New Marine Security Threats (Darren Calley, Karen Hulme, and David Ong)


Darren Calley, Karen Hulme, and David M Ong

17.1 Introduction

This chapter will address the wider range of threats to marine security, as opposed to the threats that relate primarily to maritime security addressed by other chapters within these volumes. The distinction between marine and maritime security threats that is being made here relates to the notion that marine security threats denote a different type of security threat, being not merely a threat to shipping and other traditional maritime activities, but also to coastal communities and even the non-human environment. However, this is not to suggest that these two concepts—maritime and marine security—are in any way mutually exclusive. Indeed, more comprehensive notions of maritime security do include the issues addressed in this chapter within their list of security threats. Klein, for example, includes activities such as piracy and armed robbery at sea, terrorism, human/drug-trafficking, proliferation in weapons of mass destruction, illegal fishing, and those that cause environmental damage within her designation of ‘contemporary maritime security threats’.1 The comprehensive nature of Klein’s approach corresponds with the analysis undertaken by Rahman on the different conceptions and approaches to maritime security, in which he notes that: ‘The question is less one of what, exactly, is maritime security? Rather, it perhaps is better phrased as what are the different ways in which to conceive of maritime security?’2

More recently, Feldt, Roele, and Thiele describe ‘maritime security’ as being composed of the following elements: international and national peace and security; sovereignty, territorial integrity and political independence; security of sea lines of communications (SLOCs); protection for seafarers and fishermen from crimes at sea; resource security, including access to resources at sea and to the seabed; and environmental protection.3 This is an admirably comprehensive list of components that encompass both the ‘maritime/marine’ and ‘security’ dimensions. On the other hand, it is possible to disagree with Feldt et al when they attempt to distinguish between maritime security and maritime safety threats/issues, especially when they state that: ‘safety is a civilian responsibility’. Their emphasis in favour of limiting ‘maritime security’ threats to those which need the intervention of armed forces may be argued to be unduly constraining, especially when ‘security’ issues are increasingly being viewed in comprehensive and holistic terms. Rahman too betrays his leanings on this matter when he follows up the question posed above with this one: ‘And what are the implications for policy, and for navies, of these different conceptions?’,4 thereby emphasizing the military aspects of any response to new/different maritime/marine security threats.

Indeed, the very fact that the IMO, which Feldt et al correctly identify as being primarily responsible for safety and environmental protection issues at sea, has also responded to the new security challenges post 9/11 in the maritime sphere suggests that these concepts of maritime and marine security, as well as maritime safety, are interchangeable, depending on the nature of the threat and the means adopted to address it. As Trelawny notes, the IMO has acted in response to the perceived maritime terrorism threat through

the development of the new SOLAS chapter XI-2 on Special measures to enhance maritime security and the International Ship and Port Facility Security Code (ISPS Code). The new regulatory regime entered into force on 1 July 2004. These requirements represent the culmination of co-operation between Contracting Governments, Government agencies, local administrations and shipping and port industries to assess security threats and take preventive measures against security incidents affecting ships or port facilities used by international seaborne trade.5

Thus, we can see that certain newly identified maritime security threats have already been addressed by the international legal system to varying degrees. This chapter will therefore engage with the arguably more overtly marine (environmental) aspects of such security threats that need to be addressed, three of which are highlighted here, as follows: first, illegal dumping of hazardous wastes and substances within the high seas and maritime jurisdiction zones of other States, especially off the coastlines of weak or failing States; second, illegal, unreported, and unregulated (IUU) fishing; and third, possible future marine security threats by so-called ‘geo-engineering’ strategies aimed at ocean-based mitigation of climate change. All three marine security threats addressed here can arguably be characterized as ‘environmental’ in nature.6 As one of the co-authors has previously noted in this regard, ‘a broad understanding of environmental security would include the minimization of any harm to the ecosystem (including the marine ecosystem) that is vital to the maintenance of its biological viability and, consequently, for human survival’7 (emphasis added).

