DEFINITION establish effective fisheries control structures, the IUU

DEFINITION

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The Food and Agriculture Organization of the United Nations (FAO) defines three categories of IUU fishing1:

First, there is the illegal fishing, which consists in fishing activities conducted by foreign vessels without permission in waters under the jurisdiction of another state, or which contravene its fisheries law and regulations in some other manner. For example, some IUU vessels operate in waters under the jurisdiction of West African states, but as these countries generally cannot afford to establish effective fisheries control structures, the IUU vessels are able, in many cases, to operate with impunity.

Next, there is the unreported fishing, which are those fishing activities that have not been reported, or have been misreported, by the vessels to the relevant national authority. As illustrated by a 2006 case in which several Spanish trawlers were inspected by the Norwegian Coast Guard and they were found to hold not only the reported catch of headed and gutted cod but also a total of 600 tonnes of cod fillets which had not been reported to the Norwegian authorities.

Finally, the FAO also defined the unregulated fishing, which is about the fishing activities in areas where there are no applicable management measures to regulate the catch. The term also applies to fishing for highly migratory species and certain species of shark, which is not regulated by a Regional Fisheries Management Organization (RFMO)2. And finally, the term applies as well to fishing activities in international waters in violation of regulations established by the relevant RFMO. For instance, 300 tones of fish, mostly sharks, including protected species such as the hammerhead, were found onboard when the Navy gained access to the Galapagos Reserve on August of this last year.

Proving it with numbers

In this perspective, it is clearly a difficult task to estimate precisely the total catch from these three types of pirate fishing. Although, researchers are engaged in the painstaking process of collating data from various countries’ fisheries control agencies, experts’ estimates, trade figures and the findings of independent research expeditions in order to arrive at an approximate figure for the total IUU catch, as this is a black market, estimates are bound to be unreliable. Some experts put the annual figure at around 11 million tonnes; others suggest that it may be as high as 26 million tonnes, which is equal to 14 or 33 per cent respectively of the world’s total legal catch of fish and other marine fauna in 2011.

Nevertheless, it is important to point out that these catches previously stated are additional to the world annual catch of fish and other marine fauna, currently around 78.9 million tonnes. Rough calculations, however, indicate that IUU fishing across the world’s oceans weighs in at around 11–26 million tonnes of fish each year or a price tag of US$10–23 billion3.

Based on the assumption that less fish is being caught than is in fact the case, experts overestimate the size of the stock and set the following year’s catch quotas too high, potentially entrenching and accelerating the overexploitation of the stock. Thus, one of the main reasons why IUU fishing is a particularly critical issue today is that many fish stocks have already been overexploited by legal fishing activities, being IUU fishing, therefore, an additional pressure to fish stocks.

 

OUTLINE OF THE PROBLEM

Why does IUU fishing happen?

In a perfect world where there is full and effective flag State control the incidence of IUU fishing would be greatly reduced. However, reality shows that it can often be practised with impunity. This is mainly the case in the territorial waters or exclusive economic zones of countries which cannot afford to set up costly and complex fisheries control structures such as those existing in Europe.

The root cause of it is a lack of effective flag State control. Under the United Nations Convention on the Law of the Sea, States bear responsibility for the vessels that fly their flag. Yet, so that they can benefit from it, fishermen carry out a practice called Flag of Convenience (FOC). It consists on IUU fishers operating their vessels under the flag of another state, such as Liberia or Panama, with less stringent regulations or ineffective control over the operations of its flagged vessels, rather than registering the ships in the shipping company’s home state.

In this context, in 2013 the issue of this flag state liability for IUU fishing problem was brought before the International Tribunal for the Law of the Sea in a request for an advisory opinion submitted by the Sub-Regional Fisheries Commission of West Africa4. They asked the Tribunal to advise on four questions: “What are the obligations of the flag State in cases where IUU fishing activities are conducted within the Exclusive Economic Zone of third party States?”, “To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?”, “Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?”, and “What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?”.

In its Advisory Opinion, the Tribunal adopted the “due diligence” approach. The Tribunal found that flag states are under only a general obligation to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities. This obligation may be satisfied by adhering to generally accepted international norms of fishing vessel regulation and complying with international treaties that indicate best practices. At the same time, the Tribunal found that in coastal waters the coastal state bears primary responsibility for preventing IUU fishing and not the flag state.

