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7. INTERNATIONALLY AGREED MARKET-RELATED MEASURES


7.1 Actions by RFMOs
7.2 Other market-related measures

International trade in fish and fisheries products has increased dramatically in recent decades. Statistics available to FAO show that, in 1998, virtually all States exported part of their fisheries production, while almost as many States reported fishery imports. In 1988, despite a slight downturn due primarily to the global economic situation, the volume of world-wide exports was almost 50 million tons, valued at $51.3 billion (U.S.), which is nearly three times the volume traded in 1976. When converted into estimated live weight equivalent, this trade represents approximately one third of overall fisheries production.[89]

There are no reliable data to indicate precisely how much of the fish and fisheries products traded internationally are the result of IUU fishing. However, a number of the fish species that figure most prominently in international trade, including tunas and swordfish, are also species known to be targeted by IUU fishers.

The development of the IPOA-IUU took place against the backdrop of a variety of multilateral efforts already underway to restrict international trade in fish and fisheries products harvested through IUU fishing. The IPOA-IUU calls upon all States to develop additional internationally agreed market-related measures to prevent, deter and eliminate IUU fishing. Such measures must be interpreted and applied in accordance with the principles, rights and obligations established by the WTO[90] and implemented in a fair, transparent and non-discriminatory manner. The goal is to prevent international trade in fish and fish products harvested through IUU fishing while not creating unnecessary barriers to trade in other fish and fish products.

Although the IPOA-IUU does not define "market-related measure," that term is generally understood to encompass several types of controls on the importation and exportation of goods. In the context of creating a "toolbox" to combat IUU fishing, examples of such measures mentioned in the IPOA-IUU include multilateral catch certification and trade documentation requirements, as well as import and export restrictions and prohibitions.[91]

7.1 Actions by RFMOs

As noted above, the IPOA-IUU calls for market-related measures that are "internationally agreed." In this respect, RFMOs have served, and will likely continue to serve, as the primary international bodies for development and adoption of market-related measures to combat IUU fishing.

There are several vital functions that RFMOs can perform with respect to market-related measures. One is to identify vessels that have engaged in IUU fishing for stocks under the purview of the RFMO. The IPOA-IUU provides that the identification of such vessels should be made through agreed procedures in a fair, transparent and non-discriminatory manner. Where the identified vessels repeatedly fly the flag of a particular State, the RFMO can also identify that flag State and urge that State to bring the fishing activities of its vessels under control.

The identifications of vessels and flag States can trigger the market-related measures envisioned in the IPOA-IUU. In particular, paragraph 66 of the IPOA-IUU provides that:

States should take all steps necessary, consistent with international law, to prevent fish caught by vessels identified by the relevant [RFMO] to have been engaged in IUU fishing being traded or imported into their territories.
To fulfil this commitment, States must have some way to know which vessel harvested a particular fish or, at a minimum, the flag State of that vessel. RFMOs can assist in this regard by developing and adopting catch certification and trade documentation schemes. These schemes can help prevent, deter and eliminate IUU fishing by requiring that fish and fish products must be accompanied by forms indicating, for example, when and where the fish were harvested and by whom. Catch certification schemes typically require such forms to accompany all fish and fish products to which they apply, whether or not they become part of international trade. Trade documentation schemes cover only fish and fish products that enter international trade.[92]

The following material provides examples of recent market-related measures taken by selected RFMOs, including import prohibitions and documentation schemes. In all cases, it must be emphasized that the market-related measures form only part of a larger range of measures that the RFMOs have adopted to achieve effective conservation and management in general and to combat IUU fishing in particular.

ICCAT has adopted several market-related measures designed to encourage compliance by ICCAT members and cooperation by non-members with the ICCAT's conservation and management decisions.

The Bluefin Tuna Action Plan and Swordfish Action Plan, adopted in 1994 and 1995, respectively, can lead to the mandatory prohibition of imports of the relevant species from non-members whose vessels diminish the effectiveness of the ICCAT conservation measures for those species.[93] Under each Action Plan, ICCAT first identifies non-members whose vessels have been fishing for the species in question in a manner that diminishes the relevant conservation and management measures. ICCAT then requests the identified non-members to rectify those fishing activities. Failure to rectify will lead ICCAT to require all its members to prohibit the importation of fish of the species from the identified non-member. Beginning in 1996, ICCAT has identified a number of non-members under each Action Plan and has imposed prohibitions on imports from several of those.

