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]

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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

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

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/

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).

Bearing Witness: glorious reefs, seas of plastic and the horrors of dynamite fishing

An unexpected opportunity has recently taken me to the archipelagic waters near the Malaysian city of Tawau in the Celebes Sea. Near the port of Semporna, the islands of Mabul, Kapalai and Sipadan are set amongst reefs of rich biodiversity, offering a range of breathtaking underwater landscapes.

Photo credit: Sipadan.com

Photo credit: Sipadan.com

The area, where the EEZs of Borneo, Malaysia and the Philippines converge, is a dream destination for scuba divers, keen to explore the warm waters, varied life and lively dynamics of the reefs.

The reefs and their inhabitants are vulnerable to human activities and their balance is delicate. A stark reminder of this fact are the names that had originally been given to some of the diving sites by the pioneers of the once nascent diving industry here, such as Stingray City, Lobster Wall or Eel Valley. Yet, these sites no longer harbour the creatures that named them.

Whilst there are many factors that can affect marine biodiversity, some of the causes that are operative in this region became apparent as soon as my first immersion took place. Hard and soft plastics, which litter beaches and the sea surface in much of the region, were also present with alarming regularity on the reefs, sometimes alongside discarded fishing gear.

My elation at seeing a hawksbill turtle foraging soon turned to concern when I discovered a plastic glove resting by soft coral less than half a metre away from the animal. Though I rushed to pick it up and secure it to my wetsuit, I wondered how long it would be before the turtle encountered another piece.

Devoid of infrastructures, people in Semporna and the Celebes islands frequently discard plastic bottles and bags into the sea, and large hills of plastic debris can be seen slowly creeping into the ocean.

Photo Credit: AlJazeera.com

Photo Credit: AlJazeera.com

A less obvious, if even more insidious consequence of leaving plastics in the sea is that they break down into very small microscopic pieces, ending up being consumed by plankton and other creatures, becoming embedded in the ocean’s trophic chains and in fish that can make its way to human plates.

Despite the conservation slant of some of the diving operators, efforts can hardly dent the problem in the face of systemic failures of infrastructure, education and willingness.

Additionally, but perhaps saddest of all, every one of my dives was regularly marred by the startling underwater boom of repeated dynamite fishing. The sight of two large dead green turtles, one with its shell cracked open, and countless dead and dying fish was a desperate reminder of the devastation that dynamite fishing inflicts on the marine environment. Under the surface of the sea, the ruined reef can no longer harbour any life, becoming barren.

Image credit: oneocean.org

Image credit: oneocean.org

Whilst locals to Mabul informally confided that artisanal fishers from the Philippines regularly dynamite reefs in the archipelago, it also transpired that the borders between the three countries are frequently breached by unauthorised fishermen of any of the three nations.

The extremely destructive and wasteful practice of dynamite fishing is forbidden by the United Nations’ 1995 Fish Stocks Agreement. All State parties to this treaty are obliged to treat dynamite fishing as a very serious offence, and to seek its eradication whether it is engaged in by national vessels anywhere in the world, or by foreign vessels in the State’s jurisdictional waters. Philippines, a party to the agreement since 2014, has an international responsibility to eradicate the practice from its own waters, as well as those of its neighbours where its own vessels are involved.

Photo Credit: NOAA

Photo Credit: NOAA

Philippines was officially warned by the European Commission in respect of uncontrolled illegal fishing practices but such warning was withdrawn in April 2015.

Yet, in this region at least, dynamite fishing continues to be rampant and, what is worse, expected.

The beauty and richness of the reefs and the marine life they harbour certainly shines through. With so many threats, however, I wonder for how long.

Mercedes Rosello, 2015.

Sources:

1995 UN Fish Stocks Agreement, available on: http://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm

The US, the EU and IUU – Part 2

Nobody can tackle IUU fishing alone: Will opportunities for global leadership be grasped?

