ORGANIZED CRIME STUDY, supra note 9, at 55 (discussing the prevalence of
human trafficking in connection with IUU fishing).
20. See, e.g., Costa Rica: Network Used Fishermen to Ship Cocaine, YAHOO! NEWS (Jan. 31,
2011, 8:13 AM), http://news.yahoo.com/costa-rica-network-used-fishermen-ship-cocaine-20110130-
135213-641.html (describing drug cartels paying fishermen to shuttle drugs).
21. UNODC ORGANIZED CRIME STUDY, supra note 9, at 98.
22. Id.
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In spite of drafting NPOAs that mention sanctions against criminal
fishing, many governments have assigned insufficient resources to combating
criminal fishing activities to prevent IUU fish products from entering both licit
and illicit markets.23 There have been few efforts to seriously criminalize IUU
fishing behavior because there seems to be an unstated assumption that parties
engaged in IUU fishing are rationally self-interested enough not to destroy a
fishery. Hence the sanctions applied to IUU fishing through fisheries codes
have been less extensive than those that have been assigned to other crimes
involving theft. This Article suggests that efforts to combat IUU fishing should
be framed as responses to transnational criminal activities since, to IUU fishers,
marine fish and shellfish are just another fungible and difficult to trace
commodity in a global trading network. This Article argues for harmonizing
national fisheries laws to ensure that IUU fishing activities (which include far
more than simply the act of fishing) are legally categorized as serious criminal
acts and for including within those laws the authority to exercise concurrent
extraterritorial jurisdiction over IUU fishing vessels in order to provide some
venue for prosecuting individual actors who are engaged in industrial IUU
fishing activities regardless of the nationality of the vessel, the crew, the
beneficial owner, or the site of the illegal activity.
Part I opens with a general explanation of horizontal public governance
networks and how these networks have failed to achieve meaningful reductions
in IUU fishing because they are unable to easily adapt to the flexibility of
criminal networks. Part II evaluates the growing linkages between IUU fishing
and transnational criminal networks. Part III explores national efforts to combat
IUU fishing. In this Part, it becomes apparent that traditionally there has been
very little domestic criminal prosecution associated with IUU fishing activities.
Instead, the general fishing laws for five of the largest fishing nations contain
mostly low-deterrence sanctions directed at a limited group of actorswith the
notable exception of the United States’ Lacey Act. Part IV includes a number
of proposals to strengthen horizontal government networks’ power to prosecute
and deter transnational IUU fishing operations, including harmonizing criminal
laws and extending extraterritorial jurisdictions to include IUU fishing
operations. Finally, Part V describes a number of promising transnational
governance efforts, including early steps taken by Interpol to encourage
member states to create National Environmental Security Task Forces (NESTs)
to improve communication between horizontal government networks. The
Article concludes that while properly resourced NESTs may provide the
missing institutional link needed to ensure that domestic criminal laws will be
23. Cf. Pramod, supra note 10, at 105 (finding that 20 to 32 percent of the fish imported into the
United States is likely to have been caught by IUU fishing practices). But see U.S. DEPT OF STATE ET
AL., NATIONAL PLAN OF ACTION OF THE UNITED STATES OF AMERICA TO PREVENT, DETER, AND
ELIMINATE ILLEGAL, UNREPORTED, AND UNREGULATED FISHING 3348 (n.d.) [hereinafter NATIONAL
PLAN OF ACTION OF THE UNITED STATES OF AMERICA], available at http://www.nmfs.noaa.gov/
ia/iuu/iuu_nationalplan.pdf (listing a number of laws with criminal penalty sanctions).
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routinely enforced, governments will still need to invest in creating networks
for NESTs to operate effectively across national boundaries.
I. COMPETING PUBLIC GOVERNMENT AND CRIMINAL NETWORKS
In the ongoing competition between government and criminal networks
for control of international fisheries, governments are hampered by poor
coordination across vertical and horizontal networks. Vertical government
networks refer to networks between national and international counterparts
such as the relationship between the National Oceanic and Atmospheric
Administration and the FAO. Horizontal government networks refer to political
entities that are expected to coordinate either across government departments
located within one state or between two equally situated domestic departments
operating in different national jurisdictions, such as the relationship between
the U.S. and Canadian fishery departments. States’ cumbersome regulatory
apparatuses compare poorly with the nimbleness of criminal networks.
A. Challenges for States to Create Effective Vertical and Horizontal
Government Networks
While states may be making progress in terms of addressing cooperative
aspects of the collective action problems that have led to IUU fishing, not all
IUU problems can be managed as cooperation failures. There are IUU
problems involving transnational crime that require coercive responses.24
Institutional responses are possible both at the vertical and horizontal
government network levels. States have entered into various vertical
government network agreements that theoretically could have an impact on
reducing IUU fishing by providing an institutional space for creating more
robust resource management structures. Yet states have been unwilling to cede
much of their national fishery authority, particularly in relation to the waters
within exclusive economic zones (EEZs), to intergovernmental regional bodies;
perhaps because approximately 90 percent (by volume) of the world’s
commercial marine capture fishery harvests are within the two hundred nautical
mile EEZ.25 States seem most willing to cooperate in the RFMO frameworks
on the high seas. However, RFMOs have been institutionally constrained in
24. For a host of resources discussing the problem of transnational environmental crimes,
especially in the fisheries context, see UNODC ORGANIZED CRIME STUDY, supra note 9; GREGORY L.
ROSE & MARTIN TSAMENYI, WORLD WILDLIFE FUND INTL, UNIVERSALIZING JURISDICTION OVER
MARINE LIVING RESOURCES CRIMES (2013), available at http://ro.uow.edu.au/cgi/viewcontent.cgi?
article=2261&context=lhapapers; Lorraine Elliott, Fighting Transnational Environmental Crime, 66 J.
INTL AFF. 87 (2012); Henrik Osterblom et al., Illegal Fishing and the Organized Crime Analogy, 26
TRENDS ECOLOGY & EVOLUTION 261 (2011); Klas Sander et al., Conceptualizing Maritime
Environmental and Natural Resources Law Enforcement––The Case of Illegal Fishing, 11 ENVTL. DEV.
112 (2013).
25. Lewis Alexander & Robert Hodgson, The Impact of the 200-Mile Economic Zone on the Law
of the Sea, 12 SAN DIEGO L. REV. 569, 586 (1975).
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their ability to manage intentional noncompliance in the area of their
jurisdiction due to the lack of enforcement authority given to them by member
states.26
Instead, most of the coercive legal authority to combat IUU fishing,
particularly within an EEZ, resides with domestic institutions authorized by
domestic government laws.27 The vertical government network centered on
RFMOs fails to function effectively to deter criminal actors because states have
repeatedly failed to invest resources in creating horizontal government
networks that are capable of responding to criminal fishing threats.28 The
potential assertion of coercive authority based on existing domestic laws has
not been effectively deployed to combat transnational IUU fishing activities
due to a lack of coordination across horizontal government networks.
Operating government networks horizontally is no easier than operating
vertically. One of the recurring challenges with horizontal governance is
generating cooperative institutional relationships that will outlive the personal
relationships that individual decision makers may forge. Even when domestic
bodies invest institutional resources in maintaining cooperative relations as part
of their institutional culture, they frequently must negotiate recurring political
barriers. For example, if the Ministry of Agriculture, Livestock, and Fisheries
in the Republic of Argentina wishes to coordinate enforcement efforts for a
shared stock, such as the hake, with its analog in Uruguay, the fish managers
and respective law enforcement officers may not have the authority to enter
into any legal agreement with each other without the engagement of their
respective foreign ministries. These foreign ministries may also have
obligations to consult with other domestic stakeholders before agreeing to
coordinated enforcement. Instead of opening a channel of communication
where adaptive learning may take place, the likelihood of governance gridlock
grows as the number of actors involved in the governance process increases.
Within a state, it is not uncommon for there to be a lack of formal
coordination among agencies that share overall authority over a resource but do
not necessarily coordinate their exercise of responsibilities. For example, in
Taiwan, central authority over commercial fisheries is vested in the Council of
26. FRANK MEERE, ORG. FOR ECON. CO-OPERATION & DEV., FISHING FOR DEVELOPMENT: THE
ROLE OF FISHERIES MANAGEMENT ORGANISATIONS (2014), available at http://www.oecd.org/tad/
events/fishing-for-development-2014-session-5-RFMOs.pdf.
27. See, e.g., 16 U.S.C. §§ 1802, 1861 (2012) (extending U.S. fishery authority to two hundred
nautical miles offshore and assigning the U.S. Coast Guard the duty of enforcing U.S. fishery laws at
sea).
28. This paper uses the terms vertical government network and horizontal government
networklargely in the context of Anne-Marie Slaughters work on global networks, with one
distinction. Slaughter defines vertical government networks as networks between national
government officials and their supranational counterpartsand horizontal government networksas
links between counterpart national officials across borders.SLAUGHTER, supra note 15, at 13. This
paper extends the concept of horizontal government networksto refer to links between officials
concerned with the management or control of a particular issue within national borders.
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Agriculture.29 Under the Council of Agriculture, there are two separate
government organizations: the Fisheries Agency based in Taipei and the
Fisheries Research Centre based in Keelung, both of which have complex
institutional histories and appear to have no formal overlap in shared
responsibilities for fishery management.30 Furthermore, there are limited
linkages between the Fisheries Agency and the bodies that are responsible for
enforcing fisheries management. Taiwan’s NPOA provides for an annual
exchange of information between the Coast Guard Administration and the
Fisheries Agency regarding international fisheries management.31 Both the
Coast Guard and the Fisheries Agency can conduct boarding and inspection of
vessels but it is unclear what coordination is legally required between the two
institutions.32 Further complicating matters, the Maritime and Port Bureau in
the Ministry of Transportation and Communication also wields legal authority
to inspect Taiwanese flagged vessels in order to deter IUU fishing.33
While there are many examples of successful interagency actions and
there may very well be frequent informal coordination between agencies
because of the alliances and commitments of various individual actors within
respective agencies, many existing formal governance structures related to
fisheries management do not facilitate regular communication channels
between decision makers that can guarantee sustainable resource governance.34
For example, even though vessel monitoring systems are installed on the
approximately 2800 Taiwanese flagged vessels that participate in distant water
29. About COA, COUNCIL AGRIC., http://eng.coa.gov.tw/list.php?catid=8798 (last visited Oct. 25,
2014).
30. See History, FISHERIES RES. INST., http://www.tfrin.gov.tw/lp.asp?ctNode=830
&CtUnit=202&BaseDSD=7&mp=3 (last updated Oct. 1, 2014); Organization, FISHERIES RES. INST.,
http://www.tfrin.gov.tw/np.asp?ctNode=822&mp=3 (last updated Oct. 1, 2014) (listing six research
units that do not appear to have formal links to the Fisheries Agency: Freshwater Aquaculture Research
Center, Mariculture Research Center, Coastal and Offshore Resources Research Center, Tungkang
Biotechnology Research Center, Eastern Marine Biology Research Center, and Penghu Marine Biology
Research Center); Organization Chart, FISHERIES AGENCY, http://www.fa.gov.tw/en/PolicySovereignty/
index.aspx (last updated Apr. 24, 2012) (describing a somewhat complex organization with an
unexplained division between the Deep Sea Fisheries Divisionand the Deep Sea Fishery Research
and Development Center,and no link to the Fisheries Research Institute).
31. NATIONAL PLAN OF ACTION OF THE REPUBLIC OF CHINA (TAIWAN) TO PREVENT, DETER AND
ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING 24 (2013) (translation on file
with author).
32. Id. at 28; see also Fisheries Act, FISHERIES AGENCY, http://www.fa.gov.tw/en/LegalsActs/
content.aspx?id=1&chk=F8CA5D8C-49DB-46B5-9839-43D955E36275&param (last updated Apr. 11,
2014) (reproducing article 54 of the Republic of China Fisheries Act, which authorizes the Fisheries
Agency to use patrol fleets to protect fisheries and to request that the Ministry of Defense and other
authoritiesassist the Agency in fulfilling its responsibilities under the Fisheries Act); Coast Guard Act,
Jan. 26, 2000, art. 4, compiled in LAWS AND REGULATIONS DATABASE OF THE REPUBLIC OF CHINA,
available at http://law.moj.gov.tw/eng/LawClass/LawAll.aspx?PCode=D0090009 (requiring the Coast
Guard to protect and preserve [the] oceanic environment).
33. NATIONAL PLAN OF ACTION OF THE REPUBLIC OF CHINA (TAIWAN), supra note 31, at 35.
34. See id. at 28 (reporting only four patrol trips in the Pacific Ocean in 2012 arising from
cooperation between the Fisheries Agency and the Coast Guard Administration).
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fishing,35 vessels can still outmaneuver government patrols due in part to a
failure of fishery managers and port officials to coordinate.36 A lack of clear
communication channels between individuals whose decisions can impact the
effectiveness of monitoring and compliance strategies becomes a capacity
problem.
