Goodies and baddies: IUU fishing as state-corporate crime, not "organised crime"

Recently the NGO Oceana recommended the use of drones and night vision cameras to fight IUU fishing in protected areas of the ocean. This was one of the latest examples of how fighting IUU has drifted towards a strong law enforcement mindset, reducing many problems into ‘goodies vs baddies’. In this James Bond type of scenario, IUU is almost always thought of as some sort of external threat done by evil ‘fish pirates’, who steal fish and money from both good countries and the majority of innocent law abiding fishers.

But many criminologists working on corporate sector crime and illegal trades have argued this type of thinking is highly misleading and leads to problematic responses – a far better understanding of the problem and solutions comes from first realising that the nature of these types of crime tends to involve collaboration between states and companies, and second that in many sectors, crime and deviant behaviours by those with power can become quite normal – these are what is known as ‘crimogenic business sectors’.

So what can we learn from criminology for fisheries, and what would the implications be for the ‘fight against IUU’?

Fighting IUU fishing: the ‘organized crime’ scenario …

Since the early 2000s, Illegal, Unreported and Unregulated fishing became, quite suddenly, one of the most high profile issues in fisheries management. In Africa, IUU fishing is considered one of the biggest challenges to sustainable fishing, food security and the wellbeing of coastal communities. This belief was spurred on by one important study that claimed in Africa, IUU fishing costs1 billion USD a year, or “one in four fish is stolen from the continent” as this study's results have been re-used by others. The problem with these figures is that they are based on a very dubious methods of research. The figure comes from 7 country case studies where ‘local experts’ guessed at the number boats fishing without licenses or the frequency of licensed ones breaking rules. There was no explanation as to how these experts got this data and insight. For the rest of continent the authors of this report simply extrapolated data on the assumption (there was no theory as to why) that rates of IUU correlate with national good governance scores. The sum of I billion dollars, as the criminologist Peter Reuter described for other dubious statistics on illegal trades, was nothing more than “rhetorical conveniences” – back of the envelope type figures designed to drum up concern among the international community. In fact, if given serious thought, there is no way that anyone could come up with a single figure for the cost/value of IUU fishing given that it involves so many different types of activities with varying costs and benefits (how is one to value dumping by-catch at sea when the by-catch has no market value? And how can we calculate costs for the entire continent if the fish stolen from Africa is then landed and processed in another African country?)

Over the past few years, and based on these faulty statistics that are repeated endlessly (in Africa there was ministerial meeting in 2008 on IUU entitled “the billion dollar treasure hunt”), the fight against IUU has led to several international initiatives – the EU’s regulation to fight IUU fishing attempts, amongst other things, to prohibit the import into the EU of fish obtained through IUU fishing; the FAO has developed the Port State Measures Agreement against IUU fishing; and within Africa we have seen the launch of a collaborative initiative between governments and NGOs called ‘Fish-I’. The latter attempts to develop co-operation between states in intelligence gathering. Fish-I is also supported by a global campaign of the PEW Charitable Trust who, in 2013, launched a major effort to end what it calls “the Great Ocean Heist”. Led by the government of Norway, another important development occurred: the UNODC and now Interpol, described IUU fishing as serious “transnational organised crime”, and Interpol has embarked on its new international “Project Scale”, with a new office for Africa based in Nairobi launched this month. Fighting IUU has now become analogous to many of the other global fights against transnational organized crime, including drug trafficking, money laundering and people smuggling.

The decision to think about IUU as organized crime reflects a belief that it is an anathema to legal fishing, and predominately parasitic on the legal economy. Oceana, for example, tell us in their report 'Stolen Seafoodthat “the majority of seafood businesses legally catch and sell fish” but “there is a small but significant group of habitual offenders who deliberately and regularly flout the regulations.” Many reports on IUU fishing conjure up an image of IUU fishing being done by a certain type of fishing vessel; IUU is misused so often as a noun to describe a vessel, rather than to describe activities that fishers are involved in (there are “IUU vessels” and “IUU black lists”). We can also see this by the common way IUU fishing is described as “pirate fishing”, or the IUU vessels are “pirates”. The OECD described in a report on the economic and social drivers of IUU, how “competition with a fish pirate could mean a smaller catch, lower income and lower employment in communities that rely on the legal trade.”

