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Commission Decision of 21 April 2016 on notifying a third country of the poss... (32016D0423(01))
EU - Rechtsakte: 04 Fisheries

COMMISSION DECISION

of 21 April 2016

on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

(2016/C 144/05)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999(1), and in particular Article 32 thereof,
Whereas:

1.   

INTRODUCTION

(1) Regulation (EC) No 1005/2008 (‘the IUU Regulation’) establishes a Union system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing.
(2) Chapter VI of the IUU Regulation lays down the procedure to identify non-cooperating third countries, the
démarches
in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures.
(3) In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the
démarches
set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and measures taken to rectify the situation. The Commission is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation.
(4) Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating if it fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.
(5) The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation.
(6) In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.
(7) Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries.
(8) In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation.

2.   

PROCEDURE WITH RESPECT TO THE REPUBLIC OF KIRIBATI

(9) The Republic of Kiribati (hereafter ‘Kiribati’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission.
(10) Between 2010 and 2016 the Commission cooperated administratively with the authorities of Kiribati. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Kiribati. It entailed exchange of oral and written comments as well as an on-the-spot visit. The Commission sought and verified all information deemed necessary concerning Kiribati’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Kiribati in order to implement its obligations in the fight against IUU fishing.
(11) Kiribati is a member of the Western and Central Pacific Fisheries Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC). Kiribati ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). It is a party to the South Pacific Forum Fisheries Agency (FFA) Convention (FFA Convention)(2) and to the Nauru Agreement (PNA) concerning cooperation in the management of fisheries of common interest(3).
(12) In order to evaluate the compliance of Kiribati with its international obligations as flag, port, coastal or market State set out in the international agreements referred to in recital (11) and established by the relevant RFMOs referred to in that recital, the Commission sought, collected and analysed all the information it deemed necessary for the purpose of such an exercise.

3.   

POSSIBILITY OF THE REPUBLIC OF KIRIBATI BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

(13) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Kiribati as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation.

3.1.   

Recurrence of IUU fishing activities and IUU trade flows (Article 31(4) of the IUU Regulation)

(14) On the basis of information retrieved by the Commission during its on-the-spot visit and of publically available information, there are strong indications that Kiribati is not in a position to provide information on the characteristics of the highly migratory species caught by its fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products. Indeed, Kiribati control in port appear to consist merely on a series of documentary checks (license status, Vessel Monitoring System tracks, observer reports, FFA Good standing record) before a fishing vessel is authorised to entry into the port. Similarly, it appears that there is a documentary cross-check on the quantities on the cargo manifest of the fishing vessel against the quantities in the mate receipt of the carrier before issuing the outward clearance document and the transhipment declaration. However, there would not exist further instructions for the physical control of the landing or transhipment operations.
(15) Kiribati acknowledged not having a traceability system for fishery products caught by vessels flying its flag or for third country vessels fishing and transhipping in its waters and ports. Once the fish is landed or transhipped in the ports of Kiribati, there is no mechanism to trace the products in the next steps of the supply chain. Furthermore, the traceability of products would be hindered by the weak control performed by competent authorities on landings and transhipments taking place in Kiribati ports, as described in recital (14). Kiribati would therefore not be in a position to guarantee the transparency of its markets to allow the traceability of fish or fish products as established in point 71 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) which advises States to take steps to improve transparency of their markets.
(16) Account taken of the apparent lack of traceability and lack of information available to Kiribati authorities on the fish landed or transhipped in its ports, it is unlikely that the country can ensure that trade of fishery products conducted in this country do not stem from IUU fishing. In that regard, it would appear that Kiribati fails to comply with the port State obligation to take action to promote the effectiveness of international conservation and management measures, including port inspections of documents, gears or catches and the prohibition of landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of those international conservation and management measures, as established in Article 23 of UNFSA. Kiribati would also fail to take into consideration the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing to final destination.
(17) In view of the situation explained in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and Article 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law as a flag and market State to prevent access of fisheries products stemming from IUU fishing to its market.

3.2.   

Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)

(18) The importance of efficient cooperation mechanisms is to be emphasised account taken of the importance of foreign-flagged vessels in waters under jurisdiction of Kiribati. According to the information provided by the authorities of Kiribati during the Commission’ visit in November 2015, there are a total of 13 bilateral agreements with fisheries associations. In that respect, the fleet authorised to operate in waters of Kiribati is composed by 178 purse seine and 195 longline vessels, from which only 13 purse seine vessels are flagged to Kiribati.
(19) Whereas fishing vessels flagged to different 13 countries are licenced to operate within Kiribati waters, competent authorities acknowledged that no cooperation channels with the concerned flag States had been setup to ensure that Kiribati complies with its obligations to cooperate with flag States as described in recital (21).
(20) Kiribati has been so far rather reluctant to cooperate with the Commission in the improvement of the transparency of the Vessels Day Scheme (VDS) for the management of the purse seine fishery in the Western and Central Pacific. The Commission sent a series of letters both to the coastal and flag States concerned requesting that the latter have access to the information on fishing effort consumed by their fishing vessels under VDS. With this objective, three letters were addressed to Kiribati authorities on 18 November 2014, 19 December 2014 and 27 April 2015. None of the three requests were replied before the Commission visited Kiribati. While Kiribati authorities expressed during the visit in November 2015 that they would be willing to share VDS information, they have not provided to date any evidence of the arrangements ensuring the access by the authorities of concerned flag States.
(21) The performance of Kiribati described in recital (20) prevents the country from fulfilling its obligations pursuant to Articles 63 and 64 of UNCLOS establishing that coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of UNFSA further develop the obligation to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. In addition, Article 7(1)(3) of the FAO Code of Conduct(4) recommends that States concerned by the exploitation of straddling and trans-boundary fish stocks establish bilateral agreements to guarantee effective cooperation in order to ensure effective conservation and management of resources. This is further specified in points 28 and 51 of the IPOA-IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States.
(22) The legal framework, setup on the Fisheries Act 2010 as amended by Fisheries (Amendment) Act 2015(5), is incomplete, in particular with regards to the sanctioning system. In concrete, the legal framework in force does not include a definition of IUU in line with IPOA IUU. The Act does not contain either explicit sanctions in case of breach of RFMO rules, transhipment at sea and fishing for a stock which is subject to a moratorium or for which fishing is prohibited.
(23) The notion of ‘serious violations’ established in Article 19(2) of the UNFSA and adopted by WCPFC in CMM 2006-8(6) on boarding and inspection procedures reinforces deterrence of a sanctioning system by means of adapting the level of the sanction to the seriousness of the illegal activity, the objective being to deprive the economic benefit obtained by the offender. The current legal framework however does not contain the notion of ‘serious violations’ nor any other criteria for the modulation of sanctions between minimum and maximum levels to tackle the economic benefit derived from the illegal activity.
(24) In addition, it appears that the Fisheries Act does not address recidivism. The treatment of repeated offences is also crucial to ensure deterrence of the sanction system. The fact that repeated offences are not explicitly targeted with higher penalties undermines the proportionality and deterrence of the sanction system of Kiribati. The gains of a repeated illegal activity would not be neutralised with increased sanctions and thus, potential offenders would not be deterred to continue IUU activities.
(25) In conclusion, it seems that the sanction system in its current form, as examined in recitals (22) to (24) is not comprehensive and severe enough to achieve its deterrent function. In this respect, it seems that the treatment of serious violations is not adequate to secure compliance, to discourage violations wherever they occur and to deprive offenders of the benefits accruing from their illegal activities, as required by Article 19(2) of UNFSA and Article 25(7) of the WCPFC Convention.
(26) In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (5) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law in respect of cooperation and enforcement efforts.

3.3.   

Failure to implement international rules (Article 31(6) of the IUU Regulation)