B. The Success of Criminal Networks
Public government networks that lack capacity, like the vertical networks
of RFMOs, or that fail to facilitate departmental coordination across horizontal
networks within a state struggle to regulate competing criminal networks.37 In
the case of IUU fishing, it is accepted that such criminal networks exist in
tandem with public governance networks and compete successfully for
resources.38 While knowledge about criminal organizations engaged in
commercial fishing is generally anecdotal rather than empirical, criminal
networks seem to be functioning effectively as governance networks asserting
control over the long-term fate of fisheries. IUU fishing continues at sea, IUU
products enter ports, and IUU products reach consumers. While more
information about the criminal fishing syndicates would no doubt facilitate
government enforcement, it is also clear that the existing inadequate
government response to IUU fishing can be attributed in part to insufficient
criminalization, explored in Part II, and the institutional coordination issues
described above. Put simply, criminal networks are outcompeting their
government counterparts.39
IUU criminal networks have several qualities that lend to their success.
First, criminal networks are responsive to external threats. As described in a
task force report, the syndicates “play cat and mouse with authorities” using a
network of spies who communicate information about patrol ships throughout
the IUU network.40 Second, IUU criminal networks are organized on principles
35. Shui-Kai Chang et al., Distant Water Fisheries Development and Vessel Monitoring System
Implementation in Taiwan––History and Driving Forces, 34 MARINE POLY 541, 546 (2010).
36. Id. at 547 (observing that the value of vessel monitoring system technology can be foiled by
the “A–B vessel issue, where vessel monitoring systems are exchanged between regulated and
unregulated vessels, and noting that this kind of situation requires either port or onboard inspection
activities).
37. Governance for purposes of this Article does not require a government. See generally
GOVERNANCE WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS (James Rosenau &
Ernst-Otto Czempiel eds., 1992). In this Article, governance refers to the exercise of rule making over
resources by either public or private entities that control the affairs of a dispersed but identifiable group
across a network.
38. See generally UNODC ORGANIZED CRIME STUDY, supra note 9.
39. The Escalating International Wildlife Trafficking Crisis: Hearing before the Subcomms. on
African Affairs and E. Asian & Pac. Affairs of the S. Comm. on Foreign Relations, 113th Cong. 2 (2014)
(statement of Brooke Darby, Deputy Assistant Secretary, Bureau of International Narcotics and Law
Enforcement Affairs).
40. HIGH SEAS TASK FORCE, CLOSING THE NET: STOPPING ILLEGAL FISHING ON THE HIGH SEAS
25 (2006), available at http://www.oecd.org/sd-roundtable/papersandpublications/39375276.pdf.
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112 ECOLOGY LAW QUARTERLY [Vol. 41:N
of diffusion and creating distance between participants, so that with the
exception of a few kingpins who tightly control information, there will be no
concentration of knowledge about the reach of the network.41 As described in
the task force report, owners of IUU fleets require minimal communication
between fleet vessels, utilize multiple front companies to mask the fleet’s
ownership structure, and are careful to keep fleet operating details confidential
so that the captain of an IUU vessel may not know who owns the ship.42
Working on a need to know basis, fishermen may not even know they are
participating in a much larger criminal network.43 Third, criminal fishing
networks are focused on a single objectiveincreasing profit while remaining
undetected. In contrast, public governance networks involved in fishery
management have multiple (sometimes competing) objectives including
protecting fishing communities, ensuring adequate food stocks, restoring
fishery stocks, reducing pollution, and conserving ecosystems.
Finally, criminal fishing networks tend to be capable of great internal
flexibility, meaning that if one port is closed to IUU vessels because of
surveillance, vessels simply redeploy to another port.44 In contrast, government
networks have layers of bureaucracy designed to protect society from arbitrary
and capricious decisions. For important decisions, a decision-making record is
expected to reflect that the appropriate stakeholder’s comments have been
reviewed and considered.45 Thus, while ad hoc decision making helps criminal
networks avoid detection, if government agencies adopted the same approach
they would risk upsetting delicate political balances, particularly between
government leaders and industry leaders. The formality of decision making in
most horizontal public governance networks is therefore mismatched with the
dynamic ability of criminal networks to make relatively quick decisions. In
essence, IUU fishing becomes a competition between highly disaggregated
public government networks seeking to exercise managerial capacities and
highly adaptive criminal networks whose business decisions have profound
impacts on resources.
41. CARLO MORSELLI, INSIDE CRIMINAL NETWORKS 71 (2009) (describing how criminal
enterprise networks may become more secure when they can grow the periphery of the network in order
to insulate the core of well-connected traffickers).
42. HIGH SEAS TASK FORCE, supra note 40, at 25.
43. Id.
44. Major Tuna Vessel is Denied Port Landing Because of Evidence of Illegal Fishing, PEW
CHARITABLE TR. (Apr. 19, 2013), http://www.pewtrusts.org/en/about/news-room/news/2013/04/19/
major-tuna-vessel-is-denied-port-landing-because-of-evidence-of-illegal-fishing (describing how a
Korean-flagged vessel that was denied the ability to offload in Seychelles travelled to Mauritius and was
denied the ability to offload there as well).
45. See, e.g., 5 U.S.C. § 553(c) (2012) (requiring agencies to give interested persons an
opportunity to participate in rule making and to consider submitted comments).
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II. CRIME AND THE LAW OF INTERNATIONAL FISHING
IUU fishing has become an attractive option for transnational criminal
networks for a number of reasons.46 First, given the vastness of the oceans and
the limited capacity of states to deploy patrol boats, the chance of detecting
illegal activity is low, especially when fishing activities by vessels flagged to a
state are dispersed across long distances. Second, fishing is generally a legal
business, meaning that efforts to find specific illegal fishing activity have been
less extensive than in the narcotic or human trafficking areas. Third, unlike
many other smuggled goods, fish are an easily transformable commodity whose
original identity can be hidden through filleting and relabeling; monitoring the
accuracy of labels and packaging requires a concerted effort on the part of a
regulator.47 Fourth, both regional and national fishery managers have generally
relied upon self-reporting, with limited external review. Finally, fishing is
extremely profitable and not excessively capital intensive. Researchers estimate
that the IUU fishing market ranges between $10 billion and $23.5 billion a
year.48
Yet while law should deter IUU fishing, the existing Law of the Sea
unintentionally enables it by sheltering criminals throughout the IUU fishing
chain, particularly through the current customs of flag registration. For
purposes of this Article, the “IUU fishing chain” refers to practices beyond
simply fishing at sea. It also refers to purchasing boats, registering boats,
transshipping fish at sea, unloading cargo in ports, and finally selling fish
through complex arrangements that maintain the anonymity of the sellers while
often evading taxes. The following subparts examine different key aspects of
the IUU fishing chain that increase the attractiveness of IUU fishing for
criminal networks.
A. Low Start-Up Costs
Low start-up costs, the indirect result of previous government
interventions to combat IUU fishing, may encourage criminal networks to enter
into IUU fishing activities. In response to an excess of fishing vessels
registered within a state, governments created programs to buy back vessels or
to subsidize owners who would sell their vessels back to the government.49 Yet
instead of being scrapped, many of these vessels were sold back into markets in
46. For purposes of this Article, a transnational criminal network refers to either (1) two or more
persons of different nationalities participating in a crime, or (2) two or more persons participating in a
crime that takes place across more than one geographical jurisdiction.
47. See KIMBERLY WARNER ET AL., OCEANA STUDY REVEALS SEAFOOD FRAUD NATIONWIDE
(2013), available at http://oceana.org/sites/default/files/reports/National_Seafood_Fraud_Testing_
Results_FINAL.pdf (finding high rates of mislabeling in fish sales).
48. Agnew, supra note 7, at 1 (relying on data from fifty-four countries and the high seas).
49. See Hsiang-wen Huang & Ching-Ta Chuang, Fishing Capacity Management in Taiwan:
Experience and Prospects, 34 MARINE POLY 70, 72, 7475 (2010).
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other states with fewer rules and regulations.50 The European Union has
partially addressed this problem by prohibiting the purchase of vessels from
and the sale of vessels to countries that are listed on an E.U. list for failing to
cooperate in combating IUU fishing.51 However, used and relatively
inexpensive vessels are still easily available on numerous publicly accessible
websites.52 For example, in January 2014, a search by this author found a 157-
foot Sierra Leonean-flagged tuna long liner with the capacity for 180 tons of
fish built in Japan in 1972 and now located in Sierra Leone for an asking price
of $200,000.53 Assuming an estimated average price of $2000 per ton for
frozen tuna,54 filling the fishhold of the Sierra Leonean bargain vessel to its
capacity would net the new owner $160,000 in ninety days if the vessel is
capable of catching an average of two tons a day.55 If the owner continually
deployed the vessel, then the ship would net $1.2 million over the course of a
year. After subtracting fuel and crew costs, the owner of the vessel would still
have a healthy amount of remuneration for their initial $200,000 investment.56
This brief exercise in pricing capital costs suggests that entry into the industrial
fishing business is relatively inexpensive for criminal enterprises.
B. Flag Registries and Reflagging
The second strategic choice that increases the attraction of IUU fishing for
criminal syndicates is the option for a vessel owner to choose the flag state that
will exercise jurisdiction over a vessel. The Law of the Sea gives every state
the opportunity to “fix the conditions for the grant of its nationality to ships, for
50. ORG. FOR ECON. CO-OPERATION & DEV., WHY FISH PIRACY PERSISTS: THE ECONOMICS OF
ILLEGAL, UNREPORTED AND UNREGULATED FISHING 78 (2005); Huang & Chuang, supra note 49, at 75.
51. Council Regulation 1005/2008 to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated (IUU) Fishing, Information Note, available at
http://ec.europa.eu/fisheries/cfp/illegal_fishing/info/information_note01_en.pdf.
52. See, e.g., Fishing Vessels/Trawlers for Sale, MAR. SALES, INC.,
http://www.maritimesales.com/Fishing%20Vessels.htm (last visited Sept. 18, 2014).
53. See id. (screenshot of vessel on file with author). The vessel was identified as HAR11.See
id.
54. See Rudy Ruitenberg, World Fish Prices Climb to Record on Demand for Salmon and Tuna,
BLOOMBERG NEWS (June 19, 2013, 2:50 AM), http://www.bloomberg.com/news/2013-06-19/world-
fish-prices-climb-to-record-on-demand-for-salmon-and-tuna.html (reporting that the U.S. market for
uncanned tuna was stable with prices at $2000 per ton). Current quotations for a ton of frozen tuna are
also available on sites such as Alibaba.com, with prices in April 2014 ranging from $1000 to $2000 per
ton for Bluefin tuna (a threatened species) from suppliers in India, Indonesia, Japan, Norway, and Spain.
See ALIBABA, http://www.alibaba.com (last visited Sept. 18, 2014).
55. James Joseph, FAO, United Nations, Managing Fishing Capacity of the World Tuna Fleet,
FAO Fisheries Circular No. 982 (2003), available at http://www.fao.org/docrep/005/
y4499e/y4499e00.htm#Contents.
56. Maintenance costs and insurance costs are not included since few IUU vessels take anything
beyond minimum safety measures. See ENVTL. JUSTICE FOUND., ALL AT SEA: THE ABUSE OF HUMAN
RIGHTS ABOARD ILLEGAL FISHING VESSELS 6 (2010), available at http://ejfoundation.org/
sites/default/files/public/media/report-all%20at%20sea_0.pdf.
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the registration of ships in its territory, and for the right to fly its flag.”57 Even
though the law expects that there will be a “genuine link between the [s]tate
and the ship,” this requirement has been left to the discretion of the flagging
state, allowing even landlocked countries such as Mongolia and Bolivia to
operate as flag states.58 As this suggests, open registries, whereby states
register foreign entities’ vessels and allow them to fly the national flag, have
proven problematic.59 Ordinarily, a state is expected to exercise control over
vessels that are registered to fly its flag, and in recent cases, coastal and port
states have been suggesting that flag states must assert greater control over their
vessels.60 However, many flag states without this external pressure are either
incapable of controlling their flagged vessels due to a lack of compliance
resources or are indifferent to controlling vessels on their registries.61
There have been attempts to further define the meaning of “genuine link,”
including a draft of what eventually became the FAO Agreement to Promote
Compliance with International Conservation and Management Measures by
Fishing Vessels on the High Seas. In the draft, states were expected to only flag
ships if they could exercise “effective control over activities of the vessel,” or if
the ship’s beneficial owner shared the flagging state’s nationality or was a
permanent resident.62 This provision on flagging failed to pass.63 Since this
attempt, open registry states have continued to refuse to interpret “genuine
57. Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1245, art. 91.
58. Id.; see also MONG. SHIP REGISTRY, http://www.mngship.org (last visited Sept. 18, 2014);
REGISTRO INTERNACIONAL BOLIVIANO DE BUQUES, http://www.ribb.gob.bo (last visited Sept. 18,
2014).
59. Open registeror open registryrefer to a states practice of registering a vessel from a
foreign entity. See Judith Swan, FAO, United Nations, Fishing Vessels Operating under Open Registers
and the Exercise of Flag State Responsibilities––Information and Options, FAO Fisheries Circular No.