However, it should be acknowledged that this argument is made in the face of the scepticism displayed by traditional approaches to ‘security’ studies, which argues that an environmental focus ‘tends to transform environmental security into security for the environment per se’,8 and moreover, that environmental security threats per se do not ultimately affect the individual, national, and international levels of analysis for ‘security’ studies, as established by Buzan.9 According to Rahman, Buzan’s levels of analysis are individual, national, and international (both regional and system-wide) security, while his issue sectors comprise military, political, societal, economic, and environmental security.10 It is submitted here that each of the marine (environmental) security case studies examined below do in fact impact on the analytical levels identified by Buzan, whether on an individual/community, national, and even international/regional/global basis. As Sielen observes in relation to the existential threat posed to human security from such large-scale environmental destruction, ‘the disruption of entire ecosystems threatens our very survival, since it is the healthy functioning of these diverse systems that sustains life on earth. Destruction on this level will cost humans dearly in terms of food, jobs, health, and quality of life’.11

A further significant trend to note in each of the following three sections of this chapter is the presence of new international and domestic actors addressing these new marine security threats. Carolin Liss has recently addressed this phenomenon and its implications for traditional State-centred security responses within the global marine space generally, and specifically, within the Southeast Asian maritime region.12 Paraphrasing Liss within the present context, it is possible to observe that the growing economic, political, social, and environmental problems caused by, inter alia, the global financial crisis and climate change, now seriously challenge the capacities of States and State-based institutions to address these new marine/maritime security threats worldwide. It has become increasingly clear that many contemporary non-traditional security threats, such as terrorism, piracy, and other transnational crimes, cannot be addressed by existing national agencies or individual States alone. Indeed, the notion of the State as the sole provider of security is being increasingly challenged in many parts of the world, with ‘new’ actors such as non-governmental organizations (NGOs) and even private business organizations playing ever more important roles in providing security. One specific area where new actors are playing such a role is in responses to national and international marine/maritime security threats. These new actors offer a wider range of governance responses to current problems at sub-national, national, and international levels, especially within the marine/maritime sectors. As a result, the line between national and international marine/maritime security has become blurred and marine/maritime security challenges are today met by a range of new actors. According to Liss, at least three kinds of ‘new’ actors play significant roles in addressing these different/new marine/maritime security challenges: (1) for-profit actors; (2) not-for-profit actors; and (3) multilateral institutions.13 Examples of each type of ‘new’ actor noted here can be found in the following substantive sections of this chapter. As Liss notes, the nature and scale of their involvement in each type of activity examined here depends on their motivations, capacities, and interests.14 Their involvement can also be assessed in different ways—either positive or negative. On the one hand, the involvement of new actors can be seen as ineffective or problematic. On the other hand, their facilitative roles in terms of awareness-raising and canvassing of different possible responses to continuing and new marine security threats cannot be discounted.

17.2 Illegal Dumping of Hazardous Wastes and Toxic Substances

17.2.1Illegal dumping of hazardous wastes and toxic substances off the coastlines of weak/failing States: the case of Somalia15

The illegal discharge, disposal, and/or dumping of hazardous wastes or substances, especially within the broader/wider maritime jurisdiction zones lying beyond the territorial seas of coastal States, such as their Exclusive Economic Zones (EEZs) and continental shelves, is a growing marine security threat, not only for these States, but also for the international community as a whole. The problem is exacerbated when such illegal activities take place off the coastlines of weak/failing States that are poorly-resourced in financial terms, as well as ill-equipped from the technical and technological standpoints. For example, based on reports from the United Nations Environment Programme (UNEP)16 and other multilateral institutions, as well as Greenpeace, a non-profit, environmental non-governmental organization (NGO),17 Hussein is able to assert that:

Somalia has been used extensively by foreign companies and their partners as a dumping ground to dispose large quantities of highly toxic waste from the industrialized countries. Although the country already had become a victim of what is sometimes called ‘toxic colonialism’ as early as the mid-1980s, the illegal dumping of the hazardous wastes in Somalia has become a rampant phenomenon after 1990. The impact of the toxic wastes dumping has been devastating as it has gravely compromised the human health, livelihoods sources for the local population and the quality of the natural environment.18

Dr Mostafa Tolba, the then UNEP Executive Director, confirmed the maritime dimension of this problem, observing that European companies had been taking advantage of the on-going political chaos and civil war in Somalia in order to dump illegally hazardous toxic wastes onto the country’s long coastlines.19

