Many coastal communities around the world have to constantly.

Deal with the problem of arrest and detention of fishworkers by States for unauthorized presence,

Background

Many coastal communities around the world have to constantly deal with the problem of arrest and detention of fishworkers by States for unauthorized presence of small-scale fishing vessels in the territorial waters and exclusive economic zones (EEZ) of non-flag States. Such presence arise from a number of factors ranging from a desire to access fishing grounds traditionally fished by non-flag State vessels, to depletion of fish stocks in waters of flag States, to enhanced capacities of the artisanal small-scale fishing fleets that spill over into waters of other coastal States. This problem, however, needs context-specific solutions that will protect the human rights of fishworkers.

It is important that implementation of legislation to deal with the arrest and detention of fishworkers in the waters of other coastal States should be in accordance with Article 73 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS or 1982 Convention), and should not contravene the appropriate articles in the UN International Covenant on Civil and Political Rights, 1976, and the UN International Covenant on Economic, Social and Cultural Rights, 1976, among others.

Source: VLIZ Maritime boundaries geodatabase

The transborder illegal movement of fishing vessels between coastal States is more pronounced amongst the Asian countries, Latin American countries, and amongst the island countries in the Indian Ocean. It is also recorded, between riparian countries of large lakes. There is a significant increase in the number of reported cases of fishing vessels and their crew being apprehended for such illegal fishing:

Irrespective of the size, nature and origin of the fishing unit—small or large, using destructive or passive gear, originating in riparian, non-riparian nations, or flag States—coastal States deal disproportionately with illegal fishing by flag States than with irresponsible fishing by their own flag vessels.

Penalties for illegal fishing should be based on the principles of necessity and proportionality. States should evolve mechanisms for the release and repatriation of arrested small-scale fishers on a priority basis, recognizing that rigid enforcement of maritime boundaries in historic or traditional waters in relation to communities that live and fish close to such boundaries using small-scale fishing techniques can lead to tragic consequences. The interests of such communities need to be accommodated, along with security and other national concerns. Fishworkers using small-scale vessels apprehended in territorial waters of coastal States for illegal fishing should not be prosecuted under laws that apply to illegal immigrants into sovereign territories. In such cases, the fact that the illegal fishing occurs within the territorial waters rather than in the EEZ should not lead to punishments. Nor should fishworkers be made victims of maritime boundary disputes between States.

States must put in place working arrangements that provide fishworkers access to resources in such fishing grounds for life and livelihood. It is important that countries consider this issue from a humanitarian perspective, and protect the civil, political, economic, social and cultural rights of fishing communities including the small-scale ones.

Many countries have bilateral agreements that specifically address the issue of access to traditional fishing grounds — for example, the Eritrea- Yemen agreement of 1998, based on the arbitration tribunal's holding; the Indonesia- Australia agreement of 1974; and that between Cayman Islands-Honduras, and Trinidad and Tobago and Barbados.

This ICSF website collates information resources for 18 different countries on the arrest and detention of fishers. It uses information contained in the SAMUDRA News Alerts, in articles from SAMUDRA Report and Yemaya newsletter, in books and journal articles, and from other audio-visual material. The site also provides details of the important bilateral agreements between countries on traditional fishing grounds.