980 (2002), available at http://www.fao.org/docrep/005/y3824e/y3824e00.htm#Contents. Open registry
countries that include or have included fishing vesselsare Antigua and Barbuda, Bahamas, Barbados,
Belize, Bermuda, Cambodia, Cayman Islands, Cook Islands, Cyprus, Equatorial Guinea, Gibraltar,
Honduras, China, Isle of Man, Kerguelen, Liberia, Malta, Marshall Islands, Mauritania, Mauritius,
Morocco, Netherlands Antilles, Panama, Samoa, São Tomé and Príncipe, Seychelles, Sierra Leone,
Singapore, Saint Vincent and the Grenadines, Tonga, Tuvalu, and Vanuatu. Id. at app. 1.
60. The Sub-Regional Fisheries Commission, which is composed of seven West African coastal
states, has requested an advisory opinion from the International Tribunal on the Law of the Sea (ITLOS)
regarding flag state liability for IUU fishing activities. Letter from Ciré Amadou Kane, Permanent
Secy, Sub-Regl Fisheries Commn, to Judge Shunji Yanai, President, Intl Tribunal for the Law of the
Sea (Mar. 27, 2013) [hereinafter Request for Advisory Opinion], available at http://www.itlos.org/
fileadmin/itlos/documents/cases/case_no.21/Request_eng.pdf (requesting advisory opinion).
61. See Rose George, Flying the Flag, Fleeing the State, N.Y. TIMES (Apr. 24, 2011),
http://www.nytimes.com/2011/04/25/opinion/25george.html?_r=0.
62. FAO, UNITED NATIONS, REPORT OF THE TWENTIETH SESSION OF THE COMMITTEE ON
FISHERIES (FISHERIES REPORT NO. 488) 60 (1993), available at http://www.fao.org/
docrep/014/am686e/am686e.pdf.
63. ARIELLA D’ANDREA, FAO, UNITED NATIONS, THE “GENUINE LINK CONCEPT IN
RESPONSIBLE FISHERIES: LEGAL ASPECTS AND RECENT DEVELOPMENTS 9 (2006), available at
http://www.fao.org/fileadmin/user_upload/legal/docs/lpo61.pdf.
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link” as requiring that the beneficial owner or captain have the nationality of
the registry state.64
Until now, there has been no definitive multilateral decision in the context
of the Law of the Sea regarding the meaning of “genuine link.” Even when a
contentious case presented an opportunity for the International Tribunal for the
Law of the Sea (ITLOS) to clarify the term, the ITLOS declined to offer any
legal test to measure what constitutes a “genuine link.65 Specifically, when
Guinea challenged the registration of the M/V Saiga in St. Vincent and the
Grenadines, the court simply accepted that a ship owned by a Cypriot, managed
by a Scottish corporation, and chartered to a Swiss company could be legally
registered in St. Vincent and the Grenadines as long as it met the St. Vincent
and the Grenadines requirements.66 It did not matter that there were no
apparent linkages between the vessel and any of its immediate owners or users.
The known flexibility of the “genuine link” concept means that in practice,
criminal ventures will flag with a group of states colloquially referred to as
“flags of convenience.”67 An investigative report by Matthew Gianni and Walt
Simpson based on a review of the Lloyd’s Register of Ships concluded that
among registered fishing vessels, 15 percent of the large ships either had
unknown flags or were flagged with flags of convenience.68 Many of the large-
scale vessels built since 2000 were immediately flagged with flags of
convenience because they appeared “to be built with a view to engaging in IUU
fishing.”69 Where Honduras, Panama, Belize, or St. Vincent and the
Grenadines were listed as owners of a vessel, Gianni and Simpson concluded
that the companies that applied for registration “[were] likely to be fictitious or
shell.”70 When a vessel that is identified as engaging in IUU fishing activities
in waters under the jurisdiction of a RFMO is actually flying a flag,71 the flag
on the vessel is most likely to be a flag of convenience.72
64. Id. at 1.
65. Judgment para. 83, The M/V Saiga(Saint Vincent and the Grenadines v. Guinea) (No. 2)
(July 1, 1999) [hereinafter Saiga Judgment], available at http://www.itlos.org/fileadmin/itlos/
documents/cases/case_no_2/merits/Judgment.01.07.99.E.pdf.
66. Id. paras. 7588.
67. These states include Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda (UK),
Bolivia, Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, Faroe Islands, Georgia,
Gibraltar (UK), Honduras, Jamaica, Lebanon, Liberia, Malta, Mauritius, Moldova, Mongolia,
Netherlands Antilles, North Korea, Panama, São Tomé and Príncipe, St. Vincent and the Grenadines, Sri
Lanka, Tonga, and Vanuatu. Flags of Convenience, INTL TRANSP. WORKERS FEDN,
http://www.itfglobal.org/en/transport-sectors/seafarers/in-focus/flags-of-convenience-campaign/ (last
visited Nov. 12, 2014). There is a large amount of overlap between these flags of convenienceand the
open registries. See, e.g., MONG. SHIP REGISTRY, supra note 58.
68. MATTHEW GIANNI & WALT SIMPSON, THE CHANGING NATURE OF HIGH SEAS FISHING: HOW
FLAGS OF CONVENIENCE PROVIDE COVER FOR ILLEGAL, UNREPORTED AND UNREGULATED FISHING 3
(2005), available at http://www.wwf.org.uk/filelibrary/pdf/flagsofconvenience.pdf.
69. Id. at 4.
70. Id.
71. Most of the listings on the RFMO IUU vessel lists are of unknownflags. See, e.g., infra
note 72 (providing links to IUU lists that reveal a majority of unknownflags). Since these vessels do
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IUU fishing operations understand the business implications of being
included on an IUU list. Unsurprisingly, when a government reviews its
registry for violations or threatens enforcement against a ship, vessels will flag-
hop.73 Thus the flexibility of the registry network favors potential criminal
owners, but penalizes global and national government enforcement networks
who may not be able to follow the chain of ownership through shell companies
and back to a beneficial owner in a timely fashion. Adding further difficulty, an
owner of an IUU ship that has been seized by a state will opt to sacrifice a ship
rather than jeopardize the much more profitable criminal network operating
across registries and throughout the oceans.74 The stateless Bangun Perkasa
ship illustrates this reality. When the ship was seized at sea as an IUU fishing
vessel, the Coast Guard investigated its provenance. When the investigation
failed to provide any leads of who the beneficial owner might be, the Coast
Guard gave the order to scrap the ship.75 One assumes the national or
transnational criminal enterprise behind the Bangun Perkasa continued its
operations in anonymity.
Despite the prevalence of flag-hopping described above, states have few
legal options to end the practice. The Law of the Sea does not provide a
specific legal dispute mechanism to challenge the practice of flag-hopping, but
not have a nationality, they can be boarded by the coastal state within an EEZ or by any state on the high
seas because every ship must sail under the flag of one [s]tate only.See Convention on the Law of the
Sea, supra note 57, art. 92.
72. This conclusion is based on examining the IUU lists issued by seven of the largest RFMOs.
Current IUU Vessel List, INTER-AM. TROPICAL TUNA COMMN, http://www.iattc.org/
VesselRegister/IUU.aspx?Lang=en (last updated Oct. 1, 2014) (listing Georgia); Illegal, Unreported and
Unregulated Fishing, NW. ATLANTIC FISHERIES ORG.,
http://www.nafo.int/fisheries/frames/fishery.html (last visited Sept. 18, 2014) (listing vessels with
current flags of Guinea and Ghana and former flags of Panama, Georgia, Sierra Leone, Togo, and
Morocco); IUU Vessel List, INTL COMMN FOR CONSERVATION ATLANTIC TUNAS,
http://www.iccat.int/en/IUU.asp (last updated Mar. 12, 2013) (listing Georgia and Indonesia); List of
IUU Vessels, INDIAN OCEAN TUNA COMMN, http://www.iotc.org/vessels#iuu (last visited Sept. 18,
2014) (listing vessels formerly flagged with Belize, Equatorial Guinea, and Georgia that had unknown
flags as of June 2014); NEAFC IUU B List, N.E. ATLANTIC FISHERIES COMMN,
http://www.neafc.org/mcs/iuu/blist (last visited Sept. 18, 2014) (listing Guinea and Ghana); Non-
Contracting Party IUU Vessel List, CONVENTION FOR CONSERVATION ANTARCTIC MARINE LIVING
RESOURCES (CCAMLR), http://www.ccamlr.org/en/compliance/non-contracting-party-iuu-vessel-list
(last updated May 10, 2013) (listing Iran, Nigeria, Mali, and Tanzania); WCPFC IUU Vessel List for
2013, W. & CENT. PAC. FISHERIES COMMN, http://www.wcpfc.int/system/files/WCPFC-IUU-List-6-
February-2013.pdf (last visited Sept. 18, 2014) (listing flags from Georgia).
73. The CCAMLR IUU vessel registry provides several good examples of this phenomenon.
Non-Contracting Party IUU Vessel List, supra note 72. For example, in early 2012 the CCAMLR IUU
registry listed the Baiyangdian, a refrigerated cargo vessel that had no flag, as owned by Stanley
Management. Tiantai, CCAMLR, http://www.ccamlr.org/en/node/85608 (last updated Oct. 24, 2014). In
late 2012 the CCAMLR listed the same vessel with a Tanzanian flag. Id. In early 2013 the ship changed
its name to Keshan and reflagged with Mongolia. Id. By late 2013, the vessel had again changed its
name to Tiantai, flew no known flag, and listed no known owner. Id.
74. HIGH SEAS TASK FORCE, supra note 40, at 25.
75. See Sherrie Tinsley Myers, From Seizure to Scrap––the Bangun Perkasa Story, N. PAC.
ANADROMOUS FISH COMMN NEWSL., July 2013, at 1, available at http://www.npafc.org/new/
publications/Newsletter/NL34/Newsletter%2034%20%281-4%29.pdf.
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only empowers a state “which has clear grounds to believe that proper
jurisdiction and control with respect to a ship have not been exercised” to
“report the facts to the flag [s]tate.”76 The flag state then has an obligation to
investigate and “if appropriate, take any action necessary to remedy the
situation.”77 There is no record of how often this section has been invoked by
states. Moreover, even when it is invoked, investigations by flags of
convenience states are likely to be perfunctory at best.78
Even assuming a substantive investigation, the practice of reflagging
allows criminals to continue their masquerade. It is difficult to remove a ship
from fishing operations without the cooperation of a flag state.79 The process of
reflagging from one flag of convenience to another is straightforward. There is
no need to bring the ship to any port in a flagging state, because as with
purchasing vessels, the internet provides easy opportunities for reflagging.80
For example, internationalshipregistries.com offers assistance to vessels owners
in obtaining international ship registrations from various states identified as
flags of convenience.81 To satisfy the “genuine link” requirement, the website
offers additional assistance to vessel owners in setting up offshore companies
in states that have been identified as either flags of convenience or as popular
tax havens.82
Nor are these legal maneuvers difficult to execute. The registration
process for some states lacks any physical vessel verification and can
apparently be completed anywhere in the world. A quick investigation into
obtaining a flag registry from landlocked Mongolia reveals that “provisional
registrations” and “post dated provisional registration” can be available after
faxing a declaration of ownership and accounting authority with a payment of
fees.83 Nonresidents can create offshore corporations in Panama, one of the
76. Convention on the Law of the Sea, supra note 57, art. 94(6).
77. Id.
78. See Robert Neff, Flags That Hide the Dirty Truth, ASIA TIMES ONLINE (Apr. 20, 2007),
http://www.atimes.com/atimes/Korea/ID20Dg03.html (describing how the Cambodian Ministry of
Public Works and Transportation failed to investigate alleged illegal activities such as drug and cigarette
smuggling by Cambodian-flagged ships).
79. Vessels can be detained by a nonflag state under the U.N. Convention on the Law of the Sea
articles 73(2), 220, and 226(1), but the application of prompt release rules under article 292 require that
the detainment be temporary. See Convention on the Law of the Sea, supra note 57.
80. Neff, supra note 78 (describing how the Cambodian Shipping Corporation, which was
authorized by the government to register ships under the Cambodian flag, operated an online registration
from Singapore that could complete the flag registration process in twenty-four hours).
81. Home Page, INTL SHIP REGISTRIES (WORLDWIDE) LLC,
http://internationalshipregistries.com/ (last visited Oct. 26, 2014). Examples of registrations that can be
organized online include registrations from Belize, Cambodia, Cyprus, Dominica, Georgia, Honduras,
Jamaica, Malta, Mongolia, Panama, Slovak Republic, and St. Vincent and Grenadines. See id.
82. Examples of states where offshore companies can be created include Belize, British Virgin
Islands, Cayman Islands, Costa Rica, Cyprus, Gibraltar, Guernsey, Isle of Man, Hong Kong, Jersey,
Liberia, Liechtenstein, Luxembourg, Malta, Mauritius, Niue, Panama, and the Seychelles. See id.
