When this coastal State has been pre-notified it is not doing enough to fight illegal fishing, is it possible for EU vessels to fish there sustainably, as they are required to under the SMEFF? The case of Italian vessels in Sierra Leone casts doubts about it.
On 6 February 2019, CFFA, together with PRCM, Bloom, Danish Living Seas and CAOPA, jointly lodged a complaint to the European Commission for alleged failure by Italian authorities to adopt measures to monitor their vessels in the waters of Sierra Leone and, where relevant, to sanction them if they were operating illegally in contravention of EU fisheries rules. After several exchanges with DG MARE, its legal services sent a pre-closure letter on 6 April 2021, stating that “no illegal activities of the operators can be proven in this instance”.
what about the precautionary approach?
According to local sources and VMS/AIS data, and as spelled out in the joint complaint, six Italian trawlers were delivered direct fishing authorisations to fish in Sierra Leone waters but did not comply with the provisions of the authorisations. In particular with the prohibition to fish in the inshore zone reserved for artisanal fishing, called the Inshore Exclusive Zone (IEZ).
The Commission has replied that “the lack of exact nautical maps for the delimitation of Sierra Leone IEZ creates difficulties in identifying the actual illegal activities from those being carried out outside the IEZ”. Therefore, according to the Italian authorities, after checking the VMS tracks of all Italian vessels that operated in Sierra Leone from 2018 to 2020, “no fishing activities were identified in the IEZ.”
Whereas the Commission seems to be satisfied that “all necessary measures” were taken to remedy the situation and intends to close this complaint, CFFA believes the EU could do more and better, and has said so in an official letter to DG MARE legal services sent on 15 April. EU flagged vessels should not even be under suspicion of illegal activities, they should be exemplary and not abuse the legal or operational weaknesses of the coastal States where they operate.
The Sierra Leone Fisheries and Aquaculture Bill of 2016 excluded industrial fishing from the Inshore Exclusive Zone (IEZ) to protect the activities of artisanal fisheries. Photo: Radwan Skeiky/Unsplash
1. The precautionary approach: Italian trawlers should stay away from the IEZ
The Monitoring, Control and Surveillance (MCS) capacities of Sierra Leone, as well as of other African coastal countries, are very limited, which makes it difficult for these countries to ensure proper surveillance and control of fishing activities in their waters, even though it is their responsibility under international law. Additionally, the lack of political will hinders the development of relevant legal frameworks, and their implementation.
In this case, according to the EC, Sierra Leone has particularly failed to draw nautical maps that would clearly delimitate the Inshore Exclusive Zone (IEZ), from which industrial fishing vessels are excluded, as per the Sierra Leone Fisheries and Aquaculture Bill (2016).
Still, these failures of Sierra Leone, and more generally of certain coastal States, should not be used as an excuse to cover potentially suspicious activities by EU fleets, including incursions in Sierra Leone’s IEZ. EU fleets should not be allowed to take advantage of the weak legal and operational frameworks of coastal States where they operate.
Furthermore, in the case of Sierra Leone, the coordinates of the IEZ are well known (see page 3 of this article and see our table below), and even if precise nautical maps do not exist, the precautionary approach that governs EU fisheries, including its external fisheries, suggests that EU vessels should stay well away from the zone given by the known IEZ coordinates.
2. The existing ‘IUU dialogue’ with Sierra Leone: Making the most of it
The EU has set itself up as a model in the fight against IUU fishing, in particular with the IUU regulation, which the EU uses to distribute yellow and red cards to non-complying coastal States. In fact, in 2016, it gave a yellow card to Sierra Leone, which has still not been lifted. In its justification, the Commission noted that: “in Sierra Leone legal texts governing fisheries are outdated and sanctions fail to deter illegal operators operating internationally under the flag of Sierra Leone, without the fisheries authorities' knowledge. In addition, the number of licensed vessels exceeds the available resources and authorities fail to monitor or control their waters”.
We can therefore suppose that the Commission has been well aware, since the time of the 2016 Sierra Leone Fisheries and Aquaculture Bill, of the importance of developing all necessary tools to ensure the authorities would be able to control the country’s waters. It is particularly important for Sierra Leone to efficiently guard the IEZ from trawlers incursions to protect artisanal fishing activities. The Commission should make the most of this existing ‘IUU dialogue’ between the EU and Sierra Leone and renew its efforts so that all tools are set in place to ensure the IEZ is duly protected from trawler incursions.
