불법조업 어선의 폭력적 활동에 대한 담론 : 안개 속의 괴물 – 한국의 사례를 중심으로

Introduction

At present, Korea is one of the oceanic areas being invaded by the Illegal Fishing Vessel regionally. Korea is also one of the dream destinations for Illegal Fishing Vessel especially the “Yellow Seas” as Korea Peninsular which is currently encounter the same situation with other country in North East Asia and South East Asia. I considered this situation as one of most risk and dangerous against “Maritime Safety”. As a result of that, under Illegal Fishing Situation which have interfered the officers who have a duty to patrol and combat against the Illegal Fishing Vessel become like the “Monster” hiding in the mist of “Freedom of Navigation”. This article would describe over the distinctive legal and customary regulations toward this activity over the perception of predation at sea. Besides, together with the expression of the serious problems such as the fighting back with the unidentified vessel, use of force and casualties of life also the effect to the marine environment will be discussed.

North East Asia, the champion continent of many countries in region have still been invaded by this “Plunder at Sea” according to the number of the incidents, Illegal Fishing Situations are still blossomed in this sea territory especially Exclusive Economic Zone (EEZ). Seeing that, Korean Sea Area is full of natural living resources with perfect geographic and disciplinary barrier, I hope to express my vision on the problem of Illegal Fishing Vessel in the early modern world through this article in order to be a small puzzle which contribute the ocean to be a better place toward the peaceful means amidst 21st century.  The reason that Korea being chosen to illustrate this situation is because of the longstanding legacy by convening scholars, practitioners, and experts from the region to engage in meaningful dialogues that aim to advance the rule of law, as well as justice and equity within the region and beyond over the utilities of the ocean.

The rule of law of the sea over this issue stands as a cornerstone in the edifice of the modern world, widely acknowledged as a foundational element for global maritime prosperity, the enhancement of security systems, and the safeguarding of human rights. As North East Asia gains more prominence over the ocean utilities, it presents a distinctive interpretation of the rule of law, one that change away from main paradigms in order to protect the wellbeing of safety at sea. This interpretation places a heightened emphasis on harmony of Maritime Community, the prioritization of collective interests, and the preservation of values of “Maritime Security”.

The Yellow Sea Large Marine Ecosystem (YSLME)

Current situations of Chinese fishing fleets as known as the monster in the mist attacked over Yellow Sea of Korea Peninsular recently during these 5 years (2019-2024), in general, is still considered ongoing. When we look back into the ancient time, many nations started their fishing activities by local fisheries, in the past, there are not that much illegal fishing activities occurred in Korean Sea Area because of the sufficient living marine resources of each own state. As a result of that, there are no such a severe incident where the illegal fishing fleets of one state invading into the sea territory of the other state. 

During the time of Industrialization until nowadays, the demand of food especially the seafood product in this region is significantly increased. On the other hands, some states fail to provide the nation with the sufficient supply from the ocean with some reason for instance the lack of high technologies for the fishery activity, an inappropriate geographical of their ocean where it does not allow the fish stock to migrate into their sea area or the incapable to manage the proper fishing activity in their sea territory.

When it turns out that some state is not able to reach the demand of their civilian in term of food products from the ocean, the idea of marine natural living resources exploitation into other state’s sea area both legally and illegally had started. “Yellow Sea” (as known as Golden Fishing Ground) is the area where fish stocks for instance Blue Crab, Pacific Herring, Sohachi being protected in order to preserve the marine species also the Yellow Sea Eco-region. Unfortunately, those species which migrate in Yellow Sea are the main targets that the foreign Illegal fishing fleets aim for. As a result of that fishery activity which not only destroys the marine ecological environment but also mainly affects human being and equipment damages by Chinese illegal fishing vessels  have been continued. 

Normally, the regular methodology that the Chinese Illegal Fishing fleets apply is the mothership and group of small power boats with 3-4 450 HP engine packing and invading through the maritime border line. From the global statistic which significantly effect in the policy planning of the Korean officer to patrol the risk area shows that Chinese Fleets do not hesitate to risk any kind of violence to avoid crackdown by the Korean Maritime officer. Generally, Chinese illegal fishing fleets illegally enter the maritime domain of Yellow Sea and gradually explore the fish stock and other seafood species by using their Automatic Identification System (AIS).  Since the Chinese fishing vessel intentionally aim for the huge amount of fish stock without being caught, that is the reason why when the fleets are suspected, they would fight back seriously in order to be able to flee away up north with their highly organized, elaborately plan to evade crackdown by KCG.

