Linda A. Chaves
Chief
Office of Industry and Trade
National Marine Fisheries Service
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
Silver Spring, MD, USA
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Chaves, L.A. Illegal, Unreported and Unregulated Fishing: WTO Consistent Trade Related Measures to Address IUU Fishing. Document AUS:IUU/2000/16. 2000. 10 p. ABSTRACT This paper sets out the pros and cons of incorporating trade
measures in any plan to fight IUU fishing and puts down a marker that a
transparent, non-discriminatory process is essential in allaying fears that
trade measures are disguised barriers to trade. The paper reviews the advantages
and disadvantages of defining the term “IUU” and suggests that while
arriving at an exact definition may be difficult, ambiguity may discourage some
States from participating in efforts to combat IUU fishing if trade measures are
involved. Furthermore, disputes brought before the WTO may be more likely to
succeed if there is little ambiguity in the term. The paper reviews effective
multilateral as well as unilateral trade measures currently in place to support
conservation goals; ICCAT, NAFO, and CCAMLR are highlighted, as is the
Shrimp/Turtle decision by the WTO Appellate Body. The paper then reviews the WTO
Articles relevant to a discussion of trade measures, specifically Articles I,
III, XI, and XX, focusing on Article XX, which sets forth certain exceptions to
the rules contained in the rest of the GATT Agreement. After concluding that
trade measures in support of well-defined conservation goals, including
combating IUU fishing, may survive challenge under the WTO if certain criteria
are met, the paper sets forth a proposal to eliminate commerce in illegally
harvested fisheries products. |
PREPARATION OF THIS REPORT
This paper has been prepared as one in a series of specialist background papers for the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000. It is expected that this series of papers and the expert consultation will contribute to the elaboration of an international plan of action (IPOA) to deal effectively with all forms of illegal, unreported and unregulated (IUU) fishing, the development of which is being undertaken in accordance with a decision of the 1999 FAO Ministerial Meeting on the Implementation of the Code of Conduct for Responsible Fisheries. The views expressed in this paper are those of the author and do not necessarily reflect the views of FAO or any of its Members.
EXECUTIVE SUMMARY[366]
This paper discusses the scope of WTO-consistent trade related measures to address IUU fishing. It covers relevant WTO provisions, the role of trade measures in combating IUU fishing, numerous trade measures which may be employed and examples of such which have been employed.
In order that there be international consensus on an IPOA to combat IUU fishing, the amorphous term “IUU Fishing” need further precision or greater elaboration. There may be problems with leaving the definition of IUU fishing undefined. Some States may not be comfortable in joining to fight IUU fishing without some clear agreement concerning the range of fishing activities that are being targeted. Furthermore, the absence of a clear definition of “IUU fishing” means that there may in fact be less of an international consensus on the practices targeted by the trade measures and the means necessary to address them. Bearing in mind these concerns, the consultation and follow-up sessions should craft a definition of IUU fishing of the greatest possible precision.
A fundamental question that must be sorted out is against whom or what are port State actions to be taken - vessels, officers, owners, or States? What about countries with fisheries management regimes in place that are routinely ignored by their own fleet? Are their vessels or the flag State culpable as far as the world community is concerned? The answers to these and other questions will influence the evaluation of a trade measure’s effectiveness.
With nearly 40% of the world’s fishery production traded internationally, it follows that trade measures may have impact on IUU fishing through the regulation of imports. Experience indicates that trade measures can be an effective tool for fisheries management officials trying to prevent circumvention of agreed conservation goals. As importantly, World Trade Organization (WTO) rules provide flexibility to use trade measures for conservation purposes subject to certain safeguards against abuse.
With a plethora of trade measures it is necessary to determine what type of mechanism would be most fair and transparent and therefore be the least likely to engender controversy. It is submitted that monitoring, control and surveillance plus some form of certification will be essential features in enforcement of conservation goals and verification of compliance.
