불법 · 비보고 · 비규제어업(IUU) 어업 근절의 난제 : 인도의 관점에서

In July 2022, a Radio Frequency (RF) data acquisition campaign by Unseen Labs revealed a suspicious incident where a Chinese fishing vessel turned off its AIS beacon for 42 hours while operating inside the Indian Exclusive Economic Zone (EEZ). This move made the ship unidentifiable as it entered the in the Arabian sea and rendezvoused with another Chinese flagged fish carrier. Thereafter, such similar suspicious activity was reported near the Omani EEZ.

Suspicious activities by foreign fishing vessels in the waters of other States raise serious concerns of illegal, unreported and unregulated (IUU) fishing. IUU fishing is a menace, which not only endangers marine ecosystems, but also jeopardises human and labour rights as well as human security. Fishing is one of the deadliest professions in the world, and IUU fishing compounds the threats to seafarers and fish workers while eroding coastal economies. IUU fishing flouts coastal and flag state labour laws, leaving their workers at the mercy of profit-driven companies or even criminal enterprises. Maritime law enforcement agencies tend to target the vessel and not its operating company, so fishers face legal sanctions by coastal states for their participation in IUU fishing activities. Hence, IUU fishing not only inhibits progress towards achieving long-term sustainability and responsibility but also threatens livelihoods, exacerbates poverty and intensifies food insecurity. The international commercial fishing industry operating in the Indian Ocean Region (IOR) is replete with human and drug trafficking and forced labour and human rights abuses on board fishing vessels. Further exacerbating these conditions are refugees, who resort to fishing trawlers to escape and seek asylum, even while being exposed to unique risks, including the COVID-19 pandemic or illegal servitude akin to slavery.

However, IUU fishing is not limited to violations by foreign fishing vessels only. Fishing vessels violating flag state laws also constitute IUU fishing. Further, IUU fishing also occurs in the high seas when fishers operate outside of regional fisheries management organisations (RFMOs) or fail to cooperate with coastal states on the management of straddling stocks. The precise nature and scope of IUU fishing is characterised by the International Plan of Action to prevent, deter and eliminate IUU fishing (IPOA-IUU), which is a voluntary instrument within the framework of the Food and Agricultural Organization’s (FAO) Code of Conduct for Responsible Fisheries. IPOA-IUU applies to all states, entities and fishers, but is not legally binding. Yet, the IPOA-IUU is remarkably widely respected, and it defined “illegal fishing” as fishing in violation of national laws or fishing in waters under the jurisdiction of another state without permission and in violation of coastal state laws or. “Illegal fishing” also includes fishing in contravention of the measures adopted by the concerned RFMO or applicable international law. “Unreported fishing” refers to fishing activities that have not been reported or misreported to the concerned national authority in violation of national laws and regulations or undertaken in areas subject to but in contravention of the reporting procedure of the RFMOs. “Unregulated fishing” refers to activities conducted in a way that undermines the conservation measures of RFMOs in their operational area by vessels flying the flag of States that are not party to the concerned RFMO or which are conducted inconsistent to State responsibilities in areas lacking applicable conservation or management measures.

The determination of IUU fishing warrants the existence of compliance mechanisms through the adoption and implementation of national, regional and international legal framework, as set by coastal, flag and port States, RFMOs as well as applicable international law. Developing countries, which typically lack capacity and resources for effective monitoring, control, and surveillance of fishing activities within their jurisdiction, become particularly easy targets for IUU fishing. As IUU fishing exploits seam in the regulatory systems and enforcement capabilities of coastal states in the IOR, it overwhelms the weakly regulated or unregulated fisheries sectors. The 2020 report of the World Wildlife Fund written in cooperation with Trygg Mat Tracking and support of Global Fishing Watch noted the dominance of China in squid fishing in the Indian Ocean and found that unregulated squid fishing expanded by 830% in just five years.

Furthermore, by its very nature of misusing weak management and enforcement systems, IUU fishing threatens the coastal state security—a matter which cannot be discounted for any State. A strong case study in this regard would be India, which has a strategic location in the IOR where around 14% of global marine fisheries find home and yet over 30% of the fish stocks are not fished within biologically sustainable levels.

