Satellite Technology and IUU Fishing

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

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

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

Happy New Year!

SATELLITE TECHNOLOGY to address IUU FISHING

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

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

How technology solves these surveillance difficulties 

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

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

Credit: European Commission DG Mare

Which systems are useful as a fishing control tool?

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

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

Why is this data useful?

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

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

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

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

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

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

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

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

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

This system is still implemented experimentally in some RFMOs.

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

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

Author: Beatriz Ortega-Gallego

Sources:

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

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

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

 

 

Lack of Transparency: the Achilles Heel in IUU Fishing Control

 

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

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

IUU fishing success depends upon opacity

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

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

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

Image Credit: Sea Shepherd Global

Image Credit: Sea Shepherd Global

Insufficient progress despite key importance of transparency

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

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

Conclusion

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

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

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

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

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

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

Illegal Fishing

Credit: European Commission.

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

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

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

redesybarcos1_tcm7-415210_noticia

Credit: MAGRAMA

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

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

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

igt01_tcm7-415248_noticia

Spanish Minister Isabel Garcia Tejerina. Credit: MAGRAMA

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

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

REFERENCES

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

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

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

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

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

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

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

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

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

[10] Ibid

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

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

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

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

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

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

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).

IUU Fishing and Europe: Control Begins at Home

Oceana has reported on the concerning state of swordfish fisheries in the Mediterranean, highlighting in particular the indiscriminate targeting and trading of this fish by EU (particularly Italian) vessels.

Photo Credit: Greenpeace, sourced from worldfishing.net

Photo Credit: Greenpeace, sourced from worldfishing.net

According to the NGO, EU inspectors recorded a series of serious incidents in Italy during March 2013. These included the widespread trading of undersized swordfish, unusually large volumes of landings, pervasive irregularities in vessel and catch documentation, disinterest by local authorities and disregard for regional conservation measures.

Oceana have also denounced the fact that high market prices are working as an incentive for this irresponsible harvesting of vulnerable Mediterranean swordfish populations. The NGO is calling for the EU to work towards defining sustainability measures in ICCAT and be coherent with European sustainability objectives.

Having visited the beautiful coast of Southern Italy last year, I was struck by the widespread presence of undersized fish in markets, the ubiquitous presence of monofilament net in small fishing vessels and the presence of gill nets in areas that were supposedly protected. In addition, superficial enquiries revealed that flaunting fisheries laws in respect of tuna and swordfish appears to be accepted as common.

Of course this was in no way a scientific research exercise and I accept that the views of the people I spoke to may not be representative of others in the region. However, the reports made by the Commission’s own inspectors are, according to the NGO, alarming and strongly suggestive of a widespread culture of non-compliance.

In my opinion, this should concern the Commission deeply, and not just from the perspective of swordfish conservation.

Firstly, whilst some countries in Europe are making an effort to implement the Control and IUU regulations, it is becoming increasingly obvious that others are not. The strength of our common legislation lies in the success of coordinated control measures. Any systemic compliance voids are, effectively, tears in the European fabric of fisheries control and they must be identified and closed before they become gaping wounds.

Further, and perhaps most importantly, the EU has sustained a very high-profile campaign against IUU fishing internationally. The IUU Regulation is a legal achievement whose technical and political success at global level may not have been possible just a few years back. However, if the EU wants to continue to lead the fight against IUU fishing unchallenged, it must be itself a model of compliance.

The Commission now needs to act urgently and decisively to ensure the uniform implementation of our common fisheries laws in the territory of the Union and to show the world that IUU fishing will not be tolerated wherever it occurs. If our domestic fleets’ depredations go unaddressed, others may begin to question the legitimacy of the Control and the IUU Regulations and the significant compliance efforts that some European countries have made may yet turn sterile.

Mercedes Rosello

PhD Candidate (University of Hull)

Sources:

http://www.thefishsite.com/fishnews/24421/european-commission-documents-prove-illegal-fishing-of-swordfish

Illegal Fishing of Swordfish Highlights Weaknesses in IUU Control Mechanisms

Illegal Fishing of Swordfish Highlights Weaknesses in IUU Control Mechanisms

Swordfish has been in the limelight this year, not less because of the recent ban handed by the EU to Sri Lanka, a swordfish exporter to European markets. The ban is likely to be implemented in early 2015 and will close the Union’s doors to a substantial volume of seafood. According to the European Commission, Sri Lankan seafood imports into the Union border 7,400 tonnes, with an approximate value of €74 Million. A significant part of this volume is swordfish.

A swift review of recent months’ media reports suggests that this ban may not be enough to significantly curb overfishing of this iconic commercial species.

In June this year, Oceana Europe revealed evidence of extensive illegal swordfish driftnetting operations in Moroccan Waters. The fish was being introduced into Europe for final consumer sale in Italy, where it is a highly prized food. The unlawful use of driftnets in Italy has been regularly highlighted by European NGO Blackfish in recent years. Drifnets have been subjected to a United Nations moratorium and are banned in Mediterranean waters by the regional regulatory body, ICCAT due to their destructive and indiscriminate nature.

Swordfish (xiphias gladius). Photo Credit: Sue Flood, naturepl.com

Photo Credit: Sue Flood

Eradicating the use of driftnets in the Mediterranean is proving to be a difficult task, no less because the deployment of this indiscriminate fishing art is as difficult to detect as is obtaining hard evidence of its systematic use.

Under the regime established by European Council Regulation 1005/2008 (the IUU Regulation) most seafood imports must be accompanied by a ‘catch’ certificate. This certificate has to be validated by the authorities in the country responsible for regulating the capture of the fish. However, the catch certificate does not include a declaration on the type of gear used during the fishing operations and consequently, it is not possible for European authorities to decline a landing simply on the basis of a fraudulent declaration on the certificate. A request to declare gear type on the certificate could raise the level of due diligence being exercised by fishing authorities such as Morocco, a long standing partner of the EU in the context of fisheries, and in whose waters Oceana discovered the driftnetting operation.

