Ocean Law

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Human rights in fisheries: the student’s view

Eleanor Kochman is a history undergraduate at Peterhouse, Cambridge University. She intends to take a postgraduate conversion course in Law and hopes to become a barrister. This is her first ever academic publication, and we are certain it won’t be her last.

A paradigmatic shift is underway in international legal discourse and development policy. Instead of solely focussing on local livelihoods and national economic growth, there is a growing emphasis on a “rights-based approach” which highlights the importance of human rights to development outcomes.[1] In this context, this report summarises the main human rights abuses taking place in the fishing sector, and will provide an overview of where the worst abuses might be occurring geographically. The report will then review key international instruments to see whether and how they address the abuses mentioned. These are the following : the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

  This report will begin by providing a generalised overview of types of human rights abuses that take place in the small-scale fisheries sector. It must firstly be acknowledged this breakdown is hardly comprehensive; human rights cases often fall into the category of “grey literature”.[2] This is because many of these abuses take place in places in need of capacity enhancement and often with a weak legal and police apparatus. Often, low levels of literacy make the abuses difficult to document. Ratner, Åsgård and Allison, however, highlight several main categories of human rights abuses.[3] The first is forced eviction, an example of which is the conversion of common property mangrove forests used by fishers into private shrimp farms such as in Ecuador and Bangladesh.[4] The second category is detention without trial. This issue particularly affects small fishing communities with a nomadic culture (such as the Bede in Bangladesh) who stray across national borders and are detained for extended periods of time without trial.[5] The third category is forced labour and unsafe working conditions. Research by Pearson on Thai fishing vessels reveals 20% of migrant workers on fishing boats and 9% in fish processing allege they are forced to work, much higher statistics than in the agricultural sector.[6] Finally, rights abuses take the form of violence and threats to personal security. Civil war can result in human rights atrocities regarding small-scale fishermen taking place, such as the massacre of Tamil Nadu fishermen in the Sri Lankan civil war.[7] There are surely many more categories to be uncovered, but these are how the known abuses can broadly be categorised.

  Due to a lack of systematic documentation, it is difficult to pinpoint where these abuses are taking place although author and NGO observation suggests the majority might be occurring in Africa and Asia. More specifically (and according to the table constructed by Ratner, Åsgård and Allison), forced eviction is noted as occurring often in the Philippines, Ghana, Lake Malawi, Cambodia and Indonesia.[8] Detention without trial seems to be a prevalent issue in India and Pakistan’s borders, (most likely due to a multitude of geographical, religious, cultural, colonial and historic reasons). Forced labour and unsafe working conditions seem to be a particular feature of the Thai small-scale fisheries sector, and threats to personal security are recorded as occurring in Sri Lanka, Kerala and Lake Malawi.

  This report will now review three different international bodies of law, starting with the UDHR, and will assess how far these bodies cover human rights abuses mentioned. Regarding forced eviction, Article 12 of the UDHR states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence”. Forced eviction could come under arbitrary interference with the family and home, but ‘arbitrary’ could be more explicitly defined and ‘interference’ is perhaps too mild a term for ‘forced eviction’. Article 17.2 comes closer to tackling the issue of forced eviction, stating “No one shall be arbitrarily deprived of his property”; yet once again, ‘arbitrary’ remains undefined and open to interpretation, and once again, the issue of forced eviction more explicitly is not addressed. Problems with these articles arise when something might not be ‘arbitrary’ (i.e. a justifiable removal of individuals from their property for the greater good), but could be technically illegal. This definitional woolliness means both states and individuals could find legal loopholes in order to unfairly remove an individual fisherman from his property.

Concerning detention without trial, Article 3 proclaims “Everyone has the right to life, liberty and security of person”; as such, detention without trial could be violating somebody’s right to liberty. Yet once again, the UDHR could be more specific on this, as ‘liberty’ as a term can have a myriad of different interpretations. Article 13.1 declares freedom of “movement and residence within the borders of each state”, but offers no acknowledgement of nomadic communities who may not conform with the Western concept of the nation-state and suggests no humane protocols for dealing with those who illegally cross into the borders of another state.

The UDHR is better at dealing with unsafe working conditions. Article 23.1 mentions everyone has “the right to work, to free choice of employment, to just and favourable conditions” and Article 24 asserts the right to rest and leisure. Application of these articles would help to alleviate terrible conditions faced by many small-scale fishermen. The UDHR could be more explicit on forced labour. ‘Free choice of employment’ can be interpreted to refer to the freedom to take on employment regardless of your race, religion, sex, etc. rather than being forced to work. Article 4 states nobody should be held in “slavery or servitude”, but this is not exactly the same as forced labour, which may feature remuneration unlike slavery.