India does not permit fishing operations by foreign vessels within the Indian EEZ. However, there is a regulatory gap created by the lack of comprehensive national legislation and enforcement mechanisms to identify, prohibit and penalise the occurrence of IUU fishing. In 2019, Indian authorities identified 10 Chinese fishing vessels belonging to the Fu Yuan Yu fleet that were suspected of carrying “damaging illegal gear” and fishing unlawfully in Indian EEZ. Unfortunately, reports inculpating the Fu Yuan Yu fleet for illegal fishing are not novel but rather too common, underscoring the complex relationship between IUU fishing and maritime crime and violations of human rights, and the challenges to counter them.

Although, India only has a mere 104 deep sea fishing vessels that are equipped to fish beyond the Indian territorial waters, any Indian fishing vessel licensed and registered in India and manned with fully Indian crew is permitted to fish in the Indian EEZ in a sustainable manner. India is one of the 168 state parties to the United Nations Convention for the Law of the Sea (UNCLOS) and one of the 92 state parties the United Nations Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). Such strong state participation denotes that the obligations under these international instruments are vested on a large number of states, creating a largely uniform international legal regime.

Under UNCLOS, coastal states may regulate matters concerning fisheries as a part of their sovereign rights for exploring, exploiting, conserving and managing all living and non-living resources in the EEZ. The exercise of such sovereign rights may be through licensing, collection of access fees, quotas, and other specific regulations relating to fishing vessels and fishing gear, enforcement procedures. Besides, coastal States are empowered to determine the total allowable catch of the living resources in their EEZ and are obliged to ensure that the living resources in their EEZ are not endangered by over-exploitation.

In the seminal case M/V Virginia G, the International Tribunal for the Law of the Sea (ITLOS) affirmed the coastal state’s regulatory competence to manage fishing within its EEZ and related activities that impact fishing. The Tribunal highlighted that UNCLOS compels coastal states to adopt proper conservation and management measures based on relevant environmental and economic factors to maintain or restore fisheries at levels capable of producing “maximum sustainable yield.” Subsequently, in an advisory opinion, ITLOS characterized that coastal state obligations to adopt conservation and management measures for all living resources within the EEZ are mandatory and it determined that coastal states have the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing. Furthermore, ITLOS confirmed that such laws and regulations adopted by the coastal state in conformity with the UNCLOS provisions for conserving living resources and protecting and preserving the marine environment within its EEZ constitute a part of the legal order for the seas and oceans established by UNCLOS. Therefore, state parties must comply with these rules at all times, and particularly when its ships are fishing in a coastal state’s EEZ.

These judicial holdings emphasise on the dispositive role of coastal states in combating IUU fishing. However, by virtue of Article 94 of UNCLOS, flag states also play a pivotal role in this regard by exercising effective jurisdiction and control over the conduct of ships flying their flag within the EEZ of other states. ITLOS has, in its advisory opinion, affirmed the obligation to effectively exercise flag State jurisdiction extends to ensure compliance by their fishing vessels with the UNCLOS commitment to conserve and manage marine living resources and particularly, the relevant coastal state measures in its EEZ. To ensure compliance, flag states must discharge “due diligence” with respect to the operations of its vessels in the EEZ of other States through necessary measures, including those of enforcement. Furthermore, the Award in the South China Sea Arbitration reiterated that the breach of this obligation of “due diligence” imposes liability for the flag state of ships conducting IUU fishing in another state’s EEZ. Correspondingly, flag states must hold the ships flying their flag accountable for alleged engagement in IUU fishing through appropriate investigative and remedial measures, as well as cooperate with coastal states.

To assist flag states in this regard, the FAO’s Voluntary Guidelines on Flag State Performance provides a range of actions, including monitoring, control and surveillance. These guidelines promote international information sharing and cooperation to place flag states in a position to refuse registration to vessels reported for IUU fishing or that are “flag-hopping”—a practice used to repeatedly register with new flag States to dodge detection—which undermines anti-IUU fishing efforts.