A certification requirement tailored in such a way so as not to constitute discrimination or be excessively burdensome could be extremely effective in combating IUU fishing.[367] Creating a mandatory certification requirement as an integral part of a new international agreement to eliminate IUU fishing would be a bold step. Under this scheme, all imports would be considered legal if the flag State could certify that the fish has been harvested in accordance with their own fisheries management regime/requirements; or from an area governed by an RFMO or other regional body; or on the high seas in accordance with international standards. If, however, it has been harvested outside of existing regulations, then it should not be certified as legal and as a result cannot enter the markets of those countries requiring certification of legal harvest. In addition, States should prohibit their fisheries processors, brokers and dealers from receiving or trading in illegally-harvested fisheries resources. This would be a first step toward prohibiting entry of IUU caught fish into any State or market.
Trade measures in support of national and international conservation goals should be transparent and administered in a fair and non-discriminatory manner. The underlying conservation goals must be based on best available science, well defined, and to the extent possible, multilaterally agreed. As highlighted in this paper, recent jurisprudence and the experience of RFMOs may provide useful guidance in designing elements of an IPOA aimed at eliminating IUU fishing particularly if it relies on the use of trade measures.
The lessons learned include that:
Under the conditions described above, and taking into consideration the market concentration for high valued fisheries products, if it can be agreed multilaterally that only legally harvested fisheries products be allowed to enter into domestic or international commerce, then trade measures could be most effective in eliminating IUU fishing.
SUGGESTIONS FOR IPOA TEXT
Short or Near Term:
States shall prohibit their fisheries processors, brokers and dealers from receiving or trading in illegally harvested fisheries resources whether harvested in their own waters, in waters of other states or waters managed through science based international agreements.
States shall prohibit the importation of illegally harvested product.
States and Regional Fisheries Management Organizations concerned over the health of resources under their jurisdiction shall establish certification or documentation systems to better identify and differentiate between legally and illegally harvested products. States may ask other States to assist in deterring trade in these illegally harvested products by requiring this documentation or certification for imports of the product.
Assistance will be provided to increase the scientific basis of management systems and improve enforcement capabilities where appropriate.
Long Term:
Science based standards of sustainability will be agreed internationally and form the basis of fisheries management systems for resources either within the jurisdiction of individual states or regionally fisheries management organizations.
Assistance will be provided to States to establish management systems based on internationally agreed scientific standards of sustainability.
Assistance will be provided to States to enforce science based, internationally agreed standards of sustainability.
Fisheries resources not harvested according to or in compliance with science based management regimes will be considered to be illegally harvested and prohibited from entry into domestic or international commerce.
States will be responsible for certifying that products have been harvested legally and in accordance with science based management regimes within their jurisdiction or in accordance with regional fisheries management organizations.
Flag states shall minimize opportunities for fraud by using electronic certification schemes where possible.
Product lacking certification that it has been harvested legally shall be prohibited from entry into domestic or international commerce.
1. INTRODUCTION
1 In a perfect world, the UN Fish Stocks Agreement and the FAO Compliance Agreement would be in force and their principles, along with those of the FAO Code of Conduct and the UN Convention on the Law of the Sea (UNCLOS), implemented in the management plans of all coastal and flag States. In a perfect world, all vessels would be flagged by States that controlled their fleets in line with principles set forth in these international instruments. In a perfect world, the reach of Regional Fisheries Management Organizations (RFMOs), governed by the principles of sustainable development, would extend over the world’s oceans with no exceptions. In this scenario, monitoring, control and surveillance (MCS) would be seamless and extend from shore line to shore line including all nations exclusive economic zones (EEZs) and the high seas. Every fish would be accounted for and enlightened global management, underpinned by sound science, would prevail.
2. Unfortunately, this scenario has not yet been realized. And because it has not, the world’s fisheries ministers, meeting at the FAO in 1999, called for the development of a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying “flags of convenience.” Experience indicates that trade measures can be an effective tool for fisheries management officials trying to prevent circumvention of agreed conservation goals. As importantly, World Trade Organization (WTO) rules provide flexibility to use trade measures for conservation purposes subject to certain safeguards against abuse, although it should be noted that trade measures designed to conserve resources outside of national borders remain controversial.
3. As discussion proceeds toward a global approach to addressing IUU fishing, a question of primary importance is how the incorporation of trade measures in a global strategy might affect participation. Will the prospect of a possible resort to trade measures by States implementing an international plan of action (IPOA) or other multilateral effort encourage or dissuade other States from participating and truly making it a global effort? Will developing States that have systemic problems enforcing their fisheries management regimes, including problems with the monitoring, control and surveillance of their vessels and EEZs, be eager to participate?
