The need to reinforce RFMO regulation for effective domestic enforcement: the case of Operation Sparrow II

By Mercedes Rosello (the author thanks Eva van der Marel and Richard Caddell for their feedback on an earlier draft of this blog piece. Any errors remain the author’s alone).

 

Abstract

This blog post discusses the extent to which the effectiveness of administrative enforcement decisions may depend on the clarity, objectivity, and functionality of the international legal and policy frameworks within which they are situated. In particular, it is argued that ambiguities in the rules and processes of regional fishery management organisations (RFMOs), may thwart attempts at enforcement. The case study, which is focused on the subject of stateless vessels, illustrates the need to ensure that RFMO rules cover known risk scenarios and are objective, and that processes are sufficiently timely to be fit for purpose, as is appropriate to organisations that perform a public regulatory function.

 

Introduction to Operations Sparrow I and II

The community of researchers, practitioners, and volunteers who work to achieve the eradication of the broad range of undesirable fishing activities known as illegal, unreported and unregulated (IUU) fishing will no doubt recall ‘Operation Sparrow’. This was the eye-catching name given to a series of high-profile initiatives by the Spanish General Secretariat for Fisheries, the executive agency that deals with fisheries regulation in Spain, under the auspices of the Ministry for Agriculture and Environment. Operation Sparrow unfolded in two tranches, each supported by enormous financial, human and technical effort involving the participation of various administrative and policing bodies, as well as international cooperation by third countries, and by Interpol.

The IUU Fishing Blog offered a commentary on the nature, outcome, and implications of Operation Sparrow parts I and II in March 2016 [click here to see blog post]. In August of the same year, the Spanish Ministry published an official press release covering the progress made in the context of these operations [click here to see original post in Spanish].[1] For ease of reference, it is worth recalling that Sparrow I and II involved inspections and dawn raids on the premises of Spanish companies that operated several vessels suspected of IUU fishing activities, and culminated in the imposition of administrative sanctions of unprecedented severity. These events publicly marked a change of direction in policy by the Spanish government that the author, like many others in this community, welcomed. As is the case with any decision made by a public authority, the administrative decisions that brought Operation Sparrow to its final conclusion are susceptible to judicial review, and two appeals have been brought before the Spanish courts in this respect.

The appeals concerned sanctions imposed as part of ‘Operacion Banderas’, which was a discrete operation carried out in the framework of Sparrow II. According to the press releases made by the Ministry, Banderas involved the seizure in the port of Vigo of two vessels, Antony and Northern Warrior, and the imposition of a bond, as a result of suspected statelessness and fraud in the provision of information to gain access to the port.

The 2017 appeals 

Port of Vigo. Credit: Spanish Ministry of Agriculture and Fisheries

Two appeals were lodged in 2017 before the section of the Spanish judiciary entrusted with overseeing decisions of the public administration, which forms part of a large composite court, the ‘Audiencia Nacional’.[2] The court recorded the lodged appeals with numbers 81/2017 and 82/2017 respectively.[3] Appeal 81/2017 concerns the operations of the Northern Warrior prior to its fateful arrival in Vigo in February 2016. Appeal 82/2017 concerns another vessel that, though unidentified in the judicial decision, may be reasonably assumed to be the Antony, given the vessel names released in the 2016 Ministry press release mentioned above.

The facts underpinning the Ministry’s November 2016 resolution and sanctions against the respective appellants, Capensis Trade SL, and World Oceans Fishing SL, are recalled in the text of the judicial decisions. From these, it may be inferred that the sanctions that had been appealed essentially refer to the following activities:

  1. At least some of the information given to the port authorities in Vigo to ensure that the vessels gained entry, and/or documentary information found on board at least one of the vessels, had been found to be false by the inspectors acting on behalf of the Secretariat. Each appellant was contesting fines of 200,000 Euros each in respect of these infractions.
  2. In the case of appeal 82/2017 brought by World Oceans Fishing SL, the challenge concerned a transhipment with a vessel that featured in a number of IUU lists. The appellant had been fined with 200,000 Euros by the Ministry in respect of this.
  3. The operation of the vessels after they lost the nationality links conferred by their respective flags. In the case of the Northern Warrior, it lost its link to its flag State, Curaçao, in March 2015, when the vessel’s operators requested its removal from the register due to cost considerations. From that moment on, the vessel had continued to be managed by the appellants, having engaged in at least one fishing venture in waters under the jurisdiction of a West African state, and apparently authorised by that state despite the lack of clarity as to the vessel’s nationality status. In the case of the other vessel, the decision indicates that its right to fly the Indonesian flag had been extinguished a few days before it requested entry to the port of Vigo. Each appellant was contesting fines of 450,000 Euros in respect of alleged IUU operations conducted whilst in a situation of statelessness.