83. Mongolia, INTL SHIP REGISTRIES, http://internationalshipregistries.com/pdf_files/
Mongolia.pdf (last visited Sept. 18, 2014).
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flag of convenience states, in five to eight working days for 1000.84 These
registration ruses provide optimal flexibility for criminal networks with
extremely low levels of possible detection of illegal behavior and limited
chances of being prosecuted. For example, between 1997 and 2001, Belize
flagged several hundred large fishing vessels––a number of which allegedly
engaged in IUU fishing in the Atlantic, Pacific, Indian, and Antarctic Oceans.85
Yet the state only took enforcement actions against seventeen fishing vessels,
which in twelve cases led to dismissal and in five resulted in fines averaging a
mere $20,000.86
C. Crew Recruitment
Under the Law of the Sea, every state is expected to “ensure safety at sea
with regard, inter alia, to . . . labour conditions and the training of crews, taking
into account the applicable international instruments.”87 However, for criminal
networks that employ IUU vessels, there is no incentive to have either well-
maintained ships, since the vessels could be forfeited if seized, or good working
conditions, since the crewmembers can be easily replaced by new
crewmembers who are desperate for subsistence income. Indeed, a recent report
from UNODC provides evidence that crewmembers of IUU vessels are treated
particularly inhumanely.88 Working up to eighteen hours a day for as little as
$200 per month with regular threats of harm to their persons, IUU fishing
crews tend to consist of some of the poorest fishermen in the global South
whose nationality states provide them no systematic protection against
exploitation.89
D. Transshipment and Resupply at Sea
Vessels engaged in IUU fishing can avoid detection by enforcement
officials in part by offloading their cargo and resupplying at sea.90 Such
transshipment encourages “fish laundering”; distant smaller fishing vessels can
easily offload their catches to a central vessel that processes the fish at sea into
boxed filets that are difficult for inspectors to identify. As a result of this
84. See Offshore Panama Corporations, GLOBAL MONEY CONSULTANTS, http://global-
money.com/item.php?id=155 (last visited Sept. 18, 2014).
85. Matthew Gianni, IUU Fishing and the Cost to Flag of Convenience Countries, in FISH
PIRACY: COMBATING ILLEGAL, UNREPORTED AND UNREGULATED FISHING 287 (Kathleen Gray et al.
eds., 2004).
86. Id. at 286.
87. Convention on the Law of the Sea, supra note 57, art. 94(3).
88. See UNODC ORGANIZED CRIME STUDY, supra note 9, at 127.
89. See Michael Field, Indonesian Fishermen Claim Exploitation, SUNDAY STAR TIMES (Nov.
24, 2013), http://www.stuff.co.nz/business/farming/9432480/Indonesian-fishermen-claim-exploitation.
90. Matthew Gianni & Walt Simpson, Flags of Convenience, Transshipment, Re-Supply and At-
Sea Infrastructure in Relation to IUU Fishing, in FISH PIRACY: COMBATING ILLEGAL, UNREPORTED
AND UNREGULATED FISHING, supra note 85, at 89.
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“mothership” transshipment, IUU fishing vessels can avoid having to call into
port and risk inspection.91 Instead, the central transshipment vessel can carry a
mixture of legally obtained fish and illegally captured fish that are difficult to
distinguish once the fish are processed and packaged.92 As with IUU fishing
vessels, many of the transshipment vessels are flagged with flags of
convenience even though the beneficial ownership is in another state.93 The
ability of criminal networks to engage in undetected transfers adds yet another
degree of flexibility for groups engaged in the IUU fishing chain.
E. Ports of Convenience/Ports of Noncompliance
An IUU fishing vessel will often try to sell its cargo at sea and offload the
cargo to a transshipment vessel that will bring the shipments to a “port of
convenience” where inspection rates are low.94 The buyers of these goods are
often complicit in laundering fish because they can obtain far more competitive
prices with black market goods than with legal cargo.95 These sales have
consequences for the whole market. For example, a flood of Russian IUU king
crab into the market allegedly impacted the global king crab market in 2013.96
Illicit sales are facilitated by the rarity of port inspections of fishing cargo
in states that have not already committed to applying minimum port state
measures to combat IUU fishing.97 When the FAO Agreement on Port State
Measures was negotiated, it was intended to strengthen global government
networks by creating legal opportunities for effective cooperation among
91. See ENVTL. JUSTICE FOUND., TRANSHIPMENT AT SEA: THE NEED FOR A BAN IN WEST AFRICA
5–7 (2013), available at http://ejfoundation.org/sites/default/files/public/ejf_transhipments_at_sea_
web_0.pdf.
92. See id. at 91 (stating that the M/V Hatsukari, a Panamanian-flagged transshipment vessel with
owners of Japanese nationality, had carried both IUU and legally caught tuna from the South Atlantic in
its holds).
93. Id. at 90 (listing transshipment vessels that are beneficially owned in Japan, Korea, and
Taiwan, but flagged primarily in Panama, as well as in St. Vincent, the Bahamas, and Liberia).
94. FAO, UNITED NATIONS, STOPPING ILLEGAL, UNREPORTED AND UNREGULATED (IUU)
FISHING 1415 (2002), available at http://www.fao.org/docrep/005/y3554e/y3554e00.htm#Contents.
95. See Press Release, White House, Presidential MemorandumComprehensive Framework to
Combat Illegal, Unreported, and Unregulated Fishing and Seafood Fraud (June 17, 2014),
http://www.whitehouse.gov/the-press-office/2014/06/17/presidential-memorandum-comprehensive-
framework-combat-illegal-unreporte (“Global losses attributable to the black market from IUU fishing
are estimated to be $10-$23 billion annually, weakening profitability for legally caught seafood . . . .”).
96. Jeanine Stewart & Eva Tallaksen, King Crab Prices Keep Dropping on Suspected IUU
Fishing, UNDERCURRENT NEWS (May 17, 2013, 3:57 PM), http://www.undercurrentnews.com/
2013/05/17/king-crab-prices-keep-dropping-on-suspected-iuu-fishing.
97. See FAO, UNITED NATIONS, AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER
AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (2009) [hereinafter AGREEMENT
ON PORT STATE MEASURES], available at http://www.fao.org/fileadmin/user_upload/legal/docs/1_037t-
e.pdf. As of April 2014, there are eleven parties to the agreement: Chile, the European Union, Gabon,
Myanmar, New Zealand, Norway, Oman, Seychelles, Sri Lanka, the United States, and Uruguay. See
Oman Is First Arab State to Ratify Treaty to Stem Illegal Fishing, PEW CHARITABLE TR. (Sept. 4, 2013),
http://www.pewenvironment.org/news-room/other-resources/oman-is-first-arab-state-to-ratify-treaty-to-
stem-illegal-fishing-85899502306.
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coastal states, flag states, and RFMOs to combat the phenomena of “ports of
convenience” or “ports of noncompliance” by ensuring that states exercise
some control over IUU fishing operations that may be using their ports to
offload IUU marine products.98 Yet while the European Union and the United
States, two of the largest consumers of fish, are parties to the FAO
Agreement,99 many states still employ lax port regulations.
While there are 4764 ports across the globe where fish might be offloaded,
approximately 2395 of these ports are under no legal obligation to implement
the FAO Agreement.100 IUU vessels will travel large distances to offload
illegal catches at these ports to avoid inspection.101 Thus, until there is an
effective network of harmonized port state measures, criminal networks will
still have opportunities to traffic fish through ports of convenience. Unless the
international community is able to apply pressure to improve surveillance at
these ports, IUU trade will continue unencumbered by regulations, as some of
the economically poorest countries with the weakest public governance
networks compete to service the illegal fishing industry.
F. Profitable Trading
After an IUU vessel has found a purchaser for its cargo, the captain or
another agent will make arrangements for payment with the buyer. Continuing
the theme of detection avoidance, payments may be transferred through
complex financial transactions that may involve third-party state tax havens and
98. See AGREEMENT ON PORT STATE MEASURES, supra note 97, at 1–2. Ports of convenience
as used in this Article are similar to the phenomenon of flags of convenienceand refer to state ports
over which there is little to no regulatory oversight for health and safety standards or legality of goods.
While crew members have used the term in the national press to refer to ports that do not inspect vessels
for health and safety violations, it is used in this article to refer to a lack of oversight for cargo
inspection. The Canary Islands, which supplies Europe with IUU marine products, is one known port of
convenience.See, e.g., ENVTL. JUSTICE FOUND., PIRATE FISH ON YOUR PLATE: TRACKING ILLEGALLY-
CAUGHT FISH FROM WEST AFRICA INTO THE EUROPEAN MARKET 7–12 (2007), available at
http://www.imcsnet.org/imcs/docs/pirate_fish_on_your_plate_ejf.pdf.
99. See supra note 97.
100. This number is the total number of registered ports (4764) minus the number of listed ports
identified with parties to the FAO Agreement (2369). Listed ports include: Chile, Myanmar, Norway,
Oman, Seychelles, Sri Lanka, Uruguay, and the twenty-eight EU member countries (Austria, Belgium,
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden, and the United Kingdom). See World Ports by Country, WORLD
PORT SOURCE, http://www.worldportsource.com/countries.php (last visited Sept. 18, 2014). This
number is only a rough estimate, because some of the listed ports may not be marine ports or ports
capable of receiving fish for trading.
101. A. WILLOCK & M. LACK, WORLD WILDLIFE FUND INTL & TRAFFIC INTL, FOLLOW THE
LEADER: LEARNING FROM EXPERIENCE AND BEST PRACTICE IN REGIONAL FISHERIES MANAGEMENT
ORGANIZATIONS 28 (2006), available at assets.panda.org/downloads/rfmoreport06.pdf. To circumvent
trade measures, such as increased inspections by the International Commission on the Conservation of
Atlantic Tuna in the region, IUU vessels will travel to the Pacific and Indian Oceans to offload cargos.
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difficult to trace cash payments.102 According to the Organisation of Economic
Co-operation and Development, IUU fishing vessel owners are increasingly
relying on tax havens to hide ill-gotten gains and avoid taxes by making
fraudulent declarations about profits, customs duties, and social security.103
Many of the states that offer open vessel registration services also offer
corporate services that include not releasing the names of beneficial owners.104
Further complicating enforcement efforts by financial regulators, some
transactions may even be taking place in the “dark net” using alternative
internet currencies that have not been heavily regulated.105 Armed with the
ability to hoard profits in anonymous tax havens, the availability of digital
underground markets, and the ability to participate in difficult to trace digital
transactions, individual and corporate beneficiaries of IUU fishing have
numerous flexible options for protecting their ill-gotten profits from
government oversight.
G. Summary
IUU fishing does not require a criminal mastermind. It merely requires
some planning to set up corporate fronts to ensure that beneficial owners are
not exposed, and a fair amount of low-level deception. Because the IUU fishing
chain is dispersed across jurisdictions, combating it is inherently challenging.
Seriously challenging the criminal networks will require investing government
resources at critical junctures along the IUU fishing chain. Even with the
commitment of additional resources, it may still prove frustrating. As the head
102. Meeting of the European Parliament Intergroup on Climate Change, Biodiversity, and
Sustainable Development, Brussels, Belg., Dec. 5, 2012, Summary Report on Combating Transnational
Organized Fisheries Crime, available at http://www.ebcd.org/en/EP_Intergroup_CCBSD/
Fisheries_and_Aquaculture/Combating_transnational_organised_fisheries_crime.html (citing Nik
Mohamed, economist and policy analyst for the Organisation of Economic Co-operation and
Development).
103. ORG. OF ECON. CO-OPERATION & DEV., EVADING THE NET: TAX CRIMES IN THE FISHERIES
SECTOR 14 (2013) [hereinafter EVADING THE NET], available at http://www.oecd.org/ctp/
crime/evading-the-net-tax-crime-fisheries-sector.pdf.
104. Adam Davidson, My Big Fat Belizean, Singaporean Bank Account, N.Y. TIMES (July 24,
2012), http://www.nytimes.com/2012/07/29/magazine/my-big-fat-belizean-singaporean-bank-
account.html?pagewanted=all&_r=0 (“‘Information about beneficial owners, shareholders, directors and
officers is not filed with the Belize government and not available to the public.’” (quoting a company
website)).
105. See Brad Chacos, Meet Darknet, The Hidden, Anonymous Underbelly of the Searchable Web,
PCWORLD (Aug. 12, 2013, 3:00 AM), http://www.pcworld.com/article/2046227/meet-darknet-the-
hidden-anonymous-underbelly-of-the-searchable-web.html. The dark netor dark webis an area of
the internet not discoverablethrough major search engines, where users are likely to use encryption
software to prevent easy tracking. Id.; see also Nic Fleming, Hunting Wildlifes Illegal Traders Online,
NEW SCIENTIST (Apr. 27, 2013), http://www.newscientist.com/article/mg21829140.300-hunting-
wildlifes-illegal-traders-online.html#.VC7rdyldUwI (identifying the dark netas a forum for illegal
wildlife sales); Lauren ONeil, Illegal Wildlife Trade Thrives on the Dark Web, CBC NEWS (Apr. 30,
2013, 7:47 PM), http://www.cbc.ca/newsblogs/yourcommunity/2013/04/dark-web-boosts-illegal-
wildlife-trade.html.
