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.

Maritime Crime and the Role of Insurers

The concept of illegal, unreported and unregulated (IUU) fishing is usually associated with arrangements for the conservation and management of marine living resources. Yet, in recent years, this expression has become increasingly familiar in maritime security circles, often used to refer to a broad spectrum of criminal activities at sea. IUU fishing is characterised by operational opacity, which can provide opportunity and cover for complex transnational crimes, such as the trafficking of drugs and weapons, people smuggling, and grievous abuses of labour and human rights (UNODC, 2011), as well as ancillary crimes such as fraud and tax evasion (OEDC, 2016). Widespread techniques to hide unlawful or destructive operational patterns may include engaging in ‘transhipment’, namely the practice of transferring catch and other products from one vessel to another (FAO, 1996). This operation, which is often performed unsupervised at sea, can facilitate the fraudulent concealment and redirection of fishery products as well as illicit objects, or smuggling of people (UNODC, 2011).

NOAA

Credit: NOAA Fisheries

Weak regulatory frameworks can enable illegal and undesirable fishing activity, as well as at sea criminality, particularly when they lack surveillance and enforcement capability (see Doumboya et al, 2017). Further, surveillance and enforcement irregularities can be associated to instances of corruption (Sundström, 2012). Whilst the existence and implementation of an adequate regime with appropriate disclosures and infraction responses lies with flag, port, and coastal State authorities depending on context, it is becoming increasingly apparent that private actors may have a significant role in shaping security risks. The insurance industry has recently been identified as one of such actors by scholars, and they may have an important role to play in the development of appropriate risk management mechanisms concerning the prevention and ultimate eradication of IUU fishing and associated crimes. As Miller et al have indicated, the provision of certain insurance services to fishing vessels identified as having been involved in IUU fishing operations appears to be far from uncommon. The authors have suggested that IUU vessel owners and operators choose to purchase insurance, even in contexts when it is not obligatory, as an operational cost that protects them against the potentially prohibitive costs of accidental third party damage (Miller et al, 2016). Subsequent scholarship has pointed out that the value of insurance to IUU fishing operators might also be related to the need to satisfy the legal requirements for compulsory insurance that exist under some port utilisation frameworks (Soyer et al, 2018).

These studies are valuable in demonstrating the extent to which liability insurers may be facilitating criminality at sea, and the extent to which adapting underwriting practices might be desirable to enhance awareness of significant data. This may include disclosure of the identity of beneficial owners, as well as those with direct operational responsibility (Griggs and Lugten, 2007). Similarly important is the existence of permanent forms of vessel identification, such as numbers assigned by the International Maritime Organization (Miller and Sumaila, 2014). Awareness of the presence of monitoring devices is also advisable, since it is common for vessels engaging in IUU fishing to be permitted to operate without vessel monitoring systems (Detsis et al, 2012), or automatic identification systems (Robards et al, 2016). Unfortunately, current research into the insurance practices of IUU fishing vessels includes little insight into the operational synergies between IUU fishing operations and related patterns of criminality – an association that recent scholarship has increasingly highlighted (De Coning, 2016; Lindley et al, 2019; Chapsos and Hamilton, 2018). Given that there is evidence of elements that facilitate the combination of IUU fishing with transnational criminal activities involving diverse forms of smuggling and trafficking, it is important to establish the insurance patterns of vessels involved in the latter, in respect of which there is currently insufficient information. Such data would be useful in the design of due diligence strategies for the marine insurance sector with regard to the selectivity of underwriting and claims practices.

Editors’s Note – For further information regarding due diligence and risk assessment in respect of IUU fishing for the insurance industry, please see the guidelines issued by Oceana, UNEP Finance Initiative, and the Principles for Sustainable Insurance. 

Editor’s Note – An earlier version of this post was first published at: GSDM Global.

Mercedes Rosello, April 2019

 

End of my PhD journey: a few words of gratitude

I trust readers will excuse the personal nature of this blog post, but I felt it was important to mark the end of my PhD journey with a short piece. All rites of passage merit acknowledgement, and this one is no exception.

Hull Marina. Image credit: imagesofhull.co.uk

Firstly, committing several years of your life to this type of endeavour means you must sometimes rely on the good will and patience of others, specially during the difficult times that can (and do) crop up when you least need or expect them. I have been extraordinarily fortunate, and my partner and family have proudly supported me to an extent that has exceeded all reasonable expectation. The gratitude I feel for them cannot be expressed in words. I have also been lucky to have had great mentors, who have guided me through what started as a daunting maze, which eventually turned into a pathway of intellectual discovery. I specially owe gratitude to my principal supervisor at the University of Hull, Professor Richard Barnes. I am also grateful to my successive second supervisors Drs. Vassilis Tzevelekos and Carmino Massarella, and to the wonderful friends and colleagues from the Law and Politics school and beyond, that I have had the privilege of sharing the PhD journey with in different ways: Nkiruka, Eva, Timea, Yuchen, Rick, Loria-Mae, Ife, Nezihe, Zoe, Flavia, Talal, David, Nuhu, Lillie, Mustafa… to name but a few! All of you have made this moment possible.