Finally, the UDHR attempts to cover violence and threats to personal security through Article 5, which states “No one shall be subjected to torture, degrading treatment or punishment”. However, this does not sufficiently cover arbitrary violence and damage to property experienced by small-scale fishermen, such as those in Senegal interviewed by DuBois and Zografos who reported being involved in incidents where large boats damaged or destroyed fishing gear of small boats.[9] This kind of damage to property, physical and mental wellbeing cannot be categorised as torture or punishment, and only “degrading treatment” in the loosest sense. Furthermore, in terms of threats to personal security, the UDHR gives no indication as to protection of individual rights during extenuating circumstances such as civil war.

Overall, the UDHR is an idealistic document that aims to remain apolitical and transcend individual cultures, religions, and political ideologies. In doing so, its articles are so general they cannot often be used to sufficiently protect and uphold rights of small-scale fishermen.

  The ICESCR is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966. It focuses on positive economic, social and cultural rights, and should be viewed one half of a whole with the ICCPR.[10] Unlike the UDHR, the ICESCR is much clearer on the issue of forced eviction. Forced eviction, defined as “the permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection” is a prima facie violation of the covenant.[11] Article 11.1 also recognises the right to housing; forced eviction is sufficiently covered by the ICESCR. The issue of detention without trial is covered less comprehensively. The ICESCR does not feature any articles concerning setting a time limit for detainment or circumstances under which somebody can be detained. Article 2.3 states “developing countries may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals”. This article does have potential to threaten small nomadic fishing communities and leave them open to unlawful detainment disguised as a justifiable protection of economic rights to nationals. The ICESCR more comprehensively covers issues of forced labour and unsafe working conditions. Article 7 makes it clear workers must have remuneration, safe and healthy working conditions as well as rest and leisure. Work as per Article 7 must be “decent work” with “just and favourable” working conditions. Whilst these terms could be defined more specifically, they broadly cover issues of forced labour and unsafe working conditions. Where the ICESCR is too general is on the issue of violence and personal security. Article 1.1 boldly proclaims “All peoples have the right to self-determination” and the freedom to determine their own political status and pursue economic, social and cultural development. Yet this proclamation does not delve into any specifics. Furthermore, there is no acknowledgement of how these rights may be affected by extenuating circumstances such as civil war. However, it must be taken into account the ICESCR works in conjunction with the ICCPR which does indeed cover issues such as these. A bigger problem with the ICESCR is reservations. Many developing countries such as Bangladesh, Thailand and Pakistan hold multiple reservations to articles in the ICESCR, for example Bangladesh interprets Article 1 as applying in the historical context of colonialism.[12] The ICESCR itself contains few legal mechanisms to deal with the issue of reservations, meaning it fails in many ways to sufficiently support and empower small-scale fishermen despite seemingly having the articles necessary to do so.

  The ICCPR, which focuses on negative civil and political rights, should be viewed as the essential complement to the ICESCR.[13] As such, where there are certain omissions, it should be remembered these are covered by the other body. For example, the ICCPR is less detailed on forced eviction than the ICESCR; in fact, there is no specific mention of forced eviction other than the generalised recognition in Article 1  no person may be deprived of their means of subsistence (which is hardly specific to forced eviction). Yet, when working with the ICESCR, this issue is covered thoroughly. The ICCPR is clear on forced labour, with unsafe working conditions remaining the domain of the ICESCR. On forced labour, the sub-clauses of Article 8.3 makes the only times when an individual can be compelled to work without their own will explicit and does clearly define forced or compulsory labour. It clearly indicates what does not count as forced labour, such as military service. Regarding detention without trial, Article 9.3 makes it clear anyone arrested or detained on a criminal charge “shall be entitled to trial within a reasonable time or to release”. It could be more explicit on what constitutes a “reasonable time”; this broad phrase is very much open to interpretation and could be exploited by certain states for their gain. Developing countries could use excuses such as resource access to suggest an extended period of detention is in “reasonable time”, thus holding an offender, such as a fisherman crossing borders, for too long a period of time. Finally, the ICCPR does cover violence and threats to personal security faced by fishermen. Article 6 recognises the individual’s “inherent right to life”, a “supreme right” from which no derogation can be permitted. It also establishes there should be no arbitrary killing of individuals by security forces. This could be extended to arbitrary harm more generally, as DuBois and Zolgrafos’s Senegalese fishermen faced not loss of life but loss of property and injury due to the large fishing vessels they faced. Article 4 does make it clear what should be done in extenuating circumstances such as civil war, protecting the right to life which would in practice support those such as the Tamil Nadu fishermen. Consequently, in conjunction with the ICESCR, the ICCPR does seem to cover many problems faced by small-scale fishermen. Once again the issue is both with uptake and enforcement. Countries such as Bangladesh, Pakistan and the Gambia all have various reservations to the articles of the ICCPR. Furthermore, a 2013 study has shown the ICCPR has had a limited impact for issue areas where legally admissible evidence is costly to produce and standards of proof are high, thus having insignificant effects in respect to personal integrity rights.[14] Given the difficulties in documenting human rights abuses faced by small-scale fishermen, the small-scale fisheries sector can certainly be said to suffer from this, thus rendering the ICCPR less useful practically in defending these rights. 