In 1996, ICCAT adopted a measure that can result in the prohibition of imports of bluefin tuna and swordfish from ICCAT members as well, in the event that the member exceeds its catch limit for the species in question for two consecutive management periods.[94] Pursuant to this measure, ICCAT prohibited imports of bluefin tuna from one of its members in 1999.

ICCAT has also adopted a measure focussed on the problem of unreported and unregulated catches of tuna by large-scale longline vessels in the Atlantic region.[95] Under this measure, ICCAT members are to submit to the ICCAT Secretariat a variety of import and landing data relating to frozen tuna products. On the basis of that data and other pertinent information, ICCAT may identify both members and non-members whose large-scale longline vessels have been diminishing the effectiveness of ICCAT conservation and management measures and request those identified to take remedial action. Failure to take such action can, once again, lead to prohibitions on imports. Pursuant to this measure, ICCAT decided in 2000 to prohibit the importation of bigeye tuna from one ICCAT member and from four non-members.

Finally, ICCAT has maintained a Bluefin Tuna Statistical Document program for nearly a decade.[96] This program, which was applied first for frozen bluefin tuna and later to fresh bluefin tuna as well, represented ICCAT's initial attempt to deal with problems of IUU fishing for bluefin tuna in the Atlantic region. The primary objective of the program is to increase the accuracy of bluefin tuna catch statistics by verifying the flag State of the harvesting vessel, the area and time of catch. In doing so, the program also helps ICCAT estimate the amount of unreported bluefin tuna catches.

Under the Bluefin Tuna Statistical Document program, all ICCAT members must require that every bluefin tuna it imports be accompanied by a statistical document validated by the flag State of the harvesting vessel.[97] The document must contain at least the following information:

In 1999, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) adopted a statistical document program for southern bluefin tuna modelled closely on the ICCAT program. The objective of the CCSBT program, which became effective on 1 June 2000, is the same as well - to combat IUU fishing by monitoring the international trade in southern bluefin tuna. Under the program, every imported southern bluefin tuna must be accompanied by a statistical document validated by the flag State of the harvesting vessel and containing information that is virtually identical to the information required by ICCAT. However, CCSBT also requires that the time of capture must be noted on the document. Copies of all Southern Bluefin Tuna Statistical Documents must be sent to the Executive Secretary on a quarterly basis. The Executive Secretary circulates and reports on the summary data collected on biannual basis.[99]

In March 2000, the CCSBT also adopted a plan of action to identify non-members with vessels engaging in fishing activities that diminish conservation and management for southern bluefin tuna, similar to one adopted by ICCAT in 1994. Under the plan, CCSBT may require its members, consistent with their international obligations, to prohibit imports of southern bluefin tuna from identified non-members who fail to take corrective action.[100]

IOTC has adopted a statistical document program for bigeye tuna. By 1 July 2002, or as soon as possible thereafter, IOTC members must require that all imports of bigeye tuna into their territories be accompanied by a statistical document that is modelled on ICCAT's statistical document for bluefin tuna. However, bigeye tuna caught by purse seine vessels and by pole and line (bait) vessels and are destined principally for canneries in the IOTC Convention Area are not subject to this requirement.[101]

CCAMLR has recently adopted an innovative Catch Documentation Scheme for Patagonian toothfish and Antarctic toothfish (Dissostichus spp.), valuable resources that have been overexploited, particularly through high levels of IUU fishing. The CCAMLR decision outlining the Catch Documentation Scheme is attached as Appendix V to these guidelines.[102]

Perhaps the primary difference between the CCAMLR Catch Documentation Scheme and the ICCAT and CCSBT statistical documentation programs is that the former covers all retained harvests of the species in question, while the latter only covers those fish and fish products that enter international trade.[103]

The Scheme is designed to allow each CCAMLR member to determine the origin of toothfish landed in, imported into or exported from its territory and to determine whether the toothfish were harvested in the CCAMLR Convention Area in a manner consistent with CCAMLR conservation measures. Another objective of the Scheme is to promote better conservation and management of toothfish overall.