Also this year, the Spanish Directorate General for Fisheries raised a warning about unusually high volumes of swordfish being sold into Europe through Spanish borders, originating from Vietnamese and Indonesian fishing vessels. Having temporarily suspended Vietnamese imports, the Spanish authorities have requested the Commission’s intervention.

This event has highlighted another tear in the European illegal fishing control system, which appears to lack a mechanism to ensure collection and coordination of species-specific import data. This affects the EU’s ability to detect instances where particular species captured by third countries are imported into the EU in excess of regulatory quotas.

Countries who are members or who cooperate with Regional Fishery Management Organisations (RFMOs), the organisations who govern the fishing of swordfish and other commercial species in specific ocean regions, must declare the level of their captures. Failure to cooperate with RFMOs is classed as either “unregulated” or “unreported” fishing by the United Nation’s Fish Stocks Agreement and classed as IUU by the IUU Regulation.

Incidents like these suggest that systemic response mechanisms to under-declaration of quota to RFMOS are sluggish and patchy. Vietnam and Indonesia export substantial amounts of swordfish and other seafood products to international markets including the EU and the US. Whilst international cooperation is paramount in ensuring that minimum IUU control standards are implemented internationally, relatively straightforward improvements to our existing IUU control systems could also make a valuable contribution in increasing transparency and efficiency.

Sources:

http://europa.eu/rapid/press-release_MEMO-14-584_en.htm

http://www.theblackfish.org/files/Italian_Driftnets.pdf
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:286:0001:0032:EN:PDF#page=27
http://www.undercurrentnews.com/2014/06/30/spain-seeks-eu-wide-suspension-of-vietnamese-swordfish-imports/
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/274/67/PDF/N9527467.pdf?OpenElement

Illegal Fishing Control: Why Europe Needs a Common Software Platform

Council Regulation 1005 / 2008 (the IUU Regulation) is a European Union (EU) legislative tool designed to reinforce and support pre-existing normative measures established by the international community to control illegal, unreported and unregulated (IUU) fishing.

 

Transhipment, Central Pacific (Image Credit: underwatertimes.com)

The potential of the IUU regulation to disincentivise IUU fishing practices gravitates around

  • the indisputable power of the EU as port and market State, and
  • on the ability of the EU to implement the IUU regulation in an even and watertight manner.

These are in fact like two sides of the same coin, since loopholes in implementation leading to IUU importation windows can de facto give rise to different standards within the common trade boundary and make coordination impossible.

A recent report offers an insight into progress made in implementing the Regulation, which came into force on the 1st of January 2010.[1] The report offers a useful overview of the different degrees of investment, reorganisation and resource reallocation in each of the Member States pursuant to the requirements of the IUU Regulation.

According to the authors, the catch certification system imposed by the Regulation has placed a heavy administrative burden on Member States. Implementation has been uneven and differences in approach cannot always be attributed to differences in patterns such as seafood trade volume, financial resilience or pre-existing know-how: Whilst large importers such as Denmark and Spain have developed interactive IU tools, others (including some with considerable importation volumes) have not done so. The same is true of intelligence data gathering processes.

For example, highly sophisticated IUU tracking software and data capture systems in Spain have not been replicated (and are not supported) in other Member States. This unevenness in the implementation of the Regulation leads to inefficiencies, penalises better implementation and causes potential diversions of legitimate trade.

Increased data and know-how sharing can address other weaknesses of the IUU Regulation such as the inability of the imports system to deter the duplication of catch certificates during processing operations in 3rd countries.[2] Increased knowledge and sharing of processing methodologies and conversion data could help address this issue.

As no common IT platform exists with the capability to cross-check import volumes, sources, fishing arts, time of capture and composition, States are rendered powerless to flag suspected IUU imports in a timely fashion.

This problem became manifest earlier this year when the Spanish government decided to suspend the importation of Vietnamese swordfish over IUU concerns.[3] According to Madrid sources, an audit identified a volume of 502 metric tonnes (mt) of swordfish captured in 2012 by Vietnamese vessels (according to catch certificate data) being imported into Spain despite Vietnam having declared to the Western and Central Pacific Fisheries total capture volumes of only 372 mt for that time period. Vietnam exports swordfish to other European countries, but the capture declaration shortfall had not been identified in any other Member States.

Swordfish (xiphias gladius). Image Credit: fisherynation.com

Swordfish (xiphias gladius). Image Credit: fisherynation.com

If this is alarming, the potential discrepancy between the volumes of West & Central Pacific swordfish declared for 2012 and those actually captured is even more so.

A common software audit platform would enable European Fisheries authorities to identify IUU fishing importation trends as well as to ascertain species under-declaration volumes – such IUU trade-flows could then be used as solid, objective data upon which the Commission could identify third countries for potential inclusion in the EU non-cooperating third country list.

Perhaps this could even be integrated with the public EU alert system once it is operational, so that awareness of IUU fishing trade flows and vessel data and activity could be integrated, shared and uniformly acted upon.

Footnotes:

[1] To access the full MRAG report, click here: http://ec.europa.eu/fisheries/documentation/studies/iuu-regulation-application/doc/final-report_en.pdf

[2] This weakness was also highlighted in a 2013 report published in April by Sasama and FMP Consulting. To access, click here http://sasama.info/en/pdf/reports_17.pdf)

[3] http://www.undercurrentnews.com/2014/06/30/spain-seeks-eu-wide-suspension-of-vietnamese-swordfish-imports/