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1.1 Origin and purpose of the IPOA-IUU
1.2 Elements of the IPOA-IUU

1.1 Origin and purpose of the IPOA-IUU

Illegal, unreported and unregulated (IUU) fishing occurs in virtually all capture fisheries, whether they are conducted within areas under national jurisdiction or on the high seas. IUU fishing poses a direct and significant threat to effective conservation and management of many fish stocks, causing multiple adverse consequences for fisheries and for the people who depend on them in the pursuit of their legitimate livelihoods.

By frustrating fishery management objectives, IUU fishing can lead to the collapse of a fishery or seriously impair efforts to rebuild depleted fish stocks. This, in turn, may result in lost economic and social opportunities, both short-term and long-term, and may diminish food security. Left unchecked, IUU fishing can completely negate the benefits of effective fisheries management.

Those who conduct IUU fishing are also unlikely to observe rules designed to protect the marine environment from the harmful effects of some fishing activity, including, for example, restrictions on the harvest of juvenile fish, gear restrictions established to minimize waste and bycatch of non-target species, and prohibitions on fishing in known spawning areas. To avoid detection, IUU fishers often violate certain basic safety requirements, such as keeping navigation lights lit at night, which puts other users of the oceans at risk. Operators of IUU vessels also tend to deny to crew members fundamental rights concerning the terms and conditions of their labour, including those concerning wages, safety standards and other living and working conditions.

In addition to its detrimental economic, social, environmental and safety consequences, the unfairness of IUU fishing raises serious concerns. By definition, IUU fishing is either an expressly illegal activity or, at a minimum, an activity undertaken with little regard for applicable standards. IUU fishers gain an unjust advantage over legitimate fishers; i.e. those who operate in accordance with those standards. In this sense, IUU fishers are "free riders" who benefit unfairly from the sacrifices made by others for the sake of proper fisheries conservation and management. This situation undermines the morale of legitimate fishers and, perhaps more importantly, encourages them to disregard the rules as well. Thus, IUU fishing tends to promote additional IUU fishing, creating a downward cycle of management failure.[1]

The unreported nature of IUU fishing makes it particularly difficult to quantify. Available information nevertheless indicates that, for some important fisheries, IUU fishing accounts for up to 30 percent of total catches and in at least one case possibly much more.[2] For example, the Indian Ocean Tuna Commission (IOTC) recently indicated that at least 70,000 tons of tuna catches by large longline vessels go unreported each year in the Indian Ocean.[3] The International Commission for the Conservation of Atlantic Tunas (ICCAT) estimated in 1999 that unreported catches represent about 10 percent of overall catches of the major Atlantic tuna species (bluefin, swordfish and bigeye) and that misreporting of catches by some ICCAT members is also suspected.[4] The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) indicated in 1999 its extreme concern about the high level of IUU fishing for toothfish (Dissostichus spp.) in its Convention Area,[5] a concern that has been echoed by the International Tribunal for the Law of the Sea.

Moreover, available information strongly suggests that, despite apparent improvement in some regional situations, the amount of IUU fishing world-wide is increasing, as IUU fishers seek to avoid compliance with stricter fishing regulations that are being imposed to deal with downturns in a growing number of fish stocks. While some estimates suggest that IUU fishing may account for as much as one quarter of total catch in the world's oceans, fully reliable data on IUU fishing are unfortunately scarce.

Since the late 1990s, a number of international fora have issued calls to combat IUU fishing.[6] The FAO Committee on Fisheries (COFI), at its Twenty-third Session in 1999, considered the problem to be a matter of high priority. Information presented to COFI at that time indicated that IUU fishing, particularly by fishing vessels flying "flags of convenience," was a growing threat to the achievement of sustainable fisheries. In the face of such information, COFI recommended the elaboration of an International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).[7]

Shortly afterwards, an FAO Ministerial Meeting on Fisheries in March 1999 expressed concern over the growing incidence of IUU fishing and declared that, without prejudice to the rights and obligations of States under international law, FAO "will develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing, including fishing by vessels flying 'flags of convenience,' through coordinated efforts by States, FAO, relevant regional fisheries management bodies and other relevant international agencies such as the International Maritime Organization (IMO)."

In June 1999, the FAO Council echoed these calls for a comprehensive initiative to tackle the problem of IUU fishing and determined that this initiative should be carried forward through the development of an international plan of action within the framework of the Code of Conduct.

The Government of Australia, in cooperation with FAO, organized an Expert Consultation on Illegal, Unreported and Unregulated Fishing, which took place in Sydney, Australia, from 15 to 19 May 2000. FAO subsequently convened a Technical Consultation on Illegal, Unreported and Unregulated Fishing in Rome from 2 to 6 October 2000.[8] During a further Technical Consultation, held in Rome from 22 to 23 February 2001, careful deliberations produced a complete text for the draft IPOA for consideration by COFI at its Twenty-fourth Session.