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of British Customs and Excise observed wryly in an interview with an
anthropologist, “To understand the truth of shipping, follow the unrecorded
ship stops at sea. But of course you can’t follow them; that’s the whole
point.”106
Global changes in the law associated particularly with prosecuting for flag
state responsibility may reduce economic or political incentives for states that
offer flags of convenience.107 Yet there are few indications that the global
governance network will respond in a timely fashion to the fishery crises, since
vertical public governance networks lack the capacity to enforce on a broad
scale. Therefore, greater attention should be given to creating more robust
horizontal governance frameworks that can capitalize on additional
criminalization and enforcement. As Part III indicates, states are beginning to
systematically cooperate to respond to the criminal networks. But these are
nascent efforts. In the meantime, as will be explained in Part IV, to combat
IUU fishing states must immediately characterize IUU fish smuggling as a
serious crime and invest substantial domestic resources into prosecuting
criminal networks. IUU fishing has become more than a fishery management
problem. It has become a global criminal security threat as international gangs
diversify into whatever commodity markets will generate quick profits.108
Failing to invest in combating what has been loosely termed an “environmental
crime” can end up causing social dissolution among fishing communities who
depend wholly on marine resources for their livelihood.109 While aquaculture
may play a larger role in feeding the global population in the future, this
transition will be gradual and the rapid loss of fish today has the potential to
impact the primary and ancillary livelihood of between 462 to 574 million
people.110
106. CAROLYN NORDSTROM, GLOBAL OUTLAWS: CRIME, MONEY AND POWER IN THE
CONTEMPORARY WORLD 122 (2007).
107. See, e.g., Request for Advisory Opinion, supra note 60 (requesting an advisory opinion on
how flag state responsibility extends to vessels fishing in the EEZ of other states).
108. NORDSTROM, supra note 106, at 10506 (observing that, as seafood prices have increased,
international gangs have switched from narcotics smuggling to the illegal seafood harvest and trade
market).
109. See generally Lawrence C. Hamilton et al., Above and Below the Water: Social/Ecological
Transformation in Northwest Newfoundland, 25 POPULATION & ENVT 195 (2004) (describing social
dissolution of the Canadian communities that depended on cod once the cod stocks had collapsed).
110. See FAO, UNITED NATIONS, THE STATE OF WORLD FISHERIES AND AQUACULTURE 10
(2012), available at http://www.fao.org/docrep/016/i2727e/i2727e.pdf. These numbers are calculated on
the basis that between 660 and 820 million people depend either directly or indirectly on the production
of both marine capture and aquaculture fish through businesses including processing, packaging,
distribution, and manufacturing of fisheries equipment. Id. Since marine capture fisheries account for 70
percent of employment in the fisheries sector worldwide, 70 percent of those who depend on marine fish
production would be between 462 and 574 million people. Id.
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III. EXISTING STATE RESPONSES TO IUU FISHING TO INTERVENE WITH
CRIMINAL NETWORKS
States have not remained indifferent to the challenge of combating IUU
fishing and have adopted a polycentric governance approach, with management
activities arising and intersecting at a number of different governance levels.111
This Part will review three state responses to IUU fishing that cover the range
from information gathering to implementation. First, this Part will look at
efforts by states to create nonbinding NPOAs to combat IUU fishing that take
into account criminal sanctions and prosecutions. Second, this Part will cover
the FAO Agreement on Port State Measures, which, when implemented, should
effectively constrict the availability of IUU fishing products in states that have
adopted the agreement, but may have the unintended consequence of opening
new markets. Unfortunately, the FAO Agreement will have little effect on
criminal networks that can continue to use ports in nonmember states and illicit
overland trade channels to supply the markets in states that have implemented
more restrictive measures. Finally, this Part will look at whether existing
national fisheries laws in some of the largest fishing nations are capable of
exercising coercive regulatory power over criminal IUU networks in order to
comply with legal obligations under the U.N. Convention against Transnational
Organized Crime. Specifically, this Part will observe that while there may be
organized crime laws under which IUU networks might be prosecuted, IUU
fishing has generally been treated as a less serious crime under national fishery
codes.
A. Criminal Sanctions and Prosecutions under National Plans of Actions
Under the nonbinding IPOA, the FAO Agreement called upon states to
examine their policies regarding IUU fishing.112 Naturally, states are expected
to cooperate with other states to prevent, deter, and eliminate IUU fishing. Yet
each party to the FAO Agreement is also expected in its role as a flag state,
coastal state, and/or port state to voluntarily promulgate national legislation that
will “address in an effective manner all aspects of IUU fishing.”113 Of
particular interest in this regard is the emphasis on sanctions in paragraph 21 of
the IPOA, which calls for states to “ensure that sanctions for IUU fishing by
vessels and, to the greatest extent possible, nationals under its jurisdiction are
of sufficient severity to effectively prevent, deter and eliminate IUU fishing and
to deprive offenders of the benefits accruing from such fishing.”114 The
document goes on to recommend “the adoption of a civil sanction regime based
111. For a discussion of systems addressing global, collective action environmental problems, see
Elinor Ostrom, Polycentric Systems for Coping with Collective Action and Global Environmental
Change, 20 GLOBAL ENVTL. CHANGE 550 (2010).
112. See generally INTL PLAN OF ACTION, supra note 5.
113. Id. pt. IV, § 16.
114. Id. § 21.
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on an administrative penalty scheme.”115 There is no direct mention of criminal
sanctions in the IPOA document.
In response to the IPOA, individual states have drafted NPOAs to outline
the steps that they have taken or plan to take to combat IUU fishing. Eleven
individual states and the European Commission have submitted NPOAs,
published on the FAO website.116 For purposes of understanding what role
criminal sanctions and prosecutions play in the development of IUU fishing
strategies, this Article examines three of these NPOAs: Australia,117 Japan,118
and the United States.119
115. Id.
116. The states that have submitted NPOAs are: Argentina, Australia, Belize, Canada, Chile,
Ghana, Fiji, Japan, New Zealand, South Korea, and the United States. International Plan of Action to
Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing, FAO,
http://www.fao.org/fishery/ipoa-iuu/npoa/en (last visited Sept. 18, 2014). The FAO does not appear to
be updating its website, but it should be investing resources to make NPOAs publicly available in one
centralized location since all of these documents are potentially significant for tracking government
accountability. A number of other states have NPOAs, including Seychelles, Tonga, Spain, and Zambia.
See MARY ANN PALMA ET AL., PROMOTING SUSTAINABLE FISHERIES: THE INTERNATIONAL LEGAL AND
POLICY FRAMEWORK TO COMBAT ILLEGAL, UNREPORTED AND UNREGULATED FISHING 9697 & n.15
(2010). Other drafts of NPOAs that are not listed on the FAO website can be found on the internet. See,
e.g., DEPT OF FISHERIES, MALAYSIAS NATIONAL PLAN OF ACTION TO PREVENT, DETER AND
ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (2013), available at
http://www.apfic.org/attachments/article/85/2013%20NPOA_IUU%20Malaysia.pdf; MINISTRY OF
AGRIC., LANDS, HOUSING & THE ENVT, ANTIGUA AND BARBUDAS PLAN OF ACTION TO PREVENT,
DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (2010), available at
http://www.fisheries.gov.ag/information/publications/pdf/Antigua_Barbuda_NPOA_IUU_Fishing.pdf;
REPUBLIC OF NAMIB., NATIONAL PLAN OF ACTION TO PREVENT, DETER AND ELIMINATE ILLEGAL,
UNREPORTED AND UNREGULATED FISHING (2007), available at http://209.88.21.36/
opencms/export/sites/default/grnnet/MFMR/downloads/docs/Namibia_NPOA_IUU_Final.pdf;
REPUBLIC OF THE PHIL., NATIONAL PLAN OF ACTION TO PREVENT, DETER AND ELIMINATE ILLEGAL,
UNREPORTED AND UNREGULATED FISHING (2013), available at http://www.gov.ph/
downloads/2013/12dec/20131206-EO-0154-Annex-A-BSA.pdf. Mentions of NPOAs can be found
online as well. For example, Brunei, Cambodia, Indonesia, Papua New Guinea, Timor Leste, Thailand,
Singapore, and Vietnam are all listed as having NPOAs. NPOA IUU, RPOAIUU,
http://rpoaiuu.org/index.php/en/2014-04-10-09-10-46/npoa-iuu (last visited Nov. 12, 2014). The content
of NPOAs from the Southeast Asian states is not easily identifiable on the internet.
117. While the NPOA reported the outcome of prosecutions, including an eighteen month prison
sentence for poaching ten tons of abalones, Australias NPOA was not explicit about the minimum and
maximum lengths of criminal sentences imposed on IUU fishers. AUSTRALIAN DEPT OF AGRIC.,
FISHERIES & FORESTRY, AUSTRALIAN NATIONAL PLAN OF ACTION TO PREVENT, DETER AND
ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING 8081 (2005) [hereinafter
AUSTRALIAN NATL PLAN OF ACTION], available at http://www.agriculture.gov.au/
SiteCollectionDocuments/fisheries/iuu/npoa_iuu_fishing.pdf. Victoria, where abalone poaching has a
maximum five-year prison sentence, is the one exception. Id.
118. While the Japanese NPOA indicates that criminal convictions can lead to imprisonment of up
to three years, the Japanese NPOA is cursory in addressing criminalization as a strategy to combat IUU
fishing, and includes no details about the application of these criminal sanctions. FISHERIES AGENCY OF
JAPAN, IMPLEMENTATION OF THE INTERNATIONAL PLAN OF ACTION TO PREVENT, DETER AND
ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (IPOA-IUU) 3–4 (2004) (on file with
author).
119. The United States NPOA also provides fleeting information about criminal sanctions and
prosecutions as a strategy to combat IUU fishing. In a footnote, the report refers to a criminal fishery
prosecution that led to an eight-year criminal sentence as one of the longest sentences ever given under
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While the NPOAs provided useful insight into what efforts states are
undertaking to combat IUU fishing, there was surprisingly little
acknowledgment of the organized criminal component of IUU fishing and little
specificity of how a state might respond.120 When most of the NPOAs were
drafted, the possibility that IUU fishing might be facilitated by organized
criminal groups did not seem to influence the strategies states selected in
combatting IUU fishing. Consequently, while NPOAs may be useful as
planning or reflection documents, any influence they may have over the
behavior of criminal networks engaged in IUU fishing is largely conjectural. As
a tool to combat IUU fishing, the NPOAs seem limited to conveying vague
enforcement strategies to actors within criminal networks by informing the
public at large of the state’s intent to create new legislation or new penalties.
Given the lack of attention to maintaining the FAO website and the level of
generality contained within the NPOAs, it appears that they exert little
influence over the actions of domestic government networks working to combat
IUU fishing. At best, they convey domestic government priorities to the
international community, such as Australia’s ongoing effort to pierce the
corporate veil to expose the most highly remunerated beneficiaries of IUU
fishing.121 At worst, they provide almost no insight into how states intend to
combat large-scale criminal IUU fishing activity.
B. Port State MeasuresPort of Convenience Problem
Approaching the IUU problem from both a supply and demand angle, a
number of states adopted the binding FAO Agreement.122 The measures
contained in the FAO Agreement were adopted by members of the FAO (but
only ratified by ten states and the European Union) and are an assertion of
extraterritorial jurisdiction over a foreign vessel.123 Port state measures have
historically varied by state, but under the FAO Agreement, states are expected
to deny fishing access if there is sufficient evidence that a vessel has engaged in
IUU fishing,124 to prohibit landing and transshipments of IUU fish,125 to
inspect suspected IUU vessels,126 and to carry out enforcement measures.127
In theory, the FAO Agreement is an effective means of harmonizing laws
across the states party to the agreement, and systematically regulating potential
the Lacey Act. NATIONAL PLAN OF ACTION OF THE UNITED STATES OF AMERICA, supra note 23, at 6
n.5; see also Press Release, Natl Oceanic & Atmospheric Admin., McNab to Continue Serving Federal
Sentence for Lobster Smuggling (Mar. 22, 2004), available at http://www.publicaffairs.noaa.gov/
releases2004/mar04/noaa04-r119.html.
120. See, e.g., supra notes 116119 (analyzing criminal sanctions mentioned in the NPOAs).
121. See AUSTRALIAN NATL PLAN OF ACTION, supra note 117, at 17.
122. AGREEMENT ON PORT STATE MEASURES, supra note 97.
123. Id. at 2.
124. Id. art. 9.4.
125. Id. art. 11.1.
126. Id. art. 12.
127. Id. art. 18.
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IUU fishing vessels. Yet, states have been discouragingly reluctant to ratify or
accept the treaty despite the global rhetoric regarding the need to combat IUU
fishing. While only twenty-five ratifications, acceptances, and accessions are
needed for the FAO Agreement to go into force, as of 2014 there were only
eleven parties: Chile, the European Union, Gabon, Myanmar, New Zealand,
Norway, Oman, Seychelles, Sri Lanka, the United States, and Uruguay.128 This
lack of enthusiasm suggests either that states are worried about the expense of
implementing the FAO Agreement or about potential state responsibility for
failing to comply. Landings and transshipments are sizable businesses in the
Global South, and some states seem willing to serve as ports of convenience.