This way of thinking about the nature and causes of IUU has encouraged a law enforcement approach, where the aim is to (as PEW describes) “monitor, deter, prevent and prosecute”. This is to be achieved by strengthening state law enforcement capacity and intelligence gathering, with the help of the law-abiding industry, big environment NGOs, as well as (at times) fishing communities. The fight against IUU has become a global law enforcement regime, encouraging investigations and prosecutions – the hope is that if enough baddies can be caught and law enforcement gets so effective, we will end up with just the good guys.

The need to envisage IUU fishing as State-Corporate crime

We need to move away from thinking about IUU fishing as pirates and organized crime, towards what criminologists refer to as “state-corporate crime”. For the most part, corporations, mostly multinational companies, perpetrate IUU fishing activities. These are crimes of the powerful, rather than crimes of some shady underworld organisation. Robert Kramer, one of the first writers to use the phrase described it as:

"State-corporate crimes are illegal or socially injurious actions that result from a mutually reinforcing interaction between (1) policies and/or practices in pursuit of goals of one or more institutions of political governance and (2) policies and/or practices in pursuit of the goals of one or more institutions of economic production and distribution."

As described here by the programme of research on state-corporate crime involving several Universities in the UK and US, the concept was borne out of a realization that it is rare for the illegal actions of states or corporations to occur without some assistance from the other. Highly controversial activities of corporations are normally aided and abetted by governments. This includes the situation where governments fail to control deviant business activities because of direct collusion, or because they share the same objectives of the private sector and don’t want to undermine these by aggressive regulation. 

There are many examples of this in fisheries. Home governments of distant water fishing fleets are either ambivalent about the unethical behaviours of their corporations, or they proactively work to further their interests through direct interference in investigations and prosecutions, or influence peddling through the use of foreign aid, for example. There is also a widespread problem of corruption in the fisheries sector, through bribery, conflicts of interests (politicians owning interests in companies) and “revolving doors” (government officials taking up positions in the industry they were previously tasked with regulating, or visa versa).  The distinction between the state and the private sector is therefore often fuzzy, and this is an important feature of understanding deviance and immunity from traditional law enforcement.

Many of these problems were vividly shown in the recent saga involving companies from Russia trying to gain licenses to fish small-pelagics in Senegal. In this case we witnessed something worthy of a John le Carre novel, with multinational companies gaining highly controversial licenses with the help of the Russian government and Russian development aid projects (there was also rumours the deal was linked to a military pact between the two countries, as is also the case with fisheries agreements in West Africa with China). The need to gain access to West Africa was partly because the international fleet targeting small-pelagics is in economic crisis due to rising costs and decreasing catches off South America, and also because Russia has decided to pump large amounts of funding to help rescue its national fishing industry that collapsed following transition from the Soviet Union. At the same time the Senegal national fisheries minister was accused of trying to change fishing laws in parliament to accommodate the trawlers, and the fees from the licenses were unaccounted for, with some speculating these were channelled to fund a presidential election.

As such cases show there is a major limitation of seeing IUU as an external threat to nation states. But this also highlights how criminal law can be a problematic starting point for understanding what is good and bad corporate behaviour. Robert Agnew, writing on this said:

“If the criminal law partly reflects the interests and values of dominant groups, it follows that certain harmful behaviors may not be defined as crimes, particularly those behaviors that serve the interests of dominant groups. Those harmful acts committed by corporations and states figure prominently here”

Thus, as powerful actors corporations have the means and incentives to contest laws or work (aided by lobbying and the revolving door syndrome) to ensure certain behaviours are not criminalised, even when many others feel they should be. Writing about this amid the various financial frauds that happened in the US mid 2000s, American criminologist Robert Tillman described that “Enron didn’t just break the rules, it made the rules”.