To make these determinations possible, flag States issue catch documents to the vessels that they authorize to fish for toothfish in the CCAMLR Convention Area (and to their vessels that intend to fish for toothfish outside the Convention Area). Each vessel must complete a catch document to cover every harvest of toothfish that it lands or transships and must report to its flag State the details of its trip and catches, landing and transshipments.[104] The flag State must then determine whether the catch landed or transshipped, as reported by the vessel, is consistent with its authorization to fish. If so, the flag State conveys a unique confirmation number to the vessel, which the vessel enters on the catch document.

The completed catch documents follow the harvested toothfish wherever they go. Every CCAMLR member must require that all toothfish landed or transshipped in areas under its jurisdiction be accompanied by a completed catch document. Similarly, every CCAMLR member must require that all imports of toothfish into its territory be accompanied by a completed catch document that includes an export (or re-export) validation by the exporting State, which must be examined and verified by its customs authorities or other appropriate officials.

Every CCAMLR member must promptly provide to the CCAMLR Secretariat copies of all export-validated catch documents that it has issued or received. On an annual basis, every CCAMLR member must also report to the CCAMLR Secretariat data on the origin and amounts of its toothfish imports and exports, based on the catch documents.

While these catch documentation and certification schemes should certainly help to prevent, deter and eliminate IUU fishing, care should be taken that they do not overly burden legitimate fishers, dealers and brokers who are seeking to comply with the new paperwork requirements. To address this concern, paragraph 76 of the IPOA-IUU provides that these schemes should be standardized to the extent feasible and that they should rely on electronic means where possible. Paragraph 91 of the IPOA-IUU further called upon FAO to convene an Expert Consultation to develop recommendations for implementing this provision. The Expert Consultation took place in January 2002.[105]

7.2 Other market-related measures

In addition to the development and adoption of import controls and documentation schemes, the IPOA-IUU calls upon States to take other market-related measures to prevent, deter and eliminate IUU fishing.

Paragraph 71 of the IPOA-IUU, for example, urges States to improve the transparency of their markets to allow the traceability of fish or fish products. The concept of traceability is related to that of certification, but differs in one important respect. The certification schemes discussed in the previous section seek to allow a State to determine where and when a fish was harvested and by whom (and, in the case of the CCAMLR scheme, whether the harvest was consistent with CCAMLR conservation rules). Traceability seeks to allow a given product to be traced through all stages of production and distribution, not just at the moment of importation, landing or transshipment.

The European Union is moving forward on initiatives to improve the traceability of fish products as part of a larger effort to promote food hygiene and safety. As of January 2002, all fishery products marketed in the European Union must include proper marking or labels indicating the species of the product, the production method (caught at sea, in inland waters or farmed) and the catch or production area.[106] These requirements may also have benefits for restricting the marketing of IUU fish in the European Union.[107]

States can also combat IUU fishing through the dissemination of information to individuals and companies in their territories whose activities are related to fishing. Paragraph 73 of the IPOA-IUU calls on States to make such individuals and companies ("importers, transshippers, buyers, consumers, equipment suppliers, bankers, insurers, other services suppliers and the public") aware of the detrimental effects of doing business with vessels identified as engaged in IUU fishing. Similarly, paragraph 74 calls on States to make their fishers aware of the detrimental effects of doing business with others who do business with IUU fishers.[108]

To fulfil these commitments, States could undertake publicity campaigns using various media, including notices to the public, press releases and targeted communications to relevant industry groups. Paragraphs 73 and 74 also suggest that States could enact legislation that makes it a violation to conduct such business or to trade in fish or fish products derived from IUU fishing. Such legislation could be drafted along the lines of the model provided in footnote 25, supra, which is repeated here for the sake of convenience:

A person subject to the jurisdiction of [State] who -

(a) on his own account, or as partner, agent or employee of another person, lands, imports, exports, transports, sells, receives, acquires or purchases; or

(b) causes or permits a person acting on his behalf, or uses a fishing vessel, to land, import, export, transport, sell, receive, acquire or purchase,

any fish taken, possessed, transported or sold contrary to the law of another State or in a manner that undermines the effectiveness of conservation and management measures adopted by a Regional Fisheries Management Organization shall be guilty of an offence and shall be liable to pay a fine not exceeding (insert monetary value).