The failure of a sufficient number of states to adopt this agreement is troubling
and reflects a challenge for global political will.
C. Transnational Organized Crime and National Fisheries Laws
Because states have not yet been effective in responding collectively to the
threats posed by IUU fishing, and NPOAs have failed to address the criminal
drivers behind certain IUU fishing practices, combating IUU fishing should be
a top priority for national criminal enforcement officials, particularly in the top
five fish-producing nations: China, Japan, Russia, Taiwan, and the United
States.129 The most viable legal framework for connecting IUU fishing to
organized crime is the Organized Crime Convention.130 Subpart 1, below,
provides a brief overview of the Convention and argues that most states, based
on treaty commitments, have a legal obligation to define organized large-scale
IUU fishing as a serious transnational crime. Subpart 2 then examines whether
states’ existing national laws, particularly their fisheries laws, address IUU
criminal activity as a “serious crime” as that term is understood under the
Convention. Based on the analysis below, it appears that even though IUU
fishing operations share many similarities with other transnational crimes such
as drug trafficking, money laundering, and corruption, and may even take place
at the same time as these crimes, there is a disconnect between the obligations
the Organized Crime Convention imposes on parties, and the level of
criminalization of IUU fishing in parties’ national laws.131 While paper laws
128. See id.
129. See infra note 154.
130. ROSE & TSAMENYI, supra note 24, at 99 (The most likely existing legal framework within
which to situate a new binding legal standard [on IUU fishing] would be the UN Convention on
Transnational Organised Crime.).
131. Increasing reports suggest that human and drug trafficking occurs at the same time as illegal
fishing. See, e.g., Illicit Fishing and Human Trafficking: Hearing on H.R. 69, H.R. 2646, and the Pirate
Fishing Elimination Act before the H. Subcomm. on Fisheries, Wildlife, Oceans & Insular Affairs, 113th
Cong. 2 (2014) (statement of Mark P. Lagon, Professor of Intl Affairs, Georgetown Univ.:
[T]here is limited information available on the relationship between illegal fishing,
human trafficking, and other criminal activities. These activities can occur
independently. Obviously only some fishing vessels are engaged in illegal fishing and
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alone will not end fishing by criminal syndicates, the existing laws of a number
of major fishing states provide no recognition of the transnational criminal
element of IUU fishing.
1. Organized Crime Convention and IUU Fishing
Unlike the limited reach of the FAO Agreement and the IPOA, the
Organized Crime Convention is binding on 179 parties, including most states
that offer flags of convenience, offshore corporations, and ports of
convenience.132 Each of the top five fish-producing nations, with the exception
of Japan and Taiwan, is a party to the Organized Crime Convention,133 which
was first negotiated in response to concerns about a growth in organized
criminal groups and operations across territorial borders. As explained in the
Legislative Guide prepared by request of the U.N. General Assembly, the
Convention fills an important governance gap:
While ad hoc arrangements, mutual legal assistance treaties and extradition
treaties may bear positive results in some instances, the complexities of the
legislative and procedural framework within and across jurisdictions
sometimes prevent those arrangements and treaties from being sufficient to
respond to the current challenges. International conventions on specific
offences, such as trafficking in drugs, terrorism, corruption and money-
laundering, have paved the way for further coordination of efforts and
stronger collaboration between [s]tates. The most pressing need, however,
is for a more integrated and synchronized approach, with effective
enforcement mechanisms. . . . The Convention is the response of the
international community to the need for a truly global approach. Its purpose
is to promote cooperation, both for the prevention of and for the effective
fight against transnational organized crime.134
Article 3 of the Convention identifies two types of crimes. First, specific
transnational offenses defined in the Convention as involving an organized
criminal group and second “serious” transnational crimes involving an
organized criminal group.135 An “organized criminal group” is “a structured
group of three or more persons, existing for a period of time and acting in
concert with the aim of committing one or more serious crimes or offences
human trafficking. However, the available data suggests that the confluence of these
activities at sea does occur all too often . . . .).
132. Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209
[hereinafter Convention Against Transnational Organized Crime].
133. United Nations Convention Against Transnational Organized Crime, UNITED NATIONS
TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-
12&chapter=18&lang=en (last visited Nov. 12, 2014).
134. U.N. OFFICE ON DRUGS & CRIME, LEGISLATIVE GUIDES FOR THE IMPLEMENTATION OF THE
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS
THERETO xvii (2004) [hereinafter LEGISLATIVE GUIDES] (citation omitted), available at
http://www.unodc.org/pdf/crime/legislative_guides/Legislative%20guides_Full%20version.pdf.
135. Convention Against Transnational Organized Crime, supra note 132, art. 3.
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established in accordance with [the] Convention, in order to obtain, directly or
indirectly, a financial or other material benefit . . . .”136 Both large-scale and
small-scale IUU operations that involve at least three persons would qualify
under the definition of “organized criminal group.”137
If states actually implement their existing obligations under the Organized
Crime Convention, this may create the needed global momentum to nationally
prosecute transnational IUU criminal networks.138 There are at least three
relevant articles that legally obligate the member states: Articles 5, 6, and 8.
Article 5 of the Convention requires each state party to criminalize
participation in organized crime groups. Specifically, states must create laws or
use other means to create “criminal offences” when an individual or group of
individuals conspires “to commit a serious crime” and/or engages actively in
criminal conduct that directly or indirectly contributes to the achievement of a
criminal aim.139 States must also create laws or other measures to criminalize
the “[o]rganizing, directing, aiding, abetting, facilitating or counseling [of] the
commission of serious crime involving an organized criminal group.”140
Implementing legal obligations under Article 5 to criminalize participation in
transnational organized crime groups may provide a pathway for pursuing the
profiteering architects of criminal IUU networks who currently operate outside
the reach of most law due to the skilled use of offshore companies and open
registries. For a state to combat global IUU criminal networks through Article
5, states must identify IUU fishing specifically as a domestic criminal act so
that participation in organized IUU fishing, particularly at the highest levels of
financing and decision making, would be considered participation in a
transnational organized crime group.141
Clearly identifying certain practices characteristic of IUU fishing, such as
intentionally mislabeling seafood products or forging certificates of origins, as
domestic criminal acts would also satisfy state obligations under Article 6 of
the Organized Crime Convention. Specifically, Article 6 provides that parties
must create criminal offenses where parties intentionally hide “the true nature,
source, location, disposition, movement or ownership of or rights with respect
to property, knowing that such property is the proceeds of crime . . . .”142 As
part of this obligation, states must “institute a comprehensive domestic
regulatory and supervisory regime for banks and non-bank financial institutions
and, where appropriate, other bodies particularly susceptible to money-
laundering, within its competence” and “endeavour to develop” cooperation
among national and regional judicial, law enforcement, and financial regulatory
136. Id. art. 2(a) (emphasis added).
137. See id.
138. Id. art. 3(1)(a) (including Convention offenses under Articles 5, 6, 8, and 23).
139. Id. art. 5(1)(a)(i)(ii).
140. Id. art. 5(1)(b).
141. See id. art. 5(3).
142. Id. art. 6(1)(a)(ii).
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authorities.143 What this means in the context of IUU fishing proceeds is that
states must be prepared to identify and regulate offshore companies that may be
laundering illicit profits from IUU fishing.
Under Article 8, states must create laws that criminalize acts by parties
who offer public officials bribes, as well as acts by public officials who accept
bribes. This aspect of the Convention is relevant to IUU criminal fishing
networks since flag state nations, when given the opportunity to prosecute
vessels, may fail to do so because of a culture of corruption. There is evidence
in IUU fishing of illegal payments to public officials in exchange for issuing
additional quotas or providing export licenses for IUU fish.144 Likewise,
official observers onboard vessels may choose not to report on IUU fishing
activities when they have received bribes.145
In addition to the Convention’s specific obligations for offenses involving
money laundering, corruption, and participation in an organized criminal group,
states are also expected to prevent, investigate, and prosecute “serious
crimes.”146 This obligation was added to the Convention to provide some
flexibility to cover emerging transnational crimes.147 In somewhat confusing
fashion Article 2(b) of the Convention defines a “serious crime” as “conduct
constituting an offence punishable by a maximum deprivation of liberty of at
least four years or a more serious penalty.”148 The inclusion of the word
“maximum” in the text presents a dilemma. While it seems that there must be at
least a maximum prison sentence of four years for the crime to qualify as a
“serious crime,” it also seems possible that the prison sentence could be longer
if imprisonment can also be considered a “more serious penalty.” It is unclear
from the plain language or the travaux prépatoire whether the use of the term
penalty is intended to refer to simply a monetary fine or may also refer to
imprisonment.149 The nonbinding legislative guide, drafted to help
governments implement the Organized Crime Convention, suggests that a
longer term of imprisonment may be possible since experts interpreted the
confusing language in Article 2(b) to mean that “the maximum penalty is at
143. Id. art. 7(1)(a), (4).
144. See MAÍRA MARTINI, TRANSPARENCY INTL, U4 EXPERT ANSWER: ILLEGAL, UNREPORTED
AND UNREGULATED FISHING AND CORRUPTION 5 (2013), available at http://www.u4.no/publications/
illegal-unreported-and-unregulated-fishing-and-corruption/downloadasset/3261.
145. Id.
146. Convention Against Transnational Organized Crime, supra note 132, art. 3(1)(b).
147. Stefano Betti, The European Union and the United Nations Convention Against
Transnational Organised Crime 10 (Directorate-General for Research, European Parliament, Working
Paper, 2001), available at http://www.europarl.europa.eu/workingpapers/libe/pdf/116_en.pdf.
148. Convention Against Transnational Organized Crime, supra note 132, art. 2(b).
149. UNODC, TRAVAUX PRÉPARATOIRES OF THE NEGOTIATION FOR THE ELABORATION OF THE
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS
THERETO 7–18 (2006), available at http://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf.
What emerges from the travaux papers is that there was some controversy over the definition of serious
crimebased simply on the length of a penal sentence. See generally id. There is no discussion of what
constitutes a more serious penaltyor whether imprisonment/probation constitutes a penalty.
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least four years of deprivation of liberty or longer.”150 On the other hand,
parties to the treaty such as Germany have interpreted the language to mean
that serious crimes are those crimes that “carry a minimum sentence of four
years and are committed by structured groups consisting of three or more
members.”151
Regardless of whether the imprisonment sentence is a maximum of four
years or a minimum of four years, IUU fishing that is intentionally planned and
executed should be characterized by Convention parties as a “serious crime”
for three reasons. First, IUU fishing causes environmental harm by recklessly
destroying resources needed for current and future generations. Second, IUU
fishing results in economic harms since smuggling activities undermine
legitimate fishing operations, and result in tax evasion, which deprives states of
funds.152 Finally, IUU fishing causes social harm by threatening the food
security of vulnerable populations such as artisanal fishing communities, as
well as breeding a culture of crime and complicity where incorrect origin
declarations and underreporting of volumes become standard rather than
exceptional practices. Categorizing as “serious crimes” IUU fishing by certain
actors who are aware their actions are illegal, such as the beneficial owner, the
captain, or the receiver of IUU fishing products, could function as a deterrent.
Assuming the law is enforced, criminalization of IUU fishing should reduce its
attractiveness for criminal networks by increasing the associated costs, since
potential imprisonment would exceed the benefits of short-term profits.
Applying the Organized Crime Convention to IUU fishing creates
opportunities to assign appropriate penalties for crimes whose severity has been
historically overlooked. As will be argued below in the case of the five largest
fishing production nations, IUU fishing has been largely regarded as a
regulatory violation rather than as a serious criminal act. In particular, IUU
fishing has almost never been identified in national fisheries legislation as a
“serious crime.” Only recently has wildlife crime by transnational organized
groups been considered criminal.153
Why the disconnect between IUU fishing and serious crime in national
fisheries legislation? One possibility is that law enforcement officers have only
recently appreciated the critical extent of overfishing by criminal groups. The
low levels of criminalization may also be attributed to the fact that most
fisheries codes were drafted before the unprecedented current crisis in
150. LEGISLATIVE GUIDES, supra note 134, at 13.
151. UN Convention Against Organized Crime and the Protocols Thereto, GER. FED. FOREIGN
OFF., http://www.auswaertiges-amt.de/EN/Aussenpolitik/VereinteNationen/Schwerpunkte/
OKriminalitaet_node.html (last updated Aug. 8, 2008).
152. EVADING THE NET, supra note 103, at 14.
153. Press Release, Convention on Intl Trade in Endangered Species of Wild Fauna & Flora,
Heads of UNODC and CITES Urge Wildlife and Forest Offences to be Treated as Serious Transnational
Organized Crimes (Apr. 23, 2013), available at http://www.cites.org/eng/news/pr/2013/
20130423_CCPCJ.php.