4. With these questions as a backdrop, it is critical that trade measures be tied to legitimate and well-defined conservation goals. In addition, special attention must be paid to designing a fair and transparent process that will ensure that the measures are not unjustifiably discriminatory or disguised barriers to trade.
2. DEFINITION AND SCOPE OF THE PROBLEM
5. An important challenge will be to decide whether the amorphous term “IUU fishing” needs further precision or greater elaboration. Another approach would be to provide examples that can serve as indicative or descriptive of a range of issues undermining the sustainability of fisheries resources, thereby obviating the need for a precise definition of “IUU fishing”.
6. There may, however, be problems with leaving the definition of IUU fishing loosely defined. Some States may not be comfortable in joining to fight IUU fishing without some clear agreement concerning the range of fishing activities that are being targeted. Furthermore, the absence of a clear definition of “IUU fishing” means that there may in fact be less of an international consensus on the practices targeted by the trade measures and the means necessary to address them. Bearing in mind these concerns, the consultation and follow-up sessions should craft a definition of IUU fishing of the greatest possible precision.
7. IUU fishing contributes to a number of problems, from resource depletion to the miscalculation of biomass, that negatively affect the sustainability of fisheries resources. The tighter the controls by fisheries managers over the world’s fish stocks, the more apparent and the more lucrative become the activities of the free riders, illegal fishers, and IUU fishing generally. The most egregious examples of these practices appear to be in the EEZs of some developing countries without resources and infrastructure to properly manage waters under their jurisdiction; on the high seas by members and non-members of RFMOs; and in remote areas where surveillance is often difficult or neglected. A disproportionate amount of IUU fishing appears to be carried out by vessels registered in States with open registries and stateless vessels.
8. Arriving at an accurate percentage of world trade in fisheries products that can be attributed to IUU fishing may be next to impossible, given the extra-legal nature of the problem.[368] However if one takes a species-specific approach, Dissostichus spp. for example, it is clear that IUU fishing could contribute to the decimation of a stock and has, therefore, the potential to be a serious problem.
3. RELEVANT WTO PROVISIONS
9. The General Agreement on Tariffs and Trade 1994 (GATT 1994) contains the guiding principles upon which the world trading system is based. The Final Act of the Uruguay Round of multilateral trade negotiations (MTN) established the World Trade Organization in 1994 and subsumed GATT 1994 and other separate trade agreements under it. The WTO does not have a separate agreement with specific rules for fisheries, as is the case with agriculture; fisheries remains covered by the GATT 1994 with its tariff commitments and the Subsidies and Countervailing Measures Agreement, among the other WTO Agreements.
10. For the purposes of a discussion of trade measures in support of conservation goals four Articles merit special attention: Article 1 (Most Favored Nation - MFN), Article III (National Treatment), Article XI (Prohibition on Quantitative Restrictions) and Article XX (General Exceptions).[369] Articles I, III, and XI describe core obligations members of the club must abide by and Article XX lists exceptions to these obligations.
Most Favored Nation: The MFN obligation requires that “any advantage, favor, privilege or immunity granted by any contracting party to any product originating in or destined for any other State shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.” A contracting party can not play favorites in other words.
National Treatment: National treatment arises from Article III of the GATT and requires that imported products be treated no less favorably than “like” domestic products. Whereas MFN proscribes discrimination between foreign produced imports, national treatment demands that domestic and foreign like products be treated equally.
Quantitative Restrictions: Article XI states that “no prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures...” are permitted to be imposed on the imports of a contracting party. In other words, import bans are not permitted without the application of an exception such as in Article XI itself, or in Article XX.
Exceptions: Article XX of GATT 1994 sets forth certain exceptions to the rules contained elsewhere in that agreement. For purposes of clarity, it may be useful to reproduce the chapeau and the relevant provisions of Article XX as they may relate to trade measures taken to combat IUU fishing:
“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:4. THE ROLE OF TRADE MEASURES IN COMBATING IUU FISHING(b) necessary to protect human, animal or plant life and health;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption...”