Following the tsunami in December 2004, UNEP responded to an urgent request from the Ministry of Fisheries, Ports, and Marine Transport to assess potential environmental damage in the Puntland region of Somalia, situated at the very tip of the Horn of Africa.20 In February 2005, UNEP released a report outlining the environmental risks caused by the tsunami.21 The ongoing concern over the possible contribution to these identified environmental risks from illegal waste dumping/discharge activities is evidenced by an official statement by UNEP issued on the 22 February 2005, stating that: ‘Somalia’s coastline has been used as a dumping ground for other countries’ nuclear and hazardous wastes for many years as a result of the long civil war and, thus, the inability of the authorities to police shipments or handle the wastes’.22 Based on the findings of the UNEP report, an inter-agency technical fact-finding mission, which included UNEP, the United Nations Development Programme (UNDP), the World Health Organization (WHO), and the Food and Agriculture Organization (FAO), was fielded to Puntland in March 2005. It investigated three sample sites along a 500 km coastal stretch between the three main populated coastal locations of Xaafuun, Bandarbeyla and Eyl where toxic waste had reportedly been uncovered by the tsunami. The mission focused exclusively on areas in Puntland that were impacted by the tsunami, as it lacked access to any sites around Mogadishu owing to security concerns. Though no evidence of toxic waste was found by the mission, the team cited the urgent need for a more comprehensive assessment of alleged dumping of illegal toxic waste in Somalia both on land and at sea.23

The relative lack of response that this serious pollution issue as a marine security threat has generated from the international community is at least partly explained by the observation from Ibrahim that:

A variety of threat situations exist in Africa’s waters, most of which are well known, while others such as maritime terrorism are still emerging. The contemporary threats are manifest in the form of piracy and sea robbery; organised crime; including gun-running, smuggling, human and drug trafficking; illegal exploitation of marine resources; and the destruction of marine resources through dumping and pollution. These threats cut across virtually the entire African maritime domain. For instance, instability in states in the Horn of Africa arising from persistent intra-state and inter-state conflicts has generally led to neglect of security in the maritime domain, which is largely characterised by illegal fishing, dumping of hazardous waste and piracy.24

Enlarging on the dumping issue, he notes that:

The dumping of nuclear/toxic wastes in the sea area has become a multi-billion dollar enterprise involving various unscrupulous agencies. Besides that, oil spillage has also become a serious threat to the maritime environment. The resultant effect is the destruction of the natural habitat for several species of fish, thereby in turn threatening food security.25

More recently, Hussein summarizes the case for addressing illegal toxic waste disposal off the coast of Somalia in the following statement:

Although many developing countries, especially African countries, have been victim of the adverse effects of highly toxic wastes (HTW) originated from the developed countries, the case of Somalia is particularly preoccupying. The country has been subjected to extensive illegal dumping operations of toxic and radioactive wastes since the 1980s. The HTW dumping operations that have taken place both along the coast and the hinterland have extremely adverse effects on health, livelihoods and the future prospect of sustainable development of the local population.26

17.2.2Illegal dumping of hazardous wastes and toxic substances as a human rights/security issue

Already in 1995, the then United Nations Commission on Human Rights (now Human Rights Council) noted that the illicit dumping of toxic and dangerous wastes and products has an adverse effect on the enjoyment of several human rights, and decided to appoint, for a period of three years, a Special Rapporteur with a mandate to examine the human rights aspects of this issue. The scope of the mandate of the Special Rapporteur was reviewed in September 2011, during the 18th session of the Human Rights Council. The Council decided to strengthen the mandate so as to cover not only the movement and the dumping of hazardous substances and waste, but also the whole life-cycle of hazardous products, from their manufacturing to their final disposal (cradle-to-grave approach). Accordingly, the title of the Special Rapporteur has been changed by a Human Rights Council resolution to the ‘Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes’.27 On the basis of this Human Rights Council resolution, the Special Rapporteur has now the task to monitor the adverse effects that the generation, management, handling, distribution and final disposal of hazardous substances and wastes may have on the full enjoyment of human rights, including the right to food, adequate housing, health and water. Resolution 18/11 requests the Special Rapporteur to include in his report to the Council comprehensive information on:

(a)Human rights issues relating to transnational corporations and other business enterprises regarding environmentally sound management and disposal of hazardous substances and wastes;

(b)The question of rehabilitation of and assistance to victims of human rights violations relating to the management and disposal of hazardous substances and wastes;

(c)The scope of national legislation in relation to the implications for human rights of the management and disposal of hazardous substances and wastes;

(d)The human rights implications of waste-recycling programmes, the transfer of industries, industrial activities and technologies from one country to another and their new trends, including e-wastes and the dismantling of ships;

(e)The question of the ambiguities in international instruments that allow the movement and dumping of hazardous substances and wastes, and any gaps in the effectiveness of international regulatory mechanisms.