Secondly, I should add that I was immensely lucky to be awarded a scholarship by the University of Hull, and I will always be grateful to this brilliant institution for the opportunity this has afforded me. Without the university’s financial assistance, I doubt I would have been able to invest the necessary study time to conduct my research successfully. Yet, in this journey I have met some incredible people who have financed their PhD through their own work, and who even look after their families at the same time. My admiration has no limits, and to all of you who currently are, or have been, in that situation I say: I take my hat off to you, for you are superheroes!

Lastly, I would like to thank the many, many people who have encouraged and inspired me along the way. I owe special gratitude to the Environmental Justice Foundation, my employer at the time when I returned to legal study, whose phenomenal work on IUU fishing re-ignited my passion for the law (if curious, you can visit their website here).

A small handful of you have told me over the past couple of years that you have been mulling over the idea of embarking on a similar journey yourselves. The PhD is like a marathon in which you compete against your own limits of commitment and resilience. It is a life-changing experience from which you are unlikely to emerge entirely unscathed. But if, like me, you love your field of work, believe in the importance of good research, and know in your heart that your priority is to make a difference through knowledge, then you too should enter the race. I look forward to greeting you on the other side.

With much gratitude

Mercedes

Introducing our new legal consultant Eva van der Marel

We have great pleasure in introducing our new legal consultant and researcher, Eva van der Marel. Eva has joined us this month, bringing a wealth of legal knowledge and skills to House of Ocean, including extensive research on IUU fishing control measures.

Eva van der Marel with Mercedes Rosello

Eva is a dedicated researcher, and her academic accolades include a first class Masters in Environmental Law and Policy, which she obtained at University College London, and a Masters in European Law from the University of Rennes 1. She is in the final stages of her PhD at the Arctic University of Norway, where she is researching the role of market measures for sustainable fishing, with a specific focus on procedural law, and on the EU IUU Regulation.

Eva is strongly committed to sustainable fisheries, and to the protection of the marine environment. A keen scuba diver, and with a life-long love of nature above and below sea level, we could not have wished for a better or more congenial colleague. Welcome on board, Eva!

To access Eva’s full profile, and her publication list, please click here.

Dying in a Lawless Sea

The author of this blog post is Juan Vilata, a fisheries biologist with an MSc in Marine and Fisheries Science from the University of Aberdeen (UK), and over 12 years experience working in fisheries.  Juan works as a consultant specialised in the analysis of fisheries data, and has extensive knowledge of IUU fishing and sustainability concerns, as well as broad experience as an observer in Atlantic and Indian Ocean fisheries. He has served as an observer on board of tuna purse seiners, pelagic trawlers, and long liners.

Juan makes his first contribution to the IUU fishing blog with a poignant post about the plight of fisheries observers in light of the recent, tragic and unexplained disappearances of four colleagues. His post highlights the risks observers face in the conduct of their work, and the responsibility that the tuna industry, and we all in the sector, owe to ensuring their safety.

DYING IN A LAWLESS SEA

By Juan Vilata

Since late 2017 and early 2018, a few online journals, newspapers and community radios mostly based in Pacific ocean nations have echoed a terrible fact: The “disappearance at sea” -death- of several fisheries observers from Papua New Guinea, whilst working onboard tuna fishing vessels over the last few years [1, 2, 3, 4, 5, 6, 7]. The available information is scant and somewhat uncertain, and thus the exact number of disappearances is as of yet unclear. But there are at least four confirmed cases. Regardless of what the total number might be once confirmed, any death of a fisheries observer is an extremely worrying event, and more so if the circumstances of the disappearance/death are left unexplained. Sure enough, some of these cases could actually had been accidents (and there seems to be partial evidence that it might have been so in one case); after all, fishing is certainly a very dangerous activity, even in the absence of criminal circumstances. But all four?

Tuna vessel, by Juan Vilata

On board and at sea, by Juan Vilata

It is important to be aware of the crucial role undertaken by fisheries observers: at the very minimum, their presence onboard a fishing vessel is aimed to check whether the fishery is conducted within the legal framework. But also, most fisheries’ claims to sustainability would be impossible (or at least very hard) to prove, if the vessels weren’t carrying observers onboard. By the very nature of their task, observers are always at risk of being deemed intruders by the crew. More so if that crew is used to engage in illegal fishing activities, of which there can be many modalities: for instance, they could be using banned gear, targeting moratoria species, exceeding their allotted quota, fishing in waters where they don’t have license to, finning sharks, or illegally transhipping their catch. The level and intensity of occurrence of these and many other kinds of illegal fishing activities is very variable amongst the different fleets; they can range from being very rare events, up to basically daily routine. And there’s also a wide array of fishing regulations which need to be monitored, such for instance, limits to the capture of vulnerable species, or measures and technical implements aiming to reduce discards. Depending on how strict the regulatory framework is (regulations are not always compulsory), their breach might be deemed illegal or else it might be still legal but clearly unsustainable. Regardless of these distinctions, an unmonitored fishing vessel is much more likely to engage into these practices than another one which carries an observer onboard.