Inevitably, it is important to note that switching to a foreign register of ships, restrictive employment legislation and minimum wage provisions in the home country can also be eluded, ergo allowing the shipping companies to pay lower wages and social insurance contributions for their crews than if the vessel were registered for example in any European country. Furthermore, fisheries legislation in FOC States is often extremely lax and they rarely, if ever, inspect their vessels for illegal catches. It also leads to inadequate onboard working conditions, and therefore to the fishermen working for low wages on vessels whose standards of accommodation are warlike, and which rarely comply with the current safety standards applicable to merchant shipping under the International Convention for the Safety of Life at Sea, which contains exact details of equipment that must be available to ensure safety on board.

Nevertheless, there are other reasons why it is happening on such a large scale as illustrated by the fact that, from the fishermen’s perspective, IUU fishing is highly attractive as they pay no taxes or duties on these catches.

Where does IUU fishing happen?

The situation is especially difficult in developing countries. In a comprehensive analysis of IUU fishing worldwide, researchers conclude that IUU fishing is mainly practised in countries which exhibit typical symptoms of weak governance: large-scale corruption, ambivalent legislation, and a lack of will or capacity to enforce existing national legislation.

The coast of West Africa is particularly critical. Here, IUU fishing accounts for an estimated 40 per cent of fish caught, which is the highest level worldwide. This is a catastrophe for the region’s already severely overexploited fish stocks. Confident that as a rule, they have no reason to fear any checks by fisheries control agencies or prosecution, some IUU vessels even fish directly off the coast and in some cases even at a distance of just one kilometre from the shore.

A similar situation exists in parts of the Pacific. Indonesian experts report that it is extremely difficult to track the whereabouts of IUU vessels around the country’s islands and archipelagos. The volume of the illegal catch here is correspondingly high, amounting to 1.5 million tonnes annually. The Arafura Sea, which lies between Australia and Indonesia, is also very severely affected. After West Africa, the Western Central Pacific Ocean is the region with the highest rate of IUU fishing worldwide. In the Western Pacific, IUU fishing accounts for 34 per cent of the total catch. A similar situation exists in the Northwest Pacific Ocean, especially in the West Bering Sea. Here, IUU fishing is mainly practised by China and Russia and amounts to 33 per cent of the catch. Figures for the Southwest Atlantic are unreliable, but experts estimate that IUU fishing here amounts to 32 per cent5.

 

INTERNATIONAL FRAMEWORK

A framework of international instruments has been developing over the last decades and, together, include a powerful suite of tools which can be used to combat IUU fishing. Particularly, the range of possibilities is a mixture of soft law, as exemplified by the Code of Conduct for responsible Fisheries, and hard law, as illustrated by the United Nations Fish Stocks Agreement.

United Nations Instruments

The UN, throughout time, has developed two different documents that tackle the topic this papers discusses.

On the one hand, it exists the United Nations Convention on the Law of the Sea6, which was agreed in 1982 and entered into force in 1992, defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.

In particular, there are some provisions that matter to the current case. First, regarding their concerns about fisheries and conservation, Article 55 and 56, which talk about the exclusive economic zone, its scope is “beyond and adjacent to the territorial sea” and that entitles them to “exploit, conserve and manage the natural resources, whether living or non-living”.

Then, Article 61 that states that regarding to the exclusive economic zone previously mentioned and in terms of conservation, “taking into account the best scientific evidence available to it, the coastal State shall determine the allowable catch of the living resources”. However, in light of the following provision, Article 62, “the coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61″and “where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch”.

In this respect, the UNCLOS does not make any kind of reference to several important issues such as the ecosystem approach, the environmental impact or the sustainable use and conservation of marine living resources under national jurisdiction, among other. Hence, even though most legal instruments are built on the foundation established by it, there were more documents developed through out time.

On the other hand, there is the UN Fish Stocks Agreement7, passed in 1995, aims to ensure the long-term conservation and sustainable use of straddling and highly migratory fish stocks within the framework of UNCLOS. The Agreement also spells out the duties of flag States including those related to registration and records of vessels, authorisations, MCS and compliance and enforcement. Cooperation in international, regional and sub-regional enforcement is also addressed, along with boarding and inspection procedures and port State measures.

