The need to reinforce RFMO regulation for effective domestic enforcement: the case of Operation Sparrow II

By Mercedes Rosello (the author thanks Eva van der Marel and Richard Caddell for their feedback on an earlier draft of this blog piece. Any errors remain the author’s alone).

 

Abstract

This blog post discusses the extent to which the effectiveness of administrative enforcement decisions may depend on the clarity, objectivity, and functionality of the international legal and policy frameworks within which they are situated. In particular, it is argued that ambiguities in the rules and processes of regional fishery management organisations (RFMOs), may thwart attempts at enforcement. The case study, which is focused on the subject of stateless vessels, illustrates the need to ensure that RFMO rules cover known risk scenarios and are objective, and that processes are sufficiently timely to be fit for purpose, as is appropriate to organisations that perform a public regulatory function.

 

Introduction to Operations Sparrow I and II

The community of researchers, practitioners, and volunteers who work to achieve the eradication of the broad range of undesirable fishing activities known as illegal, unreported and unregulated (IUU) fishing will no doubt recall ‘Operation Sparrow’. This was the eye-catching name given to a series of high-profile initiatives by the Spanish General Secretariat for Fisheries, the executive agency that deals with fisheries regulation in Spain, under the auspices of the Ministry for Agriculture and Environment. Operation Sparrow unfolded in two tranches, each supported by enormous financial, human and technical effort involving the participation of various administrative and policing bodies, as well as international cooperation by third countries, and by Interpol.

The IUU Fishing Blog offered a commentary on the nature, outcome, and implications of Operation Sparrow parts I and II in March 2016 [click here to see blog post]. In August of the same year, the Spanish Ministry published an official press release covering the progress made in the context of these operations [click here to see original post in Spanish].[1] For ease of reference, it is worth recalling that Sparrow I and II involved inspections and dawn raids on the premises of Spanish companies that operated several vessels suspected of IUU fishing activities, and culminated in the imposition of administrative sanctions of unprecedented severity. These events publicly marked a change of direction in policy by the Spanish government that the author, like many others in this community, welcomed. As is the case with any decision made by a public authority, the administrative decisions that brought Operation Sparrow to its final conclusion are susceptible to judicial review, and two appeals have been brought before the Spanish courts in this respect.

The appeals concerned sanctions imposed as part of ‘Operacion Banderas’, which was a discrete operation carried out in the framework of Sparrow II. According to the press releases made by the Ministry, Banderas involved the seizure in the port of Vigo of two vessels, Antony and Northern Warrior, and the imposition of a bond, as a result of suspected statelessness and fraud in the provision of information to gain access to the port.

The 2017 appeals 

Port of Vigo. Credit: Spanish Ministry of Agriculture and Fisheries

Two appeals were lodged in 2017 before the section of the Spanish judiciary entrusted with overseeing decisions of the public administration, which forms part of a large composite court, the ‘Audiencia Nacional’.[2] The court recorded the lodged appeals with numbers 81/2017 and 82/2017 respectively.[3] Appeal 81/2017 concerns the operations of the Northern Warrior prior to its fateful arrival in Vigo in February 2016. Appeal 82/2017 concerns another vessel that, though unidentified in the judicial decision, may be reasonably assumed to be the Antony, given the vessel names released in the 2016 Ministry press release mentioned above.

The facts underpinning the Ministry’s November 2016 resolution and sanctions against the respective appellants, Capensis Trade SL, and World Oceans Fishing SL, are recalled in the text of the judicial decisions. From these, it may be inferred that the sanctions that had been appealed essentially refer to the following activities:

  1. At least some of the information given to the port authorities in Vigo to ensure that the vessels gained entry, and/or documentary information found on board at least one of the vessels, had been found to be false by the inspectors acting on behalf of the Secretariat. Each appellant was contesting fines of 200,000 Euros each in respect of these infractions.
  2. In the case of appeal 82/2017 brought by World Oceans Fishing SL, the challenge concerned a transhipment with a vessel that featured in a number of IUU lists. The appellant had been fined with 200,000 Euros by the Ministry in respect of this.
  3. The operation of the vessels after they lost the nationality links conferred by their respective flags. In the case of the Northern Warrior, it lost its link to its flag State, Curaçao, in March 2015, when the vessel’s operators requested its removal from the register due to cost considerations. From that moment on, the vessel had continued to be managed by the appellants, having engaged in at least one fishing venture in waters under the jurisdiction of a West African state, and apparently authorised by that state despite the lack of clarity as to the vessel’s nationality status. In the case of the other vessel, the decision indicates that its right to fly the Indonesian flag had been extinguished a few days before it requested entry to the port of Vigo. Each appellant was contesting fines of 450,000 Euros in respect of alleged IUU operations conducted whilst in a situation of statelessness.