In addition, this Human Rights Council Resolution requests the Special Rapporteur to develop, in consultation with relevant stakeholders, a set of best practices on the human rights obligations related to environmentally sound management and disposal of hazardous substances and waste.28 Within the context of illegal toxic waste disposal activities off the Somali coastline, this mandate for the Special Rapporteur at least in part addresses the warnings issued by the (then) UN Special Representative for Somalia, Ahmedou Ould Abdallah in 2008, who repeatedly sounded the alarm about illegal fishing and toxic dumping off Somalia by European firms. Abdullah had even stated that his organization had received ‘reliable information’ that European and Asian companies were dumping waste—including nuclear waste—in this region.29

Addressing, inter alia, the threats posed by illegal dumping of hazardous wastes and toxic substances within the EEZs of African countries, Ibrahim summarizes the problems they face as follows: inadequate enforcement capacity, lack of domestic/national political will, and following on from this local incapacity and indifference, inadequate synergy between neighbouring countries within sub-regional/regional initiatives.30 Within this context, it is relevant to note that Somalia appears not to have proclaimed an EEZ in accordance with the United Nations Convention on the Law of the Sea.31 Its national legislation, Law No. 37 on the Territorial Sea and Ports (1972), transmitted to the Secretary-General by a letter from the Permanent Representative of Somalia dated 20 December 1973, provides for a 200 nautical mile territorial sea—a conceptually outdated notion within modern international law of the sea. As the UN Secretary General notes presciently for our purposes in this section of the chapter: ‘The lack of information on the harmonization of national legislation of Somalia with the Convention creates legal ambiguity’.32 Responding to the general lack of African enforcement capacity within their respective EEZs, Ibrahim recommends that African littoral States must individually and collectively upgrade their maritime Command, Control, Communication, Computers and Intelligence (C4I) systems.33 Southeast Asian efforts, especially in relation to the level of international co-operation between littoral States and external regional (eg Japan and Australia) as well as global powers (eg USA) may be useful examples in this regard.34 Indeed, prior to the Horn of Africa-based piracy threat taking centre stage, in the previous two decades, maritime security threats such as piracy, illegal fishing, and maritime terrorism in Southeast Asia had attracted greater attention and concern. Again, it is relevant to paraphrase Liss in this context: Responding to these regional maritime security threats and ensuring national security have long been seen as the responsibility of governments. In recent years, new actors have also become involved in addressing national and regional maritime security threats in Southeast Asia such as smuggling, piracy, and illegal fishing. However, their participation has affected the role of the State as the primary provider of maritime security, thereby offering insights into alternative methods for tackling contemporary maritime security threats in Southeast Asia, including hybrid forms of maritime security governance. The contribution of new actors in Southeast Asia, a region where government responses and sovereignty have long played a central role, demonstrates how established patterns of security governance in Southeast Asia are changing.35 It also offers insights as to how new possibilities for synergies between African governments and private security firms might be able to overcome the lack of maritime enforcement capacity highlighted by Ibrahim.

17.2.3The international legal framework for sea-based disposal of hazardous wastes and toxic substances

Examining in more detail the issues raised by the reference to the ambiguities in international instruments noted in the reporting mandate of the UN Special Rapporteur (above), the applicable international legal framework governing the cross-border movement and disposal of hazardous wastes/substances in the marine environment refers to the Basel Convention 1989,36 as well as the 1972 London Convention and its 1996 Protocol,37 respectively. Within this framework, Article 9(1) of the 1989 Basel Convention, entitled: ‘Illegal Traffic’, states unequivocally that for the purpose of this Convention, any transboundary movement of hazardous wastes or other wastes, inter alia, that ‘(e) results in deliberate disposal (eg dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law, shall be deemed to be illegal traffic’. Article 4.1.1 of the 1996 London Protocol to the 1972 Convention, also provides that all dumping is prohibited, except for wastes (or other matter) on the so-called ‘reverse list’ in Annex 1, which can be dumped only by permit.

