Susi Pudjiastuti Jakarta Post 13 Jun 16;
You will agree with me how essential the ocean and its wildlife resources are for our economy, livelihoods and way of life. Yet, human action has affected them, especially fish as well as other marine wildlife and their ecosystems.
In the last few decades, illegal, unreported and unregulated (IUU) fishing has depleted the world’s fish stocks by 90.1 percent. In Indonesia alone, it causes around US$20 billion in state losses per year.
Even more worrisome is the fact that it has also affected the economy of our small-scale fishermen. For example, the number of fishermen decreased in the span of just one decade from 1.6 million people in 2003 to only 800,000 in 2013.
Indeed, IUU fishing has become a major problem, not only for the management of sustainable fisheries but also for the ecosystem and, in turn, society.
Grasping the urgency of this situation, the government imposed a one-year moratorium upon all licensed fishing vessels built outside of Indonesia (or ex-foreign vessels) between November 2014 and October 2015. The moratorium was used to conduct investigations on IUU fishing activities on 1,100 ex-foreign vessels that were licensed to operate in Indonesia.
Considering their size and equipment, those ex-foreign vessels had extensive capacity to exploit Indonesia’s marine and fisheries resources, making them a major cause of depletion of resources, while also taking into account the duplication of licenses by each vessel, to be used for up to 10 vessels.
From the audit process, several violations and criminal offences were found. These included, among other things, the employment of foreign crew members, fishing outside of permitted fishing grounds, use of destructive fishing methods and equipment, turning off transmitters during operations at sea, illegal transshipment of all the catches offshore while in return smuggling people and goods to the country and exporting catches without customs checks and proper documentation.
Indonesia acknowledges from this investigation that there are also many violations of law arising from IUU fishing activities. It has come to our, and even the world’s, attention that IUU fishing activities have definitely led to fisheries crimes and other fisheries-related crimes. These terms of criminology are used to describe crimes committed along the whole value chain in the fisheries industry.
Transnational organized crime in the fishing industry is now in fact growing into a complex and dangerous activity and is associated with other crimes. Based on evidence found around the globe, many vessels committing IUU fishing employ forced labor or trafficked persons or smuggled weapons.
The government has encountered some fishing vessels involved in transnational organized criminal groups in the fishing industry that also engaged in illegal activities such as money laundering, bribery, drug trafficking, human trafficking, tax fraud and smuggling of illegal goods including alcohol, cigarettes and drugs without paying duty and completing customs clearance, as well as smuggling of endangered species such as Papuan birds of paradise, parrots, turtles and other protected species.
In the case of Indonesia, for example, these crimes were publicly disclosed when the government imposed the one-year moratorium policy and the investigative audit. Pursuant to the investigative audit result, over a thousand people working in the fisheries industry were identified as victims of human trafficking in Benjina and Ambon in Maluku.
Furthermore, numerous violations of laws were also found, which included forged vessel documents, immigration papers and employment permits, raising the flags of many states, smuggling and illegally trading goods, wildlife and endangered species to illicit drugs.
To tackle these issues, the government has taken a number of measures.
First, we established a taskforce to combat illegal fishing as a one-roof enforcement system that consists of five government agencies. The taskforce that I coordinate has a mandate to combat illegal fishing, especially fisheries and fisheries-related crimes through integrated enforcement action and promoting policy reform by developing a strategic roadmap to improve Indonesia’s fisheries governance.
Second, the issuance of human rights protection policy in captured fisheries businesses, which obligates the corporation to have an internal human rights policy, to conduct human rights due diligence and to obtain human rights certification as prerequisites to having a business license.
Third, amending national fisheries laws with a purpose to produce a legal regime that is consistent with the principles for responsible and sustainable fisheries management and the UN Convention against Transnational Organized Crime, including by imposing stringent and effective sanctions against individuals and corporations involved in fisheries crimes and fisheries-related crimes.
Combating fisheries crimes is not easy. Most of these crimes involve big business players, high-ranking profiles, political backup and a huge amount of money. These crimes are committed in more than one country, which makes them transnational crimes in nature. Furthermore, what do they aim for if not financial benefit? In this case, nothing speaks louder than high profits and stacks of money.
Against this background, transnational organized fisheries crimes are a criminal phenomenon. In order to combat it, international cooperation, including with relevant international organizations, is crucial.
Indonesia is of the view that emerging forms of crime, in particular fisheries crimes and fisheries-related crimes, need to receive proper attention, among other things, by putting them in the same basket as other manifestations of transnational organized crimes.
Through this approach, we are able to emphasize the seriousness of this crime, thus promoting commitment and concrete measures to be taken by states to enhance close international cooperation in order to combat these crimes effectively.
The writer is Indonesia’s maritime affairs and fisheries minister. This article is an abridged version of her speech at the 25th session of the Commission on Crime Prevention and Criminal Justice in Vienna on May 23.
Putting fishing crimes out of business
Dimas Kuncoro Jati Jakarta Post 13 Jun 16;
Every time we eat seafood at a waterfront restaurant there is a one-in-five chance that the fish was trawled outside of the law, according to a study by The Pew Charitable Trusts.
