The Convention on the Minimum Conditions for Access: a tool for collaborative fisheries management in West Africa

Interview with Mrs Dienaba Beye Traoré, Head of Department for Harmonization of Policies and Legislations of the West Africa Sub-Regional Fisheries Commission (SRCF)

Is the management of shared stocks, especially small pelagic species, an important issue for the SRFC?

The SRFC is an inter-governmental organization comprising seven Member States: Cabo Verde, the Gambia, Guinea, Guinea Bissau, Mauritania, Senegal and Sierra Leone, and three associated States: Morocco, Liberia and Ghana. The annual fish production in the area covered by the SRFC exceeds 1.7 million tons of fish, worth an estimated 1.5 billion US dollars per year. Almost 77% of these landings are composed of small pelagics, which are not only the cornerstone of fish trade in West Africa, - it is estimated that one million tons are marketed in the region per year - but also represent, on average, 26% of the animal protein intake of the region populations. These stocks are strategic for the region, and the SRFC promotes their sustainable management.

This aspect was also addressed by the International Tribunal of the Law of the Sea (ITLOS) answers to SRFC questions concerning the responsibilities of States in the fight against IUU fishing and in the sustainable management of shared stocks...

The ITLOS opinion reaffirms that the Coastal State has the primary responsibility to combat IUU fishing in its EEZ. It is up to the coastal State to take the necessary measures to prevent, deter and eliminate IUU fishing, including boarding, inspection, seizure and judicial proceeding. It is also up to the coastal State to report to the flag State when its control over one of its vessels has not been exercised appropriately.

Regarding shared stocks, the ITLOS opinion also reaffirms that the SRFC Member States have the obligation to cooperate in order to take appropriate conservation and management measures to avoid that the shared resources are jeopardised by overexploitation.

It should be noted that the SRFC States are bound by the Convention on the Minimum Access Conditions[1] (CMAC). The CMAC stipulates (Article 9 paragraph 2) that ' Member States shall give priority to the establishment of concerted fisheries management plans for shared stocks'. Through this Convention, the SRFC Member States undertake also to ensure that conservation and management measures are based on the most reliable scientific data available, and, if such data are insufficient, to apply the precautionary principle. These principles also apply to the negotiation and signing of fisheries agreements.

What is the main problem encountered regarding fisheries agreements signed by the region’s countries?

I would say the lack of consultation amongst member States in the negotiations of the fisheries agreements. Each State prefers its sovereignty on the national maritime space, at the expense of dialogue with its neighbours.

Then, if we look at article 3 of the SRFC Convention on the Minimum Access Conditions, it states that the access of foreign fleets should be allowed only after consultation with the research institutions of the State concerned. However, these research centers, which are supposed to convince States about the need to cooperate, are not well equipped in terms of infrastructure: lack or insufficiency of research vessels, no or few laboratories, as well as very difficult working conditions for researchers...

The Convention also states that embarking observers and local crew is mandatory for vessels fishing shared stocks. But again, States face difficulties for the embarking of these two categories of professionals because vessels do not come to port in each country. The CMAC accordingly favors the negotiation of grouped agreements, which could help avoid this problem by putting on board an observer and sailors with a regional status. A revision of the CMAC is envisaged to provide for the possibility to negotiate and sign such grouped fisheries agreements.

CMAC promotes the harmonisation of management measures in SRFC Member States. What is SRFC’s work in this context?

In the SRFC region, national legislations must be harmonised with the CMAC on a series of elements, including mandatory embarkment of observers and crew from the region, management measures, including for artisanal fisheries (characterization, fishing authorisation and registration of pirogues requirements), etc. This is important also in relation to the implementation of the Port State measures for combating IUU fishing: there is a need to harmonise the classification of offences in the Member States, in drawing up the list of serious offences. Currently, the SRFC is conducting studies to compare SRFC members’ national legislations to the CCMA. In addition, two draft protocols are being prepared, one on the protection of the artisanal fishing communities and one on Marine Protected Areas.

[1] http://spcsrp.org/medias/csrp/publications/csrp_CMA_version_originale_juin_2012_english.pdf

EU Fishing Joint ventures in Africa: Need to develop a framework towards Sustainability

The constitution of joint ventures in African fisheries is often based on very limited knowledge of ecosystems, the state of fish resources, or the dynamics of the fisheries sector and coastal communities.