So, in short, although there are other means to monitor the activity of a fishing vessel (for instance, satellite monitoring systems, which are being continuously improved), the first and foremost check of the activities of the vessel is up to the observer. Depending on the specification of the observer program, if the observers witness some serious infringement, they might be required to report it by radio, or at least write it down in their reports. And the crew knows this. It is certainly not a comfortable situation. Depending on the seriousness of the circumstances -including the gravity of the infringement, the value of the catch, the vessel’s legal story, and other variables- observers might be subjected to anything ranging from the offering of bribes to serious threats, in order to prevent them from reporting what they observed.

Now, one obvious question about the missing PNG observers could be “How can this happen?” How can (at least) four people vanish into thin air after boarding their assigned vessels? Well, it does happen because tuna fisheries are a multi-billion industry [8], hence there’s a lot of money at stake, and because out there in the sea, onboard the distant water fishing fleets, there’s in practice a legal void [9, 10, 11, 12]. As things are now, in all likelihood, anything that happens onboard a distant fishing vessel will be left unpunished. Most nations owning large distant water fleets deny against all logic that they have any responsibility for what happens in their vessels. And yet, it stands to reason: similarly to diplomatic outposts, any vessel sailing under the flag of a given country should be considered an extension of such country. And therefore, the flag country should be accountable for whatever happens onboard. This issue of the current impunity of flag countries has been reviewed by multiple sources, one of which is the excellent short documentary by the NGO Environmental Justice Foundation (EJF) about human rights abuses at the Taiwanese distant waters fishing fleet [13].

But let’s not forget about the missing observers. They boarded the vessels, alive, never to return. It’s not as if they were anonymous: they had names, faces, and families. And it is registered which vessel was boarded by each one of them, and on which day. The names of the vessels are likely to have been changed by now, in an attempt by the vessel owners to escape prosecution from the authorities. However, the vessels always belong to a fishing and/or seafood trading company, and this can be traced, even though they’re almost always screened behind ghost companies based in convenience countries. Unmasking the real identity of the company owning a given vessel can in fact be a detective’s job. But it can be done.

Since no one else seems to care or do much about their safety, fisheries observers have organized themselves within APO -the international Association for Professional Observers-, and are running a project called OSIRS: the registry of all Observer Casualties, Injuries, and Near Misses [14]. OSIRS tries to keep track of every incident affecting the safety of fisheries observers, regardless of their nationality or the flags of the vessels they boarded. APO is a non-for-profit association with limited means; nevertheless, they’re doing a remarkable effort by keeping track of all these incidents. Given the secrecy around most of them, this is no easy task.

On board transhipping vessels, by Juan Vilata

On board transhipping vessels, by Juan Vilata

But now a second obvious question would be: “What is being done about it?” Well, not much, apparently. At the national level, PNG authorities do not seem to be making very strong advances in tracing the companies and identifying the people responsible. Whether this is for lack of funding, insufficiently prepared staff, or any other reason, the investigation does not bode well. Let’s not forget though that PNG is one of the world’s poorest nations [15], and its political stability is very fragile [16, 17, 18], all of which might undermine its capacities to take this investigation through to the end. But this shouldn’t be taken exclusively as an internal PNG’s issue: the vessels from which the observers disappeared belong to foreign fleets, and they caught tuna that by now has likely entered the global supply chain, and thus might have arrived to our plates.

And here’s the point: “What are the international tuna market actors doing about this?” Let’s imagine for a moment that the nationality of the observers had been different: Can anyone imagine four Australians (or French, or Americans, or Spaniards, or British, or Norwegians) working as fisheries observers, going missing onboard tuna fishing vessels (at least three of them in as of yet completely unexplained circumstances), and that nothing was done about it? Where are the international mass media, why aren’t they denouncing this?

These disappearances cannot, and must not, be left unresolved. This is a question of responsibility to the victims’ families, but also to ourselves: if we acquiesce with this impunity, we’ll be sharing the responsibility, as long as we keep consuming tuna whilst asking no questions. And more crucially, by doing nothing about it, we’re practically guarantying that this will happen yet again.

References

[1] Papua New Guinea Post Courier (2018). Increased Deaths of PNG observers. https://bit.ly/2IMhV9b

[2] RNZ (2017). PNG seeks to investigate purse seiner after observer’s death. https://bit.ly/2GkM1BX

[3] RNZ (2018). PNG parliament told about fisheries observers who disappear. https://bit.ly/2CHNcpn

[4] Keith Jackson – ASOPA (2018). On the trail of the missing PNG fisheries observers. https://bit.ly/2GkgTCJ

[5] www.wikitribune.com (2017). Updated: Murder and abuse – the price of your sashimi. https://bit.ly/2pDfX22

[6] The National (2018). Safety of fisheries observers a priority. https://bit.ly/2pAfIWg

[7] Human rights at sea.org (2017). Investigative report and case study: Fisheries abuses and related deaths at sea in the Pacific region. HRAS Report 1 December 2017.   https://bit.ly/2G5YxC7

[8] Galland, G., Rogers, A., & Nickson, A. (2016).The Pew Charitable Trusts. Netting Billions: A Global Valuation of Tuna. https://bit.ly/1W1T97C

[9] Urbina, I. (2015). Sea Slaves: The Human Misery That Feeds Pets and Livestock. The New York Times, 07.27.2015. https://bit.ly/2ulHTx3

