The International Fight Against IUU fishing: Moving from criminal to social justice?

To mark the first International day for the fight against IUU fishing, CFFA's brief paper looks critically at the concept of IUU fishing and the policy ideas on how best to fight it. We argue that popular images of IUU fishing are misleading and fail to reflect the nature of the most serious  threats to coastal communities. A key aspect lies with the corrupt relationships between governments, political elites and businesses exploiting marine and coastal resources. Because of this, we argue that relying on 'criminal justice' as a solution is insufficient for coastal communities and small-scale fishers. 

You can download the paper by clicking here.

The FiTI Awakens

On 27th April 2017, the Fisheries Transparency Initiative (FiTI) was officially launched in Bali. It was the result of two years of consultations, led by an international advisory group, composed of senior government officials, representatives from both large scale and small-scale fisheries, international organisations, including the World Bank, the African Bank for Development, as well as leading fisheries NGOs. The key outcome of the launch was the ‘FiTI Standard’ that sets out how the FiTI works and what information will need to be made available by implementing countries. 

At the time of the launch, at least four countries are committed to implementing the FiTI: Mauritania, the Seychelles, Indonesia and The Republic of Guinea. Governments of several other countries have also indicated an interest. The International Board of the FiTi includes people working in governments from the four implementing countries as well as Sweden, representation from international NGOs (Greenpeace, Bread for the World, Oceana, WWF). Industry representatives on the FiTI International Board have been harder to find, and so far there is only one commitment from the industrial sector, that of the Russian fishing fleet. However, what is positive is that half of the seats available for industry representatives will be reserved for the small-scale sector, and CAOPA are now confirmed as being part of the FiTI governing board, as is a representative from Traditional Fisherfolk Union of Indonesia. 

Development of the FiTI Standard

That the FiTI has got this far demonstrates widespread agreement that lack of transparency has been a problem in fisheries. This has been a key point for advocacy by many NGOs working on fisheries reforms, as well as a long standing issue raised by small-scale fishing communities. Although there has been disagreement on how far transparency should go (and what constitutes commercially sensitive information), intergovernmental organisations, such as the European Commission, as well as representatives of the industrial fisheries sector are also beginning to come out in support. 

At the outset the FiTI was focused on improving transparency on who has a right to fish, what is paid for that right and what is caught. However, this was considered too narrow, and a large part of the work by the international advisory group was to re-think what type of information the FiTI should include and why. As a result of this process the FiTI Standard now includes 12 reporting elements. These are thematic areas on which countries are requested to publish information. The 12 requirements are: 

1. The establishment of a public registry of national fisheries laws, regulations and official policy documents.

2. The publication of a summary of laws and decrees on fisheries tenure arrangements.

3. The disclosure of all foreign fishing access agreements, as well as related studies on the environmental, social and economic impacts of these agreements. 

4. The publication of national reports on the state of fish stocks.

5. The publication of an up-to-date online registry of authorised large-scale vessels, as well as information on their payments and recorded catches (aggregated for each flag state) and studies on social, economic and environmental impacts. 

6. The publication of information on the small-scale sector, including the numbers of fishers, their catches and financial transfers to the state and any studies on the social and economic impacts of this sector 

7. The publication of information on the post-harvest sector and fish trade.

8. The publication of information on law enforcement efforts, including a description of efforts to ensure compliance by fishers and a record of offences and protections in the sector.

9. The publication of information on labour standards in the fisheries sector and efforts to enforce these. 

10. Disclosure of information on government transfers and fisheries subsidies.

11. The publication of information on official development assistance regarding public sector projects related to fisheries and marine conservation.

12. Information on the country’s status regarding beneficial ownership transparency.

At the outset it was envisaged that implementing the FiTI would involve the production of a comprehensive national report with all the information and data required to satisfy these reporting elements. Some thematic areas would be reported on each year, others every two years. Towards the end of the conceptual phase of the FiTI, it was realised the idea of countries having to produce substantial reports each year was unattractive. Not only was this considered costly, but most importantly it could undermine other efforts to compile and publish data on the fisheries sector. Now the emphasis is for governments to publish information on their own websites, not through a FiTI report. The role of the FiTi will be primarily one of verifying this public information. The ambition of the FiTI therefore is to see public authorities improve their own approach to providing credible information, rather than producing lengthy independent technical reports.