  In conclusion, individuals involved in the small-scale fisheries sector are subject to a myriad of human rights abuses, ranging from forced eviction to violence in everyday life. These abuses occur primarily in developing countries, generally in Africa and Asia. There are instruments of international law to deal with these abuses. However, the UDHR, despite being foundational, is too abstract and general; its apoliticism and idealism makes it too unspecific to make any real difference. The ICESCR and ICCPR offer more practicality the UDHR and must be viewed as two halves of a single whole. Together, they cover many of issues faced by small-scale fishermen; yet neither is entirely perfect in terms of legislation). They are also hampered by reservations to their articles and by the lack of documentation regarding human rights abuses. Taking measures to better document these abuses is the next step to ensuring appropriate legislation can be both made and applied in developing countries. In doing this the “rights-based approach” can find success and make the small-scale fisheries sector more conducive to national economic growth, better for individual and communal well being, safer for people, and kinder to the environment.

Bibliography

Primary

United Nations, Universal Declaration of Human Rights, 1948.

United Nations, International Covenant on Economic, Social and Cultural Rights, 1966.

United Nations, International Covenant on Civil and Political Rights, 1966.

“UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights”. UN, 1976.

CESCR General Comment 7: The right to adequate housing: forced evictions”. UN OHCHR, 1997.

Secondary

Bollen, K.A., 1992. Political rights and political liberties in nations: an evaluation of rights measures, 1950 to 1984. In: Jabine, T.B., Claude, R.P. (Eds.), Human Rights and Statistics: Getting the Record Straight. University of Pennsylvania Press, Philadelphia.

DuBois, C., Zografos, C., 2012. Conflicts at sea between artisanal and industrial fishers: inter-sectoral interactions and dispute resolution in Senegal. Marine Policy 36.

Fukuda-Parr, S., 2003. The human development paradigm: operationalizing Sen’s ideas on capabilities. Femin. Econ. 9 (2–3).

Gupta, C., 2007. Bonded bodies: coastal fisherfolk, everyday migrations, and na-tional anxieties in India and Sri Lanka. Cult. Dyn. 19 (2–3).

Islam, M.M., Chuenpagdee, R., 2018. Nomadic Fishers in the Hilsa Sanctuary of Bangladesh: The Importance of Social and Cultural Values for Wellbeing and Sustainability. In: Johnson, D., Acott, T., Stacey, N., Urquhart, J. (eds) Social Wellbeing and the Values of Small-scale Fisheries. MARE Publication Series, vol 17.

Lupu, Y., 2013. “Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements”. International Organization. 67 (3).

Ratner, B., Åsgård, B., Allison, E., 2014. Fishing for justice : Human rights, development, and fisheries sector reform, Global Environmental Change, vol 27.

[1] Fukuda-Parr, S., 2003. The human development paradigm: operationalizing Sen’s ideas on capabilities. Femin. Econ. 9 (2–3) 301–317.

[2] Bollen, K.A., 1992. Political rights and political liberties in nations: an evaluation of rights measures, 1950 to 1984. In: Jabine, T.B., Claude, R.P. (Eds.), Human Rights and Statistics: Getting the Record Straight. University of Pennsylvania Press, Philadelphia.

[3] Ratner, B., Åsgård, B., Allison, E., 2014. Fishing for justice : Human rights, development, and fisheries sector reform, Global Environmental Change, vol 27, 120-130.

[4] Ibid. 123

[5] Islam, M.M., Chuenpagdee, R., 2018. Nomadic Fishers in the Hilsa Sanctuary of Bangladesh: The Importance of Social and Cultural Values for Wellbeing and Sustainability. In: Johnson, D., Acott, T., Stacey, N., Urquhart, J. (eds) Social Wellbeing and the Values of Small-scale Fisheries. MARE Publication Series, vol 17.