(27) The Commission analysed all information deemed relevant with respect to the status of Kiribati as contracting party of UNCLOS, UNFSA, WCPFC and IATTC.
(28) According to the information provided by Kiribati during the visit in November 2015, tuna catches in Kiribati economic exclusive zone (EEZ) amounted in 2014 to approximately 600 000 metric tonnes (mt).
(29) On the basis of the figures presented in recital (28) it appears that Kiribati manages important global tuna resources and thus has the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, which should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery.
(30) In that respect, it appears that the legal framework of Kiribati would not ensure efficient and effective management of vessels operating in waters under its jurisdiction, in apparent contravention of the obligations and recommendations detailed in recital (29). Furthermore, the legal framework appears not to provide with clear and transparent conservation and management measures for all types of waters under the jurisdiction of Kiribati. The Tuna Management Plan updated in 2014 contains a comprehensive overview of the tuna fisheries in the country but would fail to propose concrete management actions with clear benchmarks and objectives.
(31) The general principles to be followed by coastal States for the management of straddling fish stocks and highly migratory fish stocks are established in Article 5 of UNFSA. In this respect, the Kiribati Fisheries Act establishes as objectives the promotion of sustainable management of fisheries and the protection of fish stocks and the marine environment. Nonetheless, it seems that other principles established in UNFSA such as the precautionary approach, the maximum sustainable yield or the avoidance of excess fishing capacity and overfishing, are not addressed in the legal framework.
(32) Waters under Kiribati’ jurisdictions are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under Kiribati’ jurisdiction. However, Kiribati would appear to exclude its territorial and archipelagic waters from the application of the VDS, a system that limits fishing effort of the purse seine fleet through the allocation of fishing days. Therefore, the main legal instrument for the conservation of fisheries resources in the waters of Kiribati appears not to apply to a considerable part of the waters under its jurisdiction.
(33) The shortcomings as regards clarity and transparency of the applicable conservation and management rules described in recitals (30) to (32), including the control over fishing effort under VDS, in addition to the access of 360 foreign fishing vessels as detailed in recital (18), undermine the effective implementation of conservation and management measures, and compromise compliance with the obligations set out in Article 61(2) to (5), Article 62(1) and Article 64 of UNCLOS concerning optimum utilisation of resources through proper conservation and management measures.
(34) Furthermore, according to public available information found in internet, it seems that Kiribati keeps an International Ship Registry(7) responsible for vessel registration which is located outside Kiribati. Considering the apparent low level of control by competent authorities to the registration process and the lack of relevant requirements such as those established in point 14 of the FAO Guidelines for Flag State Performance, Kiribati would be in a difficult position to ensure that vessels flying the flag of Kiribati have a genuine link with the country. The lack of such genuine link between the State and the vessels that are registered in its registry would be in contradiction with the conditions set out for the nationality of ships under Article 91 of the UNCLOS.
(35) In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law with respect to international rules, regulations and conservation and management measures.

3.4.   

Specific constraints of developing countries

(36) According to the United Nations Human Development Index (UNHDI)(8), Kiribati was considered in 2015 to be a medium human development country (ranked 137 out of 188 countries).
(37) Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of Kiribati derived from its level of development cannot justify an absence of specific provisions in the national legal framework referring to international instruments to combat, deter and eliminate IUU fishing activities. In addition, it appears that the deficiencies of monitoring, control and surveillance system result from the imbalance between the limited capabilities of Kiribati to control fishing activities in its EEZ and the extent of the foreign fleet having access to its waters.
(38) In view of the situation explained in this Section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of Kiribati fisheries governance may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Kiribati and actions taken to rectify the situation, Kiribati’ development level cannot fully excuse or otherwise justify its overall performance as flag, coastal or port State and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

4.   

CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY

(39) In view of the conclusions reached with regard to Kiribati’s failure of to discharge its duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing.
(40) In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Kiribati of the possibility of being identified as a non-cooperating third country. The Commission should also take all the
démarches
set out in Article 32 of the IUU Regulation with respect to Kiribati. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.
(41) Furthermore, the notification to Kiribati of the possibility of being identified as a country which the Commission considers to be non-cooperating for the purposes of this Decision does neither preclude nor automatically entail any subsequent step taken by the Commission or the Council for the purpose of the identification and the establishment of a list of non-cooperating countries,
HAS DECIDED AS FOLLOWS:

Sole Article

The Republic of Kiribati shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.
Done at Brussels, 21 April 2016.
For the Commission
Karmenu VELLA
Member of the Commission
(1)  
OJ L 286, 29.10.2008, p. 1
.
(2)  http://www.ffa.int/
(3)  Nauru Agreement (http://www.ffa.int/node/93#attachments).
(4)  Code of Conduct for responsible fisheries, Food and Agriculture Organization of the United Nations, 1995.
(5)  Republic of Kiribati (No 6 of 2010) Act for the conservation, management and development of Kiribati fisheries and control of foreign fishing and connected purposes, amended by Republic of Kiribati (No 1 of 2015) Act to amend the Fisheries Act 2010.
(6)  https://www.wcpfc.int/system/files/Conservation%20and%20Management%20Measure-2006-08%20%5BHSB%26I%20Procedures%5D.pdf
(7)  Kiribati Ship Registry, http://www.kiribaship.com/EN/Default.aspx
(8)  Information retrieved from http://hdr.undp.org/en/statistics
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