The high seas, which lie beyond areas of national jurisdiction, are open to all states and subject to high seas freedoms, including the freedom of fishing—albeit subject, inter alia, to the duty of conservation of the living resources of the high seas and cooperation with other States for that purpose, as well as the obligation to comply with the UNFSA and RFMOs. While discharging this duty of cooperation for the purposes of conservation of high seas living resources, states whose nationals exploit identical or different living resources in the same area are to negotiate, through means of appropriate sub-regional or regional fisheries organizations, for taking necessary measures. Similar to their effective role in the EEZ, the terms of the UNFSA and RFMOs provide for effective the management of international fisheries, but compliance is always a challenge.

The UNFSA complements the UNCLOS obligations by endorsing RFMOs or similar arrangements, particularly considering the specific characteristics of the sub-region or region, as pertinent players in enhancing cooperation between coastal States and States fishing on the high seas for effective conservation and management of straddling fish stocks and highly migratory fish stocks. The obligation for such cooperation is extended to non-members or non-participants of such organization as well. Additionally, States should enter into consultations in good faith and without delay, specially where there is evidence that the concerned fish stocks may be threatened by over-exploitation or where a new fishery is being developed for such stocks. Importantly, states are to ensure adoption of effective mechanisms for compliance and enforcement of their conservation and management measures in this regard, including necessary and reasonable use of force.

This legal regime is further influenced by instruments developed within the framework of the FAO, the International Maritime Organisation and the International Labour Organisation. Flag state obligations to effectively tackle IUU fishing are augmented by the 1995 International Convention on Standards of Training, Certification and Watchkeeping for Fishing vessels personnel (STCW-F Convention), the 2007 ILO Work in Fishing Convention, No. 188 (ILO Convention) and the 2012 Cape Town Agreement (CTA). These instruments are applicable to fishing vessels of 24 metres in length and over, which are generally involved in deep sea fishing operations. They relate to safety of fishing personnel at sea, protecting their living and working conditions and safety of fishing vessels, respectively.

These instruments also vest obligations on port states, which provide a powerful and cost-effective means of preventing, deterring and eliminating IUU fishing. Port state commitments include exercise of control through non-discriminatory measures over foreign fishing vessels calling into ports, including by inspecting documents, fishing gear, catch on board fishing vessels, and prohibiting landings and transhipments. Other lucrative additions in this field are the IPOA-IUU, the 2007 Model Scheme on Port State Measures to Combat IUU Fishing (Port State Model Scheme) and the Agreement on Port State Measures to prevent, deter and eliminate IUU fishing (PSMA). The IPOA-IUU encourages port states to report to the concerned flag state where there is clear evidence of IUU activity and where IUU fishing occurred beyond that port state’s jurisdiction. The non-binding Port State Model Scheme emphasises on fishing vessel identification through IMO ship identification number—a Unique Vessel Identifier, which was extended for assignment to fishing vessels since 2013. The PSMA is the principal binding international agreement that specifically targets IUU fishing through conditions for the entry and use of ports by foreign fishing vessels.

However, inadequate state participation to these instruments today is disadvantageous to holding fishing vessels accountable for IUU fishing under parallel compliance regimes of the flag states and port states. Presently, the STCW-F Convention, ILO Convention and PSMA have entered into force, but they only have 34, 20 and 72 contracting parties respectively. Besides, the CTA has not yet entered into force and has 17 state parties only.

India is among the states that are not a party to the STCW-F Convention, ILO Convention and PSMA. The lack of legal commitment is also evidence of the required regulatory gap to intercept IUU fishing, which has alarming impacts over 1906 marine species found in the Indian waters, including an EEZ that spans over 2 million sq. km. These waters provide livelihood to some 28 million Indians at the primary level—a figure that almost doubles along the value chain. The traditional marine fishers of India continue to be increasingly dependent on marine capture fisheries for livelihoods, and with depleting fish stocks along the Indian coastline, the fishermen are forced to venture deeper into the sea at the cost of risking their lives—despite the recognised lack of traditional entrepreneurship in the deep-sea fisheries sector.

However, India acknowledges these special circumstances and the helplessness many of its fishers confront. Hence, at the trade negotiations at the World Trade Organization on the Agreement fisheries subsides, India sought special and differential treatment in the IUU fishing subsidies obligations, including with regard to overcapacity, for developing country members and least-developed countries. Specifically, it suggested exclusion of territorial waters—where most small scale and artisanal fishing takes place in the Indian context—from the prohibition of subsides for unreported and unregulated fishing.