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transnational wildlife trafficking. Regardless, in light of states’ obligations
under the Organized Crime Convention, and the prevalence of IUU fishing,
most parties need additional fisheries-specific criminal legislation that
recognizes that IUU fishing is a serious crime as defined under the Convention.
Unfortunately, as of today most states, while recognizing IUU fishing as a
threat to marine resources, have not fully criminalized key acts (such as flag-
hopping) that form the basis for IUU fishing activities. The following subpart
explores some national criminal responses to IUU fishing.
2. Criminalizing IUU Fishing Within the Domestic Laws of the Top Five
Fish Production Nations
This subpart explores whether the top five fish-producing states by fleet
capacity have characterized IUU fishing (in their waters or by their nationals,
including vessels flagged to their nations) as “serious crimes,” and whether
states’ respective fisheries codes specifically link IUU fishing, organized crime,
money laundering, and corruption to prosecutable criminal acts.154
a. Russia
The Russian Federation Federal Law No. 166-FZ on fisheries and
conservation of living marine resources establishes liability for the
infringement of fisheries and conservation legislation.155 It is unclear from the
law whether a violator would be prosecuted civilly or criminally. With no
explicit mention of prison time in the law, the legislation simply provides that
the state will confiscate illegally harvested fish. Article 54 of the Russian
Fisheries Law was amended in 2007 to provide for state seizure of illegally
caught or harvested aquatic biological resources, fishing vessels engaged in
illegal activities, and fishing gear used for illegal fishing.156 If biological
154. U.N. ENVTL. PROGRAMME, FISHERIES: INVESTING IN NATURAL CAPITAL 88 (2011), available
at http://www.unep.org/greeneconomy/Portals/88/documents/ger/GER_3_Fisheries.pdf (listing the top
five fish-producing states: Russia, Japan, China, Taiwan, and the United States). For purposes of this
Article, I reviewed only fishery laws and criminal laws that mentioned fisheries. I anticipated that most
states would deal with IUU fishing through their domestic fishing laws. I did not evaluate customs laws,
which may also criminalize IUU fishing activities, and could be an area of fruitful future research. If a
country criminalizes IUU fishing through nonfishery and noncriminal laws, this suggests that the
domestic compliance network is ineffective, leaving a gap between predicate criminal activities (illegal
fishing) and activities deemed criminal by law (offloading illegal fish).
155. Russian Federation Federal Law on Fisheries and Conservation of Aquatic Biological
Resources, No. 166-FZ (Dec. 20, 2004), arts. 5153, translated summary available at FAOLEX,
http://faolex.fao.org/faolex/index.htm (search for Russian Federation Federal Law No. 166-FZ
fisheries).
156. Russian Federation Federal Law No. 57-FZ Amending Federal Law No. 52-FZ of 1995 on
Wildlife and Federal Law No. 166-FZ on Fisheries and Conservation of Aquatic Biological Resources
(Apr. 20, 2007), translated summary available at FAOLEX, http://faolex.fao.org/faolex/index.htm
(search for “Federal Law No. 57-FZ amending Federal Law No. 166-FZ on fisheries and conservation of
aquatic biological resources); see also Ministerial Decree No. 367 Implementing Article 54 of Federal
Law No. 166-FZ on Fisheries and Conservation of Aquatic Biological Resources (May 31, 2007),
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resources cannot be returned to their natural habitat (as may be possible with
live crabs) then the products are destroyed according to Russian government
decrees.157 Based on Russia’s most recent legislation in this area, there does
not appear to be any clearly delineated criminalization of IUU fishing activities
specific to the Russian Fisheries Law.
It is possible that IUU fishing acts might be prosecuted under the Russian
Federation Criminal Code, but there is no explicit language in Russian
Fisheries Law that connects the two. Article 256 of the Criminal Code makes it
illegal to harvest aquatic animals, but focuses specifically on extraction from
preserves or “in a zone of ecological distress or ecological emergency.”158 The
maximum penalties for this crime are six months of imprisonment or two years
of corrective labor.159 Article 175 makes it illegal to acquire property by
criminal means or to sell property acquired by criminal means.160 An
individual convicted under this section may be deprived of their liberty for two
years for a first offense or three years for a repeated offense. Organized groups
may be deprived of their liberty for three to seven years.161 So is IUU fishing
characterized as a “serious crime” in the context of the Organized Crime
Convention? It depends. While it may be possible to apply Article 175 of the
Criminal Code to cover IUU fishing as an acquisition of public property, there
is no explicit characterization of IUU fishing as a crime under Russian law,
making it potentially difficult to prosecute IUU vessel owners, captains, or
wholesalers.
According to one nongovernmental organization, there are few illegal
fishing convictions under Article 175 of the Criminal Code.162 While there
have been criminal convictions under the Criminal Code for fishing crimes,
prison sentences are rarely imposed.163 Corruption appears to be particularly
widespread in Russia, resulting in IUU fishing activities that may or may not be
transnational in nature taking place with the active complicity of Russian
officials.164 The lack of explicit reference to the Criminal Code’s provisions in
the Russian Fisheries Law illustrates the complexity of implementing the
Organized Crime Convention in a manner that meaningfully combats IUU
fishing. Where the various acts that contribute to IUU fishing operations are not
translated summary available at FAOLEX, http://faolex.fao.org/faolex/index.htm (search for Russian
Federation Ministerial Decree No. 367 Article 54”).
157. Id.
158. UGOLOVNYI KODEKS ROSSIISKOI FEDERATSII [UK RF] [Criminal Code] art. 256 (Russ.),
available at http://www.wipo.int/wipolex/en/text.jsp?file_id=277023.
159. Id.
160. Id. art. 175.
161. Id.
162. WILD SALMON CTR., A REVIEW OF IUU SALMON FISHING AND POTENTIAL CONSERVATION
STRATEGIES IN THE RUSSIAN FAR EAST 1213 (2009), available at http://www.wildsalmoncenter.org/
pdf/WSC_IUU_paper_v3.pdf.
163. Id.
164. Id. at 10.
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clearly identified as criminal activities, it will be difficult to prosecute criminal
networks engaged in IUU fishing under Russian law. Examples of prosecutions
in the media tend to reflect soft sanctioning.165
b. Japan
While Japan is not a member of the Organized Crime Convention, the
1949 Japanese Fishery Act, as amended in 2007,166 does punish acts that would
fall under the classification of IUU fishing as the term has been used here.167
The Fishery Act provides for up to three years of “imprisonment with work”
for parties168 who operate fisheries without the right to do so169 or violate
restrictions or conditions on the exercise of otherwise legal fishing rights.170
The law only assigns a maximum of six months of “imprisonment with work”
where a party provides fraudulent information in relation to the submission of a
required report or as part of a field inspection.171 The 2007 Amended Act on
the Protection of Fishery Resources for “public waters” also provides for
punishment against acts that would be considered as constituting IUU
fishing.172 When parties fail to comply with prohibitions on taking marine
species, or restrictions on the use of certain fishing equipment or vessels or the
sale of aquatic species,173 they may be punished by “imprisonment with work”
for up to three years.174 Fishing using explosives or poisons, or without a
license, may also result in a prison sentence of up to three years.175
165. See, e.g., John Davis, How International Enforcement Cooperation Deters Illegal Fishing in
the North Pacific, 8 ECON. PERSP., no. 1, Jan. 2003, at 11, 13, available at
http://photos.state.gov/libraries/korea/49271/dwoa_120909/ijee0103.pdf (describing how the Russian-
flagged trawler Sakhfrakt-3 converted into a driftnet-fishing vessel and was observed illegally driftnet
fishing fifteen nautical miles inside the Russian EEZ). The vessel was seen in an area close to the region
covered by the Convention for Conservation of Anadromous Stocks in the North Pacific Ocean. Id. The
fishing maters license to fish was suspended for three years, and he was fined 1.2 million rubles
(approximately $41,000 U.S. dollars).
166. Fishery Act, Law No. 267 of 1949 (amended by Act No. 77 of 2007) (Japan), available at
http://www.japaneselawtranslation.go.jp/law/detail/?id=1871&vm=04&re=02.
167. INTL PLAN OF ACTION, supra note 5, art. 3.
168. Fishery Act, supra note 166, art. 138.
169. Id. art. 9.
170. Id. arts. 36 (permitting fishing in the absence of the original right holder with the permission
of the prefectural governor), 52 (requiring Cabinet order to operate designated fisheries), 65 (referring to
ordinances from the Ministry of Agriculture, Forestry and Fisheries), 66 (describing very specific types
of fisheries, such as the salmon driftnet fishery).
171. Id. art. 141(iv) (referring to an obligation in art. 134, which requires the Ministry of
Agriculture, Forestry and Fisheries to collect reports or inspect books and fishing grounds).
172. Act on the Protection of Fishery Resources, Law No. 313 of Dec. 17, 1951, art. 2 (amended
by Act No. 77 of 2007) (Japan), available at http://www.japaneselawtranslation.go.jp/law/
detail/?id=32&vm=04&re=02&new=1 ([The Act] shall not apply to water surfaces that are not used for
public purposes unless otherwise specifically provided.). I read Article 2 to mean that the Act on the
Protection of Fishery Resources was drafted with the intent to apply to public waters.
173. Id. art. 4.
174. Id. art. 36(1).
175. Id. art. 36.
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Japanese laws extend jurisdiction over nonnationals who may engage in
fishing within Japanese waters. According to the Act on Regulation of Fishing
Operation by Foreign Nationals, nonnationals or captains of non-Japanese
vessels who violate Japanese fishing or port laws can face up to a three year
prison sentence.176 Japan also attempts to assert some control over its nationals
by requiring that they obtain permission from the government before working
on a non-Japanese vessel.177
What becomes apparent through an examination of Japan’s fishing laws is
that there is no clear legal regime that characterizes the various components of
IUU fishing by organized groups as a “serious crime.” As under Russian law, a
Japanese public prosecutor may be able to advance a prosecution by relying on
various parts of the criminal code involving criminal property. Yet it is
significant that the fishing codes that govern the activities of vessel owners and
captains of Japanese origin have no clearly delineated laws that define IUU
fishing as a “serious crime.”
c. China
Home to the largest fishing fleet in the world, China has one of the most
explicit codes regarding illegal fishing. For waters under its jurisdiction, China
provides for criminal liabilities when there are gross violations of fishing laws
such as fishing in a prohibited area.178 Foreigners who fish in Chinese waters
may be subject to criminal liabilities.179 However, China’s Fisheries Act does
not specify what criminal liabilities will be imposed, only that an individual
“shall be investigated for criminal responsibility in accordance with the
law.”180 In order to understand the extent of China’s criminal liabilities for
illegal fishing activities, it is essential for a prosecutor to consult the Chinese
Criminal Law.
Article 340 of the Chinese Criminal Law identifies a violation of aquatic
resources laws as a crime with a fixed-term sentence of no more than three
years in criminal detention.181 Relying only on this Article, IUU fishing would
176. Act on Regulation of Fishing Operation by Foreign Nationals, Law No. 60 of July 14, 1967
(revised by Act No. 92 of June 29, 2001) (Japan), available at
http://faolex.fao.org/docs/pdf/jap80334.pdf.
177. Harry Scheiber et al., Ocean Tuna Fisheries, East Asian Rivalries, and International
Regulation: Japanese Policies and the Overcapacity/IUU Fishing Conundrum, 30 U. HAW. L. REV. 97,
149 (2007).
178. Fisheries Law of the Peoples Republic of China, art. 38 (promulgated by the Standing
Comm. Natl Peoples Cong., Jan. 20, 1986, effective Jan. 20, 1986, amended Oct. 31, 2000 & Aug. 28,
2004), translation available at
http://english.agri.gov.cn/governmentaffairs/lr/fish/201305/t20130509_19610.htm.
179. Id. art. 46.
180. Id. arts. 38, 43 (forging or adulteration of fishing licenses), 46.
181. Criminal Law of the Peoples Republic of China, art. 340 (promulgated by Order No. 83 of
the Pres., Peoples Republic of China, Mar. 14, 1997, effective Oct. 1, 1997), translation available at
http://www.npc.gov.cn/englishnpc/Law/2007-12/13/content_1384075.htm.
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not generally qualify as a “serious crime” under the Organized Crime
Convention. However, there are a number of crimes that seem equally relevant
to IUU fishing by organized groups, including smuggling or tax evasion, which
might qualify as “serious crimes” if they include a transnational component.