[10] Environmental Justice Foundation (EJF), (2010). All at Sea: The Abuse of Human Rights Aboard Illegal Fishing Vessels. EJF, London (2010). https://bit.ly/2pGBeb9

[11] Marschke, M., & Vandergeest, P. (2016). Slavery scandals: Unpacking labour challenges and policy responses within the off-shore fisheries sector. Marine Policy, 68, 39-46. https://bit.ly/2pFdyUx

[12] Rosello, M. (2016). Illegal, Unreported and Unregulated Fishing Control in the Exclusive Economic Zone: a Brief Appraisal of Regulatory Deficits and Accountability Strategies. Croatian International Relations Review, 22(75), 39-68. https://bit.ly/2pJtmXl

[13] Environmental Justice Foundation. Exploitation and lawlessness: the dark side of Taiwan’s fishing fleet. https://bit.ly/2GkDWxe

[14] APO/OSIRS. http://www.apo-observers.org/misses

[15] UNDP (2018). About Papua New Guinea. https://bit.ly/2DT0Czy

[16] May, R. (2013). State and society in Papua New Guinea: the first twenty-five years. ANU Press. https://bit.ly/2pEMeqp

[17] Allen, M. G. (2013). Melanesia’s violent environments: Towards a political ecology of conflict in the western Pacific. Geoforum, 44, 152-161.

[18] May, R. J. (2017). Papua New Guinea Under the O’Neill Government: Has There Been a Shift in Political Style? SSGM discussion paper 2017/6. State, Society and Governance in Melanesia. The Australian National University. https://bit.ly/2ISjAK8

 

 

 

 

Satellite Technology and IUU Fishing

We end the year with this timely blog post from Beatriz Ortega-Gallego. Our contributor has a lifelong curiosity about all things nautical, and a passion for the ocean that led her to complete a degree in Environmental Sciences. She is currently pursuing a career as a fisheries inspector, and we wish her the best in her endeavour.

This topical blog, which surveys the main satellite technology applications for IUU fishing control, will be of special interest to those concerned with fisheries compliance. With increasing emphasis on the eradication of IUU fishing across domestic domains and internationally, and with global efforts to establish high seas marine protected areas underway, satellite technology is taking centre stage across the sector.

In this informative contribution to the IUU Fishing Blog, Ms Ortega-Gallego unveils the mechanisms and functions of Vessel Monitoring Systems (VMS), Electronic Recording and Reporting Systems (ERS), Automatic Identification System (AIS), Vessel Detection Systems (VDS), and voluntary Electronic Monitoring Systems.

Happy New Year!

SATELLITE TECHNOLOGY to address IUU FISHING

Control and management tools are essential in order to fight overfishing, protect fish stocks, and ensure fish supplies for future generations. The main fishing management tools are based on access requirements (fishing licenses or authorisations), technical measures (when, how and where it is possible to fish), limitations on fishing effort (that is, the time spent at sea by a fishing vessel of a given engine power). Also they are based on the management of total allowable catches and on quotas.

These management tools are effective in theory, but they must be combined with control tools which monitor the fulfilment of legal obligations, while identifying and sanctioning breaches. The traditional way of doing this is through fisheries inspections. However, in practice there are insufficient traditional control resources (a lack of trained inspectors, aircraft or vessels) to adequately monitor the correct implementation of domestic legal requirements on each fishing vessel in any part of the ocean.

How technology solves these surveillance difficulties 

In the 80s, Inmarsat and IMO (International Maritime Organisation) established the Global Maritime Distress and Safety System (GMDSS). This is a combination of a global positioning and a satellite communication system. Throughout the decade of the 90s this system was revealed as a very efficient tool in the control of the fishing vessels activities at sea.

The development of new monitoring, surveillance and control technology has gone a long way in counteracting the aforementioned difficulties, and is now able to detect suspicious illegal, unreported and unregulated fishing activity effectively, in any part of the ocean, and without any additional monitoring support.

Credit: European Commission DG Mare

Which systems are useful as a fishing control tool?

There are several different types of control technologies. The most widespread of them is the Vessel Monitoring System (VMS). It is a satellite-based monitoring system placed on board of certain fishing vessels. It receives position data signals from satellites and retransmits them at regular intervals to the flag State´s monitoring and information centre, which in turn forwards them to other control centres and inspection authorities. In addition to knowing the vessel´s position, this system is also able to determine the vessels course and speed.

All this data is stored in a closed and sealed box to avoid manipulation. This allows that, if an action suspected of constituting an infraction was not detected immediately, it could be discovered later by contrasting data.

Why is this data useful?

Knowing the position of vessels allows, for instance, monitoring of the closed areas or fishery protection zones, contrasting effort data and capture area with the data entered by the captain in the logbook, and/or ascertaining the exact coordinates of the vessel, allowing an on board inspection to be carried out.

From course and speed data we can calculate the estimated time of arrival at port, whether a vessel is fishing (3-5 knots) or sailing (10-12 knots) and even determine the type of fishing activity that is being carried out. For example, a trawler shows many consecutive positions in a small space and traces that intersect each other. A longline vessel can show numerous positions in a certain direction to set the fishing gear and others in the opposite direction to pick it up.