This lack of information, instead of encouraging foreign investors and institutions to be cautious, has often resulted in irresponsible investment. There are countless cases in the history of Africa maritime fisheries, where overfishing due to overinvestment in production facilities ultimately led to a fall in fish resources, business closures and negative impacts for local coastal fisheries with which they competed for access to resources.

In West Africa, foreign private investors, - mainly from China, Korea, EU, Russia-, are often operating under joint ventures. In the last years, such joint ventures have been denounced for their opacity, and, more recently, some of them were denounced for being involved in systematic fraudulent practices, such as the massive under reporting of tonnage by vessels of Chinese origin operating under joint ventures in West Africa.

In the case of the EU, it is to be noted that, in sustainable fisheries partnership agreements signed between EU and African countries (SFPA), an article is now inserted, on ‘Promoting cooperation among economic operators and civil society’, which encourages the setting-up of joint ventures.

In a joint paper, CFFA and its partner CAOPA argue that the implementation of this article requires defining a set of principles to ensure such joint ventures operate in a transparent manner, do not enter in competition with the local artisanal sector, and are in line with the third country sustainable fisheries development objectives.

Rights and responsibilities of flag states and coastal states in West Africa - CFFA comments on ITLOS Advisory opinion about SRFC request

On April the 2nd 2015, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion, following a request submitted by West Africa Sub-Regional Fisheries Commission (SRFC), on March 28, 2013.

The request for an advisory opinion is intended to support West Africa Sub Regional Fisheries Commission Member States (MS) in order for them to benefit from the effective implementation of relevant legal instruments, and to guide them in their efforts to better tackle the challenges they face regarding the fight against IUU fishing. The answers to the questions raised are expected to allow the SRFC to obtain the necessary legal elements for the success of its activities, in particular the effective implementation of the SRFC Convention on Minimal Access Conditions (MCA). Overall, the ITLOS advisory opinion mostly takes up and clarifies the existing rules of international law.

In its paper, CFFA summarises the main elements of the ITLOS Advisory opinion, and makes the following comments:

·         Generally, ITLOS advisory opinion puts the emphasis on the responsibilities of the Flag States, and rather eludes the question of the primary responsibility of Coastal States for the management and conservation of resources within their EEZs, which results in rights and obligations, particularly in terms of control, monitoring and surveillance (MCS). Shortcomings in that area have been highlighted recently in the Greenpeace report, denouncing various IUU operations entered in by vessels of foreign origin (China in this case), some of them flagged in SRFC member countries –fraud about the real tonnage of vessels, trawlers fishing in artisanal fishing zone, etc

·         In ITLOS advisory opinion, SRFC members are considered only as Coastal States, not as flag states. In recent years however, several cases of vessels engaged in IUU fishing, flagged in one of SRFC members, have been recorded (including the case of a Senegalese tuna vessel, of Spanish origin, arrested for illegal fishing in the Indian Ocean/Madagascar EEZ in 2008). ITLOS recommendations to flag states should therefore also apply to SRFC members.

·         ITLOS advisory opinion regarding fishing agreements focusses on the case of ‘international organization that exercises its exclusive jurisdiction in respect of fisheries’. In West Africa, that restricts the analysis to the case of EU bilateral fishing agreements with countries of the region. However, ITLOS advisory opinion should also serve as a basis to engage the liability of other foreign fishing entities that negotiate fishing agreements with SRFC coastal States, including Russia, China and Korea, whose fishing activities are generally opaque and have been denounced in recent years as IUU (Russian trawlers in Senegal, etc).

·         Similarly, there is a need to broaden the debate on the basis of that advisory opinion, to non-State entities, private companies, - from EU or other foreign countries origin-, which operate through private agreements, joint ventures or chartering arrangements in West African waters. There is a need to strengthen coastal States’ legislations regarding such ventures, as well as the control of the initial flag State, - which often remains the state of beneficial ownership-, on these activities to ensure more transparency and to avoid that these vessels contribute to overfishing and compete with the local small scale sector.