Closely associated with this is the concept of regulatory capture, which describes how government agencies tasked with managing an industry become so closely entwined with the industry's needs, it is no longer able to regulate it for the public’s benefit. There are many examples and areas of concern in fisheries. In an excellent study of shrimp fisheries in Mozambiqueit was described that powerful foreign companies, aided by political elites through joint venture arrangements, had managed to oppose a new fisheries act that would require fishing quotas to be given to national semi-industrial companies, and later the same companies were successful in both circumventing laws and watering down others that were intended to limit overfishing. This resulted in the eventual collapse of the fishery.

Likewise, regulatory capture is an important consideration at the international or regional level. The European Commission’s DG MARE, for example, has struggled to shake off the image of working primarily to further the interests of European fishing fleets in developing countries as opposed to promoting sustainable fishing and the rights of coastal communities. A similar ‘risk’ manifests in the work of Regional Fisheries Management Organisations.

What is missing in the fight against IUU movement is this critical reflection on how powerful actors influence the setting of regulations and laws that define what is criminal and what is not, and how stringent regulatory control is allowed to be.

Thus, while the IUU movement considers ‘unreported’ fishing to be part of the problem, it fails to say much about the fact that the industry is one characterised by state sanctioned confidentiality – in so many countries information on what is actually caught, what is contained in access agreements and contracts, how much money is paid by companies etc., is confidential, often justified to protect ‘corporate interests’. Similarly when it comes to the rather peculiar notion of ‘unregulated’ fishing (hardly used at all by the IUU movement), there is a lack of reflection on what good ‘regulated’ fishing would look like, and why has this not been allowed to develop in many places. It is not just lack of scientific data or capacity restraints in management.

Corporate deviance as normal?  

Many publications on IUU state that the ‘pirate fishers’ are bad because they deplete fish, rely on poor labor conditions and gain an unfair advantage over law abiding fishers. But this merely begs the question of what really distinguishes the motivations of ‘pirate’ fishers from the rest of the industry – lowering costs and maximising profits is ubiquitous in the industry, while overfishing has been a collective problem of fisheries for decades. Both the impacts and motivations attributed to IUU fishing merely reflect wider tendencies of the legal industry – another reason why it is so difficult and often misleading to measure the cost of IUU fishing. So is IUU best thought of as a minority of deviant offenders?

Few of the world’s largest corporations have a blemish free track record on respecting regulations and fishing ‘responsibly’, despite their eagerness to do ‘corporate social responsibility’. Still, some may be better than others. The American criminologist Dwight Smith argued in the early 1990s that organisations exist on a sliding scale – from the most saintly to the most sinful. He argued that many exists towards the wrong end, and that labels such as ‘organized crime’ that distinguish some as good and others as bad, can be arbitrary and highly misleading. The same is true of IUU – at what point does a boat, or the firm that owns that boat more importantly, become a pirate (or an IUU vessel)? There are criteria for this decision when Regional Fisheries Organisations black list a vessel, but the problem is that the criteria are vague (how far back do we go, how lenient are we?) and it is not hard to apply the definition of IUU to a lot, if not the vast majority, of industrial fishing in Africa (particularly when we use the two Us to their full potential).       

Criminologists working on state-corporate crime identify “crimogenic markets”, where fraud, deviance and unethical behaviors become quite normal. These behaviours are not the outcome of rogue business people (or ‘bad apples’), but the more visible episodes of more systemic problems. Since the last financial crisis this view of the normalization of crime in the corporate world is becoming more mainstream, well described in this New York Times article about the spread of corporate corruption in the West.

The theory on what makes some sectors more ‘crimogenic’ than others remains disputed, although heightened competition, economic strain, excessive risk taking, coupled with regulatory capture and weakening of regulatory oversight, all seem important factors. Both the nature of fisheries and the apparent scale of problems attributed to IUU (if we are to believe the statistics – a quarter of all fishing!) would suggest industrial fisheries is a prime example of a crimogenic market – unethical corporate behaviours are more likely to be characteristic of the industry rather than an external threat to the majority of law abiding firms. We therefore need to reject the idea that unethical behaviours and law breaking is due to ‘pirate fishing’ and start thinking more along the lines of state-corporate crime in a crimogenic market.