In this document, there are several articles important to highlight. As a first, there are the Article 2 and 5, which expose the long-term objective and the principle that rule the text respectively. The former declares that it is “to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks” and the latter lists diverse between which we can find “prevent or eliminate overfishing and excess fishing capacity” or “effective monitoring, control and surveillance”. Afterwards, another disposition worth pointing out is Article 6, about the mandatory application of the precautionary approach. Continuing, it should be mentioned Article 17 as well because it addresses the requirement of all States to cooperate in the conservation and management of the relevant straddling and highly migratory fish stocks, either they are members or not of an RMFO or any other arrangement, by not authorising their vessels to fish those stocks. Then, also important to refer Article 18 as it is about the duties of the Flag State. Among them there is important to denote the one that states that “a State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the Convention and this Agreement”. And finally, Articles 20 and 21 should be disclosed given the fact that they mention the international, regional and sub-regional cooperation in enforcement.

 

FAO Instruments

The FAO, even though it is a specialised agency dependent to the UN, has its own instruments. Some of them are binding and some are not. As for the binding group, they are:

Ø  Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas

Ø  Agreement on Port State Measures to Prevent, Deter and Eliminate, Illegal, Unreported and Unregulated Fishing

And as for the one non-binding we can encounter:

Ø  Code of Conduct for Responsible Fisheries

Ø  International Plan of Action to prevent, deter and eliminate Illegal, Unreported and Unregulated Fishing

Ø  Voluntary Guidelines for Flag State Performance

 

Focusing on the binding, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas8, agreed in 1993 but entered in force in 2003, it aims to prevent the “re- flagging” of vessels fishing on the high seas under the flags of States that are unable or unwilling to enforce international fisheries conservation and management measures. The maintenance of records of fishing vessels are covered extensively by the provisions of the Agreement. The important provisions in this document are, first, Article 3, about the Flag State responsibility, by stating the “obligation to take measure to ensure its vessels do not engage in activities that undermine the effectiveness of international conservation and management measures”. After it, Article 4 that declares the necessity of stablishing a record of the fishing vessels. Then, Article 6 about exchanging information between States. And finally, Article 5 and 7 about international cooperation and also collaboration with developing countries.

With respect to the other binding instrument, the Agreement on Port State Measures to Prevent, Deter and Eliminate, Illegal, Unreported and Unregulated Fishing9, passed in 2009, aims to prevent vessels engaged in IUU fishing from using ports and landing their catches, thereby reducing the incentive of such vessels to continue to operate and blocking fishery products derived from IUU fishing from reaching national and international markets. The Agreement also covers the role of flag States and RFMOs in the implementation of port State measures. In this case, only Articles 8 and 9 are important to mention. The former addresses the requirement of set up a minimum standard of information provided in advance to its ports before granting its entrance, and the latter asserts that the port State might deny the entrance to vessels whose provided information indicates that it has been engaged in IUU fishing

Regarding the non-binding framework, the Code of Conduct for Responsible Fisheries10, created in 1995, comprises principles and international standards of behaviour for responsible fishing practices and aquaculture development. It serves as a reference for national and international efforts, including for policies and institutional frameworks and instruments, to ensure sustainable exploitation of aquatic living resources in harmony with the environment. It also promotes, inter alia, responsible trade of fish and fishery products. It includes provisions on the duties of all States, flag States, port States and market States, and the role of RFMOs. It was endorsed by around 170 member states, and although the it is voluntary and non-binding, a number of countries, including Australia, Malaysia, Namibia, Norway and South Africa, have incorporated some of its provisions into national law. Predictably, IUU fishing has decreased in these regions. In this document, it is worth to highlight Articles 6.10 and 6.11, which remark that “States should  ensure compliance with and enforcement of conservation and management measures” and that they “should ensure that the activities of their vessels  do not undermine the effectiveness of conservation and management measures adopted at the national level”.

Another non-binding document is the International Plan of Action to prevent, deter and eliminate Illegal, Unreported and Unregulated Fishing11, created in 2001, which is a toolbox to combat IUU fishing, for use by all States, in general, flag States, coastal States, market States, port States and RFMOs. The IPOA-IUU calls upon all countries to develop and implement a consistent National Plan of Action and to review it periodically. Implementation of flag State responsibilities, as well as coastal State, port State, and market-related measures, are core elements of it. The important aspect here is that it covers the Flag States responsibilities by detailing measures or registration, record and getting authorization, also covers the Coastal State measures such as control, monitor and surveillance or cooperation in exchanging information, and the Port State measures as well among which they can be found tasks like requirements for entry into ports as proof of fishing authorisation.

