title: 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

text:
               23.4.2016

               EN

               Official Journal of the European Union

               C 144/14

         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 144/07)
   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 TRINIDAD AND TOBAGO

               (9)

               The Republic of Trinidad and Tobago (hereafter ‘Trinidad and Tobago’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission.

               (10)

               Between 2014 and 2016 the Commission cooperated administratively with the authorities of Trinidad and Tobago. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Trinidad and Tobago. It entailed exchange of oral and written comments as well as on-the-spot visits. The Commission sought and verified all information deemed necessary concerning Trinidad and Tobago’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 Trinidad and Tobago in order to implement its obligations in the fight against IUU fishing.

               (11)

               Trinidad and Tobago is a contracting party of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), 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) and the International Commission for the Conservation of Atlantic Tunas (ICCAT).

               (12)

               In order to evaluate the compliance of Trinidad and Tobago with its international obligations as flag, port, coastal or market State as set out in the international agreements referred to in recital (11) and established by the relevant Regional Fisheries Management Organisations (RFMOs), the Commission sought, collected and analysed all necessary information.

         3.   POSSIBILITY OF THE REPUBLIC OF TRINIDAD AND TOBAGO BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

               (13)

               Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Trinidad and Tobago 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 and the applicable International Law.

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

               (14)

               For the reasons described below and in Section 3.2, Trinidad and Tobago’s fisheries management legal framework, based notably on the 1916 Fisheries Act (2) and the 1986 Archipelagic Waters and Exclusive Economic Zone Act (3), does not appear to establish measures to effectively control Trinidad and Tobago flagged vessels and third country vessels in Trinidad and Tobago waters and ports.

               (15)

               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 Trinidad and Tobago is not in a position to provide information on the characteristics of the highly migratory species caught by its high seas fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products.

               (16)

               Given the apparent lack of traceability and lack of information available to Trinidad and Tobago authorities about the fish landed or transhipped by its flagged vessels or by third country flagged vessels in its ports, it is unlikely that Trinidad and Tobago can ensure that trade of fishery products conducted in this country do not stem from IUU fishing.

               (17)

               In that regard, it seems that Trinidad and Tobago 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. Trinidad and Tobago also appears to fail to take into consideration the recommendations in point 24 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (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, and point 71 of the IPOA IUU which advises States to take steps to improve the transparency of their markets in order to ensure the traceability of fish or fish products. Equally, it seems that it does not comply with Article 11 of the FAO Code of Conduct for Responsible Fisheries (FAO Code of Conduct) which sets good practices for post-harvest and responsible international trade.

               (18)

               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 Trinidad and Tobago, it could be established that, pursuant to Article 31(3) and 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Trinidad and Tobago fails 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)

               (19)

               While Trinidad and Tobago authorities were generally cooperative to respond and provide feedback to requests for information, the reliability and correctness of their replies were compromised and undermined by the outdated legal framework, that appears not to be in line with its international law commitments, and lack of transparency of its fisheries management system (as mentioned in Section 3(1) and described in recitals (20) to (23)). Trinidad and Tobago authorities submitted a draft of a new Fisheries Management Bill which, however, could not yet be considered in line with its international commitments.

               (20)

               Trinidad and Tobago is a main port State in the Eastern Caribbean region. Third country flagged vessels land and tranship straddling and highly migratory species in Trinidad and Tobago ports. Despite this fact, it seems there is no formal or informal cooperation with those third countries. Moreover, Trinidad and Tobago authorities were not able to provide information about what third countries are involved in these activities in its ports.

               (21)

               The outdated fisheries legal framework does not include general principles and measures for the conservation and management of fishing resources as required in applicable international law. Moreover, Trinidad and Tobago’s legal framework does not address IUU fishing activities. In that respect, the current legal framework lacks a definition of serious infringements and a comprehensive list of serious offences addressed with proportionate severe sanctions. The value of fines is not linked to the value of the fish caught illegally and as such does not systematically deprive offenders of the benefits accruing from their illegal activities. Hence, the sanction system in its current form is not comprehensive and severe enough to achieve its deterrent function.

               (22)

               The Fisheries Division within the Ministry of Agriculture, Land and Fisheries does not include a Fisheries Monitoring, Surveillance and Enforcement Unit. It appears that fishing activities by Trinidad and Tobago flagged vessels wherever they take place and third country flagged vessels in Trinidad and Tobago waters and ports are not controlled. Not all semi-industrial and industrial (beyond 24 m.) Trinidad and Tobago flagged vessels are equipped with Vessels Monitoring System (VMS) and logbooks are not compulsory. There is no observer program. Moreover, there is no operational Fisheries Monitoring Centre.

               (23)

               The apparent lack of adequate legal framework and means of control would render highly unlikely any effective enforcement. It appears that the only information received by the Trinidad and Tobago authorities are the Fishing Trip Reports filled in and submitted by the operators. In the current situation, the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing activities could not be properly analysed.

               (24)

               The shortcomings of Trinidad and Tobago described in recital (20) prevent it from complying with Articles 63, 64, 117 to 119 of UNCLOS establishing the duty to cooperate for all states in the conservation and management of marine living resources, including straddling stocks and highly migratory species. Articles 7, 8 and 20 of UNFSA further develop the obligation of States to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. That 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.