Vessel suspected of IUU fishing awaiting auction in South Africa. Credit: Muscat Daily

Vessel suspected of IUU fishing awaiting auction in South Africa. Credit: Muscat Daily

Those who doubted the potential of the European Union’s Council Regulation 1005/2008 (the IUU Regulation) to change the laissez-faire culture that has been prevalent for too long in respect of illegal, unreported and unregulated (IUU) fishing activities inside and outside EU borders have had plenty of food for thought over the past four and a half years. In the time since the IUU Regulation came into force, the yellow card warning system, followed up on occasion by a trade-suspending red card, have seen a significant change in the administrative practices of a number of fish producing countries. Most importantly, the IUU Regulation has placed IUU fishing high in the agendas of nations that had previously not been predisposed to delve into the issue.

True, the regime is not perfect and there is yet much work to do to make a true dent in the global IUU trade. IUU fishing practices continue to cause vast losses to the worldwide economy (Eur. 10 Bn, according to the European Directorate for Maritime Affairs and Fisheries – DG Mare- which is equivalent to 19% of the reported value of catches worldwide). In addition, the destructive and insidious nature of IUU operations cause important harm not only to fish stocks and the marine environment, but also undermines every seafood producing fleet that plays by the rules. The ungovernable nature of covert IUU activities means that administrations that are keen to ensure sustainable exploitation have their work systematically undermined by the covert, dishonest nature of unreported captures.

Millions of people depend on seafood for nutrition as well as work and income, not just in producing countries, but also through the processing, importation and distribution and retail of seafood products. Further, many of those involved in fisheries have close, even ancestral, cultural ties to the activity. In many regions of the world (including of course the EU) domestic fishery production cannot match internal demand, and imports from third countries have become a necessity.

What this means, of course, is that the conservation and sustainable management of fishery resources is a collective, thoroughly intertwined effort of many actors and of very diverse nationalities. Nobody can tackle IUU fishing alone, irrespective of how much they may want to.

Yet, not everyone wants to. Routine commercial narratives evidence attitudes where business as usual, and turning a blind eye to stock erosion and illegality creep, are rife. A good illustration of such attitudes was a recent comment made to the Thai press by the head from a national fishery association, asserting his view that the yellow card presented to Thailand over IUU fishing by the EU must have more to do with protectionism and political intervention rather than with the relevance of Thailand’s mismanagement of the considerable presence of IUU activity in their production chains (not to mention the serious mistreatment of people, including their trafficking and abuse, marring the Thai seafood industry). If a comment ever represented a lack of consciousness as well as conscience, then this is it.

The interviewee’s suggestion that Thailand should seek to export to the Middle East, rather than put in an effort to clean up its act is sadly representative of a type of viewpoint that prioritises short-term, entrenched approaches that are not only ultimately doomed to failure, but which also represent a real risk for all administrations working toward long term, rational and fair approaches to seafood production and trade.

It is clear that a sustained collective effort is needed in order to address and change such attitudes and get to the root of IUU activity. With this in mind, the Presidential Task Force on Combating IUU Fishing and Seafood Fraud has recently presented its Action Plan for Implementing the Task Force Recommendations has caused some degree of concern at House of Ocean. Whilst much of what is contained here is ambitious and commendable, it is striking that no mention is made anywhere in the report with regard to trade measure compatibility with existing programmes and regimes. In particular, coordination with the EU is only mentioned in the context of the Transatlantic Trade and Investment Partnership (T-TIP) agreement, the negotiations of which are still ongoing. No mention is made anywhere in the Action Plan of the specific measures adopted by the EU to combat IUU fishing to date, nor those adopted by Regional Fishery Management Organisations since the onset of the 21st Century. Perhaps the Task Force is reluctant to admit that the US has lagged behind in the development of IUU-specific trade measures?

However, it now has a golden opportunity to seek convergence with existing regimes, to make a substantial contribution to their improvement and expansion, and to become a formidable co-architect and a leading engineer in the fight against IUU operations. To sacrifice such an important global role for the sake of less cooperative solutions may only serve to perpetuate the tragedy of our ocean.

Sources

http://ec.europa.eu/fisheries/documentation/publications/2015-04-tackling-iuu-fishing_en.pdf

http://www.nmfs.noaa.gov/ia/iuu/noaa_taskforce_report_final.pdf

http://www.nationmultimedia.com/national/EUs-motive-behind-yellow-card-queried-30259466.html