The appeals for the events outlined in a) and b) above failed in both cases, with the Audiencia Nacional finding the fines had been appropriately imposed in accordance with applicable legislation concerning IUU fishing control. However, the appeals outlined in paragraph c) were successful. The reasons for the failure of the sanctions and their implications are discussed in the following paragraphs.

Fishing vessel in waters near Vigo. Credit: http://www.turismodevigo.org .

Rationale for the success of the appeals

The inspecting authorities had found the vessels, which were not flying any flag when they entered the port of Vigo, had infringed Article 3.1(l) of Council Regulation 1005/2008, whereby:

‘3.1- A fishing vessel shall be presumed to be engaged in IUU fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has: (…)

  1. l) no nationality and is therefore a stateless vessel, in accordance with international law.’

Subsequently, the Ministry had relied as a justification for the sanction on certain provisions found in Article 101 of Spanish Law 3/2001, setting out serious infractions in matters of IUU fishing. Subparagraph 1 of the article includes activities concerning the operation, management and ownership of vessels without nationality, or vessels flagged to third countries identified by RFMOs or other international organisations as having participated in IUU fishing operations.[4] There is some interpretive ambiguity in the text of this provision that, arguably, permits at least three interpretations.

Firstly, the broadest understanding of the provision suggests that the presumption extends to two distinct types of activity: on the one hand, vessels being operated, managed, and owned whilst not having any nationality and, on the other, vessels flagged to third countries identified by RFMOs or other similar organisations. This would imply that the operation, management or ownership of a fishing vessel without nationality is a serious infraction, irrespective of the existence of an identification made by an RFMO or similar organisation.

Secondly, it may be argued that the above is too broad to meet the requirements of Article 3.1 of the IUU Regulation establishing a presumption of IUU fishing: the Regulation requires that it be shown that the presence of the stateless vessel in the regulated area is contrary to a conservation and management measure of the RFMO, or international organisation in question. It should be pointed out that, as Article 101.1 is silent on this point, this interpretation requires recourse to the text of the EU IUU Regulation, which is of course of direct application to all member states of the EU. It cannot be inferred from the text of the decisions that a relevant RFMO conservation and management measure was identified as having been breached.

Thirdly, a narrower interpretation of Article 101 is also possible, and this was the one adopted by the court: both the operation, management, or ownership of a stateless vessel, and that of a third country vessel, must have been identified by the relevant RFMO or similar organisation as an IUU fishing event. This the legally safer option for a domestic authority, because it avoids the risk of jurisdictional overreach, and neutralises any possible conflict between a domestic decision that a breach occurred, and a subsequent decision by an RFMO. Only an objective RFMO rule that only admits a binary choice on the facts would be sufficiently safe to avoid this undesirable potential outcome. For example, a rule determining that the entry of a stateless fishing vessel in an RFMO regulated area will automatically result in listing would meet those characteristics, but one entailing further deliberation to decide whether listing should occur would not.

Map of RFMOs. Credit: Pew Environmental Trusts

It can be inferred from the text of the two appeal decisions that, as the investigations progressed, the Spanish authorities requested the inclusion of the two vessels in the IUU vessel lists of the Commission for the Conservation of Antarctic Marine Resources (CCAMLR), a fact that can be verified in the Report of the Commission published by CCAMLR in October 2016 [accessible here]. This confirms that, at the time of the seizure, neither of the vessels featured in the IUU fishing list of the organisation. This fact caused the court to invalidate the specific penalties imposed by the domestic authority mentioned in paragraph c) above.

 

Relevance of RFMO rules and processes

It has been mentioned that it cannot be inferred from the text of the decisions that an RFMO conservation and management measure had been identified as having been breached. It should be pointed out that, when Operation Banderas took place there appears to have been a lack of clarity as to whether the CCAMLR rules considered the presence of a stateless fishing vessel in the regulated area to be a breach of conservation and management rules, or be an action that merited listing. Practice in the organisation appears to have been erratic in this respect at the time.