·         Pelagic fisheries, especially small pelagics (sardinella, sardines, horse mackerel, etc) are key resources for food security and job creation in the artisanal fishing sector in the region. ITLOS Advisory opinion should serve to reinforce the political will at regional level to manage these resources in a coordinated manner, including when negotiating fishing agreements, taking into account sustainability and food security concerns. 

·         In its written statement provided to ITLOS in the context of the SRFC request, the EU described the EU IUU Regulation as an efficient tool to fight against IUU fishing, highlighting in particular the trade sanctions: identified non-cooperating countries receive a ‘yellow card’ warning, followed – if the country does not take appropriate measures to fight IUU fishing-, by a ‘red card’, which means fish products from that country cannot access the EU market. However, the implementation of the IUU regulation has revealed its limits when the EU recently withdraw Korea from the list of non-cooperating, ‘yellow carded’ States, under the pretext that it had undertaken legislative reforms on paper. Indications are that vessels flying Korean flag continue to engage in dubious activities off the West African coast, in particular in Guinea. Meanwhile, Guinea, member of the SRFC, was itself listed as a non-cooperating State by the EU in 2013 although it also undertook legislative reforms ‘on paper’. This situation creates a suspicion that the EU is applying double standards when implementing the IUU regulation to Korea and Guinea.

No surplus, No fishing?

In its new report, CFFA explores how the concept of surplus is integrated in the new EU Common Fisheries Policy (CFP) regulation. The CFP makes the concept of surplus a corner stone of EU access to third country waters through its bilateral fisheries agreements.

The EU has presented this approach as a progress achieved through the CFP reform. It is nevertheless a basic legal principle of access agreements as set up by UNCLOS since 1982, and not new to the CFP external dimension.

It has to be understood in the framework of the creation of Exclusive Economic Zones (EEZ), where a Coastal States has sovereign rights for the purpose of exploring and exploiting, conserving and managing living resources of the seabed, subsoil and superjacent waters in its EEZ.

In parallel to these sovereign rights, Coastal States have the duty to assess the status of resources in their waters for management and conservation purposes, in order to allocate fishing opportunities to their how national fleets. The Coastal State has the right to allocate to foreign States the “surplus” that it cannot exploit itself.

The availability of a surplus following the determination of its harvesting capacity by the coastal State is the "raison d'être" of the conclusion of agreements granting access. Bilateral agreements between the EU and third countries, mostly African and Indian Ocean developing countries, have always been based on these rules, but not always applied by the book; in the past, we can find numerous examples where EU fleets access to third countries fisheries through bilateral access agreements were not based on the existence of a proven surplus.

Have things changed today, with the entry into force of the new Common Fisheries Policy?

Review of the new Greenpeace report: 'Scam on the African Coast'

A report published today by Greenpeace exposes widespread fraud involving Chinese companies fishing in West Africa, both with vessels flying the Chinese flag and vessels operating under joint ventures. Based on information obtained by Greenpeace primarily in Senegal, Guinea Bissau and the Republic of Guinea (Conakry), the report shows that China’s biggest distant water fishing company, the China National Fisheries Corporation (CNFC), as well as other Chinese companies, have systematically under-declared the gross tonnage (GT) of their fishing vessels for years.

Under-declaring the tonnage of vessels amounts to fishing illegally, according both to the legislation of the coastal and flag States involved and the FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing. According to Greenpeace, this pervasive form of IUU fishing has been going on for almost 30 years and involves responsibilities at various levels, both in China and in the coastal countries involved.

Greenpeace calculated that, from 2000 to 2014, CNFC under-declared the GT of its vessels to the Senegalese authorities by 43% on average annually compared to their actual GT. In 2014 alone, CNFC has fraudulently hidden a total of 1742 GT through GT fraud.

This fraudulent practice by CNFC also occurs in Guinea Bissau and Guinea and involves other Chinese companies. For 59 CNFC vessels fishing in Senegal, Guinea Bissau and Guinea in 2014, evidence was found showing that the GT of 44 vessels was under-declared. In total, 6757.7 GT have been hidden from these coastal States, which represents approximately adding an equivalent of 22 extra industrial fishing vessels with a capacity of 300 GT each into their waters.