Fishing within Indian territorial waters is legislated by the respective maritime State or Union territory of India. Commonly, these state legislations provide for licensing and registration of the fishing vessels and empower the relevant administrations to restrict, prohibit or regulate fishing in any specified area—keeping in view the need, inter alia, to: (a) protect the interests of stakeholders engaged in fishing, particularly those employing traditional fishing craft; (b) conserve fish; (c) to regulate fishing on a scientific basis; and (d) the need to maintain law and order in the sea. Despite this framework, large number of fishing boats routinely stray into other Indian states’ waters and beyond their specified area of operation—courtesy to depleting fish stocks in the coastal waters and weak enforcement of the existing laws. In fact, Italy questioned the legitimacy of fishing by Indian fishermen in Indian EEZ in the “Enrica Lexie” arbitration, where the Arbitral Tribunal held that “States may, exceptionally, exercise their freedoms under Article 87 of the Convention also through small non-registered vessels, although the Convention tends to discourage non-registration.”

Further, the adoption of clear and precise fisheries laws would require clarity on the maritime areas within the jurisdiction of states to help states to concretely realise the exact extent of implementation and enforcement of such laws. In reality, the existence of disputed maritime zones complicates the realisation of such laws.

The 2014 Arbitral Award in the Bangladesh/India Maritime Delimitation and the 2012 ITLOS Bangladesh/Myanmar judgement resulted overlapping grey areas in the Bay of Bengal (BoB). Beyond 200 NM from Bangladesh’s coast, Bangladesh has a sovereign entitlement to the seabed and its subsoil, while within 200 NM of the coast of India, India and Myanmar have overlapping sovereign rights in the water column and over the living resources therein. To resolve this dilemma, the arbitral Tribunal invited the Parties to enter into further agreements or the creation of cooperative arrangement, wherein India and Myanmar have to either share or agree to apportion their sovereign rights in the EEZ, while Bangladesh enjoys exclusive rights over the continental shelf. In practice, fishermen routinely go missing in the rough sea conditions in the BoB and are often arrested for fishing in the maritime boundaries of each other by Bangladesh, India and Myanmar. India has bilaterally engaged with Bangladesh to combat transnational illegal activities at sea, including to restrain fishermen from crossing their respective maritime boundaries, and with Myanmar for cooperation in the field of fisheries in the BoB and the IOR, emphasising on maritime domain awareness and the inadvertent crossing of the maritime boundary by their respective fishermen and facilitating their early release. India and Myanmar have signed an MoU on border cooperation, including for peace and tranquillity on both sides of the maritime border, where usage of their respective maritime spaces for inimical activities is prohibited and both countries are to take necessary measures to prevent illegal fishing and deal with such incidents after mutual consultations. The above arrangements, nevertheless, direct for the need of comprehensive trilateral arrangements for fishing and fisheries in the BoB, in addition to bilateral comprehension of each country’s conduct in the grey areas.

Also, the unresolved dispute concerning the Sir Creek between India and Pakistan, which impacts the maritime boundary delimitation in the Arabian sea region coupled with absence of impactful fishing agreements, is a serious IUU fishing and national security concern. In 2011 Indian fishermen on board Indian fishing vessel MV Kuber were taken hostage and subsequently killed by Lashkar-e-Taiba terrorists, who then entered India to strike Mumbai and murder hundreds of people. Also, in these disputed waters, the regular arrest of the fishermen of both countries for their inadvertent deviation into the other’s waters has become a common feature. Nevertheless, India has not maintained any database of registered fishermen across coastal borders with Pakistan. Although endeavours have been made to promote humane treatment of the arrested, detained or imprisoned fishermen in this case, a major loophole to be remedied lies in the selective usage of the Global Positioning System (GPS) by fishers straying into Pakistani territory to avoid surveillance. Clearly, disputed maritime boundaries aggravate IUU fishing, which in turn exposes coastal states to additional security threats.