11. Trade in fisheries products is increasingly global. The FAO has noted that some 195 States exported part of their fisheries production and 180 States reported fishery imports in 1997. International trade continues to grow and at an accelerating rate. Export volume reached 45.8 million tons in 1997 which is nearly three times the volume traded in 1976 and, when converted into estimated live weight equivalent, represents 37.5 percent of overall fisheries production.[370]
12. With nearly 40% of the world’s fishery production traded internationally, it follows that trade measures may have impact on IUU fishing through the regulation of imports. Considering that any solution to the problem of IUU fishing must involve effective enforcement of regional or international measures and standards, trade measures that provide such enforcement are likely to be the most useful in combating IUU fishing.
4.1 What is a trade measure?
13. For the purposes of this paper, a trade measure is a border control that allows a State or territory to regulate, restrict or prohibit trade. Examples of trade measures include landing actions, certification, labeling, or size requirements, among others. It is recognized, however, that some high seas controls, such as monitoring system and boarding requirements, while not technically trade measures, are related and can trigger the imposition of border controls.
4.2 Port State vs. Flag State
14. Much has been written on flag State responsibilities and the fight to end IUU fishing. World-wide adoption and implementation of the principles contained in the UNCLOS, the UN Fish Stocks Agreement, the FAO Compliance Agreement, and the Code of Conduct would go a long way toward solving the problem of IUU fishing. However, in the meantime, alternative interim solutions to combat IUU fishing should be considered by fisheries experts. Certain regional fisheries management organizations, such as Northwest Atlantic Fisheries Organization (NAFO), Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), and International Commission for the Conservation of Atlantic Tunas (ICCAT), have done much relevant work in this area already.
15. Trade measures that have been used effectively in support of conservation goals by RFMOs fall primarily, although not exclusively, under the category of port State controls. Even certification schemes, such as are being implemented in CCAMLR, initially require flag State responsibility but trigger port State actions as the chain of custody extends to the import market. It is a discussion of port State controls, or point of entry controls, that seems most appropriate to the objectives of this paper.
4.3 Vessels, Officers, Owners, or States?
16. A fundamental question that must be sorted out is against whom or what are port State actions to be taken - vessels, officers, owners, or States? What about countries with fisheries management regimes in place that are routinely ignored by their own fleet? Are their vessels or the flag State culpable as far as the world community is concerned? Does a future IPOA on IUU fishing intend to address management problems within an individual State’s EEZ? If a blacklist of bad actor vessels is assembled by the self-proclaimed good actors and distributed widely, how is due process honored, or the list verified?
17. The answers to these and other questions will influence the evaluation of a trade measure’s effectiveness. But in looking at WTO-consistent trade measures to combat IUU fishing, the role of the flag State takes on particular significance, given that it is the States and not individual vessels that are given rights under the WTO.
4.4 A Menu of Options
18. Listed below are some examples, multilateral as well as unilateral, where trade measures have been used or have been contemplated to meet fishery conservation goals.
4.4.1 International and Regional Management Arrangements
19. ICCAT: The International Commission for the Conservation of Atlantic Tunas was established to provide a forum for the international coordination of research and management of tuna and tuna-like species in the Atlantic Ocean. ICCAT seeks to conserve and manage such species throughout their range in a manner that maintains their population at levels that will permit the maximum sustainable catch. The Convention area is defined as all waters of the Atlantic Ocean, including the adjacent seas.
A. Bluefin and Swordfish Action Plans
20. In recent years, ICCAT has adopted several measures designed to encourage cooperation by non-members and compliance by ICCAT members with the Commission’s conservation and management decisions. As a part of the Bluefin Tuna Action Plan Resolution, adopted in 1994, provides a mechanism that can lead to the use of multilateral trade measures against parties deemed to diminish the effectiveness of the ICCAT conservation measures for bluefin tuna. In 1996, the ICCAT Commission recommended that its members take measures to prohibit the import of bluefin tuna in any form from the non-ICCAT Member countries Belize, Honduras and Panama. The recommendation for multilateral trade restrictive measures represented the first time that such measures had been authorized by an international fisheries management body. The action followed several years of effort to encourage cooperation with ICCAT conservation and management measures. Because Panama had demonstrated what ICCAT viewed as a sincere desire to rectify the fishing activities of its vessels, implementation of trade restrictions against this State were in fact delayed for approximately 6 months as the ICCAT Commission tried unsuccessfully to come to terms with Panama. Significantly, ICCAT adopted a measure at its 1999 meeting that lifted the bluefin tuna trade restrictions against Panama in recognition of Panama’s new status as an ICCAT member and of its notable and continuing efforts to control its fleet. Also in 1999, ICCAT recommended pursuant to its Swordfish Action Plan Resolution that its members take measures to prohibit the import of Atlantic swordfish in any form from Belize and Honduras. The 1999 ICCAT meeting was also significant in that the Commission recommended that its members take actions prohibiting the import of bluefin tuna from Equatorial Guinea, a contracting member, under a bluefin tuna quota compliance measure adopted in 1996. In all cases (against contracting and non-contracting members) the recommendations of the Commission are binding on its members.