Certain inferences can be made from existing rules, though these are far from the ideal level of objectivity that should exist in order to ensure safe domestic decision-making. For example, conservation measure 10-02 issued by CCAMLR in 2016 [accessible here] requires licensing of vessels by contracting parties in order to carry out operations in the regulated area. Clearly, this implies the automatic exclusion of stateless fishing vessels with regard to fishing operations in regulated high seas areas at least.[5] Yet, it is unclear whether ‘operations’ necessarily implies that evidence of fishing activities is required prior to listing. This uncertainty is exacerbated by the fact that there was a lack of agreement at CCAMLR on the procedures for inter-sessional inclusion of stateless fishing vessels in the IUU list of the organisation. The Commission has recently undertaken to address voids on the treatment of stateless vessels via the drafting of a new conservation and management measure at the request of the EU, although the last Commission report does not disclose the precise details.[6]

CCAMLR Regulated Area. Credit: COLTO

In the view of the author, a requirement to prove unauthorised fishing before inclusion in the list is effectively placing the stateless fishing vessel on the same footing as those flying a flag. Indeed, vessels flagged to RFMO members cannot fish in a regulated area unless authorised by their flag State, in accordance with the above-mentioned CCAMLR rule. Procedural parity between vessels flagged to a member and stateless vessels would be of questionably equity, conferring an advantage to a vessel with operators that have relinquished the financial and regulatory burdens observed by duly registered and flagged competitors. Additionally, those operating the stateless fishing vessel may be less likely to face disciplinary and/or enforcement action, due to the lack of connection with the legislation of a flag State.

No State conferring a hypothetical right to access fishing resources in the high seas via its domestic law to nationals operating an unregistered vessel could do so whilst being a party to the Law of the Sea Convention, and/or any of the global agreements relevant to the regulation of highly migratory species and compliance in the high seas, without questions of international responsibility being raised. Effected by a non-party, such conferral would undermine the objectives of such agreements, and granting procedural parity to such vessels by an RFMO would weaken incentives to participation. Arguably, questions of responsibility might also be raised in respect of non-parties, considering the general nature of conservation and cooperation duties. The right to fish on the high seas is, under Article 87 of the Law of the Sea Convention, to be conducted within the parameters of those duties, and has been defined as being conditional to those obligations being met.[7]

In view of these considerations, it might be advisable for automatic RFMO listing of stateless vessels present in the regulated area to be made pre-emptively, unless the persons responsible for the operation of the vessel can prove the absence of fishing, transhipment, or other fishery support activity via reliable vessel tracking data as a minimum, or if their presence in the regulated area responds to a situation of force majeure.

 

Implications

RFMO conservation and management rules are essential to define what is or isn’t considered an IUU fishing event in regulated areas of the high seas. The partial success of the appeals highlights the importance of ensuring clarity and objectivity in RFMO rules, and that risks are comprehensively covered. Similarly, the clarity and timeliness of listing processes is also critical for the effectiveness of domestic regulation. In the case of confirmed statelessness of a fishing vessel, its operation in the regulated area should be classified as an infraction, to be followed by inclusion in the IUU list of the organisation.

An RFMO listing can be a lengthy process, and this can impair domestic procedures by introducing undesirable delays or even rendering an enforcement action toothless. Hence, recognising the importance of inter-sessional listing is essential. Lapsing decisions to the time when annual meetings take place is also likely to delay and impair the effectiveness of cross-listing activity by other RFMOs or international organisations like the EU.

The case study analysed here shows how the effectiveness of a decision by a domestic authority may depend on safeguards related to legal certainty, which may be linked to the objectivity and clarity of RFMO rules and processes on which the domestic decision is based. This raises the stakes for RFMOs in their role as regulators.

Whilst the status of statelessness and corresponding listing action may now have been addressed by some commissions, including CCAMLR, the issue is of concern to all RFMOs. Given their increasingly prominent place as public regulators of fishing activities in areas beyond national jurisdiction, the credibility and effectiveness of RFMOs implies that their decision-making procedures and resulting regulatory output must be objective and fit for purpose. Decisions on vessel listing are important, as IUU lists have become an essential IUU fishing control tool, and it is critical that rules and processes that are appropriate for organisations performing a public administrative function are adopted and maintained.

Finally, it is worth noting that the Spanish court decisions upholding the administrative sanctions applied by the Ministry as a consequence of the fraudulent information presented to port authorities, highlight the vital role of ports in ensuring that vessels are operated in accordance with all applicable legal requirements. Despite the invalidation by the courts of the measures concerning statelessness, the surviving sanctions underscore the emergence of port authorities as significant actors in the fight to deter and address illegality in fisheries.

Mercedes Rosello, London, 2019.

[1] These proceedings are different in nature to a separate case involving allegations of criminal activities against a number of notorious Spanish individuals and their high seas fisheries operations [click here to see post and linked presentation paper].