Therefore, VMS is considered a powerful instrument in the fight against illegal, unreported and unregulated fishing and is present in more and more RFOs like NAFO, NEAFC, ICCAT, CCAMLAR or IOTC. The contracting parties must send the VMS data to the control centres of the RFMOs with the frequency established by these organisms. For the purposes of EU legislation, for instance, VMS is mandatory for vessels of 12m in length and over, and they must transmit their data with a minimum frequency of 2 hours, as a general rule.

Another control technology is the Electronic Recording and Reporting System (ERS) or electronic logbook. It is a system that allows the recording, processing, storing and transmitting of data relating to fishing activities such as catch, transhipment, landing declarations, prior notifications, etc.

Through this system, illegal practices can be detected, alarms can be set up in case of non-compliance with legislation, and it is also a way of recording catch data facilitating quota control.

By cross-referencing electronic logbook data with VMS data, control authorities can detect untimely notifications, captures in fishery restricted areas, lack of mandatory prior notifications, or any other IUU activity. It replaces paper logbooks and also sales notes.

In 2002, the IMO approved the Automatic Identification System (AIS). It is used for maritime safety and security, but it may be used for control purposes. It allows identification, position, course and speed data to be communicated from vessels to other proximate vessels, to control authorities or to anyone interested in reviewing the data globally. The AIS is an autonomous and continuous system which implies an advantage over VMS, which transmits data approximately (varying according to legislations) every two hours. It does, however, have the disadvantage of not being able to be used in the high seas.

It is a system with a great potential as a tool again IUU fishing but will need implementation at a global level.

It may be the case that vessels turn off their AIS or VMS. The Vessel Detection System (VDS) allows position data derived from images captured by remote sensing (satellite imaging of sea areas) to be contrasted with vessel data transmitted by the VMS or AIS. Thus, if a satellite image shows, for example, the presence of 6 vessels in an area, but only a signal of 5 ships is received, it could be assumed that the vessel not transmitting is a vessel suspected of being IUU. It also determines the number of fishing vessels and their position in a given area and cross-checks the positions of the fishing vessels detected by VDS with position reports from VMS.

This system is still implemented experimentally in some RFMOs.

New technologies for the control of fishing continue to be developed and tested, like the Electronic Monitoring System. This is being used experimentally and voluntarily in some fishing fleets. It consists of multiple on board cameras recording all fishing activities.

None of these technologies substitute traditional control methods, but nevertheless they do focus efforts and as a consequence it increases the effectiveness and reduces costs of inspections. At the same time, control technologies improve the access to good quality fisheries data and make it possible to cross-check information from different sources.

Author: Beatriz Ortega-Gallego

Sources:

[1] http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/05/tracking-fishing-vessels-around-the-globe

[2] https://es.mongabay.com/2016/04/quieren-acabar-la-pesca-ilegal-hagan-todos-los-barcos-sean-rastreables-declaran-los-investigadores/

[3] https://ec.europa.eu/fisheries/cfp/control/technologies/vms_en

 

 

Criminalising IUU Fishing as a Response to Human Security Concerns?

#IUUfishing #IUU #FisheriesCrime

Note: This blog post is a summary of a presentation that took place in June this year at the British International Studies Association’s annual conference.The full draft that formed the basis for the presentation is accessible via this link.

Abstract:

Illegal, unreported and unregulated (IUU) fishing has been associated with human security concerns. Domestically, security concerns may be addressed through the prescription and enforcement of criminal law provisions. However, prescribing and enforcing criminal law in regard to activities occurring in distant water areas, where IUU risks endure, is less straightforward. This conference presentation argued that the interests of flag and coastal States in the criminalisation of IUU fishing and related activities as a response to security concerns differ, and outlined possible avenues for legal development.

Introduction:

According to the relevant literature, IUU fishing and activities commonly associated to it have been linked to human security concerns. IUU fishing has been argued to have food and work security implications for vulnerable populations, and to enhance the vulnerability to crime of persons involved in the industry. The human security narratives encapsulated in the UN 2030 agenda for sustainable development largely capture these human security concerns. By contrast, more traditional security conceptualisations, underpinned by territorial perspectives, may be less responsive to the type of risks posed by  IUU fishing.

In this presentation, I argued that the UN Convention on the Law of the Sea, conceived on a territorial jurisdictional blueprint, disincentivises but does not ultimately preclude criminalisation as a State response to undesirable fishing activities. However, analysis of international law and policy materials suggests that divergent interests in criminalisation as a tool to address human security are identifiable in regard to flag and coastal States. Two case studies were relied on for analysis. The first one concerns Spain, a distant water fishing State where one of the country’s highest courts withheld jurisdiction in respect of alleged acts of criminality by Spanish nationals in the context of high seas IUU fishing. The second one concerns Fiji, an archipelagic State where intensive tuna fishing by unidentified foreign industrial fishing vessels around the outer borders of the State’s exclusive economic zone was reported in 2014 to have caused problems that could be characterised as possessing a human security dimension.

The presentation concluded with a reflection on the necessity for international consensus, particularly amongst coastal States involved in regional fisheries arrangements and institutions, in order to develop domestic as well as international frameworks that secure appropriate responses to the risks posed by IUU fishing.

Mercedes Rosello, July 2017.

