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

 

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

 

 

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.

Lack of Transparency: the Achilles Heel in IUU Fishing Control

 

Who Fishes Far recently announced the availability of new information through their pioneering database, which represents an unprecedented achievement in affording visibility to information that is rarely accessible to the public.

The announcement, which can be accessed here, warns of gaps in the information. Amongst these, the ongoing lack of availability of a unique vessel identification number is highlighted as being of concern, despite the fact that European vessels have an authorisation number. The reason for this is that there is a recognised need for a global tool for the identification of vessels across all registries and ports. This deficiency has been of widespread concern in the sector, and has been discussed extensively in the global forum of the FAO.

IUU fishing success depends upon opacity

The absence of this vessel identification number across the spectrum of ocean-going fishing and support vessels is important, because vessels flagged not just to European member states, but to the majority of distant water fishing states, are not constrained to perpetually operate under the same flag. Owners are able to re-register vessels to other flags in pursuit of commercial or practical preferences. Through this re-registration process, the traceability of a vessel’s identity can easily be lost, and a unique vessel identifier, such as the universally acknowledged IMO number, may be the only element of permanence in what may otherwise be an unrecognisable ship.

It is clear from Interpol’s purple notices amongst other sources that a recurrent modus operandi of vessels engaged in IUU fishing operations that the masking of a vessel’s identity, nationality and history by way of frequent re-flagging is a persistent strategy adopted by IUU operators. Yet states that ostensibly subscribe to all the major international treaties on fisheries conservation and management persistently decline to make essential vessel information available and verifiable.

For instance, clear registration procedures, the identity of their vessels and specification of licence conditions is rarely accessible even though disclosing this information is in principle cost-neutral. An unfortunate recent example is the case of Thunder, a known IUU vessel whose registration and licensing status by Nigeria has never been fully disclosed.

Image Credit: Sea Shepherd Global

Image Credit: Sea Shepherd Global

Insufficient progress despite key importance of transparency

The potential and specifics of a global record of fishing and supply vessels and reefers has been repeatedly discussed by COFI, whose strategy document makes clear that a globally adopted system of vessel identification would form the lynchpin in the convergence of IUU fishing control data-sharing, and in the coordination of regional and global control regimes. This includes the much hoped for operational success of the 2009 Port State Measures Agreement, which came into force this month, and which relies for functionality on the disclosure and availability to port authorities of key data involving vessel identity and authorisations.

In addition to vessel identification numbers, the importance of minimum standards for vessel registration procedures and their public availability for vessel verification purposes cannot be overstated: vessel registration provides a mechanism for identity traceability that can easily be lost if minimum standards, such as those set out in the 2014 Voluntary Guidelines for Flag State Performance, are not followed with rigour. The accessibility of this information in order to verify vessel identity claims should be a key feature of any public vessel register, yet it is undermined by pervasive opacity.

Conclusion

Lack of transparency is the metaphorical Achilles heel of IUU fishing control, but it is in the power of flag, coastal and port States to ensure certain key disclosures, such as vessel identity and licensing data, are made and maintained. Given that the nature of this information is commercially non-sensitive, there seems to be little justification for refusing to disclose such data.

International legislation on IUU fishing control, from the 2001 International Plan of Action, to the IUU Regulation and the Port State Measures Agreement, has been constructed around the central role of the vessel in activities that can be classed as illegal, unreported and/or unregulated. Yet, an unidentifiable vessel is just an additional shield protecting the perpetrators.

Clearly, leadership initiatives by civil society have an important role to play, but the leverage potential of international markets should also be articulated to promote transparency. There should be little patience with current hesitancy, given that the stakes have never been higher.

Operation Sparrow brings an important message to the fight against IUU fishing

Awareness that cooperation is key for the successful governance of wild fisheries has increased exponentially in recent decades, and European Council Regulation 1005/2008, also known as the EU IUU Regulation, has been instrumental in fostering and incentivising such cooperation.

The IUU Regulation is Europe’s flagship law for the identification and control of IUU activities, products and interests. Crucially, the IUU Regulation includes measures to address a difficult issue: the participation of European interests in IUU fishing, including those conducted with vessels registered outside the EU.[1]

Illegal Fishing

Credit: European Commission.