[6] Ratner, B., Åsgård, B., Allison, E., 2014. Fishing for justice : Human rights, development, and fisheries sector reform, Global Environmental Change, vol 27, 123 & Pearson, E., 2006. Sureeporn Punpuing, Aree Jampaklay, Sirinan Kittisuksathit, & Aree Prohmmo. The Mekong Challenge – Underpaid, Overworked and Over- looked: The realities of young migrant workers in Thailand, vol. 1. International Labour Office, Bangkok.

[7] Gupta, C., 2007. Bonded bodies: coastal fisherfolk, everyday migrations, and na-tional anxieties in India and Sri Lanka. Cult. Dyn. 19 (2–3) 237–255.

[8]  Ratner, B., Åsgård, B., Allison, E., 2014. Fishing for justice : Human rights, development, and fisheries sector reform, Global Environmental Change, vol 27, 123

[9] DuBois, C., Zografos, C., 2012. Conflicts at sea between artisanal and industrial fishers: inter-sectoral interactions and dispute resolution in Senegal. Marine Policy 36, 1211–1220.

[10] United Nations, International Covenant on Economic, Social and Cultural Rights, accessed 03/09/2023 : https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights

[11] “CESCR General Comment 7: The right to adequate housing: forced evictions”. UN OHCHR. 20 May 1997, accessed 03/09/2023.

[12] “UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights”. UN. 3 January 1976, accessed 03/09/2023 : https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en

[13]  United Nations, International Covenant on Civil and Political Rights, accessed 03/09/2023 : https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

[14] Lupu, Y., 2013. “Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements”. International Organization. 67 (3): 469–503.

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Vagabond Science: a discussion about fishing

Earlier this year I met with Matt Lanagan of Vagabond Science, who had a few questions about the way that marine fisheries are managed around the world. Guided by his questions, we discussed wide ranging topics, from apex predators, to fisheries collapse, and all sorts of law, policy, enforcement, technology and other things in between.

Matt recorded our conversation, which available on YouTube and most podcast platforms, and has kindly given me permission to reproduce it here. I hope some of our readers will find it interesting.

Best wishes

Mercedes

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How can the law fight destructive fishing? A brief introduction for students

After a year of profound changes that have kept me away from the IUU Fishing blog I am writing again, although for now it is just to link the content of another blog: the one hosted by Leeds Beckett University. I was invited to make a contribution to the LBU Together Blogs to tell our law students a little bit about what my research is about, and so I wrote a few paragraphs introducing the role of law in fisheries conservation and management and in illegal fishing control.

The post was drafted very much with the intention of gently introducing first year students in particular to some of the key and often complex issues that make legal challenges in this field so compelling. I hope it will be interesting and useful for some of our long term readers too. Here is the link.

Best wishes

Mercedes

On board and at sea, by Juan Vilata

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Transhipment in the South East Atlantic: cutting through the smoke, and redeploying the mirrors

The author would like to thank Dr. Dirk Siebels and Dr. Ife Sinachi Okafor-Yarwood for the provision of valuable information for the elaboration of this blog, as well as Dr. Dyhia Belhabib for facilitating free data via the Spyglass online platform, and Juan Vilata for access to photographic material. Any errors contained in this blog post are the author’s alone.

West Africa harbours ocean waters rich in pelagic and demersal species,[1] yet also intensely harvested. Many commercially significant stocks are either fully or overexploited, and vulnerable to illegal, unreported and unregulated (IUU) fishing.[2] A significant proportion of industrial fishing activity is carried out by distant water fishing fleets, including those of the European Union, Russia, and China. Vessels belonging to these and other fleets have been associated with IUU fishing activities in the region, and documented cases may well be unrepresentative of the total number. Indeed, IUU fishing activities are often difficult to ascertain due to their secretive nature, and a lack of effective monitoring and surveillance capabilities in the region’s coastal States.[3] There is also a significant incidence of de-stabilising activities, particularly in certain areas of the Gulf of Guinea, including serious crimes such as piracy, armed robbery, and drug trafficking.[4] Fishing vessels can contribute to this de-stabilisation: IUU fishing has been shown to pose a threat, undermining the security of coastal States and their people, and exacerbating other security stressors.[5]