Lastly, there is also the Voluntary Guideline for Flag State Performance12, agreed in 2014, which provides guidance to strengthen and monitor compliance by flag States with their international duties and obligations regarding the flagging and control of fishing vessels. It covers the relevant responsibilities of flag States on the basis of elements contained in international law, including binding and non-binding international fisheries instruments. Fisheries management, registration and records of vessels, authorizations, MCS and cooperation between flag States and coastal States are among the central components of the Guidelines. RFMOs should play a role in using the Guidelines to strengthen ag State performance. Here, its paragraph 8 states that “the flag State should ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States”.

 

European Union Instruments

The European Union has also created documents to tackle it. Those are the Council Regulation (EC) No 100513 on IUU fishing, adopted in 2008 and following one, the Council Regulation (EC) No 122414. Both established a Community control system for ensuring compliance with the rules of the common fisheries policy in 2009. These regulations describe in precise detail which vessels may land fish in the EU, which specific documents they must produce, and how the catch is to be controlled. The aim is to prevent IUU fishing EU-wide and close any loopholes.

Regional Agreements

As previously mentioned in the second footnote, Regional Fisheries Management Organizations are international organizations formed by countries with fishing interests in an area. In order to be able to work together towards the same goals, they create common agreements. As an example, the North-Atlantic Fishing Organization create every year a NAFO Conservation and Enforcement Measures document15. It incorporates all NAFO measures presently in force as adopted by the Commission in accordance with provisions of Articles VI and XIV of the Convention on Cooperation in the Northwest Atlantic Fisheries and they are revised every year by the Commission. These Measures shall, unless otherwise provided, apply to all fishing vessels used or intended for use for the purposes of commercial fishing activities conducted on fishery resources in the Regulatory Area as defined in Article 1 of the NAFO Convention.

Other

There are other instruments that also frame the scenario for the IUU fishing. Those are the World Heritage Convention from 1972, the Convention on the Conservation of Antarctic Marine Living Resources agreed in 1982 and the Convention on Biological Diversity from 1992.

1 Each is defined in paragraph 3 of the International Plan of Action on IUU Fishing (IPOA-IUU), adopted by the FAO in 2010.

2  As explained by the European Commision’s webpage, RMFOs are international organizations formed by countries with fishing interests in an area. Some of them manage all the fish stocks found in a specific area, while others focus on particular highly-migratory species, notably tuna, throughout vast geographical areas. The organizations are open both to countries in the region (“coastal states”) and countries with interests in the fisheries concerned. While some RFMOs have a purely advisory role, most have management powers to set catch and fishing effort limits, technical measures, and control obligations.

3 Report of the Food and Agriculture Organization of the United Nations on Illegal, Unreported and Unregulated Fishing in: http://www.fao.org/3/a-i6069e.pdf

4 November 2013, Case XXI of the International Tribunal for the Law of the Sea, A Request for an Advisory Opinion in: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_4_IUCN_orig_Eng.pdf

5 Numbers extracted from World Ocean Review’s 2013 “Illegal Fishing” in: http://worldoceanreview.com/en/wor-2/fisheries/illegal-fishing/

6 United Nations Convention on the Law of the Sea in: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

7 United Nations Agreement on Fish Stocks in: http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm

8 FAO Agreement on Compliance on the High Seas in: http://www.fao.org/fileadmin/user_upload/legal/docs/012t-e.pdf

9 FAO Agreement on Port State Measures in: http://www.fao.org/fileadmin/user_upload/legal/docs/037t-e.pdf

10 FAO Code of Conduct for Responsible Fisheries in: http://www.fao.org/3/a-v9878e.pdf

11FAO International Plan of Action (IPAO) in: http://www.fao.org/3/a-y1224e.pdf

12 FAO Voluntary Guidelines for Flag State Performance in: http://www.fao.org/3/a-i4577t.pdf

13Council Regulation (EC) No 1005, in:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:286:0001:0032:EN:PDF

14 Council Regulation (EC) No 1224, in:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:343:0001:0050:EN:PDF

15 List of NAFO CEM Documents for the last 13 years in: https://www.nafo.int/Fisheries/Conservation

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