Brexit and IUU Fishing

Introduction 

The Government of the United Kingdom (UK) has announced that it will trigger the procedure for withdrawal from the European Union (EU or Union) in March this year. As part of this process, the UK is likely to leave the Common Fisheries Policy (CFP), reclaim its exclusive economic zone (EEZ), and resume international activity as a single State for the purposes of exercising rights and responsibilities as a flag, coastal, port and market State. Consequently, it will take its own decisions in international fisheries fora and bilateral negotiations, including for the purposes of illegal, unreported and unregulated (IUU) fishing control. This blog post discusses what the UK’s withdrawal from the EU may mean for the fight against IUU fishing, and related fisheries control policies that have so far been shared between the UK and the other States in the Union.[1]

Background to the Legislation for IUU Fishing Control in the European Union

Council Regulation (EC) 1005/2008 (the IUU Regulation) was adopted by the European Council on 29 Sept 2008, and came into force in January 2010, alongside implementing Commission Regulation 1010/2009.[2] The IUU Regulation and its complementing legislation establish a legal and institutional framework for cooperation in the fight against IUU fishing. They articulated a set of administrative and operational controls across the Member States of the EU, through which non-EU States with regulatory authority over fishing activities are engaged in respect of detected IUU fishing activity.

Axiomatic to the regulatory framework of the IUU Regulation is State compliance with all applicable international fishery conservation laws, and regional conservation and management measures. The IUU Regulation primarily concerns IUU controls on imports of non-excluded seafood products from outside the EU,[3] as well as re-exports. Failure to observe international obligations in respect of flag, coastal or market State responsibilities may prompt warnings,[4] and under certain circumstances also trade suspensions. The IUU Regulation is based on the premise of mutuality in cooperation among Member States as well as third countries, which is underpinned by information exchange and verification processes.[5]

The IUU Regulation and the UK

As a member State of the European Union, the UK responded to the adoption of the IUU Regulation by adapting its domestic legal, operational and administrative framework in support of the shared regulatory objective to control IUU trade. DEFRA contributed to the development of operational systems, regulatory structures, training and the strengthening of communications with the Commission and with the other Member States of the Union. DEFRA and SeaFish published information on the main provisions of the Regulation, and its implementation in the United Kingdom. Regulatory adjustments were made under the powers conferred by section 2(2) of, and paragraph 1A(f) of Schedule 2 to, the European Communities Act 1972, and section 30(2) of the Fisheries Act 1981 for the implementation of the Regulations by way of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009.[6] UK businesses, particularly importers and retailers, have invested considerable effort in adapting to the requirements of the IUU Regulation, and arguably have an interest in the maintenance of IUU controls as a domestic policy.

UK Withdrawal from the EU and IUU Fishing Control

Given its full integration in the regulatory arrangements that underpin IUU control in the Union, and the high rate of importations recorded by UK authorities, the withdrawal of the UK from the EU will not be consequence-free. Some of the effects of its withdrawal are likely to be potentially damaging for both parties, and detrimental to the objectives of the IUU Regulation.

Among the regulatory processes that appear less vulnerable to the impact of the UK’s withdrawal from the EU are catch certification arrangements. The flexibility of the regime is evidenced by existing agreements between the EU and non-member States, including New Zealand, the United States and Norway. These arrangements recognise the similarity of domestic regulatory approaches for the purposes of certification, agency interaction, and record keeping.[7] The UK’s integration in the regulatory fabric of the EU in all aspects of IUU fishing control to date suggests that certification arrangements are likely to be perpetuated. There may, however, be loss of coherence between the arrangements if there is no parallel reflection of planned future improvements.

Other cooperative arrangements under the IUU Regulation may be more vulnerable to the negative consequences of the UK’s exit. Among these, the removal of the UK from the internal administrative web of cooperation that supports the operational dimension of the IUU Regulation. This includes intelligence-sharing arrangements concerning IUU risk and verification data under Chapter IV of the IUU Regulation, which establishes the Community Alert System. The sharing of methodologies is essential to avoid misreporting and discourage port-hopping, one of the most important factors in the perpetuation of IUU fishing practices. Inter-agency cooperation and risk assessment systems are key for controls to be effective, and for enabling learning and adaptive growth and resilience against the highly dynamic nature of IUU fishing capture and ensuing transport and processing practices.

Responses to Confirmed IUU Fishing Activity 

The European Commission has adopted a high profile policy of warning third countries that it suspects as being non-cooperating for the purposes of IUU fishing control. The yellow and red carding system follows a formal process of approval that may culminate in the adoption of restrictive measures, including the possibility of trade suspensions, under Article 38 of the IUU Regulation. Once the UK leaves the EU, it will no longer engage in the participatory processes whereby carding decisions are taken, and resulting restrictions will not involve the UK market. This is likely to weaken the reach of some of the measures, as these commonly depend on scale and homogeneity for effectiveness, such as  restrictions in the provision of services to third country IUU listed vessels.[8]  Although there is likely to be loss of coherence in sanctioning approaches, some vessel black lists should persist, insofar as they concern regional fishery organisations of which the UK becomes a party. Lastly, the risk of deregulation in the UK, if ultimately realised, would accentuate discrepancies in market controls.