Transhipment and its association with IUU fishing and maritime crime

The complex relationship between the fishing industry and transnational maritime crime was highlighted in 2011 by UNODC, shedding light into the operational synergies that interconnect fishing operations, specially IUU fishing activities, and drugs trafficking and other forms of criminality.[6] The contribution that fishing vessels make towards drug trafficking globally has recently been estimated, suggesting that shipments on board of industrial fishing vessels average at 2.4 tonnes per seizure, with artisanal vessels averaging at circa 0.8 tonnes per seizure, but commanding higher prices. The stakes are high, and West Africa has been identified as one of the hotspots.[7]

Transhipment (nighttime). Image credit: Juan Vilata

Transhipment at sea gives vessels operational options, including the opportunity to relocate items away from the scrutiny of port authorities. Hence, transhipment is often an integral part of maritime crime.[8] Simply put, transhipment involves offloading cargo from one vessel to another. This can be fish, but also provisions or any other cargo, including crew. It is far from uncommon, especially in remote high seas, where it is particularly difficult to oversee. Significant investment in monitoring, control and surveillance (MCS) is often necessary to ensure that unauthorised transhipment and other IUU fishing operations are identified.[9]

The complexity of MCS needs should not be underestimated. The capacity levels that are often required are exemplified by the recent collaborative programme between EFCA and the States of the Sub-Regional Fisheries Commission (SRFC), through which a surveillance operation was undertaken. This involved not only VMS monitoring, but also the satellite and radar equipment of the European Copernicus service, as well as coordinate information exchange efforts of the national authorities of the SRFC member States.[10] Unfortunately, these special cooperation programmes are usually time-limited, and in routine scenarios national capabilities can and often do fall short of the technical capacity needed to address all IUU fishing activity successfully. Around the globe, countries concerned about their maritime security and the activation of their blue economies have invested in advanced satellite fisheries intelligence programmes.[11] Although States in West Africa are working towards increasing their capacity to fully implement effective MCS systems, they have not yet achieved the kind of MCS capacity that would enable them to control IUU fishing activities comprehensively and effectively.[12]

A game of smoke and mirrors

Although transhipment usually occurs between a fishing vessel and a refrigerated cargo vessel (often referred to as reefers), controls may be further complicated by the fact that other ships can also perform transhipment operations and other activities such as bunkering.[13] Of course, the non-compulsory nature of AIS, specially in waters where the presence of piracy and other violent crimes often justifies decisions to turn it off, means that effective monitoring via AIS alone can be very difficult. Nevertheless, erratic AIS readings can be indicative of activity that could form part of IUU operation patterns. For example, a vessel could disconnect AIS whilst moving toward safer waters where fishing vessels are known to be operating. It should be highlighted that such irregularities do not constitute evidence of wrongdoing per se, but they could be an indication of possible risk that an unauthorised transhipment is taking place. This is specially so in regions where IUU fishing transgressions involving transhipment are routinely documented.[14]

By way of example, recent research in the Indian Ocean has suggested that cases of unauthorised transhipment may be linked to bunkering activity. Though difficult to detect with conventional VMS and satellite automatic identification systems (AIS) controls, the researchers observed the presence of bunker vessels in the vicinity of fishing vessels and large factory trawlers, whose AIS signals suggested erratic behaviour, indicating the possibility of multiple re-supplying operations rather than fuelling.[15] Available AIS readings suggest that these scenarios are likely to be replicated in other regions, particularly in areas that continue to suffer from a high incidence of IUU fishing events, and where vessels able to perform bunkering as well as transhipment are present, such as West Africa.

Transhipment (daytime). Image credit: Juan Vilata

Recent research undertaken with satellite based AIS and satellite assisted radar in parts of the South East Atlantic managed by the Commission for the Conservation of Atlantic Tunas (ICCAT), comprising both the EEZ of Ascension Island and surrounding high seas areas, unveiled behaviour indicative of possible unauthorised fishing and transhipment and/or bunkering or supply, particularly around the EEZ borders, and especially by long liners.[16] Further, ICCAT records also indicate that transhipments are engaged into without adequate supervision, and that they may well be avoid inspection because fish and other cargo transfers are often impossible to differentiate from bunkering and supply operations.[17]

Further, as already stated, unauthorised transhipment is often an enabler to transnational maritime crime. Enquiry into the free online facility www.spyglass.fish reveals that drug trafficking offences have been documented in the West African region, both across the high seas and the EEZs of a number of States, all occurring alongside a very high volume of unauthorised fishing activity across the region. These overlaps, coupled with unusual or unexplained AIS readings, suggest an operational risk profile that warrants significant control and monitoring effort, as well as the adoption of surveillance mechanisms to safeguard compliance. 