Global losses from illegal, unreported and unregulated (IUU) fishing are estimated to be 26 million metric tons of fish annually. Our government claims that national losses from IUU fishing have contributed to annual economic losses of up to a whacking US$20 billion.
Indonesia itself has taken a stringent stance on IUU fishing nationally by imposing a “scuttling-vessel” policy for foreign vessels caught poaching in its waters. Indonesia is also fervently mobilizing its diplomatic machinery to try to convince the international community to frame IUU fishing as a transnational organized crime, such as at the 25th session of the Commission on Crime Prevention and Criminal Justice. Previously, our diplomats wooed Norway, the US, Australia, Mexico, South Africa and Namibia for support.
Yet questions remain in the legal arena because many feel that our efforts are relatively sporadic and could miss the bull’s-eye in doing so. First, how would international law define a crime as a transnational crime?
The international legal regime does not contain a precise definition of “transnational organized crime” per se. Nevertheless, there are elements of “organized criminal group” activity. If we can portray the elements of organized criminal group activity to correspond with the characteristics of IUU fishing then we can infer that IUU fishing constitutes an organized crime.
Article 2(a) of the UN Convention against Transnational Organized Crime (UNTOC) covers these elements. The most determinant elements primarily are the doers’ profit-driven nature and the seriousness of the offenses they commit. Meanwhile, “transnational” elements cover transgressions committed, planned, controlled or operated in more than one state. Thus, the quintessence of transnational organized crime extends to all profit-motivated, serious criminal activities with interstate implications.
On the other hand, IUU fishing is the term used to describe any unauthorized fishing and fishing activities conducted in breach of regional, national or international rules and regulations. It includes fishing without a permit, fishing without reporting to the relevant authorities or even fishing without nationality.
A study conducted by the UN Office on Drugs and Crime revealed that fishing vessels were often used for smuggling migrants, illicit traffic in drugs, illicit traffic in weapons and terrorism. IUU fishing is often not merely a detached crime, but designed by webs of organized groups beyond national borders and linked to other forms of serious organized crime.
For instance, fishing operators consist of sophisticated transnational corporate syndicates and use financial havens to conceal the proprietors’ identity. Illegal fishing operations are a massively convoluted nexus involving fleets of fishing vessels that share the same supply, crewing and refueling services. These networks enable transshipments of illegally caught fish at sea. Illegally caught fish are typically added to legally caught fish and laundered on the market by means of misreporting catch documentation or via circumventing or bribing port fishery officials.
From the perspective of legal reasoning, the elements of transnational organized crime also prevail in IUU fishing activities due to the profit as well as the seriousness of the offenses that the syndicates commit while transcending national boundaries.
Second, is it feasible to incorporate IUU fishing in the transnational organized crime scheme?
Organized crime itself is not static, but habituates as new categories of crime materialize. The UNTOC, also known as the Palermo Convention, does not classify crimes. This lack of definition and lax categorization of transnational crimes was deliberate to give space for newly emerged transnational crimes, including IUU fishing. As such, it means that there is still a possibility of recognizing IUU fishing as a transnational organized crime.
Third, which mechanism possesses authority to constitute IUU fishing as a transnational organized crime?
The Palermo Convention established a conference known as the Conference of the Parties to review the implementation of this convention. In 2010, state parties convened the fifth Conference of Parties and identified cybercrime, identity-related crimes, trafficking in cultural property, environmental crime, piracy, organ trafficking and fraudulent medicine as new and emerging crimes of concern. Following a series of sessions, three protocols on trafficking in persons, the smuggling of migrants and the trafficking of firearms were adopted to augment the convention.
The Conference of Parties is a legitimate avenue to broach and discuss the purview of transnational crimes. It has borne three protocols and it is the conference that was specifically appointed by the international community to formulate updated efforts in dealing with transnational crimes. The eighth session of the conference will be held on Oct, 17 to 21 in Vienna. This is the venue that our diplomatic machinery should concentrate upon. Indonesia can propose one protocol under the Palermo Convention that specifically focuses on IUU fishing, in such a fashion that the crime can be internationally conceptualized as an integral part of transnational crime and a legally binding instrument forged.
Conceptualizing IUU fishing as a transnational organized crime within the convention architecture is indispensable as it will help unravel the missing link in the chain of other serious crimes. For Indonesia, it will tap cooperative transnational legal measures with other states, especially with flag states, port states and flag of convenience states.
Cooperation that overarches — from confiscation, extradition, transfer of sentenced person and mutual legal assistance to joint investigation, special investigative technique and transfer of proceedings — will spawn artificially extensible jurisdiction to the aggrieved state. For these legal measures will make sure that there is no place on Earth that poachers, trawlers, human traffickers, embezzlers and drug dealers can hide in the fishing industry and live with impunity. At the end of the day, Indonesia will also earn recognition as a global maritime fulcrum for its indefatigability in taking a strong global stance on IUU fishing.
If crime crosses borders, so does the law and its enforcement. By transnationalizing this fishing crime, it means my crime (Indonesia) is now becoming your crime (another state) and my responsibility now is also your responsibility. Let’s put IUU fishing out of business together.
The writer is LL.M candidate in public international law at University College London.
Susi Pudjiastuti Jakarta Post 13 Jun 16;