The IUU Regulation and Shared Stock Management

Upon exit, UK exports to the EU will be subject to the controls and conditions of the IUU Regulation.[9] Regular EU importation processes have been built on a certification strategy that is currently shared by the UK, and should not need major adjustment. International legal obligations exist for both parties in respect of the conservation and cooperative management of shared and straddling stocks under the 1982 United Nations Convention on the Law of the Sea, the 1995 Fish Stocks Agreement, and other applicable global and regional treaties. Potential breaches are in principle relevant for the operationalisation of the IUU Regulation, although only in respect of stock intended for exportation to the EU.

Conclusion

The UK’s departure from the Union has the potential to be detrimental to IUU fishing control policies, given the UK’s prominence as an import market. The overall loss of EU market size, impoverishment of intelligence-sharing mechanisms, and loss of integrity in the articulation of responses to IUU fishing, may erode the efficiency of the system, and cause it to lose global impact in some cases. For the UK, there may be a loss of resilience and opportunity for adaptation to IUU threats, resulting from the withdrawal from EU cooperation, data-sharing and training networks. In order to minimise negative impacts, and given that currently there are no fundamental differences in the IUU control mechanisms in place in the UK and the rest of the Union, the perpetuation of harmonised administrative and operational arrangements should, where possible, be maintained.

There is a risk that the current success of the EU’s approach to IUU fishing control may be unnecessarily damaged, especially if there is loss of good will as a consequence of frictions in shared or straddling stock management negotiations. The IUU Regulation is a flagship tool in the EU’s continuing external fisheries policy, and one of which the UK has been a strong supporter. Maximising the integrity and resilience of the processes it has helped create is essential for the success of IUU fishing control worldwide. The continuing observance of applicable international conservation and cooperation commitments by both parties will be instrumental to ensure the perpetuation of its success.

Mercedes Rosello, February 2017.

[1] This blog post is a considered opinion by the author only, and has not been written or published for the provision of legal advice.

[2] Later additions include Regulation 86/2010, updating the list of excluded products.

[3] Article 8.2 of the IUU Regulation states: ‘fishery products’ mean any products which fall under Chapter 03 and Tariff headings 1604 and 1605 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), with the exception of the products listed in Annex I (…).

[4] Article 31.3 of the IUU Regulation.

[5] See Preamble paragraph 38, and Article 12.4 of the IUU Regulation.

[6] http://www.legislation.gov.uk/uksi/2009/3391/pdfs/uksi_20093391_en.pdf. The Order implemented sanctions under Regulation 2847/93, later repealed by Regulation 1224/2009 (the Control Regulation). In Scotland, similar arrangements were made through the Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013.

[7] Specimen catch certificates and provision for the development of assistance and data exchange processes are set out in Regulation 86/2010.

[8] See Articles 4.2, 5.2 and 6.1(b) of the IUU Regulation.

[9] Article 31.4(a) of the IUU Regulation.

EU External Strategy on Ocean Governance: Implications for IUU Fishing Control

The European Commission has this week issued a communication of fundamental importance for the future of global ocean governance. The statement sets out the Commission’s strategy for the development and implementation of the external dimension of the European Union’s maritime policy. The document outlines how the EU intends to respond to the challenges posed by the realities of ocean degradation and overexploitation within the framework the Sustainable Development Goals (SDGs).

Illegal Fishing

Credit: European Commission.

The EU plans significant resource mobilisation and capacity building in respect of ocean affairs across a wide spectrum of objectives. Focus areas include improving the governance framework, ensuring maritime security, promoting cooperation and coordination of existing institutional regimes, and investing towards ambitious sustainability targets.

Combatting IUU Fishing has been a priority for the EU for several years, and this is reflected in the strategy. The Commission currently values IUU fishing to be worth between EUR 8-19 Bn, involving at least 15% of global captures. The Commission has stated its intention to prevent unregulated fishing in the Arctic, and generally to address governance gaps through the promotion of regional cooperation and management, and the banning of contributory subsidies through WTO mechanisms.

Lack of knowledge of the impacts derived from ocean activities has been identified as a critical weakness preventing IUU fishing and overexploitation control. The Commission will seek to promote mechanisms for the identification of vessels and persons engaged in illegal practices, and to foster inter-agency cooperation, through Interpol where necessary. Member State based electronic tools should undergo development, and third country capacity and cooperation fostered for the purposes of the implementation of the Port State Measures Agreement (PSMA). Engagement processes under the IUU Regulation will be strengthened.

More specifically, the EU projects to support the creation of a global fleet register, the allocation of a unique vessel identification number through the IMO system to commercial fishing vessels, and the establishment of a global catch certification scheme. Operations of the external EU fleet will undergo enhanced supervision, and full chain involvement and technological mediation in IUU fishing control will be enhanced as part of the strategy.

