Thursday, January 15, 2015

Toothless Navy Defends Toothfish

Pity the NZ Navy. For years, they've found themselves underfunded, undermanned, and under-resourced. Their latest seagoing acquisition was a converted roll-on-roll-off ferry whose seaworthiness makes Kiwirail's Aratere look like a pinnacle of safe transport. The deadliest vessel in the fleet is, tragically, an inflatable dinghy.

And now, they find themselves confronted by an implacable and apparently insurmountable foe: three rusting Chinese fishing vessels, caught red-handed in the midst of plundering an area of ocean under our supposed protection.

The Navy's attempted to ask nicely to board the rogue fishers in question. We've reportedly sought - and been granted - permission from the ships' flag-country (Equatorial Guinea) to go aboard and check their flag-status and that they're operating within the law. There's even apparently mounting evidence including an actual statement from Equatorial Guinea itself that these guys are conducting themselves illegally.

By all rights (in specia, our observation and inspection powers as set out in Article XXIV of the Convention on the Conservation of Antarctic Marine Living Resources, as well as the rights codified in Articles 117 and arguably 110 of the United Nations Convention on the Law of the Sea), these vessels should be yielding and allowing us to board and search them. Nothing to hide, nothing to fear, right?

Instead, they're leading us on a merry dance through a protected fishery; taking advantage of hazardous conditions and evasive maneuvers to prevent our Navy from exercising our legitimate right to board and inspect their catch.

These acts of avoidance, rather than purely the conditions themselves, are what's lead to Foreign Minister Murray McCully relaying the judgement of the Wellington's captain that it's unsafe for us to attempt to forcibly board the vessels in question; assumedly via RHIB rather than utilizing the Wellington's Seasprite helicopter. (Presuming, of course, that the Wellington's Seasprite wasn't one of those we flicked off to the Peruvians last year and which won't necessarily be replaced until mid-2015) This is fair enough. I'm not a seaman, and I defer to the superior nautical experience of those highly trained professionals presently deployed to the area who *are*. It is, after all, their lives rather than mine that would be put at risk in any resulting enforcement action.

However, this isn't the first time our Navy has cited the hazardous nature of the Southern Ocean as a justification for its inability to carry out its charged duties. Way back in 2013, the Navy *actually suspended* its patrols of our protected Antarctic Fisheries in exactly the same ocean because its ships just simply weren't up to the task of policing them.

Perhaps *this* is why the task of defending the cetacean population of the waters under our apparently rather nominal protection falls to civil society groups like Sea Shepherd, rather than our Navy. (As an aside, we're so *incredibly* incensed about this ruinous and embarrassing state of affairs here in NZ First Youth that we submitted policy-remit and proposal to our Party back in 2013 calling for NZF to strengthen and properly resource our Defence Force to appropriately defend our "Tangata Moana" from foreign predation)

It also leads to the fairly obvious question of what, if anything, our Navy feels it actually *can* do in situations such as these to enforce the Law of the Seas and uphold our international obligations and duties under the Convention on the Conservation of Antarctic Marine Living Resources.

As far as I'm concerned, by pillaging a protected fish-stock that's under the aegis of the Commission for the Conservation of Antarctic Marine Living Resources (and therefore, by extension, our good selves as party to the relevant Convention), these foreign vessels are engaged in acts of outright piracy, as defined in Article 101 of the UNCLOS. (I've included the slightly twisty legal logic underpinning my use of that term below in a footnote for the legal eagles in the audience to pick over at their leisure)

While this would give us a prima-facie right of seizure under UNCLOS Article 105 (and, indeed, would justify my *preferred* solution of basically avoiding the boarding action altogether and escorting both ships back to a New Zealand port at cannon-point for processing); it's disconcerting in the extreme that our Navy seems powerless to give substance to our international environmental obligations when it comes to enforcing the law against unarmed fishermen.