COFI adopted the IPOA-IUU, by consensus, on 2 March 2001. In doing so, COFI urged all FAO Members to take the necessary steps to implement the IPOA-IUU effectively. The FAO Council, at its 120th Session in June 2001, endorsed the IPOA-IUU. On 28 November 2001, the United Nations General Assembly urged all States, as a matter of priority, to coordinate their activities and cooperate directly and, as appropriate, through relevant regional fisheries management organizations, in the implementation of the IPOA-IUU and to develop corresponding national plans of action (NPOAs).[9]

1.2 Elements of the IPOA-IUU

Addressing the complex problem of IUU fishing in an effective manner is not an easy task. The term "IUU fishing," as discussed below, covers a broad range of activity. The vessels that conduct IUU fishing are, by nature, highly mobile platforms that often operate in marine areas far from land and in places where effective monitoring, control and surveillance (MCS) are lacking.[10] The beneficial owners of the vessels, who typically have nationalities that differ from those of their vessels, often succeed in preventing fisheries managers and law enforcement officials from ascertaining their identities. In addition, the ease with which IUU fishers can change the registration of their vessels and the number of ports in which they can off-load their catch make tracking difficult.

In light of these manifold challenges, the IPOA-IUU was conceived as a kind of comprehensive "toolbox" that includes a full range of tools to prevent, deter and eliminate IUU fishing. Many of these tools are already in use by at least some States, acting alone or in cooperation with other States, including through regional fisheries management organizations (RFMOs). Not all tools work in all situations. However, States should be able to find in the IPOA-IUU an appropriate tool or combination of tools to fit every circumstance and, in so doing, reduce the incidence of IUU fishing.

The following section briefly summarizes the major elements of the IPOA-IUU.

Basic terminology. Section II of the IPOA-IUU highlights a number of key terms as they are used in the text. Of particular note are the terms "illegal," "unreported," and "unregulated" as they relate to fishing activity. They are presented here verbatim:

Illegal fishing refers to fishing activities:

(1) conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

(2) conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or

(3) in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.

Unreported fishing refers to fishing activities:
(1) which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

(2) undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.

Unregulated fishing refers to fishing activities:
(1) in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or

(2) in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.[11]

As these provisions reveal, "IUU fishing" is a broad term that captures a wide variety of fishing activity, most of which is illicit. Illegal fishing is, by definition, wrongful. Any fishing activity that should be reported but is not (or is misreported) is also wrongful. Although unregulated fishing may or may not be wrongful, depending on the circumstances, the IPOA-IUU is generally concerned with unregulated fishing that is likely to frustrate the achievement of sustainable fisheries.[12]

The common thread is that IUU fishing may generally be said to occur in violation of - or at least with disregard for - applicable fisheries rules, whether adopted at the national or international level.

Relationship to the Code of Conduct and to other instruments. Like the other IPOAs adopted by COFI in recent years, the IPOA-IUU has been elaborated within the framework of the Code of Conduct. A number of provisions of the Code of Conduct, particularly certain provisions of Articles 1 and 3, also describe the relationship between the IPOA-IUU and other relevant international instruments. Generally speaking, the IPOA-IUU is to be interpreted and applied in a manner that is consistent with those instruments, including the 1982 UN Convention, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement. The provisions of the IPOA-IUU that relate to international trade are also to be interpreted and applied in a manner that is consistent with the rules of the World Trade Organization (WTO).

Objectives and principles. As its title indicates, the objective of the IPOA is to prevent, deter and eliminate IUU fishing. The principles to guide the pursuit of this objective include: (1) broad participation and coordination among States, as well as representatives from industry, fishing communities and non-governmental organizations (NGOs); (2) the phasing in of action to implement the IPOA-IUU on the earliest possible timetable; (3) the use of a comprehensive and integrated approach, so as to address all impacts of IUU fishing; (4) the maintenance of consistency with the conservation and long-term sustainable use of fish stocks and the protection of the environment; (5) transparency; and (6) non-discrimination in form or in fact against any State or its fishing vessels.

Overlapping responsibilities of States. As detailed below, the IPOA-IUU contains a large and diverse set of measures for States to take to combat IUU fishing, individually and in collaboration with other States. Some of these measures are designed for use by all States; others are tailored for application by flag States, coastal States and Port States.[13] Another section of the IPOA-IUU, on "Internationally Agreed Market-Related Measures," may be said to be addressed to "market States" - those States involved in the international trade of fish and fish products. Obviously, there may well be some overlap in these measures as they are implemented.

The IPOA-IUU also calls upon all States to develop and adopt, as soon as possible but not later than 3 years after the adoption of the IPOA-IUU (i.e. by March 2004 at the latest), NPOA(s) to further achieve the objectives of the IPOA-IUU and to give full effect to its provisions as an integral part of their fisheries management programs and budgets. A primary purpose of these guidelines is to provide suggestions to national governments on the development of such NPOAs. Given this timetable, it is urgent that all States begin the process of developing NPOAs as soon as possible.

