Many aspects of the government’s handling of the Formosa Chieftain 2 sports fishing boat incident are praiseworthy, but now that the vessel has been impounded by Japanese authorities, other aspects require careful thought before action is taken.
In terms of maritime law, most worrying is the likelihood that the boat and crew were taken by the Japanese west of the temporary enforcement line between Japan and Taiwan — that is, in Taiwanese waters. It’s akin to a Taiwanese accused of a crime overseas returning home, only to be detained by foreign authorities and taken out of the country without the knowledge of the Taiwanese government.
In 1961, when the British trawler Red Crusader was fishing illegally near the Faroe Islands, the crew of the Danish frigate Niels Ebbessen boarded the trawler to guide it to port, but the Red Crusader continued toward Aberdeen, hurriedly leaving Danish waters with the Niels Ebbessen in pursuit.
The British warship Troubridge came to the trawler’s assistance and placed itself between the two boats, blocking the Danish ship on the high seas while the trawler made its way to Aberdeen.
Denmark said the British warship offered illegal protection, but after the two parties submitted the issue to a neutral commission, no fault was found with the British.
A similar incident involving Japan and South Korea in 2005 highlighted the importance of returning boats and crew to their home country in dealing with maritime disputes.
A South Korean fishing boat was fishing illegally inside Japan’s exclusive economic zone when two Japanese law enforcement officials boarded the boat to investigate. The boat’s captain detained the officials and sailed toward South Korean waters.
After the boat entered the South Korean exclusive economic zone, a stand-off developed between six Japanese and five South Korean vessels, with Japan insisting that the South Korean captain and the boat be returned to its custody.
An agreement was eventually reached, with the South Korean side agreeing to pay a bond and guaranteeing that the incident would be properly investigated in accordance with maritime law.
The Japanese vessels then left and the South Korean fishing boat and crew returned to port for investigation and punishment.
By maritime convention, crews and boats are not extradited, but in the case of the Formosa Chieftain 2, the vessel and crew remain stuck in Japan — a worrying set of circumstances. Worse still, the incident occurred in contested waters and this could have an impact on maritime talks.
Taiwan announced the location of the temporary enforcement line in 2003, but this is the first time that Japan has encroached west of the line to detain Taiwanese fishermen, and even after engaging Taiwan’s coast guard.
President Ma Ying-jeou (馬英九) has a deep understanding of international law. Top officials must make clear to the foreign ministry and its agencies that they must protest against Japan’s arrest of Taiwanese crew and its confiscation of a Taiwanese boat in waters west of the enforcement line in order to ensure that this incident does not set a precedent.
Punishment must also be meted out to the crew by a Taiwanese court if the law has been broken.
Illegal conduct on the part of Taiwanese boats must not be indulged, otherwise the ability of ordinary fishermen to do their job could be compromised by cross-border tensions.
Irresponsible behavior encourages fishermen to act as they wish.
If they end up thinking that they have the government’s support in breaking the law, then Taiwan’s relations with Japan could deteriorate
Finally, the Ministry of Foreign Affairs and the Coast Guard Administration should be informed that it is unacceptable for Japan to seize vessels and crew and that this conduct challenges Taiwan’s territorial claims.
Allowing Japan to have a free hand would make an already difficult situation even more difficult.
Chiang Huang-chih is an associate professor at National Taiwan University’s College of Law.
TRANSLATED BY PERRY SVENSSON
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