[2] The Spanish press has recently reported on the conclusion of one of these appeals [click here to see press article].

[3] The two judicial decisions resolving these appeals are susceptible to further appeal, and it is unclear at the time of writing whether such action has been taken.

[4] Emphasis added.

[5] A coastal State may authorise fishing activities in waters under its jurisdiction, even for regulated species, as was alleged to have occurred in this case. Whilst this may in some cases compromise the international obligations of that State, it would in principle enable the vessel to operate legally, unless it had infringed the domestic laws of that State in obtaining its authorisation, or in other aspects of the conduct of operations.

[6] See CCAMLR, ‘Report of the Thirty-Seventh Meeting of the Commission’ (2018) paras 3.23, 3.24, 49, 50, and 51.

[7] See T Henriksen, ‘Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations’ (2009) 40(1) Ocean Development & International Law 80-96, 85 and 86.

Brexit and IUU Fishing

Introduction 

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

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

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

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

The IUU Regulation and the UK

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

UK Withdrawal from the EU and IUU Fishing Control

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

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

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

Responses to Confirmed IUU Fishing Activity 

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

The IUU Regulation and Shared Stock Management

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

Conclusion

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

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

Mercedes Rosello, February 2017.

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

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

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

[4] Article 31.3 of the IUU Regulation.

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

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

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

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

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

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

The US, the EU, and IUU

On 17th June 2014, the White House released a Presidential Memorandum in which some initial measures to combat illegal and unregulated fishing were established. A task force which included representatives from Environment, Commerce, Department of State, Interior, Justice and Defence was integrated with the aim of advising the White House on the design of a comprehensive framework to counteract IUU fishing.

The task force has now passed its recommendations, and opinions are being sought on their implementation from a wide range of stakeholders.

Imports from Sri Lanka have been banned by the EU (photo credit: The Grocer)

Imports from Sri Lanka have been banned by the EU (photo credit: The Grocer)

Amongst other things, the US is seeking to develop in cooperation with RFMOs and other governments catch traceability systems that are compatible with those already established regionally.

The US should do well to look across the Atlantic to the EU’s catch certification system implemented under Council Regulation 1005/2008 (The IUU Regulation). The certification system is already widely used by a large number of exporting nations and has been designed with RFMO and WTO compatibility in mind.

Amongst its strengths is the scheme’s ability to engage exporting flag States in the catch certification process, hence affording a high degree of definition to the general international obligation to cooperate in an objective and transparent manner. Further, by endorsing the catch certificate at point of capture, exporting flag States are, in a single act, publicly assuming their international responsibilities of vessel control, effectively declaring to any purchaser the legality of the catch.

The consequences of illegality being subsequently demonstrated have already been shown, as a number of exporting flag States have been yellow-carded since the scheme came to life in January 2010. Others who had systematically endorsed the legality of IUU products have already seen the large, lucrative European markets close their doors to them, in essence being made to assume to cost of illegal fishing by their fleets. Belize, Guinea, Cambodia and Sri Lanka have all been at the receiving end of this treatment, with Belize being so far the only one re-admitted to trading upon making legislative improvements.

In fact, the toothmarks of the IUU Regulation are already visible: The Republic of Korea is tightening controls over its mighty distant water fleet, and Ghana and Philippines have publicly highlighted multiple initiatives to combat IUU fishing since they were notified of a yellow card by the Commission. Even Thailand, who has not been formally warned yet, is reportedly hurrying to improve fisheries controls. Fiji, Panama, Togo and Vanuatu have also addressed structural regulatory deficiencies in vessel control, whilst other countries still under warning (Curacao, St Vincent & Grenadines, Tuvalu, St Kitts & Nevis, and Solomon Islands) are said to be working through their respective regimes.

With the US now looking outward to implement its own trade and traceability system, there is a unique opportunity to strengthen and unify market mechanisms to filter out illegal produce and reward those who are able to demonstrate the legality of their catch.

There is also a unique chance to contributing to strengthen the capability and resilience of the EU catch certificate by making a push towards a joint move from paper to electronic certification – something that would make the traceability element of the certification more reliable and the system in general less susceptible to tampering.

Lastly, electronic schemes capable of coordination should also be capable of integrating two fundamental elements for effectiveness: the ability to trace imports by species, quantity, capture location and nationality, and the ability to marry import data with exporting vessel identity and its VMS readings.

Because, ultimately, only knowing and sharing the truth about capture data will arm regulators with the right tools to defeat IUU fishing.