The ICCAT management area. Image credit: ICCAT

Responsibilities of States with regard to transhipment

Under UNCLOS Part V, coastal States must ensure that fishing activities in their EEZ are appropriately managed (especially important are Articles 61 to 64 in this regard). As ITLOS highlighted in paragraph 113 of its Advisory Opinion, member States of the Sub-Regional Fisheries Commission must ensure that transhipments occur in specially designated harbours, amongst other requirements.

The responsibilities of flag States in the EEZ of coastal States were also discussed in detail by the ITLOS in its Advisory Opinion. In paragraph 114, ITLOS indicated that flag States must ensure compliance with the laws and regulations of the coastal States in which their vessels operate – this is of course not an optional matter or a courtesy: when it comes to fishing activities in the EEZs of coastal States, flag States have specific obligations under Articles 58.3 [“States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law (…)”] and 62.4 [“Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State (…)”].[18]

Transhipment in West Africa. Image Credit: Richard White, Lindblad Expeditions

In addition, flag States have general obligations – see in particular UNCLOS Articles 94 concerning the exercise of effective jurisdiction and control over fishing vessels in the high seas, and Article 192 regarding the obligation to protect and preserve the marine environment in all ocean areas.[19] These responsibilities are refined and complemented by obligations established in other important international instruments.[20] Further, regional agreements frequently impose additional and often very specific duties. In the West African fishing grounds of the Atlantic the measures adopted by ICCAT should be complied with, so that the fishing and transhipment activities occurring in the area can be appropriately monitored.[21] Under ICCAT rules, only vessels that have been authorised to engage in transhipment can receive fishing products from fishing vessels lawfully operating in the regulated area.

Yet, ICCAT rules on the monitoring of transhipment is widely regarded as insufficient. In particular, whereas purse seiners carry 100% observer coverage when operating in the ICCAT area, long-liners are subjected to little scrutiny by comparison.[22] The ICCAT member States had an opportunity but failed to enhance their approach to monitoring in their latest (2019) meeting of the parties.[23] This has occurred against a backdrop in which historical VMS data is contributed to ICCAT by the relevant vessels’ flag States, but has been acknowledged as difficult to navigate and process in order to clarify compliance.[24]

Such voids in ensuring appropriate monitoring of transhipment, a high-risk operation for the purposes of IUU fishing and maritime crime, leaves significant opportunities for wrongdoing, particularly in an area where satellite MCS approaches are still in development and the EEZs of coastal states are vulnerable to unauthorised intrusion. This void in monitoring requirements also perpetuates a discrepancy in fishery conduct standards across different vessel types that is difficult to justify in an international decision-making forum with important management competences. Indeed, RFMOs such as ICCAT are key fora where States bring into effect their international obligation to cooperate in matters of conservation and management of transnational fish stocks. International cooperation is a responsibility that is not satisfied simply by ticking a box for attendance to meetings, but also requires a conduct that makes negotiation and ensuing decision-making meaningful.[25] Indeed, this is what to a great extent furnishes the regulatory output of RFMOs with an authoritative force, especially when it comes to considerations involving the characterisation of activities as IUU fishing, including the activities of non-members. Needless to say, this authoritative strength should not be undermined by maintaining necessary controls weak – least of all by the members themselves.

Mercedes Rosello July 2020  

[1] J Alder, and UR Sumaila, ‘Western Africa; A Fish Basket of Europe Past and Present’ (2004) 13(2) The Journal of Environment & Development 156-178, 160.

[2] D Belhabib, UR Sumaila, and P Le Billon, ‘The fisheries of Africa: Exploitation, policy, and maritime security trends’ (2019) 101 Marine Policy 80-92, 81.

[3] I Okafor-Yarwood, and D Belhabib, ‘The duplicity of the European Union Common Fisheries Policy in third countries: Evidence from the Gulf of Guinea’ (2020) 184 Ocean and Coastal Management 1-11, 2.

[4] D Belhabib et al, page 86. See also D Siebels, ‘Pirates, smugglers and corrupt officials – maritime security in East and West Africa’ (2020) 1(1) International Journal of Maritime Crime & Security 34-49.

[5] I Okafor-Yarwood, ‘The cyclical nature of maritime security threats: illegal, unreported, and unregulated fishing as a threat to human and national security in the Gulf of Guinea’ (2020) 13(2) African Security 116-146, 122.

[6] E De Coning, ‘Transnational Organized Crime in the Fishing Industry’ (UNODC, 2011).