Adaptive legislative measures were taken in Spain in 2014 in response to the requirements of the Regulation.[2] This has permitted the Spanish government to undertake a series of operations aimed at addressing the suspected involvement of nationals in IUU fishing schemes involving three vessels: Kunlun, Yongding and Songhua.[3] All three had been documented conducting unauthorised fishing activities in waters regulated by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).[4]

Three of the operations launched by Spain, Sparrow, Sparrow II and the latest, Banderas, are of an administrative character. A fourth, operation Yuyus, has been developed under the auspices of Spain’s National Criminal Court. These operations, coordinated with the assistance of Interpol, bring together the goodwill and expertise of several other countries, including Belize, New Zealand, Australia and Cape Verde, as well as public and non-public actors including NGOs.

The launch of the first of such operations, Sparrow, by Spanish Ministry of Agriculture and Environment, MAGRAMA, led to the announcement of unprecedented fines in respect of IUU fishing activities by Spanish persons in Antarctica.[5] The administrative process, now drawn to a close, has resulted in combined penalties of €17,840,000 being formally imposed on several Spanish companies, namely Vidal Armadores, Viarsa Energía, Viarsa Cartera, Primary Capital, Alimenta Corporación, Alimenta Túnidos, Gallega de Pesca Sostenible, Propegarvi, y Proyectos y Desarrollos Renovables as well as seven individuals.[6] The financial penalties include sanctions for obstructing the work of officials and destroying documents during the investigations. In addition to sanctions of a financial nature, prohibitions to carry out fishing activities spanning between 5 and 23 years, and prohibitions to request public funds in connection with fishing activities spanning between 5 and 26 years have also been imposed.[7]

redesybarcos1_tcm7-415210_noticia

Credit: MAGRAMA

With this announcement, MAGRAMA has drawn Operation Sparrow to its intended conclusion.[8] Meanwhile, MAGRAMA has dealt another blow in the fight against IUU fishing, as vessels Northern Warrior and Antony, both linked to finding under Sparrow II, were seized in the port of Vigo on Friday 18th March as part of MAGRAMA’s Operation Banderas.[9] It has been reported that persons responsible for the operation of the vessels relied on forged documentation to access the port, and that forgeries had also been used to obtain fishing authorisations in the course of 2015. The vessels, which appear to be currently stateless, are being held subject to the payment of bonds of over € 1 Million.[10]

In parallel with the above operations, a separate criminal investigation has also been under way for the past few months.[11] This investigation, named Yuyus by reference to IUU fishing, concerns suspected activities that are classified as infractions of Spanish penal law. Months of investigative work by operatives of the Spanish Guardia Civil and Interpol culminated on Monday the 14th, when down raids carried out on properties linked with the Vidal family resulted in the arrest and incarceration of six individuals who were later released on bail.[12] It has been widely reported that the infractions leading to the criminal charges would concern activities such as integration in a criminal organisation, money laundering, fraud, and unspecified activities amounting to environmental crimes recognised by Spanish law.[13]

Spain’s Minister for Agriculture, Food and Environment, Isabel Garcia Tejerina, has publicly congratulated MAGRAMA’s Fisheries Directorate General for their accomplishments, and highlighted the reception by the Directorate General of an ISO 9001/2015 certification in recognition of Spain’s quality management systems in respect of fisheries control. [14] This recognition confirms Spain’s leading role in the control of IUU fishing activities in Europe and abroad. [15]

igt01_tcm7-415248_noticia

Spanish Minister Isabel Garcia Tejerina. Credit: MAGRAMA

The importance of Operation Sparrow does not lay only in the highly symbolic nature of its ambitious objective: to disable some of the most persistent and high profile transgressions against fisheries conservation. Time only will tell if Sparrow has been able to deliver its intended coup de grace. However, Sparrow sets a precedent that must also be framed against the background of the EU IUU Regulation: the law requires an unwavering commitment by EU member States not only for its effectiveness, but also for the establishment and development of credible long term internal and extraterritorial standards of cooperation. The extraordinary complexity of operations Sparrow, Sparrow II, Banderas and Yuyus, which have variously been assisted by at least fourteen countries,[16] underlines the essential role that international cooperation and sound legal frameworks play in the fight against IUU fishing.

Efforts to bring fairness and sustainability to the sector may be far from over. However, the extraordinary events of the past few months serve to remind all those invested in the fight against IUU fishing that this is a fight that must and can be won.

