Legal Battles Against Illegal, Unreported, and Unregulated (IUU) Fishing

~Sura Anjana Srimayi

INTRODUCTION

Illegal, Unreported, and Unregulated (IUU) fishing is one of the most serious threats to the sustainability of the world's fisheries, marine ecosystems, and coastal communities' livelihoods. From unauthorised fishing within a foreign country's Exclusive Economic Zone (EEZ) to underreporting catches, IUU activities avoid conservation and management measures, causing fish stocks to become depleted and causing billions of dollars in economic losses each year—between $10 and $23.5 billion, it has been estimated. The combat against this illegal business is not just a case of enforcement on the high seas; it is increasingly fought in courtrooms, diplomatic halls, and international tribunals, producing convoluted and exigent legal struggles that forge the destiny of ocean management.

The Extent of the Issue and the Legal Regime

IUU fishing refers to three separate, but frequently concurrent, activities:

• Illegal Fishing: Operations that are done contrary to national legislation or international policy, for instance, fishing without a license, by the use of banned gear, or fishing in closed waters.
• Unreported Fishing: Fishing that has not been reported or has been underreported to the concerned national authorities or Regional Fisheries Management Organizations (RFMOs).
• Unregulated Fishing: Fishing for stocks or in areas where there are no relevant conservation or management measures in place, and where such fishing is done in a way that is not consistent with global responsibilities.

The core of the international legal fight against IUU fishing is a set of international instruments, among the most important of which is the United Nations Convention on the Law of the Sea (UNCLOS), which codifies the rights and responsibilities of states as they pertain to activities in the sea. Other significant agreements are the UN Fish Stocks Agreement (UNFSA), targeting highly migratory and straddling fish stocks, and the FAO Compliance Agreement.

But the most important new legal instrument is the Agreement on Port State Measures (PSMA), which came into force in 2016. The PSMA is an international, legally binding treaty aimed at denying world markets access to illegally caught fish by shutting ports to ships believed to be involved in IUU fishing. By mandating standardized inspections and data sharing, the PSMA transfers the burden of enforcement from expensive at-sea patrols to more feasible, less expensive port monitoring.

Legal Battlegrounds: Coastal States, Flag States, and RFMOs

The law allocates roles among three main actors, each a possible battleground:

1. Coastal State Jurisdiction and Seizures

Coastal states have sovereign rights over the management of living resources in their EEZs (up to 200 nautical miles). Legal disputes mostly occur when coastal states arrest foreign-flagged ships for fishing illegally. Such cases push the national legislation and international law to their limits, especially in relation to the right of hot pursuit and proportionality of sanctions.

Case Example: The Silver Sea 2 One of the remarkable cases was that of the Thai-flagged ship, Silver Sea 2, seized by Indonesian authorities in 2015. The ship was a huge refrigerated carrier believed to be facilitating illegal transshipment (offloading fish at sea to conceal origin) and disabling its Vessel Monitoring System (VMS) to avoid detection. The ensuing legal conflict had Indonesia adopting a hardline approach, eventually seeking the destruction of the vessel as a deterrent measure against IUU fishing, illustrating a national readiness to exercise the full reach of its legal sovereignty. The prosecution by the Sabang district court maintained the legal enforcement measures against the illegal actions of the vessel in Indonesia's EEZ.

2. Flag State Responsibility and the "Flags of Convenience" Issue

Under UNCLOS, the state to which a ship's flag belongs (the Flag State) is responsible for ensuring that its ships are in conformity with international conservation initiatives. The critical legal obstacle, though, is the system of "Flags of Convenience" (FOCs) whereby ship owners register their vessels in states with weak enforcement to escape conformity.

The legal struggle here tends to be a long-term diplomatic and punitive one. RFMOs keep IUU vessel lists, and name and shame vessels that have been determined to have participated in IUU fishing. This listing serves as pressure on the Flag State to act, for example to deregister the vessel or to apply sanctions. Legal disputes can include a Flag State contesting the listing, or international bodies seeking an advisory opinion on the scope of a Flag State's "due diligence" obligation to manage its fleet. Inadequate flag state control has resulted in greater focus on Market State Measures and Port State Measures in order to seal the loopholes.

3. Market State Measures and Supply Chain Integrity

One of the expanding fronts in the war in law is the application of market-based tools to shut off the profitable supply chains that finance IUU fishing. Major seafood-importing nations, such as the United States and the European Union, have enacted legislation mandating catch documentation and traceability to guarantee products come from licensed fisheries.

Legal issues in this sector usually encompass:

• Restrictions on Trade: A state may lawfully impose trade restrictions or refuse entry to fishery products from a country that is recognized as not doing enough to combat IUU fishing.
• Enforcement of Schemes of Documentation: Cases may focus on prosecuting importers or distributors for document falsification (e.g., bills of lading, catch certificates) to smuggle illegally caught fish into legitimate trade. Legal subtlety is the creation of the criminal nexus between the initial illicit catch on the high seas and the ultimate product sitting on a remote supermarket shelf.

The Role of International Tribunals and the Future of Law

The legal disputes also extend to the uppermost echelons of international law. The International Tribunal for the Law of the Sea (ITLOS), in cases such as the M/V Virginia G, has upheld the comprehensive regulative authority of coastal states in their EEZs. In addition, ITLOS has given an advisory opinion stressing the responsibility of Flag States to exercise effective control over their ships, especially regarding their adherence to marine resource conservation and management. These decisions reinforce the legal jurisdiction of coastal states and leave a stronger basis for prosecuting non-compliant Flag States.

CONCLUSION

The legal environment in combating IUU fishing is intricate, multi-jurisdictional, and dynamic. The success of global conventions such as the PSMA indicates an increased global commitment toward altering the economic risk-reward calculus for criminals. 

Yet important challenges remain. The anonymity offered by 'flag-hopping,' shroud-like vessel ownership arrangements, and the vast economic resources of organized crime groups that engage in IUU fishing continue to challenge the boundaries of national and international legal enforcement. Whereas legal actions against specific vessels win short-term victories, the protracted war demands constant political will, increased judicial cooperation between states, and the effective, consistent application of international agreements. Only through the unyielding implementation of the law, from port searches to Supreme Court decisions, can the international community itself turn the tide on this quiet, destructive scourge on the oceans of the world.

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