So what are the implications for fighting ‘IUU’ fishing?

Because many people and organisations think about the problem along the lines of ‘piracy’, they are exclusively fighting IUU with a hard law enforcement approach. This has never worked in illegal trades, such as drugs, nor does it work in crimogenic markets. This type of response, in isolation, tends to result in a few high profile cases and often very harsh punishments for the unlucky few that get caught – something that is overlooked in the clamour to wage a war on IUU fishing. It is also vulnerable to political manipulation – the law becomes a strategic tool in geo-political competition.

If we are to re-think IUU fishing as state-corporate crime, and to see the industrial fisheries sector as potentially ‘crimogenic’, we would not entirely reject the business of investigations and prosecutions, but rather we can see that the necessary responses would depart from the IUU movement in several important ways:  

  • First, it is important to think about laws and regulations in the fisheries sector as politically contested and not always reliable starting points for deciding what is good or bad corporate behaviours. The legalistic framework for deciding on who and what is ‘IUU’ needs to be constantly reviewed and challenged. There is a lively debate in criminology on the merits of a “harms based” or “human rights based” approach to evaluating the impact of corporate behaviours. The point is not to do away with criminal law, but there is a vital task of critically contributing to debates on legal reforms that better approximate people’s idea of what is acceptable corporate behaviour, and therefore challenge those that are simply the outcomes of state-corporate interests.  From this perspective we may also find that many profit making activities that are entirely legal have a far worse impact on food security, livelihoods of coastal people and the ocean biodiversity than the activities of IUU fishing.
  • Second, we should appreciate that state-corporate crimes are part of a failure of democracy. It flourishes when the interests of companies and governments exist without participation in decision-making and oversight by people and civil society. We need to take the issues of transparency, accountability and civic deliberation in fisheries as a central point in reforming the sector, and not let “IUU” become a subject that is only dealt with by powerful NGOs, governments and international policing agencies, working confidentially. A good example of this problem is with FISH-I – touted as a ground-breaking initiative between African governments and foreign environmental NGOs who are sharing confidential intelligence to catch the baddies, members of FISH-I don’t want to publish basic information on licenses and access agreements in African states (although they were asked to). One can see from a state-corporate crime perspective why this is so objectionable. Addressing deviancy in the fisheries sector must be through democratic governance reforms, and anything that denies this in the name of fighting crime should be treated with upmost caution.
  • Third, there is an important challenge in understanding and then responding to the complex relationships between companies and governments. Rather than seeing the problem of IUU as a threat to states all over the world, we need to be more critical about the relationships between powerful firms and people in positions of regulatory and policy authority. We have very little insight into corporate lobbying in the sector, the revolving door syndrome, conflicts of interests, and the methods ‘home’ countries use to promote the interests of their firms. This subject becomes more important as everyone starts fighting IUU fishing – it will not be surprising to find out in the increasingly competitive world of fisheries how such efforts are abused by countries and firms to further their interests over others. All the major home nations of foreign fishing firms in Africa (EU, China, Japan, Russia etc.) are funding various efforts to fight IUU fishing on the continent and globally, but no one is stepping back to consider the reality of why they are doing this and what is at stake for their own firms.
  • Fourth, the IUU movement tends to encourage penalties for fishing vessels and occasionally imprisonment for the crew. The owners and major investors in the companies that possess these vessels tend to get off scot-free. Re-framing the problem as one of state-corporate crime highlights the need to take a broader understanding of culpability. We need better research and responses on the behaviours of firms and their shareholders or beneficial owners, as well as government agencies involved.

Overall, before we get carried away with launching drones, night vision cameras and spending large amounts of funds on criminal intelligence, we need people working on industrial fisheries to adopt a political and historical approach to understanding the behaviours of firms and governments and the outcomes of these behaviours on communities and the environment. This would lead to a more reasonable understanding of the nature of deviance in the sector, and what needs to be done to address it. Decades of work by criminologists on state-corporate crime should be consulted by more of those interested in this subject. The recent effort for IUU fishing to be considered “organised crime’ needs to be reconsidered.

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