REFERENCES

[1] The full text of the Regulation can be accessed via http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32008R1005

[2] http://www.magrama.gob.es/es/prensa/noticias/-la-reforma-de-la-ley-de-pesca-mar%C3%ADtima-del-estado-fortalece-el-futuro-del-sector-pesquero-y-acu%C3%ADcola-español-/tcm7-358461-16

[3] http://www.interpol.int/News-and-media/News/2015/N2015-003

[4] https://www.ccamlr.org

[5] As reported on IUU Watch on December the 24th 2015: http://www.iuuwatch.eu/2015/12/operation-sparrow-a-landmark-in-the-fight-against-iuu-fishing/

[6] http://www.magrama.gob.es/es/prensa/noticias/la-resolución-del-expediente-de-la-operación-sparrow-sanciona-a-9-empresas-y-7-personas-f%C3%ADsicas-por-su-implicación-en-la-actividad-de–buques-qu/tcm7-415229-16

[7] http://www.magrama.gob.es/es/prensa/noticias/la-resolución-del-expediente-de-la-operación-sparrow-sanciona-a-9-empresas-y-7-personas-f%C3%ADsicas-por-su-implicación-en-la-actividad-de–buques-qu/tcm7-415229-16

[8] It is at present unclear whether the vessels Songua, Yongding and Kunlun, or any property of the sanctioned companies or individuals has been impounded.

[9] http://www.magrama.gob.es/es/prensa/noticias/el-ministerio-de-agricultura-alimentación-y-medio-ambiente-retiene-a-dos-buques-por-la-posible-comisión-de-infracciones-muy-graves-relacionadas-/tcm7-415451-16

[10] Ibid

[11] Audiencia Nacional: http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Audiencia-Nacional/

[12] http://www.lavozdegalicia.es/noticia/maritima/2016/03/08/detenidos-pesca-ilegal-antartida-cuatro-miembros-vidal-armadores/0003_201603G8P31994.htm

[13] http://www.elmundo.es/cronica/2016/03/14/56e3f37546163f3e638b4588.html

[14] http://www.magrama.gob.es/es/prensa/noticias/garc%C3%ADa-tejerina-españa-es-l%C3%ADder-indiscutible-y-un-referente-a-nivel-mundial-en-el-control-e-inspección-pesquera–/tcm7-415092-16

[15] http://www.iso.org/iso/catalogue_detail?csnumber=62085

[16] http://www.fishnewseu.com/index.php?option=com_content&view=article&id=15038:the-tooth-the-whole-tooth-and-nothing-but-the-tooth&catid=46:world

Insurers can help combat the marine overfishing crisis – here is how.

Note: This blog post was first published on Swiss Re Open Minds.

Image Credit: Sea Shepherd Global

Image Credit: Sea Shepherd Global

As the World Bank points out, the oceans have a vast potential to unlock sustainable development, being also a key factor in the regulation of the Earth’s climate systems. The ocean feeds and provides work security for millions of people, including some of the world’s poorest.

Like other sectors, marine insurance providers and their reinsurers have a long-term interest in the preservation of healthy and productive oceans. Not only is the health of the oceans a fundamental factor for the wellbeing of human communities, but many industries depend on the ongoing availability of marine resources for their very survival. Amongst these, the fishing industry is one of the most vulnerable to marine mismanagement.

Unfortunately, such mismanagement is observable today in the form of inadequate fishery regulation, as well as malpractice and even crime associated to industrial and semi-industrial ventures. In 2012, 160 million tons of fish were produced, generating over US$ 129 billion exports. Yet, commercial fish stocks have been consistently overexploited in a manner that is detrimental to productivity and overall ocean health. The FAO estimates that around 57% of commercial fish stocks are exploited to full capacity, with most of the remaining stock being either overexploited, depleted or vulnerable to overexploitation.

Overfishing is a consequence of several factors: overcapacity, misunderstanding of stock, defective capture regulation, poor vessel management and insufficient enforcement – they all play a role. The impact that insurers can have on the regulation of fisheries may be limited, but there is one area where their contribution can have a significant positive effect: the fight against illegal, unreported and unregulated (IUU) fishing.

It is thought that IUU fishing costs around 10 Bn Euros per year to the global economy, accounting for around 15% of global catch – a vast amount of non-compliant catch that directly prejudices any operators in the industry that systematically observe conservation rules.