B. Swordfish Minimum Size
21. In 1995, ICCAT adopted a smaller, alternative minimum size requirement for Atlantic swordfish which can be selected by a State in lieu of the larger minimum size. Unlike the larger size limit, the smaller, alternative swordfish minimum size provides no tolerance level for the harvest of swordfish under that size. If a State selects the alternative minimum size, it must take measures to prohibit the taking by its vessels, as well as the landing and sale in its jurisdiction, of swordfish below the limit. The United States adopted the alternative minimum size and has taken steps to implement the terms of the ICCAT recommendation. To implement the ban on sale in its jurisdiction, the United States prohibited the import of Atlantic swordfish and swordfish pieces below the minimum size, unless the pieces were derived from a swordfish larger than that size. To determine if swordfish are eligible for import, all shipments must be accompanied by a certificate of eligibility (COE). This document must be signed and sealed by an official or authorized representative of the exporting authority. The United States appears to be the only State that has taken such a step. In order to ensure access to the US market, Canada had adopted ICCAT’s alternative minimum size; however, Canada did not set up a system to control imports given its status as a swordfish exporting rather than importing State.
22. NAFO: The Northwest Atlantic Fisheries Organization requires that 100 percent of its contracting parties carry observers while in the NAFO Regulatory Area (NRA). Not later than January 1, 2001, all vessels of contracting Parties will be required to be equipped with satellite vessel monitoring systems (VMS). Vessels of non-contracting Parties sighted fishing in the NRA are presumed to be undermining NAFO conservation and enforcement measures and must be inspected in a contracting Party port, before any product can be off loaded or transshipped. Within the NRA, non-contracting Parties may be boarded and inspected with the consent of the master.[371]
23. CCAMLR: The Convention on the Conservation on Antarctic Marine Living Resources established a Commission (CCAMLR) charged with protecting and conserving the marine living resources in the waters surrounding Antarctica. The Convention is based upon an ecosystem approach to the conservation of marine living resources and incorporates standards designed to ensure the conservation of individual populations and species and the Antarctic marine ecosystem as a whole. CCAMLR addresses IUU fishing through measures which require the marking of fishing vessels and gear; specify licensing and inspection obligations of Contracting Parties; encourage cooperation between Contracting Parties to ensure compliance with CCAMLR conservation measures; promote compliance by non-Contracting Party vessels with CCAMLR conservation measures; mandate the use of automated satellite-linked Vessel Monitoring Systems (VMS) on Contracting Party vessels fishing in the Convention Area; and establish a Catch Documentation Scheme (CDs) to track and monitor trade in toothfish. The CDS is designed to reduce unreported and illegal fishing for toothfish currently taking place in the Convention Area and adjacent waters. It does this by requiring that toothfish landed in the ports of CCAMLR parties, transshipped to their vessels or through their ports, or imported into their territories be documented.
24. CITES: The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was adopted in 1973 and came into force in 1975 and has 143 Parties or members. As a part of this multilateral environmental agreement (MEA), the Parties identify species that are or may be threatened by trade, listing them in Appendix 1. Species that may become threatened if trade in the species is not regulated are listed in Appendix 2. Commercial trade is forbidden for species on Appendix 1 and strictly regulated for species on Appendix 2.
4.4.2 Unilateral Action/Trade Embargo
25. Tuna/Dolphin: The US Marine Mammal Protection Act (MMPA), as amended, seeks to minimize the mortality of dolphins in the purse seine tuna fishery of the Eastern Pacific Ocean. Until recently, the MMPA prohibited imports of yellowfin tuna from nations whose vessels participating in this fishery had dolphin mortality rates in excess of U.S. standards. As amended in 1997, however, the MMPA permits the importation of such tuna, provided that the harvesting nation is complying with newly agreed multilateral standards for dolphin safety, as set forth in the 1999 Agreement on the International Dolphin Conservation Program.