The appeals for the events outlined in a) and b) above failed in both cases, with the Audiencia Nacional finding the fines had been appropriately imposed in accordance with applicable legislation concerning IUU fishing control. However, the appeals outlined in paragraph c) were successful. The reasons for the failure of the sanctions and their implications are discussed in the following paragraphs.

Fishing vessel in waters near Vigo. Credit: http://www.turismodevigo.org .

Rationale for the success of the appeals

The inspecting authorities had found the vessels, which were not flying any flag when they entered the port of Vigo, had infringed Article 3.1(l) of Council Regulation 1005/2008, whereby:

‘3.1- A fishing vessel shall be presumed to be engaged in IUU fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has: (…)

  1. l) no nationality and is therefore a stateless vessel, in accordance with international law.’

Subsequently, the Ministry had relied as a justification for the sanction on certain provisions found in Article 101 of Spanish Law 3/2001, setting out serious infractions in matters of IUU fishing. Subparagraph 1 of the article includes activities concerning the operation, management and ownership of vessels without nationality, or vessels flagged to third countries identified by RFMOs or other international organisations as having participated in IUU fishing operations.[4] There is some interpretive ambiguity in the text of this provision that, arguably, permits at least three interpretations.

Firstly, the broadest understanding of the provision suggests that the presumption extends to two distinct types of activity: on the one hand, vessels being operated, managed, and owned whilst not having any nationality and, on the other, vessels flagged to third countries identified by RFMOs or other similar organisations. This would imply that the operation, management or ownership of a fishing vessel without nationality is a serious infraction, irrespective of the existence of an identification made by an RFMO or similar organisation.

Secondly, it may be argued that the above is too broad to meet the requirements of Article 3.1 of the IUU Regulation establishing a presumption of IUU fishing: the Regulation requires that it be shown that the presence of the stateless vessel in the regulated area is contrary to a conservation and management measure of the RFMO, or international organisation in question. It should be pointed out that, as Article 101.1 is silent on this point, this interpretation requires recourse to the text of the EU IUU Regulation, which is of course of direct application to all member states of the EU. It cannot be inferred from the text of the decisions that a relevant RFMO conservation and management measure was identified as having been breached.

Thirdly, a narrower interpretation of Article 101 is also possible, and this was the one adopted by the court: both the operation, management, or ownership of a stateless vessel, and that of a third country vessel, must have been identified by the relevant RFMO or similar organisation as an IUU fishing event. This the legally safer option for a domestic authority, because it avoids the risk of jurisdictional overreach, and neutralises any possible conflict between a domestic decision that a breach occurred, and a subsequent decision by an RFMO. Only an objective RFMO rule that only admits a binary choice on the facts would be sufficiently safe to avoid this undesirable potential outcome. For example, a rule determining that the entry of a stateless fishing vessel in an RFMO regulated area will automatically result in listing would meet those characteristics, but one entailing further deliberation to decide whether listing should occur would not.

Map of RFMOs. Credit: Pew Environmental Trusts

It can be inferred from the text of the two appeal decisions that, as the investigations progressed, the Spanish authorities requested the inclusion of the two vessels in the IUU vessel lists of the Commission for the Conservation of Antarctic Marine Resources (CCAMLR), a fact that can be verified in the Report of the Commission published by CCAMLR in October 2016 [accessible here]. This confirms that, at the time of the seizure, neither of the vessels featured in the IUU fishing list of the organisation. This fact caused the court to invalidate the specific penalties imposed by the domestic authority mentioned in paragraph c) above.

 

Relevance of RFMO rules and processes

It has been mentioned that it cannot be inferred from the text of the decisions that an RFMO conservation and management measure had been identified as having been breached. It should be pointed out that, when Operation Banderas took place there appears to have been a lack of clarity as to whether the CCAMLR rules considered the presence of a stateless fishing vessel in the regulated area to be a breach of conservation and management rules, or be an action that merited listing. Practice in the organisation appears to have been erratic in this respect at the time.

Certain inferences can be made from existing rules, though these are far from the ideal level of objectivity that should exist in order to ensure safe domestic decision-making. For example, conservation measure 10-02 issued by CCAMLR in 2016 [accessible here] requires licensing of vessels by contracting parties in order to carry out operations in the regulated area. Clearly, this implies the automatic exclusion of stateless fishing vessels with regard to fishing operations in regulated high seas areas at least.[5] Yet, it is unclear whether ‘operations’ necessarily implies that evidence of fishing activities is required prior to listing. This uncertainty is exacerbated by the fact that there was a lack of agreement at CCAMLR on the procedures for inter-sessional inclusion of stateless fishing vessels in the IUU list of the organisation. The Commission has recently undertaken to address voids on the treatment of stateless vessels via the drafting of a new conservation and management measure at the request of the EU, although the last Commission report does not disclose the precise details.[6]

CCAMLR Regulated Area. Credit: COLTO

In the view of the author, a requirement to prove unauthorised fishing before inclusion in the list is effectively placing the stateless fishing vessel on the same footing as those flying a flag. Indeed, vessels flagged to RFMO members cannot fish in a regulated area unless authorised by their flag State, in accordance with the above-mentioned CCAMLR rule. Procedural parity between vessels flagged to a member and stateless vessels would be of questionably equity, conferring an advantage to a vessel with operators that have relinquished the financial and regulatory burdens observed by duly registered and flagged competitors. Additionally, those operating the stateless fishing vessel may be less likely to face disciplinary and/or enforcement action, due to the lack of connection with the legislation of a flag State.