One of the key factors in the eradication of IUU fishing is the control of fishing vessel operations through monitoring, control and surveillance (MCS). Whilst some fishing nations, coastal States and regional fishery management organisations have invested significantly in MCS measures, any gaps are routinely exploited by IUU fishing operators through the deployment of practices designed to circumvent controls.

Experience of IUU fishing modi operandi has been documented by Interpol by way of Purple Notices. Practices vary, including unauthorised transhipments of cargo with a view to blurring traceability, deploying destructive fishing arts or mis-declaring catch to the relevant authorities.[1] Some, such as obscuring a vessel’s identity and nationality, swapping names amongst fleet vessels in order to illicitly share licences, and performing unauthorised transhipments at sea should be of interest to insurers because they may carry a direct impact to the risks being insured, as well as an increased risk of fraud.

Earlier this year a Nigerian flagged industrial fishing vessel, Thunder, sunk despite being in good condition – scuttling being strongly suspected – off the coast of Sao Tome, where it caused damage to local ecosystems with ensuing pollution. Thunder had a long history of IUU fishing in the Southern Ocean, had been blacklisted by NGOs and regional fishery management organisations, and had an Interpol Purple Notice to its name. Yet, Thunder is not the only example of repeated malpractice in the fishing industry – other vessels continue to be in operation whose combined practices constitute a breach of all known conservation principles.

Insurers and their brokers should take care in their due diligence practices to identify vessels who repeatedly engage in IUU fishing. In order to acquaint themselves with the names of regular perpetrators, they should become familiar with the EU’s IUU Fishing List. Further, they should request that industrial and semi-industrial fishing vessels of 24 metres or over seeking P&I insurance obtain an IMO number, since this ensures more clarity in establishing a vessel’s identity in cases of doubt. In addition, improved MCS in the shape of operative VMS and AIS vessel tracking systems help improve vessel activity control.

In addition, it is also worth considering the content of Article 37 of EU Council Regulation 1005 / 2008, whereby community vessels involved in IUU fishing are only permitted entrance to home port, and third country vessels are not allowed entry to EU ports except in cases of force majeur or distress. Further, the provision of services, including chartering and the supply of provisions and fuel is prohibited in respect of third country vessels in the EU IUU vessel list Whilst insurance services are not specifically mentioned by Regulation 1005 / 2008, and whilst insurance services are not necessarily dependent on the vessel being in port for their provision, it seems somewhat incongruous to assume that the provision of insurance may be privileged to the detriment of other service providers.

To conclude – whilst most insurers have already adopted policies whereby claims related to IUu activity are not covered by any existing insurances, any company with ethical practices concerned with ocean protection, sustainability and blue development should consider adopting a policy whereby vessels in the EU IUU list are deemed uninsurable risks.

Mercedes Rosello

November, 2015

[1] See Article 3 of EU Council Regulation 1005 / 2008 for a non-exhaustive list of IUU fishing practices: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02008R1005-20110309&from=EN

IUU: Is it a bird or a plane? Is it illegal fishing, unregulated fishing or crime? Look to the Fish Stocks Agreement for answers

The first global instrument to introduce the expression IUU fishing was the 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA), a non-binding international tool.

Known as a toolbox for States to guide them in the fight against undesirable fishing practices, the IPOA is extensively referenced as the source of the definition of IUU fishing, contained in its paragraph 3. This definition has now been integrated in treaty law, the legal regimes of several States, and European Union legislation. Yet, despite its popularity, the term is controversial due to its lack of legal clarity.

In this blog post we explain that, rather than understanding the term as a single tool with which to assess conduct, it is useful to think of it as three distinct but overlapping categories. Each category presents a different perspective on undesirable fishing activities. Except for the first one, which is all-encompassing in its descriptive simplicity, the categories are not comprehensive. Further, they do not comprise a set of standards on which to judge the illegality of a fishing operation, or the conduct of a State in respect of its international obligations. In this respect, the 1995 Fish Stocks Agreement is better equipped to deal with such tasks.

First and second categories: illegal and unreported fishing

Cephalopod vessel in the waters of Thailand

Cephalopod vessel in the waters of Thailand

The first category, that of illegal fishing, is set out in paragraph 3.1 of the IPOA. It is a straightforward description of what makes a fishery conduct a wrong in law at the domestic and international levels.