One of the early criticisms of the FiTi was that it puts a disproportionate burden on developing countries, because many have limited capacity to collect and publish information. There was a concern that this would make the FiTI unfeasible for poorer countries, including those with substantial small-scale fisheries. The FiTI Standard therefore emphasises the idea of ‘progressive improvement’. Countries are expected to publish, in an accessible way, what information they do have. In the event that they do not have certain information requested under the FiTi Standard, they are under an obligation to develop plans and timeframes to collect and publish this information. A failure to have any of the information required by the FiTI does not exclude countries from obtaining a ‘compliant status’, as long as they are being honest about the lack of their data and agree on a timeframe and plan to improve the situation. 

How the FiTI attempts to improve fisheries information at the national level

Transparency is widely regarded as a necessary component of responsible fisheries management, and there are three main ways in which the FiTI could make a positive impact. 

Firstly, the FiTI strives to reveal data that has otherwise been obscured from public scrutiny. This is perhaps what most people think of in terms of a transparency initiative. For example, in many countries information on authorised fishing vessels, access agreements and aggregated catches has been considered confidential, or at least authorities have not considered it necessary to make this information public. 

Secondly, the FiTI attempts to verify if information in the public domain is reliable and complete. The FiTI requires an external assessment of information by an independent consultant, as well as further verification of the findings by a national multi-stakeholder group, composed by CSOs, industry and government representatives. As such, the FiTI is not simply aimed at lifting the lid on confidentiality, but also at providing improved credibility of data held by public authorities. 

Thirdly, the FiTI is designed to reveal where public authorities simply do not collate information and it requires the national multi-stakeholder group to come to an agreement on how these gaps in knowledge will be addressed. As such, the FiTI provides the opportunity for countries to take stock of existing knowledge on the fisheries sector, and develop national plans for improvements.

These three aspects to the FiTI need to be given equal recognition. In some countries the most important contribution of the FiTI will be to highlight where data already in the public domain contains errors, and in other cases the contribution will lie in exposing and addressing the limited approaches to gathering data for publication.  

How information from the FiTi supports international fisheries governance reform efforts

The FiTi has a narrow objective of increasing the availability and credibility of fisheries information. It does not attempt to engage in any further advocacy, such as commenting on the effectiveness of fisheries management or the sustainability of fishing. Nevertheless, the FiTI has been developed so that it supports several other international fisheries governance reform efforts. This includes, for example: 

1. By requiring national authorities to publish the most recent studies on status of fish stocks, as well as information on catches and discards, the FiTI aims to contribute to national debates on the adequacy of policies and practices to achieve sustainable fishing.

2. The FiTI obliges implementing countries to publish information on fisheries access agreements, including disclosing any studies on the social, economic and environmental impacts of these agreements. Such step has already been taken by the EU, and is increasingly required by Regional Fisheries Management Organisations, but has been resisted by most of the other main fishing nations and coastal countries involved in fishing access agreements. For the EU, the FiTI will contribute to establishing a ‘level playing field’, while more importantly it could lead to increased national debates on the foreign fishing agreements and their wider impacts, including on small-scale fisheries and food security.

3. The FiTI supports international efforts to address illegal fishing and unsustainable levels of legal fishing. It requires countries to disclose detailed lists of licensed vessels, as well as information on prosecutions and resources used for law enforcement. It is widely recognised that lack of transparency has facilitated frauds and corruption in the fisheries sector. This list of licensed vessels will also further contribute to the FAO’s efforts to establish a global record of fishing vessels.

4. The FiTI requests information on tenure arrangements to be published, including a description of how national authorities are ensuring informal fishing rights are codified and protected. In this way the FiTI supports the implementation of the International Guidelines on the Responsible Governance of Tenure.

5. The FiTI requires governments to collate and publish various information on the small-scale fishing sector, including information on their social, economic and food security contributions. If this information is not available, then countries have to agree on a time frame for this information to be collated and publicised. The FiTI therefore supports the implementation of the FAO’s Guidelines on Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication .

6. The FiTI requests implementing countries to disclose information on national efforts to collate information on the Beneficial ownership of fishing vessels. In the short term it will not mean countries will produce complete lists of beneficial owners, but it is intended to galvanise international awareness and support for beneficial ownership transparency.

7. The inclusion of information on labour standards in the fisheries sector supports international efforts to abolish slavery and human trafficking , and can be used to further advocate for the promotion of the ILO Work in Fishing Convention ratification.