No State conferring a hypothetical right to access fishing resources in the high seas via its domestic law to nationals operating an unregistered vessel could do so whilst being a party to the Law of the Sea Convention, and/or any of the global agreements relevant to the regulation of highly migratory species and compliance in the high seas, without questions of international responsibility being raised. Effected by a non-party, such conferral would undermine the objectives of such agreements, and granting procedural parity to such vessels by an RFMO would weaken incentives to participation. Arguably, questions of responsibility might also be raised in respect of non-parties, considering the general nature of conservation and cooperation duties. The right to fish on the high seas is, under Article 87 of the Law of the Sea Convention, to be conducted within the parameters of those duties, and has been defined as being conditional to those obligations being met.[7]

In view of these considerations, it might be advisable for automatic RFMO listing of stateless vessels present in the regulated area to be made pre-emptively, unless the persons responsible for the operation of the vessel can prove the absence of fishing, transhipment, or other fishery support activity via reliable vessel tracking data as a minimum, or if their presence in the regulated area responds to a situation of force majeure.

 

Implications

RFMO conservation and management rules are essential to define what is or isn’t considered an IUU fishing event in regulated areas of the high seas. The partial success of the appeals highlights the importance of ensuring clarity and objectivity in RFMO rules, and that risks are comprehensively covered. Similarly, the clarity and timeliness of listing processes is also critical for the effectiveness of domestic regulation. In the case of confirmed statelessness of a fishing vessel, its operation in the regulated area should be classified as an infraction, to be followed by inclusion in the IUU list of the organisation.

An RFMO listing can be a lengthy process, and this can impair domestic procedures by introducing undesirable delays or even rendering an enforcement action toothless. Hence, recognising the importance of inter-sessional listing is essential. Lapsing decisions to the time when annual meetings take place is also likely to delay and impair the effectiveness of cross-listing activity by other RFMOs or international organisations like the EU.

The case study analysed here shows how the effectiveness of a decision by a domestic authority may depend on safeguards related to legal certainty, which may be linked to the objectivity and clarity of RFMO rules and processes on which the domestic decision is based. This raises the stakes for RFMOs in their role as regulators.

Whilst the status of statelessness and corresponding listing action may now have been addressed by some commissions, including CCAMLR, the issue is of concern to all RFMOs. Given their increasingly prominent place as public regulators of fishing activities in areas beyond national jurisdiction, the credibility and effectiveness of RFMOs implies that their decision-making procedures and resulting regulatory output must be objective and fit for purpose. Decisions on vessel listing are important, as IUU lists have become an essential IUU fishing control tool, and it is critical that rules and processes that are appropriate for organisations performing a public administrative function are adopted and maintained.

Finally, it is worth noting that the Spanish court decisions upholding the administrative sanctions applied by the Ministry as a consequence of the fraudulent information presented to port authorities, highlight the vital role of ports in ensuring that vessels are operated in accordance with all applicable legal requirements. Despite the invalidation by the courts of the measures concerning statelessness, the surviving sanctions underscore the emergence of port authorities as significant actors in the fight to deter and address illegality in fisheries.

Mercedes Rosello, London, 2019.

[1] These proceedings are different in nature to a separate case involving allegations of criminal activities against a number of notorious Spanish individuals and their high seas fisheries operations [click here to see post and linked presentation paper].

[2] The Spanish press has recently reported on the conclusion of one of these appeals [click here to see press article].

[3] The two judicial decisions resolving these appeals are susceptible to further appeal, and it is unclear at the time of writing whether such action has been taken.

[4] Emphasis added.

[5] A coastal State may authorise fishing activities in waters under its jurisdiction, even for regulated species, as was alleged to have occurred in this case. Whilst this may in some cases compromise the international obligations of that State, it would in principle enable the vessel to operate legally, unless it had infringed the domestic laws of that State in obtaining its authorisation, or in other aspects of the conduct of operations.

[6] See CCAMLR, ‘Report of the Thirty-Seventh Meeting of the Commission’ (2018) paras 3.23, 3.24, 49, 50, and 51.

[7] See T Henriksen, ‘Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations’ (2009) 40(1) Ocean Development & International Law 80-96, 85 and 86.