Firstly, domestically: when the conduct of a vessel (a more accurate reference would be to the person or persons responsible for its operation) contravenes applicable domestic law, it is illegal. Secondly, internationally: certain conducts by vessels may demonstrate a shortfall by the State responsible for their control in the observance of its international legal obligations.  When this occurs, there may be an international wrong.

Ultimately, however, whether any illegality has indeed occurred will need to be determined by a relevant authority. Domestically, this may be an administrative authority or a court of law. Internationally, a tribunal with jurisdiction.

A second category, that of unreported fishing, is set out in paragraph 3.2 of the IPOA. Domestically, it refers to vessel conducts that contravene the specific laws that regulate the reporting of fishing activity or catch. Internationally, paragraph 3.2 goes on to refer to activities that contravene the rules of regional fishery management organisations (RFMOs) in areas of the high seas where they have regulatory competence. The reference to a contravention implies that the subject (a State) must have agreed to abide by those rules [Ref 1]. If such State permits a vessel in its register to operate in a manner that is inconsistent with those rules, the State may be committing an international wrong. Hence, domestically as well as internationally, unreported fishing is a sub-category of illegal fishing. Curiously, other than RFMO rules no reference is made in the IPOA to the contravention of international laws that oblige States to report on fishery data. Given this incompleteness, unreported fishing has little value as a legal category beyond national and regional management contexts.

These categories describe what illegality looks like, but they do not act as legal yardsticks. Domestically, the illegality of a fishing activity can only be determined by way of assessment of the conduct of an operator against the applicable municipal laws by a competent authority. These laws may vary from country to country. However, before the birth of the IPOA, the 1995 Fish Stocks Agreement (FSA) had already typified a number of fisheries activities that it referred to as serious violations. State parties to the FSA are required to address those violations in their respective domestic legal regimes. The non-exhaustive list in FSA Article 21.11 includes conducts such as fishing without authorisation, failing to report catch, using destructive fishing gear, or obstructing an investigation by concealing evidence, to name a few. Hence, in FSA State parties at least, those will be the conducts that will be restricted or outlawed – they will be the illegal fishing conducts to which the IPOA refers or, at least, some of them.  

Reef fish in the Celebes Sea, a frequent target of dynamite fishing

Reef fish in the Celebes Sea, a frequent target of dynamite fishing

However, the regulatory influence of the FSA does not extend to non-parties, or to the conservation and management of stock that is neither straddling nor highly migratory. Where non-transboundary stock is located in the EEZ of a coastal State, it is left to the discretion of that State to determine what fishing activities should be restricted or outlawed. It will need to do this within the general parameters of international law, the 1982 UN Convention on the Law of the Sea (UNCLOS) and other treaties to which it is bound, including bilateral agreements.

Whether illegal fishing conducts may also be typified as criminal will depend on the discretion of each State. The FSA does not oblige State parties to criminalise any fishery behaviours, only to address certain conducts as serious violations. Most countries choose to do this by way of non-criminal public law and administrative measures. Currently, illegal fishing is not considered a transnational crime in accordance with the UN Convention on Transnational Organized Crime, and therefore States are not obliged to treat it as such. Further, the IPOA discourages this, considering the rigours of criminal law in terms of proof and process too onerous. It is, however, noteworthy that some States have chosen to criminalise some specific conducts associated to illegal fishing practices (click here for information in respect of criminalisation in Korea). In other cases, strategy documents have referred to illegal fishing as a crime, but the relevant legislators have failed to adopt the necessary laws to ensure criminalisation in their domestic regimes (click here for information on the integrated maritime security strategy of the African Union).

Finally, a domestic instance of illegal fishing – whether criminal or not – will be of little significance internationally unless an international legal standard of conduct has also been contravened by a State with responsibility. At the time of writing, such legal standards are principally found in general international law, UNCLOS, the 1995 Compliance Agreement and, in respect of straddling and highly migratory stock, the FSA. Whilst several paragraphs of the IPOA have substantially defined some of those rules, its voluntary nature makes it unsuitable as a yardstick against which the conduct of a State can be assessed in order to determine its possible illegality.