Barring a further escalation on the part of the Wellington, or the diminishing possibility of either fishing vessel actually choosing to surrender and submit to boarding ... there doesn't seem to be any clear resolution to this situation at hand. In the words of Murray McCully, "We don't know what evasive action the vessels might now take." Which strikes me as politician-code for "they're very likely to attempt to pull a runner" - leaving us pursuing dry-land legal action rather than fugitive vessels, and trying to catch up with the culprits via Interpol in their wake.

Given the failure thus far of our Navy to remedy the issue, at first glance you might be forgiven for feeling heartened that we also have legalistic and judicial avenues with which to try and deal to the blaggards in question.

But we've been down this road before. McCully's described the ships in question as "repeat offenders", and it turns out that at least one of the boats in question has previously been detained by our Navy.

Evidently, the legalistic approach is not an effective deterrent - and, as ECO NZ eloquently put it, the size of the book McCully's actually able to throw in the direction of the perpetrators is, to put it bluntly, pretty slim.

This is why I'm advocating the actual outright seizure of these vessels under piracy laws. Not impounding - full-blown confiscation. Crusher style. No boat? No repeat offender boat. It's as simple as that. (Although I fully acknowledge that dealing to the organized criminal syndicates behind these boats is a rather more complex and intractable matter)

And then, once we've properly resourced our Navy, we can consider pulling the same trick on the next Japanese whaling "research" vessel that strays into our waters :D (Incidentally, I've always wondered what, exactly, they're researching. Best answer I've heard so far was supplied by Terry Pratchett and Neil Gaiman in Good Omens - "[they're] currently researching the question: how many whales can you catch in one week?")

In any case, this affair has, for me, raised and reaffirmed far broader questions about the capabilities and operational readiness of our Defence Force. If we're struggling to deal with rust-buckets crewed by unarmed fishermen (in admittedly challenging operational conditions), how are we to expect our Navy to protect and police one of the largest Exclusive Economic Zones in the world?

For the record, I don't blame the brave men and women of our armed services *one iota* for this; and instead feel that they're being asked to undertake difficult and dangerous tasks with equipment and resourcing that's frankly just not up to the duties we've assigned them to carry out.

You can guess whom I *actually* hold responsible for all of this - the same tactical geniuses down the Beehive who thought it'd be a brilliant idea to grab a roll-on-roll-off-ferry designed for short freight runs across the Irish Sea and tart it up as being appropriate for patrolling the storm-wracked Southern Ocean; before splashing out on expensive and defective NH90 helicopters designed to operate off said ferry (but only in "certain safe sea state conditions", and with acknowledged difficulties operating on Southern Ocean sea patrols)... without actually purchasing the automated folding rotor capacity that would actually allow them to properly do so.

We are no longer living in what Helen Clark once termed a "benign strategic environment"; and it's high time that our elected leaders acknowledged that uncomfortable fact and supported the Forces accordingly.

The game-changing strategic implications and security realities of something like climate change, for instance, mean that we simply can no longer afford to treat our defence capabilities as just another "balance sheet item", to be scrimped on every time National feels like waging a war on spending. (It has also occurred that with literally tens of millions of dollars worth of repairs, refits and retrofittings required on just about *every* new piece of kit we decide to acquire el-cheapo or just because Australia's doing it ...the cost-is-the-main-object approach to Defence procurement pursued by each of the "big two" parties doesn't *actually* save us money in any but the shortest of terms. Indeed, in the medium-to-long term, it's demonstrably quite the opposite; and has already cost at least one life)

Even if you're somebody for whom the "defence" aspect of our Defence Force appears decidedly less important than the Forces' demonstrable utility in the fields of peacekeepinginternational humanitarian aid, search and rescue, or upholding our ecological and conservationist values by pursuing the Japanese around a whale-sanctuary ... there is simply nothing to be gained from having an under-resourced military. Given our quasi-thalassocratic aspirations as a maritime nation astride one of the world's largest EEZs and located right on the doorstep of the world's largest ocean (replete with some of its most important and vulnerable marine sanctuaries), the continual maltreatment of our Navy is especially galling.