Regional Fisheries Management Organizations. The IPOA-IUU recognizes that many fisheries, particularly for straddling fish stocks and highly migratory fish stocks, are managed under the auspices of RFMOs and that, accordingly, RFMOs have a primary role to play in combating IUU fishing. To this end, the IPOA-IUU provides States, acting through RFMOs, with a number of tools designed for use at the regional level, building on measures that several RFMOs have already developed and implemented. The IPOA-IUU, while recognizing that States are only directly bound by measures adopted by RFMOs of which they are members, also reaffirms that States that are not members of RFMOs have a responsibility to ensure that their nationals and vessels do not undermine fishery conservation and management measures adopted by RFMOs.

Special Requirements of Developing Countries. Developing States, particularly small island developing States and other developing coastal States, are among those that suffer the most from the adverse effects of IUU fishing. The IPOA-IUU calls upon States, with the support of FAO and relevant international financial institutions and mechanisms, where appropriate, to support training and capacity building and to consider providing financial, technical and other assistance to developing States so that they can more fully meet their commitments under the IPOA-IUU and obligations under international law, including their duties as flag States, coastal States and port States. Such assistance should be directed in particular to help such States in the development and implementation of NPOAs.

Role of FAO. The IPOA-IUU calls upon FAO to carry out a number of tasks to promote its implementation by States, acting individually and in cooperation with other States. Among other things, FAO will, as and to the extent directed by its Conference, collect information relating to IUU fishing, support development and implementation of NPOAs and convene an expert consultation to consider ways to standardize certification and documentation requirements relating to fisheries.[14] FAO will also receive and publish reports from States and RFMOs on their implementation of the IPOA-IUU, which should be presented as part of their biennial reporting to FAO on the Code of Conduct.

[1] For further discussion, see “Dealing with the ‘Bad Actors’ of Ocean Fisheries, ” by David Balton.
[2] See SOFIA 2000, p. 57.
[3] Report of the Second Meeting of FAO and Non-FAO Regional Fishery Bodies or Arrangements, p. 7. See also IOTC Resolution 00/01, indicating that “70 percent of data from longline operations [in that region] are still not reported to IOTC.”
[4] However, due presumably to a number of measures adopted by ICCAT in recent years to combat IUU fishing, which are described in later sections of these guidelines, ICCAT estimates of IUU fishing levels for at least bluefin tuna and bigeye tuna have decreased in 1999/2000, compared to previous years.
[5] CCAMLR estimates for 1999/2000 show a decrease in IUU fishing for toothfish from previous years, but it remains quite high, at more than 8,000 tons of landings (green weight). The high market value of toothfish has made this species a prime target for IUU fishing. CCAMLR members see this issue as the greatest challenge currently facing the Commission. The continuation of IUU fishing could reduce toothfish stocks to levels from which they cannot recover. Also, the incidental mortality of seabirds caused by those involved in IUU fishing is threatening to drive to extinction a number of species, specifically petrels and albatrosses. For further information, see “The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch Documentation Scheme,” by D.J. Agnew.
[6] E.g. the Commission on Sustainable Development (April 1999); the Asia-Pacific Economic Cooperation Fisheries Working Group (July 1999); the United Nations General Assembly (November 1999); the IMO Sub-Committee on Flag State Implementation (January 2000); the IMO Marine Environment Protection Committee (March 2000); the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (May 2000).
[7] Report of the Twenty-third Session of the Committee on Fisheries, Rome, Italy, 15-19 February 1999, Paragraph 72.
[8] Documents relating to this Expert Consultation are available in the Report of the Expert Consultation on Illegal, Unreported and Unregulated Fishing.
[9] See UNGA Resolution 56/13, paragraph 15.
[10] The term “monitoring, control and surveillance” - or MCS - appears to have come into common usage following the 1981 FAO Expert Consultation on Monitoring, Control and Surveillance Systems for Fisheries Management.
[11] The IPOA-IUU notes that “certain unregulated fishing may take place in a manner which is not in violation of applicable international law, and may not require the application of measures envisaged under” the IPOA-IUU.
[12] One could say that fishers are always to blame for engaging in “illegal” and “unreported” fishing activity. The wrongful acts are entirely within their control. Similarly, fishers who become “unregulated” by evading rules that apply to other fishers, e.g. by reflagging or by using vessels without nationality, are to blame for wrongdoing. However, fishers who conduct activity that is unregulated solely because the relevant State or States have not adopted any regulatory measures for the fishery concerned cannot be said to be engaged in wrongful acts.
[13] The term “coastal State” is generally understood to mean a State bordering a marine area. The term “flag State” is generally understood to mean a State in whose territory a vessel is registered and whose flag a vessel is entitled to fly. The term “port State” is generally understood to mean a State in whose port a vessel is seeking or has obtained access.
[14] That Expert Consultation took place in January 2002. See Report of the Expert Consultation of the Regional Fisheries Management Bodies on the Harmonization of Catch Certifcation.

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