Sources:

http://ec.europa.eu/fisheries/cfp/illegal_fishing/info/index_en.htm

http://www.state.gov/r/pa/prs/ps/2014/12/235173.htm

http://www.undercurrentnews.com/2015/01/26/thailand-reportedly-scrambles-to-fight-iuu-as-eu-yellow-card-looms/

Catch Certificates and Swordfish Imports into the EU

BY GUEST BLOGGER ELIZABETH P. DAY

Earlier this year the Spanish fishing authority, with input from CEPESCA, uncovered suspected illegal, unregulated, unreported (IUU) swordfish entering the Spanish market from Indonesia and Vietnam. Spain has since suspended swordfish imports from Vietnam and it is unclear whether similar measures will be taken in respect of Indonesia. Alarm bells were raised after the Spanish association of longliners called on the authorities to review relevant catch certificates after a plunge in the price of swordfish entering the Spanish market.

Swordfish (Xiphias Gladius). Photo Credit: world fishing.net

Swordfish (Xiphias Gladius). Photo Credit: world fishing.net

Whilst catch certificates have contributed to detecting fraud, these recent cases of suspected IUU imports also spotlight the weaknesses needing to be addressed to increase the efficiency of the scheme. The EU IUU regulation is currently the most sophisticated and holistic policy tool to tackle IUU imports internationally. IUU fishing is of course considered a serious threat to the sustainability of fisheries and food security. Within this, Catch Certificates (CC’s) are one of the core schemes intended to eliminate illegally caught fish entering EU supply chains. All vessels entering ports must provide a validated catch certificate which “should contain information demonstrating the legality of the products concerned”, demonstrating inter alia flag state compliance with international law on conservation and fisheries management. (EU IUU L 286/1)

In the case at hand, the inspection of catch certificates allowed the identification of a spectacular rise of 1870% of imports in provenance of Indonesia which went from exporting 248 tonnes of swordfish to the EU in 2009 to 4,908 registered tonnes in 2013. In the case of Vietnam, only 372 metric tons of the species were declared at the Spanish border in 2012, yet upon further investigation, it was revealed that the total figure was actually 502 metric tons.

Following the discovery, the minister of Agriculture, Food, and the Environment, Carlos Dominguez, stated that Spain “will not allow the imports of products whose traceability to known sources is not guaranteed.” (June 6. Europa Press) However, this remains optimistic in view of some fundamental weaknesses within the CC scheme.

First and foremost CC’s should be directly linked to actual catch. At present, CC’s are only issued for consignments destined for export. There are no requirements to register processing yields, facilitating the introduction of IUU into consignments to make up for the weight lost through processing.

Additionally CC’s are still in the form of paper documents which are easily falsified and especially problematic for tracking consignments splits. When a consignment is split for different destinations, photocopies of the original document are considered valid proof, opening various opportunities for fake documentation and consignment tampering. Consequently, containers transporting several species, can declare more or less of a species, particularly if a species such as swordfish fetches lucrative gains on the market.

To avoid falsification through photocopies, splits should be recorded on the original CC to show the date of splits, the quantities, and the receiver. Even better, the implementation of electronic traceability systems should be set up which would allow customs officials to immediately trace the catch. Furthermore, there should be a stronger focus on the inspection of highly valued species coming into the EU knowing that these are more subject to IUU.

Since the EU is keen to be seen as a torchbearer in the fight against IUU, increasing the efficiency of CC’s would be a good starting point for deterring illegal fishing. Yet as things stand, the likelihood of swordfish having entered other European ports illegally is extremely high. There is an urgent need for key aspects of the scheme to be re-examined and the data recording and cross-referencing elements of the catch certificates to be tightened and strengthened.

 

Sources

http://www.cepesca.es/las-asociaciones-de-palangre-de-superficie-de-cepesca-analizan-con-carlos-dominguez-propuestas-de-actuacion-para-mejorar-la-rentabilidad-de-esta-flota/

http://www.europapress.es/galicia/pesca-00247/noticia-pesca-espana-suspende-importaciones-pez-espada-vietnam-exceder-capturas-declaradas-20140606150711.html

http://www.farodevigo.es/mar/2014/05/26/palangre-alerta-subida-1879-entrada/1030530.html

EU IUU Council Regulation (EC) No 1005/2008

Institute for European Environmental Policy,  An independent review of the EU illegal, unreported and unregulated regulations,  (2013)

Sasama Consulting, Traceability, legal provenance & the EU IUU  Regulation, Russian white fish and salmon imported into the EU from Russia via China, (2013)

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/