The Commission should support countries such as Sierra Leone by building their MCS capacities through, for example, the INTPA-EFCA partnership under PESCAO. Specifically for Sierra Leone, the Commission support the delimitation of its IEZ and in drawing nautical maps accordingly, and make sure the country has the means to protect the IEZ from trawlers incursions.
EU regulation stipulates a list of criteria, including sustainability, for operators to be allowed to engage in fishing activities in third countries. Photo: Paul Einerhand/Unsplash.
3. SMEFF sustainability criteria: Should EU vessels be operating in an IUU yellow carded country?
The EU should be fully coherent: It cannot tell deficient coastal States what they have to do to be in line with IUU policy requirements, and on the other hand let its fleets abuse the lack of proper MCS measures in the waters of these same states.
Taking into account the current political commitments of the EU on International Ocean Governance, and its willingness to be a champion for sustainability, the behaviour of EU flagged vessels, should be exemplary, and not abuse the legal and/or operational weaknesses of the coastal States where they operate. The EU’s credibility and legitimacy in the fight against IUU fishing will only be more effective and coastal States more willing to cooperate.
In line with the SMEFF regulation (see art. 5), EU operators should not engage in fishing activities where sustainability criteria are not met. There are severe doubts that, today, the situation of Sierra Leone, —a country yellow carded for not being able to control its waters, licensing too many vessels to access fragile, sometimes overexploited, resources— allows these sustainability criteria to be met by EU vessels such as these Italian coastal trawlers.
This raises the general question of EU flagged vessels fishing in coastal countries that have been yellow carded because they can’t police their waters – something which is allowed under the IUU regulation. Is that compatible with the obligation put on the EU vessels to show their activities in the waters of that country are sustainable? The case of Sierra leone raises doubts about that.
4. ‘Overriding public interest’: accessing the audit on the EU external fleet
These six Italian trawlers are not the only EU flagged vessels that have been accused of carrying suspicious activities. For example, recently, a couple of Latvian vessels fishing under the EU-Mauritania fishing agreement protocol, the KAPITAN MORGUN and the FISHING SUCCESS allegedly did not respect the fishing zones established by the provisions of the SFPA, coming to fish very close to the coast, which is illegal. According to a European scientist who has been following their activities in West Africa for years, these Latvian vessels systematically refuse to take scientific observers on board, which could have made it easier for these vessels to make illegal incursions into the coastal zone.
Despite the Commission's efforts, shortcomings remain in the control of European fleets outside EU waters, even though Member States have an obligation to control the activities of their fishing vessels inside and outside EU waters (Preamble §17, 1224/2009). However, Member States do not always communicate the information and fleets do not always carry out activities in compliance with the regulations (SFPA, SMEFF) and sanctions are too often absent...
The Commission has carried out an audit of the capacities of the Member States to monitor their external fleets. Since this news was out, several Civil Society organisations in different fora have been requesting this audit to be made public, which has always been denied because “investigation following this audit is still ongoing”.
CFFA reiterates the importance of accessing this audit on the external fleet since, clearly, in line with the transparency and role model objectives of the EU, “there is an overriding public interest in disclosure.” (see art. 4§2 of Regulation No 1049/2001)
The chronicle of the exchanges about Italian vessels activities in Sierra Leone
Here is a recap of CFFA’s exchanges with the Commission (click on the dates to open and download the communications):
Italian vessel engaged in IUU in Sierra Leone
A joint surveillance mission by Greenpeace and Sierra Leone fisheries authorities found an Italian vessel engaged in IUU (shark finning).
Six Italian trawlers fail to comply with provisions of SL authorizations
Six Italian trawlers were delivered direct fishing authorizations but, according to local sources (participatory surveillance) and VMS/AIS data, these did not comply with the provisions of the authorisations. Namely: 1) The prohibition to fish in the inshore zone reserved for artisanal fishing; 2) The need to request permission for transhipments at sea and 3) The prohibition to catch octopus and cuttlefish in zones where they are coming to spawn.
CFFA & other organisations file a complaint to the EC
CFFA, CAOPA, PRCM, Danish Living Seas and Bloom file a joint complaint to the European commission for “Failure of Italian competent authorities to adopt measures to monitor their vessels operating in the waters of Sierra Leone and, where relevant, to sanction them if they were operating illegally, in contravention of EU fisheries rules”.