8. The request to publish information on government transfers to the fisheries sector supports international efforts, including through the WTO, to increase awareness of the scale and impact of fisheries subsidies, and is intended to stimulate national debates on the contribution of capacity enhancing subsidies to unsustainable fishing, as well as the distribution of subsidies among different fisheries sectors, such as between large scale and small-scale fisheries.

9. The request to collate and publish information on development projects in the fisheries sector supports international efforts to increase aid effectiveness, and compliments the International Aid Transparency Initiative.

Will FiTI have a lasting impact on fisheries governance?

The core assumption of the FiTI is that increasing public access to information will enhance active participation in national debates on fisheries reforms, and raise the prospect of accountability by public authorities. 

A key issue is whether there is the capacity and interest, at the national level, to undertake further analysis of the information produced. The FiTI could succeed in raising public information, but the lack of interest or capacity to do anything with this information will not lead to positive changes in fisheries governance. This needs to be assessed as FiTI is implemented in different countries. The risk may be overstated, as the demand for increased transparency has been prevalent for many years, including among environmental organisations and groups working on the rights of small-scale fisheries. Nevertheless, to increase the its will require support to local groups and researchers, including journalists, to do more with data being provided by governments participating in the FiTI. 

Ultimately, however, the success of the FiTI helping to achieve lasting governance reforms rests on the assumption that transparency can lead to accountability. If new information supports policy recommendations or reveals instances of abuse of powers, corruption or frauds, none of this will lead to change if public authorities or the private sector face little pressure from their citizens and from the international community to reform. 

In these cases, the risk for the FiTI is that is will offer governments and companies a façade of respectability, while allowing for a continuation of business as normal. This threat is particularly prevalent in countries characterised by authoritarian governments, limited means of participation in decision making processes and low levels of individual and media freedoms. 

It is therefore crucial that those engaged in the FiTI, including at the international level, promote further efforts to understand and confront forms of oppression, authoritarianism, lack of individual and media freedoms that undermine good governance of fisheries.

Two other issues will also affect whether the FiTI has lasting impacts on fisheries governance. 

Approaching access to information as a right

The FiTI Standard makes no attempt to encourage national authorities to legislate for access to information. Indeed, a criticism of other existing transparency initiatives is they treat freedom of information and participation as a voluntary gesture, rather than as a right. It would be far better if countries established laws guaranteeing citizens the right to access information and the right for participation in decision making. In the long term, this may be viewed as a stronger approach, otherwise the gains made by FiTI may be short lived, dependent on the good will of authorities and foreign fishing partners. 

This limitation to the FiTI remains important, and arguably it should do more to promote access to information as a right. The European Union’s Aarhus Convention provides one of the strongest examples, and forms the basis for the UN’s Bali Guidelines on establishing laws and institutions on access to information, participation and access to justice. It was perhaps a missed opportunity not to link the Bali Guidelines to the launch of FiTI, which took place in the same city. Ultimately the goal of the FiTI should be to ensure implementing countries adopt similar legislation to the Aarhus Convention, otherwise their commitment to transparency may be precarious and open to doubt. 

Trading on ‘compliant’ status

A further issue with the FiTI lies with the implications of labelling countries as ‘compliant’ with the Standard. To some, this may be seen as an attractive dimension to the FiTI. As more countries sign up, others will be forced to follow suit, with the end result being a gradual improvement to transparency across more and more countries. A similar logic is used for other international voluntary initiatives, such as eco-labelling. Those fisheries that can demonstrate environmental credentials via voluntary certification schemes, are rewarded by more secure market access, meaning those that do not are forced to engage with these voluntary eco-labelling efforts if they wish to maintain their market access share or increase it. 

The worry for those countries that decide not to engage with the FiTI is that this decision may be viewed negatively by others, and it could influence decisions on access to foreign donor funding, or even the negotiation of trade agreements. There may be genuine reasons why a country does not want to be part of the FiTI, such as lack of resources or simply that the country feels it s doing wellto improve civic engagement without the need of an international initiative. Indeed, at the launch of the FiTi Standard in Bali, the head of the Fisheries Forum Agency from the Pacific expressed doubt about the demand for the FiTI among its member states. 