26. Shrimp/Turtle: Public Law 101-162, Section 609, prohibits the importation of shrimp harvested in ways that are harmful to endangered species of sea turtles. This import prohibition does not apply with respect to nations that are certified by the United States as meeting certain criteria relating to the protection of sea turtles in the course of commercial shrimp trawl fishing.
27. Both the Tuna/Dolphin and Shrimp/Turtle cases relied on process and production criteria in determining US action, challenging the definition of “like product” as defined by the WTO (discussed below). The application of US laws was challenged in each case.
4.4.3 Other Measures
28. Blacklists: Blacklists have been suggested as a way to identify and commit to a list vessels engaged in a number of activities including: open registry without adequate flag-State controls, or reflagging to avoid conservation and management measures; non-party fishing in RFMOs; and illegal fishing on the high seas or within a State’s EEZ.
29. White Lists: There are also “white” lists, such as the one maintained by the South Pacific Fisheries Forum Agency. To fish in the waters of any FFA Member States, a vessel must be in “good standing.” CCAMLR also maintains a list of vessels licensed to fish in Convention waters.
30. Ecolabels: Whether private sector- or public sector-driven, labeling schemes are market-based opportunities for consumers to express their preferences on where or how a product was harvested or about a myriad of other product characteristics.
4.5 Effectiveness of Available Options in Combating IUU
31. Rather than evaluate each model or measure individually as to its effectiveness in eliminating IUU fishing, it may be more useful to draw lessons from each and formulate a set of guidelines for combating IUU fishing.
4.5.1 RFMOs or MEAs
32. The RFMOs and CITES discussed above have three important, fundamental features which should be incorporated in any future effort to combat IUU fishing. They are multilateral, they support well-defined conservation goals backed by sound science, and they expressly authorize trade measures as a means to enforce these objectives. These organizations articulate a set of common or shared standards of responsibility for their members and serve as a forum in which to discuss policy issues of mutual interest. The fact that the conservation goals and the role of trade measures in enforcing those goals have been agreed to in advance reduces the likelihood of controversy over trade measures.
33. ICCAT’s well-defined and deliberate approach to recommending trade restrictions to ensure cooperation with agreed conservation and management measures has a number of the elements one would look for in developing a model to combat IUU fishing. The use of maximum sustainable catch criteria as the driver behind regulations to maintain fish populations throughout the region strengthens the organization’s credibility and the legitimacy of the trade measures as a conservation measure.
34. NAFO’s surveillance and monitoring system - 100 percent observer and VMS coverage, which is made possible in part because of its relative small geographic coverage, is the linch pin of the RFMO’s effectiveness. In1997, NAFO adopted the “Scheme to Promote Compliance by Non-Contracting Party Vessels with the Conservation and Enforcement Measures Established by NAFO.” This scheme presumes that non-Party vessels sighted in the NAFO regulatory area are undermining NAFO management and conservation measures. The vessels must be inspected upon entry into a Party’s port and no landings or transshipments are permitted in such ports unless such vessels establish that they were not fishing in contravention of NAFO conservation goals - a rebuttable presumption. Schemes similar to the NAFO measure were subsequently adopted by CCAMLR and the North East Atlantic Fisheries Commission (NEAFC). The presumption of guilt may be problematic if abused unilaterally but as a pillar of a multilaterally agreed set of principles it remains unchallenged.
35. One of the important features of CCAMLR is the certification scheme just now being implemented in contracting Party countries. This scheme establishes a mechanism for tracking the origin of catches of Dissostichus spp. and their movement in international trade through a certificate of origin system. Furthermore, a system has been approved which will require contracting Parties to prohibit imports of Dissostichus spp. unless it were demonstrated through the certificate of origin system that such imports consisted of catch taken in the CCAMLR Convention area in accordance with CCAMLR conservation measures or that it had been caught outside the CCAMLR area.
36. CITES lists in Appendices certain marine species, for example sea turtles, cetaceans, corals and queen conch, plus fish species, including, coelacanths, sturgeon and paddlefish. Broad participation in CITES and the Convention’s reliance on the precautionary approach, as expressed in CITES listing criteria, are important features.