[7] D Belhabib, P Le Billon, and DJ Wrathall, ‘Narco-Fish: Global fisheries and drug trafficking’ (2020) Fish and Fisheries, 1-16, 6.

[8] See I Chapsos, and S Hamilton, ‘Illegal fishing and fisheries crime as a transnational organized crime in Indonesia’ (2018) 22 Trends in Organized Crime 255-273.

[9] For more information on transhipment activities, see NA Miller et al, ‘Global Patterns of Transshipment Behavior’ (2018) Frontiers in Marine Science 240.

[10] See https://www.efca.europa.eu/en/content/pressroom/sub-regional-fisheries-commission-srfc-efca-and-france-fight-against-illegal.

[11] See for example http://www.verumar.com

[12] Comfahat-Atlafco, ‘Workshop on Monitoring, Control and Surveillance: and effective tool to fight against IUU fishing’ (2015) 4.

[13] See for example: https://www.marinetraffic.com/en/ais/details/ships/shipid:5260334/mmsi:538007413/imo:9766281/vessel:LAETITIA_V

[14] See https://wnwd.com/blog/something-smells-fishy/.

[15] JH Ford, B Bergseth, and C Wilcox, ‘Chasing the fish oil – Do bunker vessels hold the key to fisheries crime networks?’ (2018) Frontiers in Marine Science https://doi.org/10.3389/fmars.2018.00267.

[16] G Rowlands et al, ‘Satellite surveillance of fishing vessel activity in the Ascension Island

[17] ICCAT, Doc. No. COC-312/2019.

[18] ITLOS in Paragraph 111 of its Advisory Opinion refers broadly to ‘nationals’ rather than just vessels registered to the flag State [‘Advisory Opinion’].

[19] See Advisory Opinion from paragraphs 117 to 124, and 136.

[20] In particular, the UN Fish Stocks Agreement is a treaty of profound significance for the management of highly migratory and straddling species that occur partially in the EEZ.

[21] See http://www.fao.org/fishery/rfb/iccat/en#Org-Mission.

[22] See: https://iss-foundation.org/iccat-moves-to-protect-atlantic-bigeye-and-close-gaps-in-monitoring-and-data-collection/.  

[23] See https://www.globaltunaalliance.com/general/the-global-tuna-alliance-considers-the-outcomes-from-iccat-26th-november-2019/

[24] See M Ortiz, A Justel-Rubio, and A Parrilla, ‘Preliminary Analyses of the ICCAT VMS Data 2010-2011 to Identify Fishing Trip Behavior and Estimate Fishing Effort’ (2013) 69(1) Collect. Vol. Sci. Pap. ICCAT 462-481.

[25] M Hayashi, ‘The Management of Transboundary Fish Stocks under the LOS Convention’ (1993) 8(2) International Journal of Marine and Coastal Law 245-262, 252.

House of Ocean, home of The IUU Fishing Blog
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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 1) and 2) 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 3) 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 3) 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.

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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.

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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.

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IUU fishing in Thailand: a view from the port of Phuket

A few locals in Phuket gave me their views on the fishing vessel lockdown, in place following the moratorium imposed by the Ministry of Fisheries. This and other measures that the Thai fishing industry has had to implement have been largely prompted by an official warning by the European Union issued to Thailand on the 21st of April 2015. The warning or ‘yellow card’ was issued on multiple, and serious, grounds involving a number of failures in the exercise of public authority by Thailand, in its capacity as flag State as well as coastal State.

IMG_0059

Cephalopod vessel in the waters of Thailand

The warning had followed several visits, discussions and formal written exchanges between the Thai government and the European Commission. The latter publicly indicated serious concerns over Thailand’s record as a flag State, including its existing legal regime and administrative exercise of regulatory powers in respect of fleet control, monitoring and sanctioning. Issues flagged in the Commission’s Decision include the recurrent identification of Thai IUU fishing vessels and trade flows, unauthorised fishing activities by Thai vessels in the high seas and in coastal State waters, and the failure by Thai vessels to carry operative VMS on board in high seas areas and in the exclusive economic zones of coastal States that require it.

Additionally, a poor and antiquated monitoring regime had enabled Thai vessel operators to feed false information to Thai, regional and European authorities concerning catches, areas of operation and vessel identity. The Decision went on to highlight that infractions had been insufficiently acted upon by authorities, and sanctioning had been found to be either non-existent or inadequate. The Commission also indicated that Thailand may have been in breach of its flag State obligations under Article 94(2)(b) of the United Nations Convention on the Law of the Sea.