Third category: unregulated fishing

The third category, unregulated fishing, is set out in paragraph 3.3 of the IPOA. It has two distinct prongs:

The first one refers to activities carried out inside areas and for stocks under the regulatory competence of RFMOs, in a manner that is inconsistent with their conservation rules. Such activities must be carried out by vessels without nationality, or by vessels flying the flag of a State that has not agreed to be bound by the rules that RFMO (for States who have agreed to this, the activity contravening the rules would be categorised as illegal fishing, as explained above). In effect, this label is slightly misleading, because the sea areas and stocks to which it refers are regulated by RFMOs, notwithstanding the States or vessels’ choice to disregard such regulation.

Transhipment in the Central Pacific (www.underwatertimes.com)

Transhipment in the Central Pacific (Source: http://www.underwatertimes.com)

The second prong refers to activities carried out in a manner inconsistent with the flag State’s international obligations in respect of high seas areas or stocks not affected by RFMO conservation or management rules. Hence, the label unregulated fishing here refers to the absence of RFMO rules.

Although superficial reading of paragraph 3 of the IPOA may suggest that unregulated fishing is an entirely separate category from illegal fishing and is therefore legal, this is not the case. As paragraph 3.4 of the IPOA subsequently clarifies, unregulated fishing will also be illegal if it is inconsistent with the flag State’s international obligations. Beyond obligations acquired in the institutional context of RFMOs, States also have conservation and cooperation obligations derived from general international law and applicable treaty law. However, the protection offered to those ocean areas and stocks by international law is generally considered thin and unclear in practical terms, making assessments of legality particularly difficult. This is specially so in cases where States have not agreed to important treaties such as the 1982 UN Convention on the Law of the Sea or the 1993 Compliance Agreement, or where no other binding rules (such as those that may be established in a bilateral agreement) exist.

Hence, unregulated fishing is a wide spectrum category comprising high seas activities that are always pernicious insofar as they undermine conservation and cooperation efforts, but whose illegality may be uncertain in accordance with the current international framework. The value of this category lies not in its ability to facilitate an assessment of what may constitute legal or illegal conduct, but in its usefulness to ascribe a negative value to certain fishing activities irrespective of their illegality. This can be practical for a State or group of States who have adopted certain conservation rules, and have to deal with other States who have not done so. The conserving States may be reluctant to commence international proceedings against the non-conserving States for many reasons, ranging from the political undesirability of engagement in a high profile dispute, to cost, to lack of confidence in the international legal framework, to name a few. In this context, such States may opt for the deployment of trade measures against non-conserving States. Amongst the advantages of this process are the presence of incentives, as well as the avoidance of the rigours associated to international legal process. Subject to a number of procedural conditions, if the products from the non-conserving States have been captured in a manner that is detrimental to conservation and are excluded by the conserving States on the basis of a non-discriminatory process, they may be considered compliant with the rules of the World Trade Organisation and be, therefore, viewed as legitimate. See the commentary on the Shrimp Turtle decision of the WTO Appellate Body in respect of Paragraph (g) in Article XX of the 1994 GATT for more information.

Conclusion

The ‘hold all’ composite term IUU Fishing is instrumental in ascribing a negative value to a wide range of fishing and fishery support activities whose illegality is uncertain in order to enhance the accountability of operators and States through trade measures. Beyond this, paragraph 3 of the IPOA does not constitute a proper standard against which the conduct of an operator or a State can be legally assessed by a relevant administrative or judicial authority. Its voluntary nature makes it unsuitable for this task in any event. Appropriately therefore, the IPOA does not list actual behaviours by private actors that States can then domestically class as illegal. By contrast, the FSA does contain such list in respect of fishery activities targeting straddling and highly migratory species. The list in its Article 21.11 should be replicated, expanded and changed where necessary to be made applicable to non-transboundary stocks across domestic regimes, and in the context of bilateral fishery agreements [Ref 2]. This, plus the treaty’s integral management of RFMO conservation consent by State parties makes its adoption and implementation essential in the management of illegal fishing and the delimitation of unregulated fishing to cases where there is no RFMO regulation. The FSA is, therefore, an essential tool in the regulation of fisheries and the eradication of illegal practices, and States should work hard to foster its generalised adoption alongside the adoption of national plans of action and the Port State Measures Agreement.

[Ref 1] Theilen, Jens T. “What’s in a Name? The Illegality of Illegal, Unreported and Unregulated Fishing.” International Journal of Marine and Coastal Law 28, no. 3 (2013): 533–50.

[Ref 2] The list in FSA Art. 21.11 has been replicated and expanded upon by Council Regulation (EC) 1005/2008 (the EU IUU Regulation).