4.5.2 Unilateral Action
37. Principle 12 of the Rio Declaration, agreed upon at the 1992 Earth Summit, discourages unilateral action but does not proscribe it: “[u]nilateral actions to deal with environmental challenges outside the jurisdiction of the importing State should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.” Despite the Rio Declaration and setting aside the question of world opinion, unilateral action is by definition less effective than multilateral action unless an importing State controls a large share of the market, which does occur but is not the norm. That said, the United States has acted unilaterally to meet conservation goals and has several domestic laws requiring it to do so. In at least one case, the WTO seems to have agreed that the US had, under the facts of the case, the right to do so.
38. The Shrimp/Turtle case may provide useful guidance in designing measures so as to effectively enforce conservation goals without raising concerns with regard to trade rules. Shrimp/Turtle tested the ability of a State or States to restrict imports based on the conservation exception, Article XX (g) of GATT 1994, and highlighted the impact of harvesting technique - production and processing methods (PPMs) - on resource sustainability. Focus in this case was not on the product itself, shrimp, but on the circumstances related to their harvest.[372]
39. The Appellate Body report went to great lengths describing what it believed the United States did wrong in implementing its law, including failing to make sufficient efforts to negotiate with its trading partners, granting longer periods for adjustment to the new regulations to some States over others, providing more assistance to some States and their industries than to others, as well as other issues of due process. These issues should be taken into consideration in the implementation of future trade measures.
4.5.3 Labels and Lists
40. Ecolabels have been contentiously debated in various intergovernmental fora such as the FAO Committee on Fisheries, the UN Committee on Sustainable Development and the WTO Committee on Trade and the Environment. The subject has proven to be a lightening rod for attracting criticism by certain States concerned that ecolabels are a trade barrier in disguise. So contentious are the basic conditions behind ecolabels - standards of sustainability, certification authority, compliance capability, etc., that it is probably fair to say that FAO-endorsed technical guidelines for a potential ecolabel are not likely to see the light of day any time soon, if ever, leaving the exercise in the hands of national bodies and the private sector.
41. Blacklists of vessels are commonly cited as a way to address IUU fishing. One State has been distributing a list of vessels they consider to be flying “flags of convenience.” It appears this list has been circulated among potential importers of fish in that State. In a sense, a blacklist can be another form of an ecolabel - a market-based mechanism that allows consumers (or large importers) to make an informed judgment about the source or method of harvesting of the product they are considering purchasing.
42. Blacklists offer the consumer a choice but present a range of problems if generated without due process. Although NAFO has instituted a “guilty until proven innocent” position on non-Party vessels found fishing in its waters, verification of blacklists will likely lead to accusations of false identification. Blacklists that are unilaterally assembled and distributed will remain more problematic than lists put together by multilateral organizations, for example, which are based on due process and broad oversight.
43. “White lists” as used by the FFA and CCAMLR are less problematic. CCAMLR maintains password protected websites, one listing sightings of vessels reported by CCAMLR Members to be fishing in apparent contravention of CCAMLR conservation measures, and a second, providing the details of vessels licensed by CCAMLR Member countries to fish in the Convention Area. The sightings list identifies vessel name, date of sighting, call sign, flag, activity (e.g., apprehended, VMS sighting, steaming, hauling, stationary, fishing), ASD code, latitude and longitude. The licenses list identifies vessel name, call sign, ASD code, target species, gear used, and duration of license. In addition, CCAMLR members notify one another through the CCAMLR Secretariat, of the disposition of prosecutions of apprehended vessels
5. TRADE MEASURES TO COMBAT IUU: QUESTIONS, CONCLUSIONS AND RECOMMENDATIONS
44. The most effective and WTO-consistent trade measures to combat IUU fishing will be imposed by multilateral organizations with well-defined conservation goals articulated as first principles. Trade measures would only be used to ensure compliance with the conservation goals and should be directly related to the conservation of fisheries resources, which are considered exhaustible natural resources within the meaning of Article XX (g) of the GATT 1994. The report of the WTO Appellate Body on the Shrimp/Turtle case provides a primer on how not to implement such measures and, therefore, by inference guidance on the process necessary to help gain WTO cover.