As a coastal State, Thailand was found to have allowed the fish stocks in waters under its jurisdiction to endure a vast degree of overfishing leading to sharp decline. It is believed, according to the Decision, that over 95% of catches (including those of the artisanal fleet) may have gone unreported. The management of Thai jurisdictional waters would therefore be far from being carried out at optimum levels for sustainability, and this is coupled with endemic fishing vessel registration practices that are not only highly deficient, but marred by tensions and contradictory data held by different departments. In addition, fish stock exhaustion due to overfishing encouraged more of the local vessels to harvest what they can by whatever means, including the illegal and destructive.

By the time of my visit, the Thai fishing industry’s image and reputation had been severely tarnished by the uncovering by NGOs of extensive networks of migrant smuggling from neighbouring, impoverished countries. Ensuing reports have highlighted the human tragedies behind the poorly controlled growth of the industry.

Thailand is a regional powerhouse in seafood production and processing, with exports thought to be in the region of €6Bn. These industries are hungry for workers, frequently supplied by impoverished neighbouring countries. According to now widely reported investigations, immigrants have been lured under false promises of a better life, but once embarked and at sea their fates often depend exclusively on luck and resilience. Deficient technical and legal controls and police indifference or even collusion in ports and borders, alongside toxic economic drivers, have respectively enabled and rewarded the exploitation and abuse of people, and the ruin of the marine environment and the living resources it contains.

The moratorium on fishing vessels is seen by the locals I spoke to as a necessary evil, despite vocal opposition from some quarters in the fishing and tourism industries. There have been exceptions to the moratorium: Small cephalopod vessels are operating at night, easily identifiable due to their bright lights, seeking to emulate the full moon on a daily basis along the southernmost coast of the Phuket island.

The moratorium appeared to been largely respected at the time of writing, although there were rumours of unregistered illegal boats still at sea, and the issue of registration of these unaccountable fleets has been fraught with difficulties, controversies and delays. There is also a concern that the new VMS control tools will be unable to monitor the illegals, and that unless the local fishermen are prepared to report the illegal activity of others to the authorities, many will go undetected. Finally, the junta has prepared rules for the application of punishing fines on those who operate illegally, with the focus now turned on whether monitoring measures will be sufficient to enable the identification and arrest of those who break the newly implemented measures.With many of these fishermen on the bread line, this goes beyond being a conservation issue, affecting the social fabric of many communities as well their immediate and long term futures. There are no easy solutions here.

A related problem is the inability to prove illegal fishing offences in maritime areas with poor delimitation, an issue that continues to mar the wider region and shows few signs of relenting.

Yet, amongst all the uncertainty, there is a small amount of positivity. There have been reports of recovery in the biodiversity of the area since the implementation of the moratorium. Although such localised reports are not in any way akin to a scientific nod on biomass recovery, the fact that observable changes are being reported after only a short time of restraint is seen as positive news. Here is hoping that this small sign of recovery may provide some much needed encouragement for the long journey to sustainability that lies ahead.

Mercedes Rosello, August 2015

Sources & Links:

European Commission Decision of 21 April 2015: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2015.142.01.0007.01.ENG

Thai Fishing Roadmap: http://www.thaigov.go.th/index.php/en/issues/item/91850-91850.html

Thailand’s reported seafood exports: http://news.thaivisa.com/thailand/thai-fishery-sector-hopeful-of-smoother-waters-ahead-after-strenuous-attempts-to-get-house-in-order/127031/

EJF Media: http://ejfoundation.org/news/thailands-seafood-slaves

UNODC Report on Organised Transnational Crime in the Fishing Industry: http://www.unodc.org/documents/human-trafficking/Issue_Paper_-_TOC_in_the_Fishing_Industry.pdf

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Operation Sparrow: a Landmark in the Fight against IUU Fishing (Reblog)

We close the year reblogging this post, first published on IUU WATCH. May we wish you all a very prosperous new year 2016!

Summary

The EU IUU Regulation has been a pioneering initiative, placing the EU at the helm of the global fight against IUU fishing. However, one challenge that continues to mar efforts to address IUU fishing is the identification of European interests behind IUU fishing operations. Spain, the EU’s largest fishing nation and a flagship State in EU fisheries, has implemented domestic legislation to address this problem. The legal measures have recently been put to the test through the launch of Operations Sparrow and Sparrow 2.

The full blog post can be accessed here: http://www.iuuwatch.eu/2015/12/operation-sparrow-a-landmark-in-the-fight-against-iuu-fishing/

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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).