Moreover, achieving compliant status for the FiTI does not mean a country is more transparent than another who is not part of the initiative, in the same way obtaining an eco-label does not mean a fishery is better managed than one without. This is particularly true of the FiTI, as the decision to emphasise ‘progressive improvement’ means a country can, for a time, be compliant without publishing much information. Perhaps less information than another country that is not involved in the FiTI. 

The dilemma here is that transparency is important, and there must be international pressure on countries to reform. Lack of transparency in the fisheries is a well recognized and widespread problem andprogress to improve this has been very slow in many countries. Public fisheries access agreements should not be entered in to with countries that manage fisheries in a highly opaque way, and it would be justified to favour investments in countries where fisheries is managed more openly. The FiTI provides a mechanism to help countries improve and communicate their commitment to responsible fisheries. However, achieving a ‘compliant’ status with the FiTI should not be taken at face value to mean a country is necessarily more transparent than others. More importantly, nor does it mean that the country is necessarily managing its fisheries in a responsible way. The FiTI does not provide this analysis. 

The status of a country in the FiTI should therefore not be used to justify trade and investment decisions. Some of the countries involved in the initiative may hope that it does. This would be a source of concern, including for those countries that may have legitimate reasons to not engage with the initiative.

Going forward with the FiTI

The FiTI provides a practical way of improving the availability and reliability of information on fisheries. The FiTi therefore fills an important gap in international fisheries reform efforts, as no other initiative exists that tackles the issue of transparency in a concerted way. 

There are opportunities to use the data stemming from the FiTI to advance fisheries reforms efforts, and where appropriate to put pressure for increased accountability of national authorities and the private sector. A lot depends on how citizens and stakeholders respond to increased information provided as a result of the FiTI, and the extent to which participating countries embrace the ideal of “progressive improvements” and multi-stakeholder participation. The success of the FiTI in many contexts will therefore be influenced by resources and capacities of civil society organisations, fishing organisations and journalists to promote and engage in public debates and decision making processes. Ultimately the impact of the FiTi will be dependent on the willingness of those in positions of authority to listen and act on the recommendations from civil society and the fisheries sector. However, a threat to the credibility of the FiTI lies in the prospect of it being implemented in countries where governments continue to limit individual and media freedoms and genuine participation in decision making. The FiTI must not be allowed to provide such governments with a status of legitimacy.

Improving sustainability through an ambitious revision of the Fishing Authorisation Regulation

Since the new Common Fisheries Policy (CFP) entered into force on January 1st 2014, there have been improvements registered in Sustainable Fisheries Partnership Agreements. However, tide still needs to turn as regards vessels fishing outside the framework of SFPAs.

Indeed, the EU external fleet counts around 700 vessels, but only 245 vessels fished under SFPAs in 2014: Several hundreds of EU vessels operate outside SFPAs, negotiating private agreements with third countries (this is only allowed when there is no SFPA between the EU and the particular country in place), or setting up chartering arrangements for their vessels with local businesses. Unfortunately, there is currently no way to have information about these arrangements.

This may change in the next months with a review of the so-called ‘Fishing Authorisation Regulation’ (FAR). This regulation will stipulate ‘eligibility criteria’, - designed to ensure transparency and sustainability- , that any EU vessel wanting to operate in external waters will have to fulfill to obtain a fishing authorisation from the EU Member State in which it is registered.

The proposal for a future FAR Regulation is currently being examined by the European Parliament and the Council. However, the European Economic and Social Committee (EESC), has already given its opinion on the matter. The EESC considers it necessary for the European Commission to verify the validity of the authorisations given by the Member State, checking whether the eligibility criteria have been duly applied. 

In this article, CFFA explores why the European Commission should indeed verify what Member States do. Looking in particular at the case of Italy, we highlight that some EU countries tend to turn a blind eye to what their vessels are doing once they fish outside EU waters, thereby failing to fulfill their responsibilities as flag State under international law. Italy has consistently delivered fishing authorisations for all these vessels to fish in West Africa regardless of the fact that they shouldn’t be fishing there or that they were involved in illegal fishing.   

This shows that if the EU is to ensure, through its Fishing Authorisation Regulation, that all its fishing vessels fishing outside EU waters respect “the same principles and standards as those applicable under Union law in the area of the CFP” as required by the new CFP, the European Commission has to play a key role to verify that all EU member states apply sustainability criteria rigorously before allowing their vessels to fish in third countries waters.