45. The cause and effect relationship between IUU fishing practices and the undermining of conservation goals or standards should be clear and undeniable. Bearing this in mind, and taking into account the issue of broadening participation, it may be necessary to define more clearly what is meant by IUU fishing. Not because it is easy but because ambiguity may lead to charges of arbitrariness.
46. It may also be necessary to determine what type of mechanism would be most fair and transparent and therefore be the least likely to engender controversy. Multilateral arrangements such as ICCAT with its strong statement on conservation and the obligations of its members not to undermine those conservation goals are excellent models. But would an IPOA on IUU fishing, subscribed to voluntarily by FAO Members, for example, be as effective in achieving a consensus on the problems and how to address them?
47. Monitoring, control and surveillance plus some form of certification will be essential features in enforcement of conservation goals and verification of compliance. Some version of a VMS requirement should be incorporated.
48. A certification requirement tailored in such a way so as not to constitute discrimination or be excessively burdensome could be extremely effective in combating IUU fishing.[373] Creating a mandatory certification requirement as an integral part of a new international agreement to eliminate IUU fishing would be a bold step. Under this scheme, all imports would be considered legal if the flag State could certify that the fish has been harvested in accordance with their own fisheries management regime/requirements; or from an area governed by an RFMO or other regional body; or on the high seas in accordance with international standards. If, however, it has been harvested outside of existing regulations, then it should not be certified as legal and as a result cannot enter the markets of those countries requiring certification of legal harvest. In addition, States should prohibit their fisheries processors, brokers and dealers from receiving or trading in illegally-harvested fisheries resources. This would be a first step toward prohibiting entry of IUU caught fish into any State or market.
49. While it is recognized that not all management systems are created equal, it is expected that the quality of management systems will improve over the coming years as more countries implement the Code of Conduct and the other aforementioned international instruments come into force. In the near term, a scheme certifying the legality of harvests would help promote better management. In the longer term, the eventual adoption of globally accepted standards of sustainability will help raise further the effectiveness of management regimes.
50. Implementation of such a scheme would require that technical and administrative assistance be made available to those countries seeking to develop new, or fine tune existing, management systems, including possible provision of MCS equipment. In order to address issues of fraud, a competent authority would be identified in each State - in most instances probably a Federal entity - to provide paper and electronic certification that the fish has been harvested legally. The certification would follow the fish forward along the chain of custody. The importing State would require that the import be accompanied by certification which could be cross-referenced with electronic certification. The importing State responsibility would be only to verify that the paper certification accompanying the import corresponds to electronic certification from the exporting State. Failure to meet this requirement would subject the import to embargo. While not necessarily for conservation purposes, many countries already require imports to be accompanied by certificates of origin or seafood safety. This added requirement should not pose an undue burden on producer countries and should provide added incentive for sound management.
51. When judging the possible effectiveness or WTO consistency of a system whose goal is to allow commerce in only legally harvested fish, at least four issues pertain. First, management systems and regulations within States and RFMOs are established for conservation purposes. Second, it makes sense that much of the IUU fishing taking place in the world is targeting higher value fish and fish products. Third, the market for these higher-valued products is concentrated. Fourth, States may support agreed conservation goals by different means and in different timeframes in accordance with domestic considerations. For example, ICCAT has written binding recommendations, as in the case of minimum size requirements for the import of Atlantic swordfish, that can be implemented differently according to a Member’s preference for a certain formulation of that requirement. Alternatives to implementation of a conservation goal can allow a State to interpret the ICCAT recommendation more strictly. It should be noted that the ICCAT measures have not been the subject of controversy in the WTO.
52. In conclusion, this paper argues that trade measures in support of national and international conservation goals should be transparent and administered in a fair and non-discriminatory manner. The underlying conservation goals must be based on best available science, well defined, and to the extent possible, multilaterally agreed. As highlighted in this paper, recent jurisprudence and the experience of RFMOs may provide useful guidance in designing elements of an IPOA aimed at eliminating IUU fishing particularly if it relies on the use of trade measures.
53. The lessons learned include that:
54. Under the conditions described above, and taking into consideration the market concentration for high valued fisheries products, if it can be agreed multilaterally that only legally harvested fisheries products be allowed to enter into domestic or international commerce, then trade measures could be most effective in eliminating IUU fishing.