License fees are calculated on the basis of the GT, so companies that under-declare the GT of their vessels are depriving coastal States’ governments of revenue. For example, the fraud represented an estimated shortfall for Senegal of at least 371,404,800 CFA Francs (566,203 EURO) in license fees, that CNFC avoided paying during the period 2000 to 2014[1].

It also allowed industrial vessels to gain access to local artisanal fishermen’s zone, where they shouldn't be fishing, as is the case in Senegal.

Under-declaring GT also means that the actual fishing capacity deployed is much higher than authorized and undermines fisheries management and conservation efforts by coastal States, as illustrated by the CNFC/Guinea Bissau agreement. According to the terms and conditions provided by the fisheries agreement signed between CNFC and Guinea Bissau in 2010, it appears that, in the first half of 2014 alone, CNFC vessels actual fishing capacity exceeded the authorized capacity limit by 61%.

The degree to which GT was under-reported also raises the question of how much of the reported catches by CNFC and other companies during that period were illegal. Considering that fish caught by Chinese companies has been sold, among others, on European markets, this highlights loopholes in EU current efforts to stop trading of IUU-caught fish.

Greenpeace concludes by underlining that it is of the utmost urgency that governments, both coastal and flag States involved, investigate the alleged fraud by Chinese fishing companies as well as the potential fraud by other industrial fishing companies with vessels fishing in their EEZs, whether foreign-flagged and/or owned/operated. In addition, all States involved should conduct a comprehensive assessment and publish the lists of fishing vessels operating in their waters and/or under their flag.

The link to the report 'Scam on the African Coast':  http://www.greenpeace.org/africa/Global/africa/graphics/Amigo/Scam%20on%20the%20African%20Coast%20FINAL%20PROOF(1).pdf

[1] These figures are doubtless under-estimated as it only includes data for 15 out of the 30 years of CNFC operations in Senegal alone, and only the part of the vessels for which GT could be estimated.

Delisting Korea from the EU 'IUU list': too much, too fast

On April 21st, the European Commission revised its list of countries that it considers fail to address illegal, unreported and unregulated (IUU) fishing.

The EC put Thailand on formal notice ('yellow card') for not taking sufficient measures in the international fight against illegal fishing (IUU). The EC also acknowledged that Korea and the Philippines 'carried appropriate reforms' of their legal system, which is now 'aligned with international law', enabling them to tackle IUU fishing. The EC therefore removed their yellow card.

CFFA feels that, in the case of Korea, this delisting may have come too soon. If indeed some reform of Korea’s legislation has been undertaken on paper to stop its distant water fleets from engaging in IUU operations, including Korean vessels fishing in West Africa , it is unclear whether and how much Korea intends to implement them.

From our information, it seems that several Korean trawlers fishing in West Africa have still recently been involved in illegal incursions in the artisanal fishing zone, including in a country like Guinea.

In 2013, Guinea was given a 'red card' by the EU, because it wasn't doing enough to fight IUU fishing; Guinea is, since then, banned from exporting fish products to the EU market. We are therefore now in a situation where a developing coastal State, Guinea, cannot export its fish on the EU market, whilst a distant water fishing nation, Korea, -which, in our view, has not yet given any concrete proof that it will indeed implement its new legislation and actually stop  illegal fishing by its fleets in West Africa-, is able to export to the EU the fish they catch in Guinean and other West African waters. This is an unfair situation, which seems to reflect the fact that trade considerations, - Korea being a key trading partner for the EU, unlike Guinea-, have led the EU to take this somewhat premature step of letting Korea off the hook.

We want to reiterate that, in West African countries, the first victims of illegal operations in coastal waters by trawlers, whether foreign- or locally-flagged, are small scale fishing communities. The fact that the EU has removed Korea’s yellow card, in the absence of any tangible results that the country will indeed implement its reforms, may not only lead to further damage to African coastal communities, but also set a dangerous precedent.

What incentive will there be for other distant water fishing nations and coastal nations to effectively protect their coastal communities from foreign trawlers illegal operations, if the message given by the EU is that the only thing to do to freely trade fish is ‘paper reform’?