[89] SOFIA 2000, p. 34.
[90] For further discussion, see “Illegal, Unreported and Unregulated Fishing: WTO-Consistent Trade Related Measures to Address IUU Fishing,” by Linda Chaves (“WTO rules provide flexibility to use trade measures for conservation purposes, subject to certain safeguards against abuse”).
[91] Restrictions or prohibitions on the landing or transshipment of fish in port by foreign vessels could also be viewed as “market-related measures.” However, the IPOA-IUU and these guidelines consider such measures to fall within the category of port State measures.
[92] For a thorough analysis of such schemes, see “Catch Certifications and Feasibility of Harmonizing Certifications Among Regional Fisheries Management Bodies,” by Peter M. Miyake.
[93] See ICCAT Resolution 94-3 and ICCAT Resolution 95-13.
[94] See ICCAT Recommendation 96-14.
[95] See ICCAT Resolution 98-18.
[96] See ICCAT Recommendations 92-1 and 92-3 and numerous subsequent recommendations and resolutions through which ICCAT later refined the program.
[97] As a practical matter, Japan has the primary role in making the program effective, as it imports the vast majority of bluefin tuna that is traded internationally. In 2001, ICCAT’s Standing Committee on Statistics and Research reported that “various measures taken by ICCAT to curb IUU fishing activities ... appear to be having some positive effects as seen in the decline in bluefin tuna imports to the Japanese market from IUU fishing vessels.”
[98] In 2000, ICCAT decided to create similar statistical document programs for bigeye tuna and swordfish. See ICCAT Recommendation 00-22.
[99] See Paragraph 21 of the Report of the Sixth Annual Meeting (Second Part) of the CCSBT, March 2000, and Attachment J to that Report.
[100] See Paragraph 13 of the Report of the Sixth Annual Meeting (Second Part) of the CCSBT, March 2000, and Attachment I to that Report.
[101] See IOTC Resolution 01/06, Recommendation by IOTC Concerning the IOTC Bigeye Tuna Statistical Document Programme.
[102] CCAMLR Conservation Measure 170/XX. Additional documents pertaining to the Catch Documentation Scheme are available on the CCAMLR website: www.ccamlr.org.
[103] As adopted, the CCAMLR Catch Documentation Scheme applies only to harvests of Patagonian toothfish in the CCAMLR Convention Area. However, because Patagonian toothfish are also caught outside the Convention area, CCAMLR requests flag states at a minimum to verify that those fish have been caught by a vessel licensed to fish for that stock.
[104] Please refer to Appendix V to these guidelines for a list of the information included in the catch document.
[105] See Report of the Expert Consultation of the Regional Fisheries Management Bodies on the Harmonization of Catch Certifcation. There are also examples of States that have implemented multilateral market-related measures to combat IUU fishing outside the framework of a RFMO. Members of the FFA, for example, have prohibited the importation of fish harvested illegally in waters under the jurisdiction of other FFA members.
[106] EU regulation 104/2000, article 4.
[107] Another project based in the European Union, known as TRACEFISH, is developing means to achieve an electronic system to trace fish and fish products from the moment of harvest to the moment of final sale. More information on the project is available at the webiste of TRACEFISH: www.tracefish.org.
[108] A number of RFMOs have also called on their members to take such measures. In 1999, for example, the IOTC adopted a Resolution 99/02 (“Actions Against Fishing Activities by Large-scale Flag of Convenience Longline Vessels”), which, among other things, called on IOTC members to urge importers and others in the market chain to refrain from any transactions involving this catch and to educate the public not to purchase product derived from this catch. ICCAT Resolution 99-11 contains very similar language. Japan has provided guidance to its importers, transporters and equipment manufacturers, asking them to refrain voluntarily from conducting business with vessels identified by ICCAT as undermining ICCAT’s measures. See M. Komatsu, supra note 20.

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