Informal meeting with DG MARE
Meeting between CFFA and DG MARE where additional information was provided.
DG MARE requests additional evidence
Letter from DG MARE asking us to provide the Commission with additional clarifications and supporting evidence. We considered that we had already given enough elements about the infringements of the Italian vessels concerned so that the Commission could inquire about the activity of the Italian vessels in Sierra Leone waters.
CFFA sends a letter reminding of EC obligations
CFFA sent a letter noting that it is the duty of the Commission, as Guardian of the Treaty, to carry out the relevant inquiries and reminded that, according to ITLOS, case n° 21, the obligations of the flag States become those of the international organisation, which may be held liable for any breach of its obligations.
DG MARE: The complaint is integrated in a pilot case
Letter from DG MARE saying that our complaint had been integrated in an EU Pilot case launched on 29 November in the context of an audit carried out by DG MARE.
DG MARE: “Not in a position to arrive at a decision”
Short letter from DG MARE saying only that the Commission was not in a position to come to a decision. Now, end of June 2020, almost again 5 months later, we have not received anything new from the Commission.
CFFA writes to Commissioner Sinkevičius: “The Commission dragging its feet”
CFFA sent a letter to the Commissioner for Environment, Oceans and Fisheries complaining that the Commission is dragging its feet: “There are no grounds on which the Commission should delay any action that it must take, as Guardian of the Treaty, against Italy which fails to fulfil its obligations as an EU Member State” and stating that if the Commission does not inform CFFA “of any concrete follow-up” to the complaint within one month”, CFFA “is ready to refer the case to the European Ombudsman”.
DG MARE: “Commission cannot coerce coastal states to apply their national laws”
The Acting Director for DG MARE responded that “full implementation and enforcement of the rules is one of the priorities of our Commissioner’s mandate” and that her services were “following closely the investigations being made by Italy as the flag state of the vessels indicated”. However, further to that, “it is in the interest of local fisher(wo)men who feel aggravated to bring the matter to the attention of their national authorities as managers of the fish stocks occurring in their EEZ. In this respect, it is highlighted that the fishing licences are issued by Sierra Leone as the coastal state and it is within its power to withdraw or deny fishing licences and to take enforcement measures where it deems that its national laws have been breached. In this context, whilst the Commission should take up the matter with any Member State, as we did, it cannot coerce coastal states to apply their national laws.”
Informal communication with DG MARE: “Investigations are confidential”
CFFA contacted informally DG MARE for an update on the EU Pilot case. The response was that investigations were still ongoing and DG MARE clarified that a Pilot case is meant to resolve an infringement of EU law without formally opening a procedure. This means that the Commission guarantees the confidentiality of investigations “that could lead to an infringement procedure”.
CFFA requests access to the external fleet audit: “if necessary, resort to a formal access to information request”
CFFA wrote officially to DG MARE legal services to know “if the investigation has been closed” as “the delays are almost (or already?) expired. It is of great importance to know the deadline of the procedure, and as a matter of fact, the outcome, knowing that Italy has the highest number of Pilot cases in course at the moment (18) in various domains and it seems that it often exceeds the average response time (settled at 70 days).” CFFA insisted that the audit "on the external fleet is “essential for the understanding of EU fishing activities outside EU waters, and would be of great interest for our partners and the public in general” and insisted that “if necessary, we will resort to a formal access to information request.”
DG MARE: “All issues should be concluded before the end of January 2021”
DG MARE legal services informed that they had received all necessary information from Italy and that they “should be able to conclude on all issues covered by the EU Pilot case that relate to your complaint before the end of January 2021.” However, access to the audit of the external fleet could not be granted because “the investigation following this audit is still ongoing” and recalled that “the scope of the EU Pilot case EUP(2019)9562 is larger than the issues included in your complaint.”
CFFA asks for an update via an email to DG MARE legal services
CFFA wrote an email to legal services of DG MARE as according to the delays expected in a Pilot case, “the process should be over by now” and insisted on the importance on knowing the results of the case “in order to inform our partners in West Africa and to request access to the audit on the external fleet”. CFFA further stressed that the audit is “essential for the understanding of EU fishing activities outside EU waters, and would be of great interest for our partners and NGOs in general. The publication of this audit will be part of the EU great efforts towards better transparency of its fishing activities outside its waters.”
DG MARE sends a pre-closure letter: Commission concludes that “no illegal activities of the operators can be proven”
Banner photo: Unsplash @fer_nando
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