At a time where we witness an important number of trawlers being reflagged from industrialised countries, – EU, China, Korea among others-, to developing countries, what will be the incentive to avoid ‘reflagging of convenience’ to escape stringent rules, if the message given today by the EU is that the only thing that matters is that the fight against IUU fishing looks good on paper?

Preventing, deterring and eliminating IUU fishing activities that threaten West African coastal communities’ livelihoods should require concrete action, not merely papering over the cracks.

'2016 should be the African Year of Artisanal Fisheries'

The African Confederation of Artisanal Fisheries Professional organizations (CAOPA) proposes that the African Union should declare 2016 the African Year of artisanal fisheries. Mr. Gaoussou Gueye, Secretary General of CAOPA, explains the reasons why.

Why make such a proposal to the African Union?

 We all know that bad governance in fisheries affects most African countries. When the first Conference of African Ministers of Fisheries and Aquaculture was held, in 2011, it recommended that Member States should consider the possibility to reform their fisheries and aquaculture policies. The reform strategy that was developed subsequently, identified key objectives for the development of fisheries in Africa[1], including the conservation and sustainable use of fisheries resources through the establishment of good governance. On this topic, we wish to welcome the recent commitment of the African Union, under the impetus of Mauritania, then President of the African Union, to promote transparency in African fisheries.

Another key goal of the Pan-african reform strategy is the development of sustainable artisanal fisheries, by improving and strengthening its contribution to poverty alleviation, food security, and improving the socio-economic benefits to fishing communities.

 We feel, in the CAOPA, that today, the only way to achieve these goals requires both the active involvement of the African Union and its members, as well as the participation of all stakeholders, in particular the African fishing communities that depend on fishing for their livelihoods.

 Do you feel that African artisanal fisheries now better considered by decision makers?

Well, I think decision makers are now more aware of the sheer importance of artisanal fisheries in Africa. Latest FAO figures indicate that 10% of people on the African continent are engaged in fishing and aquaculture, making it the second largest continent after Asia, in terms of jobs in this sector. And the vast majority of these 12.3 million people living on fisheries in Africa are in the artisanal fisheries sector: at least 7.5 million African fishermen and 2.3 million women depend on artisanal fishing for their livelihood. These jobs provide income for millions of families in Africa! African artisanal fishing is by far the leading provider of sector jobs.

 In Africa, for over 200 million people, fish is also a source of protein and essential nutrients (fatty acids, vitamins, minerals) at low prices: fish represents on average 22% of the protein intake in sub-Saharan Africa. In most parts of Africa, capture and trade by the artisanal fisheries sector provides a ‘food safety net 'to the poorest populations. In my country, Sénégal, a fish like sardinella is the most accessible source of animal protein in terms of price and quantity. Today, many Senegalese families can only be assured of one meal a day - lunch based on rice and sardinella.

Another aspect that is important for our decision makers is the contribution of fisheries to GDP of our countries. There, again, artisanal fisheries stand out: the contribution of fisheries to African countries GDP is reaching almost 2 billion US$, and African marine and inland artisanal fisheries account for more than half this figure.

It’s therefore only natural that the international community increasingly recognizes the growing importance of artisanal fisheries, particularly in Africa. For example, in the UN Rio + 20 Declaration, artisanal fishing is described as a "catalyst for sustainable development". This Declaration also stresses the need to protect the rights of access of artisanal fisheries to resources and coastal areas.

Similar provisions are also contained in the Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. These guidelines help to establish the conditions under which artisanal fishermen will access fish resources, and put the emphasis on the sustainable management of the resource. These Guidelines are also important for us, as they provide a framework to overcome obstacles to sustainable fisheries development in African countries, such as illiteracy, health problems, deprivation of civil and political liberties, etc.

But the greater recognition of the importance of artisanal fishing has been achieved with the adoption, last year, of the FAO Voluntary Guidelines to ensure the sustainability of the artisanal fisheries in the context of food security and eradicating of poverty.

They focus on an issue which is key for African fishing communities: strengthening our contribution to food security and nutrition. The Guidelines also insist on the ‘equity’ aspect of development, so to improve the socioeconomic situation of artisanal fishing communities in a context of sustainable fisheries exploitation. They also incorporate new issues that our communities have to face, such as the impacts of climate change.

