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This article appeared in The Conversation of 13 July 2016, written by Director of the Center for Law in Action in NMMU's Faculty of Law, Hennie Van As

Illegal fishing and its associated criminal activity at sea is an intractable and major international problem. It involves high-profile white-collar crime syndicates that move vast amounts of illegal fish and seafood. But it also involves other crimes, like human and drug trafficking.

Recently, South Africa fined three Chinese fishing boats R1.3 million (about US$91,000 at current rates). They were fined for possessing fishing gear without a permit, non-compliance with the lawful instruction of a fishery control officer and various contraventions of the country’s maritime legislation.

Such prosecution is very rare, as most offenders are never caught. This is because the criminal networks involved are highly organised, well financed and work in national and international waters. They have become so extensive that they are, in effect, a parallel economic system that is undermining sustainable economic growth.

The United Nations Food and Agriculture Organisation recently estimated that illegal fishing accounts for annual catches of up to 26 million tonnes, with a value of up to $23 billion. But as this is a black market, estimates are not necessarily reliable. Some experts put the annual figure at about 11 million tonnes.

The situation off the coast of West Africa is particularly critical. Here, illegal and unreported fishing accounts for an estimated 40% of fish caught.

Based on the Food and Agriculture Organisation’s analysis, the share of fish stocks within biologically sustainable levels has exhibited a downward trend. They have shown a decline from 90% in 1974 to 68.6% in 2013. So 31.4% of fish stocks were estimated as over-fished in 2013. Of all the stocks assessed in 2013, 58.1% were fully fished and 10.5% under-fished.

South Africa and Norway join forces

South Africa, like many other seaboard countries, is struggling to combat this crime. Prosecutions for fisheries-related crimes often fail or are ineffective. The penalties for illegal possession of fish and seafood species, and operating storage facilities and fish processing facilities, are hopelessly inadequate. To discourage criminals from participating in such activities, increasing their sentences will help significantly.

To address the legal and administrative weaknesses, the Nelson Mandela Metropolitan University’s Centre for Law in Action, the Norwegian Department of Trade and Industry and Fisheries, and South Africa’s Department of Agriculture, Forestry and Fisheries are partnering up to address the issues.

South Africa and Norway have joined forces to develop initiatives to combat fisheries crime. Pescadolus

Through the collaboration, Norway has agreed to fund an academy at the university called FishFORCE. An amount of approximately R50 million over five years is to be allocated to the academy. The main purpose is to combat sea fisheries crime and related criminal activities.

The initiative will train fisheries control officers, police officers and prosecutors along the South African and East African coastlines, as well as in Namibia. There is a plan to extend the training all around the Indian Ocean Rim, including countries like Indonesia.

The agreement falls under a broader partnership between South Africa and Norway. This is being developed through Operation Phakisa and the Oceans Economy, whereby South Africa plans to utilise the ocean economy more effectively and sustainably.

FishFORCE will work to achieve knowledge- and intelligence-led investigations. The aim is to increase successful prosecutions of criminals engaged in fisheries crime. It will also enable fisheries law enforcement officers to obtain formal qualifications, including higher certificates, diplomas and postgraduate diplomas, with access to further academic qualifications.

This is critical for South Africa, where the training of fisheries law enforcement officers, police officers and prosecutors involved in fisheries law enforcement is conducted on an ad hoc basis. In South Africa the regulating, policing and law enforcement of fisheries vessels is too compartmentalised. It’s full of loopholes because of the large number of different players involved.

South Africa’s high-profile case

In 2013 three prominent members of fishing industries in South Africa and the US were charged in the international case, US versus Arnold Bengis et al.

From 1987 to 2001 they engaged in a scheme to illegally harvest large quantities of South African south and west coast rock lobster for the US market. This was far in excess of applicable quotas.

The defendants under-reported the fish harvested to South African authorities and bribed South African fisheries inspectors to help them carry out their scheme. They also submitted false export documents to authorities to conceal their crimes.

They arranged for previously disadvantaged South African citizens, who did not have valid US work permits, to work for low wages at their fish processing facility. The defendants were fined nearly $29.5 million, awarded in favour of South Africa.

The problem is not just illegal fishing

Earlier this year, the Sri Lankan navy seized 101kg of heroin on an Iranian fishing dhow just off the country’s coast. The United Nations Office on Drugs and Crime responded immediately, facilitating support as requested by the Sri Lankan authorities to assist with the police investigation. The drug stamps found matched with records of the Compendium of Drug Seizures at Sea. It clearly established that the same drug trafficking networks operating from the Makran Coast – between the Persian Gulf and the Gulf of Oman – to East Africa are now operating to southern Asia.

Illegal, unregulated and unreported fishing has been linked to numerous crimes that violate the rights of vulnerable people.

Migrant labourers and fishermen fall victim to human traffickers for the purpose of forced labour aboard fishing vessels, rafts or fishing platforms, in ports or in fish processing plants. Women and children in fishing ports are vulnerable to organised sexual exploitation in the form of prostitution by fishers. There are also reports of women and children being kidnapped and kept on vessels for the purpose of sex.

Violence appears to be a common method of controlling labour. A 2009 report told of Cambodian boys being bused from small, impoverished villages and towns after being promised decent wages. The reality is that they were taken to sea as prisoners and forced to fish for as many as 20 hours a day. Their captains forced them to take amphetamines to keep them awake. After the gruelling fishing season, many were worn out, at which point they were shot and thrown into the sea. A more recent New York Times investigation documents similar atrocities.

According to a 2012 report, along the coastline of sub-Saharan Africa, the use of forced labour has become more evident on Asian and European-flagged fishing vessels that are seeking to catch fish in poorly regulated waters. Traffickers have exploited victims in the territorial waters of Mauritius, South Africa and Senegal.

Traditional legal approaches to combating illegal fishing and the associated illegal activities have been met with limited success. An alternative approach that is gaining momentum is to approach illegal fishing as a transnational organised crime. To investigate the policing, legal and policy implications of using transnational criminal law and procedure will strengthen fisheries law enforcement.

Contact information
Professor Hendrik Van As
Professor of Public Law and Director of the Centre for Law in Action (CLA)
Tel: 27 41 504 1200