Given the establishment through the Basel and London Conventions (and Protocol) of what is effectively a substantive prohibition of dumping activities at sea, the analytical focus shifts to the question of which States can exert jurisdictional controls over sea-based dumping activities. Within this context, the definition of ‘dumping’ at sea is provided by Article 1(5)(a) of UNCLOS, in accordance with Article III(1)(a) of the 1972 London Convention, as follows:

(i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;
(ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea; … ’; to which the 1996 London Protocol has now added the following provisions in Article 1.4.1:
(iii) any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea; and
(iv) any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal.

On the other hand, Article 1(5)(b) of UNCLOS and Article III(1)(a)(i) of the London Convention, specifies that ‘dumping’ does not include:

(i) the disposal of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures; … (emphasis added)

Moreover, the application of the regulatory regime established by the Basel Convention based on the legal requirement of State consent to the movement of hazardous wastes shipments through national maritime jurisdictions is arguably constrained by the combined legal effects of the following provisions of this Convention, as follows: First, section 9 of Article 2, entitled: ‘Definitions’ provides as follows: ‘“Area under the national jurisdiction of a State” means any land, marine area or airspace within which a State exercises administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment’. However, section 12 of Article 4, entitled: ‘General Obligations’ then provides as follows:

Nothing in this Convention shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments. (emphasis added)

The difficulties that arise here relate to the question of whether/how any sea-based waste disposal operations by vessels or aircraft exercising their navigational rights and freedoms can be ascertained to be incidental to, or derived from the normal operations of the vessels or aircraft concerned. For example, the 1997 joint UNEP/Office for the Coordination of Humanitarian Affairs Environment Unit and the United Nations Coordination Unit for Somalia report referred to above, noted that pollution on Somali beaches was believed to have been caused by Indian Ocean maritime traffic, in particular tankers sailing to and from oil ports in the Gulf of Aden. Although such vessels normally dispose of waste at ports, since Somali ports lack both security and services, ships dispose of their waste offshore while at sea, with annual discharges estimated at 33,000 tons.38

17.2.4The international jurisdictional framework for sea-based disposal of hazardous wastes and toxic substances

Thus, it becomes equally important to assess the international jurisdictional framework established by the UNCLOS for the legislation and enforcement of these substantive prohibitions against illegal movement and dumping of toxic/hazardous wastes/substances provided by the Basel and London Conventions, respectively. Further legal ambiguities abound here, as an assessment of the applicable jurisdictional provisions over such activities reveals. First, Article 210 entitled: ‘Pollution by Dumping’, provides in section 5 that:

Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby.

Article 216 entitled: ‘Enforcement with respect to pollution by dumping’, then provides in Section 1 that:

Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and control of pollution of the marine environment by dumping shall be enforced:

(a)by the coastal State with regard to dumping within its territorial sea or its exclusive economic zone or onto its continental shelf;

(b)by the flag State with regard to vessels flying its flag or vessels or aircraft of its registry; …

Correspondingly, Article 10 of the 1996 London Protocol provides for enforcement jurisdiction over dumping activities as follows:

1Each Contracting Party shall apply the measures required to implement this Protocol to all:

1.vessels and aircraft registered in its territory or flying its flag;

2.vessels and aircraft loading in its territory the wastes or other matter which are to be dumped or incinerated at sea; and

3.vessels, aircraft and platforms or other man-made structures believed to be engaged in dumping or incineration at sea in areas within which it is entitled to exercise jurisdiction in accordance with international law.

Within this context, it is interesting to note that the London Protocol appears to extend coastal State jurisdiction over such sea-based dumping activities through an expansive definition of the word ‘sea’, in Article 1(7) as follows: ‘“Sea” means all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof’. This suggests that coastal State enforcement jurisdiction over dumping activities at ‘sea’ would extend to include ‘all marine waters’ as well as ‘the seabed and the subsoil thereof’ in areas within which the coastal State is entitled to exercise jurisdiction in accordance with international law. Thus, coastal State jurisdiction over its continental shelf (seabed and subsoil) areas arguably extends to cover sea-based dumping activities as well, even when such activities take place beyond the 200-nautical mile EEZ limit, where the superjacent waters are in the high seas. In any case, the net effect of all these applicable provisions appears to allow for overlapping and concurrent coastal and flag State jurisdictions over such dumping activities, without providing definitively for either the coastal or flag State enforcement jurisdiction to prevail in circumstances where there is a clash of jurisdictions.