So, now, we have all these internationally agreed documents to guide our policies, but it is necessary that African governments, donor agencies, professional organizations and civil society organizations engage and invest in their implementation.

What are your priorities for the implementation of these Guidelines in Africa?

An important challenge we have to take up is the impact of climate change on our communities. This includes addressing very specific issues, such as the governance of Marine Protected Areas, or the promotion of participative surveillance. But this means also reconsidering some fundamental aspects of artisanal fisheries, like the recognition of the role of women in this sector: women are truly at the heart of African artisanal fisheries.

They are present at all stages of the value chain, whether it is the pre-financing and preparation of the fishing campaigns, from the reception of the fish at the beach to its processing and marketing. Moreover, women are also the pillar of the family in African artisanal fishing communities. Within the CAOPA, we are very conscious of this, thus, we promote parity in the representation of women and men: we have a bureau consisting of equal number of men and women representing African fishing communities. We also have a specific programme on Women in Fisheries.

Most importantly, on the occasion of the International Women's Day, on the 8th March, CAOPA organized, now for two years in a row, a meeting amongst women from the CAOPA. This year we were in Bissau. We witnessed a strong mobilization of all stakeholders, professionals and decision makers alike: at the International Women’s Day celebration, organized by CAOPA, about a thousand fishers, women in fisheries, decision makers, citizens got together in Bissau! The workshop in Bissau allowed women to meet, to exchange views. They ultimately came up with a statement which clearly demands that the African Union declares 2016 as the African Year of Artisanal fisheries. It would be for these women a priceless opportunity to gain recognition for their work and their investment in this sector.

What steps have you already taken so far?

We are still proceeding with the information of partners, asking them to support this initiative, such as AU-IBAR, NEPAD, SRFC, PRCM, UNDP, FAO, UEMOA, ECOWAS, CFFA, SSNC, Bread for the World, the EU...

We already had positive feed back from Fisheries Ministers of African States like Mauritania, Guinea Bissau, Senegal and Ivory Coast. We also intend to involve other civil society organizations and decision makers. 

We will of course work with our colleagues from the West African Journalists Network for Responsible Fisheries (REJOPRAO) in order to help us set up and manage an effective communication strategy.

 What are the next steps?

 Our goal now is to formalize this request with various potential partners. We also need to sharpen our advocacy. In June, CAOPA will organize, for this purpose, a meeting with all of our partners to discuss and further elaborate our proposals, and establish a consultative committee specifically dedicated to the promotion of the African Year of Artisanal Fisheries.

We intend to launch officially our proposal during the celebration of the World Fisheries Day in November 21st, 2015, which will be organized in Morocco this year.

In October 2015, we would appreciate, on the occasion of the FAO meeting for the 20th anniversary of the FAO Code of Conduct for Responsible Fisheries, to meet with the DG of FAO.

Our goal is to launch a process. What is essential for us is that it raises awareness and mobilizes all the stakeholders in African fisheries. And we call all interested organizations to support us in this initiative!

[1] http://www.africanfisheries.org/knowledge-output/policy-framework-and-reform-strategy-fisheries-and-aquaculture-africa

SFPAs: the need to harmonise the 'exclusivity clause' scope and interpretation

The new Basic Regulation of the EU Common Fisheries Policy (CFP) integrates for the first time specific provisions for the CFP external dimension, including an exclusivity clause as a central element of the Sustainable Fisheries Partnership Agreements. The exclusivity clause means that EU fishing vessels can only operate in the framework of the fishing agreement.

End of 2014, the Court of Justice of the European Union (CJEU), issued a ruling on the application of the exclusivity clause in the case of Swedish fishing vessels chartered by Moroccan companies, while there was an agreement between EU and Morocco (containing an exclusivity clause) but no protocol in force. In its ruling, the CJEU extends the application of the clause to chartered fishing vessels, - a strict interpretation of the exclusivity clause.

However, other cases show that the scope and the implementation of the exclusivity clause in SFPAs remain irregular, differing often from an agreement to another.

The new CFFA paper reflects on the need to harmonize the exclusivity clause scope and implementation. It also extends the debate on other forms of EU fishing activities outside the scope of SFPAs, such as reflagging and joint ventures, which are not yet properly regulated by the EU.