There are some illustrations of the incidents occurred in Yellow Sea; On Mar 4 2011, crackdown team officers seriously injured by Dagger, Hammer, the weapons which the crew members of illegal fishing fleets had used. Dec 12 2011, officer was killed by Chinese fishermen, Oct 8 2016, the rib boat of crackdown team was sank by Chinese fishing fleet also On April 20 2022, ‘Intentionally Ramming Rib Boat’ and Zig-Zag Maneuvering to evade crackdown. Use of violence to evasion crackdown apparently cause the injured to the officers and object damages by Chinese illegal fishing vessels.

Since Korea and China did not contribute the agreement over the “Exclusive Economic Zone (EEZ.)” but the “Fishing Agreement” instead. As a result of that, the protection of the “North Rim Line” Area in order to preserve the fishing area of Korean Nation from the Illegal Fishing Activities by those foreigner fishing vessels is necessary. The patrolling and preventing by Korean Officers to keep the “Maritime Safety” of Fish stock as the marine natural resources over Korea Peninsular then bare lots of risk from being attacked, hurt and/or casualty dead included the damage of the vessel, weapon also the equipment which attached to the vessel during the confrontation of the Korean Officers and the Illegal Fishing Fleets.

Then what is the significant impact from those actions of illegal fishing and what will the stake holders in those incidents acknowledge from what happen recently? What is the proper way to fight back the Chinese Illegal Fishing Activities in Korean Peninsular? What are the “Long Term Solution Recommended” either by Peaceful Means, Diplomatic Means or Use of Force at Sea as the legal and policy mechanism in this 20th century’s time

Korea in terms of “Maritime Security” is championing the sources for legal systems apply over the mechanism to prevent and protect the maritime safety that are not only efficacious but also deeply resonant with their unique cultural narratives on Illegal Fishing Activities. By wholeheartedly embracing the rich tapestry of perspectives that Korea’s narratives on the rule of law offer the Law of the Sea internationally and related inbound regulations domestically, I have the opportunity to carve out pathways toward a legal landscape that is both inclusive and cohesive. Such an oceanic landscape promises to reflect and honor the values and aspirations of diverse communities throughout North East Asia, paving the way for a future where the rule of law not only governs but also galvanizes the spirit of unity and mutual respect over the ocean.

Illegal Fishing and related piracy like situation especially the one happened in EEZ (Exclusive Economic Zone) always fallen under the general principal of The United Nations Convention on the Law of the Sea (UNCLOS) which is a landmark instrument described as a “Constitution for the Oceans”. In terms of “Illegal Fishing”- these rules of law would describe the “Optimum Utility” principal as the exception of it. Of particular relevance to fisheries are their Part V (articles 55 to 75) on the Exclusive Economic Zone (EEZ), UNCLOS recognizes the sovereign rights of the coastal States for the purpose of exploring and exploiting, conserving and managing fishery resources in their EEZs, calling upon the coastal States to adopt conservation and management measures to promote the optimum utilization of fishery resources in their EEZs. 

However, as UNCLOS was being adopted and as more coastal states claimed their right and jurisdiction over fisheries in their EEZ, this circumstances that occur in Korean Peninsular could be considered as “Navigation risk”. It is undeniable that according to the duty to protect its own marine natural resources in Yellow Sea, the responsible officer has to risk their life and the safety of vessel to perform their duty of patrolling and protecting the ocean. While we navigating through the cosmos of the law of the sea over this issue, the legal standards that need to be considered accordingly are Use of Force, Right of Approach, Right to Visit, Self Defense also Search rules governing all uses of the world’s oceans and seas and their resources. 

It provides the international legal basis for the protection and use of living and non-living resources of the world’s oceans at the same time over the Yellow Sea Area. However, The Convention is the point of departure with respect to the conservation of living marine resources, for binding and voluntary international fisheries instruments such as those adopted by the Food and Agriculture Organization of the United Nations (FAO), as well as non-binding but politically significant fisheries resolutions, such as those invading into South Korean Maritime Zone. The reason that illegal fishing by foreign fleets is still the big problem to the officers and the departments who have responsibility over the eradication of illegal fishing activity is it is difficult and complicated to balance between the duty and the proportion of use of force.