Sources:

http://ec.europa.eu/maritimeaffairs/sites/maritimeaffairs/files/join-2016-49_en.pdf

http://ec.europa.eu/maritimeaffairs/sites/maritimeaffairs/files/swd-2016-352_en.pdf

The United Nations Sustainable Development Goals and the Eradication of IUU Fishing

The sustainable use and conservation of the oceans is an objective recognised in the United Nation’s Agenda for 2030, as part of an overarching commitment to protect the planet from destructive production and consumption patterns.[1] The Agenda for Sustainable Development is a declaration establishing 17 sustainable development goals (SDGs), and 169 associated targets that are meant to build on previous sustainable development commitments of the UN, and specifically address the unmet objectives of previous international sustainability agendas.[2]

p1010105-copy

The 2030 Agenda for Sustainable Development is global and aspirational, and is meant to be universally applicable. It has overarching objectives, namely the eradication of poverty and the realisation of a sustainable and resilient world with human rights at its centre.[3] In line with its broad objective to eliminate poverty, it addresses fisheries sustainability as an antidote to food insecurity and underdevelopment.[4] The sector’s sustainability is critically important to human wellbeing: around 12% of the world’s population depends on fisheries and aquaculture for work, and the sector supplies 17% of animal protein in human diets.[5] In addition, fisheries is strongly supportive of satellite economic sectors, particularly in developing island States.[6]

The role of fisheries in development is highlighted in SDG 2, but the prioritisation of policies for the sustainable use and conservation of the oceans is underlined by the adoption of an entire and ambitious goal, SDG 14. The goal is directly relevant to fishery production and utilisation, and to the improvement of fisheries institutions. For the purposes of IUU fishing control policies and their relationship to specific legal regimes, the following aspects of SDG 14 are important:

14.4 By 2020, effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics.

14.6 By 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the World Trade Organization fisheries subsidies negotiation.

14.c Enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in the United Nations Convention on the Law of the Sea, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of “The future we want”.

SDG 14 is designed to work as a catalyst for the convergence of relevant governance strategies.[7] Specifically on the issue of the eradication of IUU fishing, SDG 14 situates targets in two interrelated but distinct contexts: On the one hand, the attainment of fairness in global trade through the regime of the World Trade Organisation (WTO), and the eradication of detrimental subsidies.[8] Secondly, the sound and accountable governance of natural resources as the underpinning to just societies at a global level.[9] It is in this second context that SDG 14.4 sets a target to end IUU fishing as part of the commitment of restoring fish stocks to maximum sustainable yield (MSY) levels by 2020. SDG 14.c specifically links this objective with the requirement to implement international law, as reflected in the United Nations Convention on the Law of the Sea (UNCLOS), which provides the legal framework for the conservation and sustainable use of oceans. Allegiance to UNCLOS and its satellite treaties is therefore at the core of SDG 14, and all States with an interest in the sustainable management of living marine resources ought to prioritise ratification or accession, and domestic implementation. Further, they should clearly outline their commitment to UNCLOS in the context of international cooperation.

Finally, IUU fishing is one of the intractable problems of our time, and its complexity must not be underestimated. It both impacts and is impacted by corruption and poor governance, lax implementation of international law and global policy objectives, underdevelopment and marginalisation, and a lack of participation of the appropriate stakeholders in conservation, management and compliance policies. Hence, the objectives of SDG 14 must not be considered in isolation. The following are also relevant:

Goal 10. Reduce inequality within and amongst countries:

10.6 Ensure enhanced representation and voice for developing countries in decision-making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions. 

Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels: 

16.6 Develop effective, accountable and transparent institutions at all levels.

Target 16.6 inherits part of the meaning of Principle 10 of the 1992 Rio Declaration, whereby it is recognised that environmental issues are best handled in a manner that permits participation by members of the public. This principle led to the adoption of the 1998 ECE Aarhus Convention.[10]

Goal 17. Strengthen the means of implementation and revitalize the Global Partnership for Sustainable Development data, monitoring and accountability:

17.18 By 2020, enhance capacity-building support to developing countries, including for least developed countries and small island developing States, to increase significantly the availability of high-quality, timely and reliable data disaggregated by income, gender, age, race, ethnicity, migratory status, disability, geographic location and other characteristics relevant in national contexts.

17.19 By 2030, build on existing initiatives to develop measurements of progress on sustainable development that complement gross domestic product, and support statistical capacity-building in developing countries.

Mercedes Rosello, October 2016.

References:

[1] United Nations General Assembly (UNGA), ‘Transforming our World: The 2030 Agenda for Sustainable Development’ (2015) A/Res/70/1.

[2] Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, vol. I, Resolutions Adopted by the Conference (United Nations publication, Sales No. E.93.I.8 and corrigendum), resolution 1, annex I. 2012 Rio +20 Conference ‘The Future We Want’, which culminated in the adoption of a Resolution for, amongst other objectives, the adoption of the Millennium Development Goals. Report of the International Conference on Population and Development, Cairo, 5–13 September 1994 (United Nations publication, Sales No. E.95.XIII.18), chap. I, resolution 1, annex.7. Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995 (United Nations publication, Sales No. E.96.IV.13), chap. I, resolution 1, annex II.

[3] UNGA Res 70/1, Preamble.

[4] UNGA Res 70/1, para 24.

[5] FAO SOFIA 2016, pp. 81.

[6] Ibid.

[7] FAO SOFIA 2016, pp 82.

[8] UNGA Res 70/1, paras. 27 and 30.

[9] UNGA Res 70/1, paras 33 and 35.

[10] Freestone, D ‘Problems of High Seas Governance’ in Vidas D and Schei PJ (Eds) The World Ocean in Globalization: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (2011) 127.