For example, an individual convicted of smuggling IUU fish on which duties
are owed, may be sentenced to not less than three years if the violation is not
serious and to ten or more years for serious violations.182 Purchasers of
smuggled goods are also held criminally liable.183 The Code provides for
anywhere from five years to lifetime imprisonment for acts of fraud associated
with illegal possession depending on the monetary value associated with the
fraud.184 Illegal possession for purposes of applying this section of the code
could theoretically include illegally obtained fish and seafood. Illegal
operations that disrupt market order may result in sentences of at least five
years if the circumstances around the operation are deemed serious.185 Here,
dumping large amounts of illegal IUU fish products onto the market would
have the potential of disrupting the market. Additionally, if IUU fishing were to
take place within China and involve the state’s public property, then parties
may be prosecuted from three years to life depending on the severity of the
theft of public property.186 There is also a specific section of the Chinese
criminal code addressing organized crime that provides for sentences of up to
three years for any individual who “forms, leads, or takes an active part” in
criminal syndicates to commit “illegal or criminal acts.”187
While there are many causes of action under the criminal code for which a
potential IUU criminal network or Chinese national might be prosecuted, it is
far less clear whether criminal networks involving Chinese members whose
illegal fishing is taking place outside of China can be easily prosecuted within
China. At best, it seems that they may be prosecuted under Article 294 for
participation in an organized crime unit and Article 340 for violations of the
Aquatic Act.188 Taken together these two crimes might result in a cumulative
maximum sentence of six years, which qualifies as a “serious crime” under the
Organized Crime Convention.
It is difficult to find many examples in the English language press of
Chinese prosecution of organized criminal groups for IUU fishing within China
under Chinese criminal law. Most articles involving Chinese fishermen appear
to be focused on other nations prosecuting Chinese vessels and nationals for
182. Id. art. 153.
183. Id. art. 155(1).
184. Id. art. 192.
185. Id. art. 225(3).
186. Id. art. 264.
187. Id. art. 294.
188. Id. arts. 294, 340.
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IUU activities.189 Therefore, while it is possible to define IUU fishing by
organized criminal groups as a “serious crime” within the existing Chinese
code, it is unclear that the Chinese government is using or would use its
national laws to prosecute its nationals for IUU fishing outside of Chinese
jurisdictional waters. In fact, there is great concern that China is not
prosecuting its nationals who may be engaged in IUU fishing on the coast of
West Africa.190
d. Taiwan
The Taiwanese Fisheries Act identifies a right to inspect and possibly
detain any Chinese mainland fishing vessel entering Taiwanese waters.191 The
Fisheries Act does not specifically identify a crime of IUU fishing for its own
nationals but requires all vessels within Taiwanese waters to obtain a
license,192 which may include restrictions on operations.193 For a violation
involving either restrictions or prohibitions on the catching, harvesting,
processing, sale, or possession of aquatic organisms, the maximum
imprisonment is three years.194 If a vessel’s captain or owners commit a
violation, they may be subject to up to five years imprisonment.195 For parties
violating restrictions on the use of certain fishing equipment, imprisonment is
limited to no more than six months.196 A party that alters its registration or
name may be subject to a short-term imprisonment.197 Other violations of the
fishing code are punishable with fines.198 Some of the violations that are only
subject to a fine may be precursors to or indicators of illegal fishing. For
example, a fisher who refuses to cooperate in providing information about
189. See, e.g., Seoul Mulls Addressing China over Illegal Fishing Incident, YONHAP NEWS (Oct. 8,
2012, 5:02 PM), http://english.yonhapnews.co.kr/national/2013/10/08/22/0301000000AEN2013100
8009400315F.html; Japan Arrests China Boat Captain amid Island Row, AGENCE FRANCE-PRESSE
(Mar. 5, 2013, 12:53 PM), http://newsinfo.inquirer.net/368811/japan-arrests-china-boat-captain-amid-
island-row.
190. It is difficult to know whether Chinese vessels are fishing legally or illegally off the coast of
West Africa given the secrecy of access agreements. See, e.g., Daniel Pauly et al., Chinas Distant-
Water Fisheries in the 21st Century, 15 FISH & FISHERIES 474, 47576 (2014) (finding that China
underreports a large amount of fish captures in distant-water fisheries such as West Africa, where it
extracts around 3.1 million tons of fish per year). While it is unclear whether these fish are illegally
captured, one can assume by extrapolation that China is not prosecuting for these unreported fishing
catches, which may still qualify as IUU fishing products. Id.
191. Fisheries Act, amended Aug. 21, 2013, art. 42, compiled in LAWS AND REGULATIONS
DATABASE OF THE REPUBLIC OF CHINA, available at http://law.moj.gov.tw/eng/LawClass/
LawParaDeatil.aspx?Pcode=M0050001&LCNOS=%20%2041%20%20%20&LCC=2.
192. Id. art. 6.
193. Id. arts. 4451.
194. Id. art. 60.
195. NATIONAL PLAN OF ACTION OF THE REPUBLIC OF CHINA (TAIWAN), supra note 31, at 17, §
2.2.4. The NPOA does not explain how to calculate a five-year sentence.
196. Fisheries Act, supra note 191, art. 61.
197. Id. art. 62.
198. Id. arts. 6366.
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catch volume, operation period, fishing gears, or fishing methods to Taiwanese
authorities is only subject to a maximum $2500 fine. As with most of the other
fisheries codes described here, there is no clear indication from the code itself
that the penalties will apply to extraterritorial IUU fishing activities, though the
government appears to have applied its code against extraterritorial activity.199
The Taiwanese criminal code does not contain any specific section involving
illegal fishing and the types of activities associated with IUU fishing.200
A set of fishing regulations promulgated under the Fisheries Act governs
any vessel registered to the Republic of China.201 Fishermen are required not to
“engage in illegal fishing activities during fishery operation.”202 Based on the
regulations, it is not clear what the punishment is for failure by fisherman
operating Taiwanese registered vessels to comply with this provision. In
another set of regulations involving Taiwanese nationals who are investing in
foreign-flagged vessels,203 Taiwanese nationals are expected to submit an
investment application to the Taiwanese authorities, which may be rejected if
the vessel has been listed as an IUU fishing vessel by a RFMO.204 While loss
of the investment opportunity in the IUU vessel impacts the individual investor,
there is no other apparent penalization of either the would-be investor or the
ship owner under the regulation. The lack of designation of IUU fishing as a
“serious crime” in the Taiwanese codes may reflect a lack of interest on the part
of the Taiwanese state to actively combat IUU fishing by criminal groups that
may have some Taiwanese connection. As with the law of other states
described above, IUU fishing by organized crime is not clearly identified as a
part of the fishing code. A “serious crime” prosecution for IUU fishing would
require a more complicated legal strategy than simply applying the Fisheries
Act.
Taiwan has relied upon the Fisheries Code to prosecute its nationals. In
2004, the district court in Kaohsiung sentenced one Taiwanese crew member
working on a foreign flagged vessel to five months imprisonment because of
illegal driftnet fishing on the high seas.205
199. NATIONAL PLAN OF ACTION OF THE REPUBLIC OF CHINA (TAIWAN), supra note 31, at 25.
200. Criminal Law of the Peoples Republic of China, supra note 181, art. 349.
201. Regulations on the Management of the Crew of Fishing Vessels art. 2, amended Feb. 8, 2013,
compiled in LAWS AND REGULATIONS DATABASE OF THE REPUBLIC OF CHINA, available at
http://law.moj.gov.tw/eng/LawClass/LawParaDeatil.aspx?Pcode=M0050006&LCNOS=%20%20%201
%20%20%20&LCC=2.
202. Id. art. 31.
203. Regulations on the Approval of Investment in the Operation of Foreign Flag Vessels,
amended Oct. 16, 2009, compiled in LAWS AND REGULATIONS DATABASE OF THE REPUBLIC OF CHINA,
available at http://law.moj.gov.tw/eng/LawClass/LawAll.aspx?PCode=M0050041.
204. Id. art. 4.
205. NATIONAL PLAN OF ACTION OF THE REPUBLIC OF CHINA (TAIWAN), supra note 31, at 25.
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e. United States
Under the Magnuson-Stevens Fishery Conservation and Management Act,
the United States has specifically identified IUU fishing as a subject for
regulation.206 Congress observes that, “[i]nternational cooperation is necessary
to address illegal, unreported, and unregulated fishing and other fishing
practices which may harm the sustainability of living marine resources and
disadvantage the United States fishing industry.207 The Magnuson-Stevens
Act requires the Secretary of Commerce to define IUU fishing.208 The
definition promulgated in the Code of Federal Regulations includes fishing
activities that violate conservation and management measures of international
fishery agreements to which the United States is a party, overfishing of fish
stocks shared by the United States where there is no management plan or no
RFMO, and fishing activities in vulnerable habitats (such as seamounts,
hydrothermal vents, and cold water corals) where there are no applicable
fishery agreements or RFMOs.209 Potential high seas IUU fishing by U.S.
vessels may result in “civil and criminal penalty provisions, permit sanctions,
and forfeiture provisions.”210
Recognizing the problems with lax flag state enforcement, the United
States has also promulgated regulations giving the Department of Commerce
authority to block shipments from states engaged in IUU fishing. Under 50
C.F.R. section 300.202, the National Marine Fisheries Service has the power to
list states as systematically supporting IUU fishing activities in a biennial
report to Congress.211 On the basis of this listing, the Secretary of Commerce,
in cooperation with the Secretary of State, must notify countries of their listing
as an IUU fishing state and open consultations with the state.212 In January
2013, Colombia, Ecuador, Ghana, Mexico, Panama, South Korea, Spain,
Tanzania, and Venezuela were all listed as states who had failed to control IUU
fishing.213 Based on individual state-to-state consultations, states that are
alleged to support IUU fishing activities will receive either a positive or
negative certification from the United States depending on whether they are
addressing their IUU fishing challenges. Vessels from a state with a negative
certification will be denied entrance to U.S. ports and navigable U.S. waters.214
206. Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801(a)(12)
(2012).
207. Id.
208. Id. § 1826j(e)(2).
209. Id. § 1826j(e)(3); 50 C.F.R. § 300.2 (2014).
210. 50 C.F.R. § 300.16(a)(b) (permitting sanctions prescribed by 15 C.F.R. pt. 904).
211. 16 U.S.C. § 1826j(a).
212. Id. § 1826j(c).
213. NATL OCEANIC & ATMOSPHERIC ADMIN., U.S. DEPT OF COMMERCE, IMPROVING
INTERNATIONAL FISHERIES MANAGEMENT: REPORT TO CONGRESS 2131 (2013), available at
http://www.nmfs.noaa.gov/ia/iuu/msra_page/2013_biennial_report_to_congress__jan_11__2013__final.
pdf.
214. 50 C.F.R. § 300.205.
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Similarly, vessels that appear on RFMO IUU fishing lists may also be
denied entrance to U.S. ports and marine jurisdictions, and prevented from
engaging in transshipment, refueling, or landing.215 Individuals who provide
transshipment, refueling, resupplying, chartering, and processing services to
IUU vessels may be found liable.216 Under the regulations implementing the
Magnuson-Stevens Act, there is only limited criminal enforcement. Most of the
enforcement involves administrative forfeiture, civil fines, and criminal
fines.217 Parties may receive up to a ten-year sentence, but only when the
violation of the Act coincided with the use of a dangerous weapon, conduct that
caused bodily injury to a fisheries observer or enforcement officer, or conduct
that put an observer or officer in fear of imminent bodily injury.218 Ordinarily,
criminal violations of the Act that involve IUU fishing would carry no more
than six months of imprisonment unless the crime is committed under a treaty
such as the Convention for the Conservation of Antarctic Marine Living
Resources.219
Under the Lacey Act from 1900220 and the Lacey Act Amendments from
1981,221 the United States can exercise its authority to impose significant
sanctions against individuals and companies engaged in trafficking illegally
taken fish and wildlife. Specifically, the Act prohibits the import, export,
transport, sale, possession, or purchase of any fish or wildlife taken, possessed,
transported, or sold in violation of any law, treaty, or regulation of the United
States or any international law.222 For purposes of implementing the Act, it
does not matter that the fish or wildlife originated in the jurisdiction of another
state and may not violate U.S. policy. In tuna offloading ports, including Guam
and American Samoa, the Lacey Act has been used to deal with violations of
the laws of a number of Pacific Island states.223 Criminal sanctions are
available under the Act and the sanctions appear to constitute a “serious crime”
under the Organized Crime Convention, with a criminal sentence of up to five
years.224 Still, in practice, criminal prosecution resulting in prison time seems
to be rare. In its biennial report to Congress, the National Oceanic and
Atmospheric Administration provided a sampling of enforcement activities
from 2011 associated with IUU fishing. Notably, while some of the sentences
215. Id. §§ 300.302300.303.
216. Id. § 300.304.
217. 15 C.F.R. §§ 904.100904.108 (2014).
218. 16 U.S.C. § 1859(b) (2012).
219. See, e.g., id. §§ 973973r (South Pacific Tuna Act of 1988) (providing for criminal sanctions
from six months to ten years), 1859(b), 2435 (providing criminal sanctions of up to ten years), 3631
3644 (Pacific Salmon Treaty Act of 1985) (providing for criminal sanctions of up to ten years), 5001
5002 (North Pacific Anadromous Stocks Convention).
220. 18 U.S.C. §§ 4244 (2012).
221. 16 U.S.C. §§ 33713378.
222. Id. § 3372(a).
223. HIGH SEAS TASK FORCE, supra note 40, at 33.
224. 16 U.S.C. § 3373.