In any case, while I'm justifiably proud to hail from a Party that's always taken an unapologetically serious line on defence policy; I also genuinely feel that the issues touched on in the latter half of this blog are too important to be approached in a purely partisan manner.

If there can be an upshot to the increasing frequency and salience of incidents like the one presently unfolding down in the Southern Ocean, I hope that it's a renewed recognition from *all* parties of the vital roles played by our Defence Force; and a corresponding commitment to properly supporting, funding, and acknowledging same.

Because the extant status-quo of government "making mock of uniforms that guard you while you sleep/ [because it's] cheaper than them uniforms, and they are starving cheap", then forcing the Forces themselves to shoulder the blame for the resulting disastrous outcomes *cannot* be allowed to continue.

[Mega-thanks to Andrew Paul Wood for his quite literally tireless assistance with this piece]


(For those legal eagles of you in the audience (Hi David), here's the twisty bit. Article 101 of the UNCLOS officially defines "piracy" in international law as including "any act of depredation, committed for private ends by the crew [...] of a private ship [...] against property".

In order for me to make out that these fishing vessels are, in fact, engaged in acts of piracy (thus allowing our Navy to seize their craft under UNCLOS Article 105), I therefore need to establish that what these guys are wrongfully taking is, in fact, "property". This is a little more difficult than it first appears due to the nature of the agreements governing the area in question.

Nevertheless, Article IX (2) of the CAMLR Convention establishes that the Commission for the Conservation of Antarctic Marine Living Resources exercises a considerable and exclusive swathe of powers over the protected area's fish-stocks, territory and other associated concerns - including the right to apportion harvesting rights to other parties, allow or restrict access to the territory, and otherwise govern the use of the resources contained therein.

This, to my mind, is a "bundle of rights" that is prima-facie analogous to the rights of property which an individual - or, more properly, a state-like entity - is able to exercise over resources or territory under its control. The more appropriate term would probably be something along the lines of Kawanatanga, or guardianship ... but regrettably, those terms don't yet appear in the UNCLOS.

In any case, if the Commission is able to create opportunities for the accrual of property rights by transferring harvesting rights for fish stocks to other parties; then it naturally follows that in instances wherein no such legitimate transfer has occurred, the rights to access for the resource (and thus, the implicit property rights and usage rights for same) will remain vested (or, if you prefer, naescent) in the Commission itself.

The plundering of toothfish stocks in the area governed by the CAMLR Convention, then, represents a straight-up interference in the putative property rights exercised by the Commission; and provides a persuasive (to me, at least) Colour of Right/Claim of Right justification for treating the activities of these illegally operating fishing vessels as "piracy" for the purposes of UNCLOS Article 101.

Which therefore enables our Navy to seize their boats under UNCLOS Article 105 and carry out vitally necessary enforcement action without having to wait around for the relevant flag-nation to decide what it's doing.

The other way to argue this in more philosophical terms would be to advance the claim that the protected fisheries and species of the Southern Ocean represent a manifestation of that much-vaunted principle, the "Common Heritage of Mankind"; as vested in and protected by the CAMLR Commission. The collective property rights of humankind are therefore interfered with whenever a fishing boat deprives us of that heritage and gestalt property right by illegally harvesting from those fish stocks and making private property from that which was once collectively held. I make *absolutely no claim* to this latter justification having even a shred of legal accuracy, but it sounds rather nice and noble on paper.

It's probably also important to state at this juncture that I don't have more than about half a law degree; have never actually been taught any Law of the Sea/Admiralty Law - or, for that matter, international law or treaty interpretation; and have generated the entire above spiel running off precious little else than spending a few hours yesterday evening with Google and an even less formally legally qualified (yet brilliant) research partner. So um ... don't try and commandeer a rogue fishing vessel on the basis of this opinion or anything.

But damnit, the orthodox legal avenues don't seem to be doing a too terribly flash job at delivering the right outcomes here; so I thought I may as well at least have a go at puzzling out a solution. It would certainly make for an interesting test case.]

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