The Fishing Agreement between China and Korea, also spells out the duties of flag States including those related to registration and records of vessels, authorizations, MCS and compliance and enforcement.  However, the limitation of the application of “the use of force vs. self-defense” toward the real-time situation that happen in the Yellow Sea affect significantly to the safety at sea of the Korean officer also the Korean patrolling vessel which included in the Maritime Security over Korean Peninsula. A reasonable ground-breaking, unique and voluntary instrument that block the practitioner from apply the proportionated of those rules of law of the sea for instance use of force, self-defense, right to visit, right to investigate, and hot pursuit is code of conduct over fisheries was written broadly without the suggested detail as guide line to those officers on how they should legally apply those power for the long-term sustainable outcomes to protect themselves in this chaos.

The reluctance and hesitation of the officer’s performance result in the loss of life and the damage of the vessel during those situations. Even tough, the related domestic rules of law also the core principles from law of the sea provide guidance to strengthen and monitor compliance by Flag States with their international duties and obligations regarding the flagging and control of fishing vessels, still those illegal fishing fleets are not afraid of encountering the Korean Patrolling Team. They know the limit of relevant responsibilities of the officer from the Coastal States on the basis of elements contained in international law, including binding and non-binding international fisheries instruments.

Illegal Fisheries Management, are among the central components of the decision of the officer and the practitioner. The range of actions that countries can take to ensure that vessels and the life of the officer is secure under the IUU fishing conduct, including monitoring, control and surveillance (MCS) activities, such as vessel monitoring systems (VMS) and observers are the barrier to the most effective measure to get rid of IUU fishing in the Yellow Sea. Since there are the factors on the side where the officer who handle this situation has to compromise and concern over the level of “use of force and self-defense” . Hence, it is hard for them to decide how they are able to cope with the armed- crew member of those illegal fishing fleet because they don’t want to act against the level of self-defense. While they still have to concern of the over limit of use of force standard since those actions might affect the diplomatic and political relations of two states.

Conclusion

The purpose of the raising of this issue is to bring together law and scholarly from within and outside Korean that related to the illegal fishing being conducted in Korean Peninsula. From the historical background to the legal system to interact, share ideas and build networks which may facilitate dialogue and academic collaborations over the protection of lost and damage from illegal fishing activity. I hope that this academic article will be widely used to bring together collaborators in various dimension. This article encouraged to connect with academic fellow and practitioner to start thinking about potential of securing the safety at sea from the illegal fishing situation in Yellow Sea.

Recommendation

The future challenge remarks in this article are how to ensure the safety at sea of the officer on duty to protect the Yellow Sea from illegal fishing situation over the era when AI and technology related to fisheries develop so fast. The promotion of information exchange and cooperation among two countries so that flag states are in a position to prevent the illegal fishing vessels who attempting to conduct the action of IUU fishing meanwhile the coastal state can protect their own territory in time. The Guidelines should also include recommendations on how countries can encourage compliance and take action against non-compliance by vessels, as well as on how to enhance international cooperation to assist developing the measures to fulfil the interpretation of use of force principal for the practitioner like KCG who have responsibilities to make a sharp decision in order to efficiently protect the safety of their life.

Even the mechanisms exist primarily in the form of conservation and management measures are properly and theoretically set up, but when it turns to real situation, fora and task forces that include the elimination of IUU fishing as a primary objective are considered not effective enough. It is better to be more apparently and clearly grant the power and authorization to the officer who is on duty.

Instruments such as the PSMA, UNCLOS, the Fish Stocks Agreement, the Code of Conduct for Responsible Fisheries, IPOA-IUU, the Voluntary Guidelines for Flag State Performance and the Voluntary Guidelines for Catch Documentation Schemes, all explicitly identify and represent how to practice in this situation when discussing international cooperation and the implementation of these instruments. Some of the key initiatives to the peace in Korean Peninsular have continued to develop include IUU vessel lists, Coastal and Flag State measures, responsibilities, regional catch documentation and catch certification schemes, as well as information exchange mechanisms, monitoring and enforcement.