Moreover, where there is uncertainty as to whether the illegal activity concerned falls within the strict UNCLOS definition of ‘dumping’ under Art. 1(5)(a), but instead constitutes waste ‘incidental to, or derived from the normal operations of vessels’, and so forth under Art.1(5)(b) (see above), then it is Article 217, entitled: ‘Enforcement by flag States’ which applies, Section 1 of which provides that:

States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs. (emphasis added)

This provision appears to accord primacy to flag State enforcement jurisdiction over their flagships wherever they are located in the world’s seas, notwithstanding the physical impossibility that this entails, even for the most vigilant and well-equipped of flag States. To conclude this section of the chapter, and in line with Hussein’s recommendation that effective legal deterrents and coercive measures against toxic waste traffickers should be adopted,39 it is suggested here that the international legal community needs to address the uncertainties over international legal enforcement of sea-based dumping activities exposed by the analysis above.

17.3 Illegal, Unreported and Unregulated (IUU) Fishing

In August 2012 United Nations Secretary General Ban Ki-Moon unveiled The Oceans Compact, a policy document that sets out, in broad terms, some of the potential threats to the prosperity of the oceans and, in equally broad measure, some of the potential solutions to the problems faced. The purpose of this section40 of the present chapter is not, however, to provide a detailed critique of the Compact—this would, because of the Compact’s general and aspirational nature, be inappropriate and yield few results of any significance. Instead, this section will draw upon one of the main threats posed to oceans highlighted by the Compact—illegal, unreported, and unregulated (IUU) fishing and consider the manner in which existing international law should remedy these failings. Thankfully however, the Compact does not simply call for further new laws to govern the oceans’ use: as will be shown below there are presently a plethora of laws, agreements and codes of conduct currently in place to deal with this issue and so the Compact’s emphasis on the implementation of these laws and guidelines is a particularly welcome one. The view presented in this section of the chapter is that whilst the physical threats highlighted in the Compact and elsewhere are very real, so is the threat to the oceans from State ambivalence or indifference to enforcement and implementation. Indeed, in many ways unenforced laws and codes of conduct that simply exist in the ether are potentially more of a threat to the oceans than the physical activities that cause harm to the marine environment: by creating a sense of ‘all is well’ the unenforced or unenforceable commitments act as a panacea for even those responsible States who might pay lip service to their obligations.

17.3.1What is IUU fishing?

The term ‘IUU’ was first coined by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in 199741 but the most widely accepted definition is that which informs the United Nations Food and Agriculture Organisation (FAO) 2001 International Plan of Action, which states that:

Illegal fishing refers to fishing activities:

(1)conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

(2)conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or

(3)in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.

Unreported fishing refers to fishing activities:

(1)which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

(2)undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.

Unregulated fishing refers to fishing activities:

(1)in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or

(2)in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.42

17.3.2 What action has been taken against IUU fishing?

The threat posed by IUU fishing is, of course, one that predates the Compact by many years and has, for over a decade, been viewed as one of the gravest challenges faced by the international community. To rise to this challenge the FAO has, over the course of the last two decades embarked upon a series of initiatives and produced a number of guidelines and soft laws directly aimed at tackling the scourge of IUU fishing. In 1993, for instance, the FAO Compliance Agreement43 was opened for signature, followed two years later by the voluntary Code of Conduct for Responsible Fisheries, and then, in 2001 the aforementioned FAO International Plan of Action was introduced. In addition to these FAO initiatives, there is, of course, the UNCLOS and its progeny, the Fish Stocks Agreement.44 Hence, the next sections of this chapter will, necessarily briefly, consider—in chronological order—the most salient features of each of these initiatives and instruments and, crucially, chart the levels of acceptance (by States) of the provisions contained therein.

17.3.3United Nations Convention on the Law of the Sea

UNCLOS is, of course, the authoritative statement of the law of the sea and with over 160 State parties is widely accepted as such by the majority of the international community. Whilst it might be an authoritative statement of law, insofar as IUU fishing is concerned, it is far from definitive. Instead UNCLOS proceeds on the basis of setting out broad and general principles: States must, for instance, cooperate to conserve and maintain fish stocks (and dependent and associated species) in the high seas;45 within their EEZs States may—if not must—exploit the natural living resources (that is fish and other living creatures) in a manner that does not endanger them by over-exploitation.46

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