However, to help countries navigate these overlapping maritime entitlements where the final delimitation agreement concerning the EEZ is pending, Article 74(3) of UNCLOS provides for two interlinked obligations on concerned coastal States for conduct during the entire transitional period:  a positive obligation to make every effort to enter into provisional arrangements of a practical nature and a negative obligation to make every effort not to jeopardize or hamper the reaching of a final agreement. The significance of these obligations has also been emphasised by the Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname (Guyana/Suriname) and the Judgement rendered in the dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean.

Another impediment is the persistent tension between India and Sri Lanka regarding the traditional or historic fishing rights in the Palk strait region. The Award of the Eritrea-Yemen arbitration has laid precedence that the traditional fishing rights of nationals of other States continue to exist in a coastal State’s territorial sea and the latter has a duty to preserve the traditional fishing rights of free access and enjoyment for the fishermen of both States for the benefit of the lives and the livelihoods of what it described as the “poor and industrious order of men.” In the 1970s, India and Sri Lanka have agreements affirming the obligation. However, the friction perseveres with the fishermen belonging to the two countries being arrested for allegedly fishing therein and often, Indian fishermen suffer with injury or death due to being shot by Sri Lankan authorities. Subsequently, the repatriation of fishermen suffers delay, the seizure of the fishing boats leads to fishermen facing bankruptcy and the injured fishermen or family of the deceased are left awaiting adequate relief.

Another incident demonstrating the immense vulnerability of Indian fishermen came in 2012 Enrica Lexie case, when two Indian fisherman, who had chartered in the Indian EEZ, were shot and killed by Italian Marines on suspicion of piracy. The Marines served on board the Italian-flagged commercial oil tanker, Enrica Lexie, and the case created a diplomatic row between India and Italy for nearly a decade. These examples challenge the interpretation of the rights, jurisdiction and enforcement powers of coastal states under applicable international law, especially in the waters where they exercise sovereign rights over the natural resources. Further, they lament the direct impact of criminal activities on economic rights.

Given these increasing challenges, it becomes pertinent to enhance situational awareness of the activities in the maritime domain, particularly concerning IUU fishing. India has signed White Shipping Agreements with several countries to achieve maritime domain awareness, in addition to a multilateral construct comprising of 30 countries. Further, India established the Information Fusion Centre-Indian Ocean Region (IFC-IOR) in 2018. The IFC-IOR strives for mutual collaboration and exchange of information and understanding the concerns and threats prevalent in the IOR, firstly through virtual means, including telephonically, video conferencing and use of internet, secondly by hosting Liaison Officers from partner countries, and thirdly, by enhancing capacity building. In June 2022, for example, the IFC-IOR reported 55 incidents of IUU fishing throughout the IOR, wherein 39 incidents were of local IUU fishing and 16 incidents of arrests of foreign fishers poaching in the waters of another. The IFC-IOR also publishes a weekly report of weekly incidents of IUU fishing tabulated inter alia with the vessel details, offences, county of region, fishers involved and responders. However, in there is no data on incidents of IUU fishing occurring where no legal consequences were imposed.

In these circumstances, it is clear that obscurity in law and weak enforcement enable vessels engaged in IUU fishing and augment its occurrence. The primary hurdle is the comprehensive identification of IUU fishing in itself. Embracing technology, especially capable of detecting suspicious fishing vessels, such as RF data acquisition, may be helpful. The case of India demonstrates that imprecise legal regulation of fisheries, results in an even frail enforcement at sea. For instance, just permitting Indian fishing vessels to fish in a “sustainable” manner with no further detailed guidelines is vague and inadequate to meet the coastal state and flag state obligations and hold the vessels engaged in IUU fishing accountable. The lack of participation in STCW-F, ILO Convention, CTA and PSMA are also severe drawbacks to combat IUU fishing. Applying the obligations under these instruments will also enable a humane approach to deal with vulnerable fish workers.

Besides, the legal framework must also take a specie-specific and area-specific approach, which will further enable states to actually take a precautionary approach for the conservation and management of fisheries. Importantly, provisional fishing arrangements in the disputed maritime areas must become a priority, since they have immediate security risks. Prima facie, however, putting in place these measures to combat IUU fishing requires a strong political will.