               (25)

               The legal framework, including the enforcement measures, of Trinidad and Tobago seems not to comply with the basic requirements in Articles 61, 62 and 117 to 119 of UNCLOS and Articles 5 to 23 of UNFSA. The facts described in recitals (21) to (23) indicate that Trinidad and Tobago fails to fulfil the conditions of Article 94 of UNCLOS which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. The described behaviour of Trinidad and Tobago with respect to its vessels would also be in contradiction with Article 18(3) UNFSA which stipulates measures to be taken by a State in respect of vessels flying its flag. Furthermore, Trinidad and Tobago would not fulfil its compliance and enforcement obligations as a flag State stipulated in Article 19 of UNFSA since it appears to have failed to demonstrate that it acted and operated in accordance with the detailed rules laid down in that Article. In particular, the sanction scheme does not seem to be in line with Article 19(2) of UNFSA where it is established that sanctions applicable in respect of violations are to be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and are to deprive offenders of the benefits accruing from their illegal activities. Trinidad and Tobago also appears to 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, including by implementing the VMS in accordance with the relevant national, regional and international standards.

               (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 the country, it could be established that, pursuant to Article 31(3) and 31(5) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge its duties under international law as flag State 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 Trinidad and Tobago as contracting party of UNCLOS, UNFSA and ICCAT.

               (28)

               Since 2011 ICCAT has officially communicated to Trinidad and Tobago authorities (4) that this country has not fully and effectively complied with its obligations in accordance with some ICCAT Recommendations (notably, Recommendation 05-09 on Compliance with Statistical Reporting Obligations, Recommendations 06-09 and 12-04 to Further Strengthen the Plan to Rebuild Blue Marlin and White Marlin Populations, and Recommendation 13-02 for the Conservation of North Atlantic Swordfish). Moreover, the following deficiencies for Trinidad and Tobago were noted by ICCAT: 1) Task I data on fleet characteristics were not submitted; 2) Task II data on catches size were not submitted; 3) Compliance tables were not submitted; 4) No swordfish fisheries development or management plan was submitted; 5) ICCAT did not receive a reply to its letter of concern of 2014; 6) the list of Bigeye tuna/Yellowfin tuna vessels was received after the deadline; 7) Annual report for the Standing Committee on Research and Statistics (SCRS) was received late; 8) Continued and increasing billfish overharvests. Continued and significant white marlin and blue marlin overharvests, lack of domestic management measures for these fisheries, incompliance with logbook and trade monitoring requirements, have led to ICCAT to issue a letter of identification in 2015 (5).

               (29)

               As it has been highlighted by the ICCAT Compliance Committee, these ‘problems with lack of reporting, late submissions, incomplete reporting, and poor data quality continue to impede the work of the Standing Committee on Research and Statistics (SCRS) in performing stock assessments and in formulating management advice. Late or incomplete reporting causes difficulties for the Secretariat in preparing documents for the Commission and its Panels and Committees, and reduces the efficiency of the Compliance Committee’.

               (30)

               Trinidad and Tobago is neither a contracting party nor a cooperating non-contracting party of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). However, CCAMLR identified the country for 2012-2013 as a non-contracting party possibly involved in the harvest, landing and/or trade of Dissostichus spp. but not cooperating with the Catch Documentation Scheme (CDS) (6) implemented in 2000 to track these species from the point of landing throughout the trade cycle. This identification has been maintained in 2014 and 2015 (7).

               (31)

               The facts described in recitals (28) to (30) prevent Trinidad and Tobago from fulfilling its cooperation and conservation obligations as flag State regarding Articles 117 to 119 of UNCLOS. Trinidad and Tobago also appears to fail to fulfil Article 18 of UNFSA which requires States whose vessels fish on the high seas to take control measures to ensure that those vessels comply with RFMO rules.

               (32)

               Finally, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, Trinidad and Tobago has not developed a national plan of action against IUU fishing.

               (33)

               In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

         3.4   Specific constraints of developing countries

               (34)

               According to the United Nations Human Development Index (UNHDI) (8), Trinidad and Tobago was considered in 2015 to be a high human development country (ranked 64 out of 188 countries).

               (35)

               Account taken of the above HDI ranking and observations during the 2015 visit, no evidence suggests that the failure of Trinidad and Tobago to discharge its duties under international law is the result of low levels of development. No tangible evidence exists to correlate shortcomings in fisheries monitoring, control and surveillance with poor capacity and infrastructure. Trinidad and Tobago has never argued that development constraints affect their ability to deliver strong MCS.

               (36)

               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 the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Trinidad and Tobago with respect to fisheries management are not impaired by its level of development.

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

               (37)

               In view of the conclusions reached with regard to the failure of Trinidad and Tobago 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.

               (38)

               In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Trinidad and Tobago 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 Trinidad and Tobago. 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.

               (39)

               Furthermore, the notification to Trinidad and Tobago 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 Trinidad and Tobago 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://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/67.51.pdf

      (3)  http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/51.06.pdf

      (4)  ICCAT letter, 18 January 2011, ICCAT Circular No 151; ICCAT letter, 21 February 2012, ICCAT Circular No 641; ICCAT letter, 11 February 2013, ICCAT Circular No 613; ICCAT letter, 13 February 2014, ICCAT Circular No 723.

      (5)  Doc. No COC-308_Appendix 2, 2015.

      (6)  CCAMLR-XXXII/BG/08, 24 September 2013.

      (7)  CCAMLR-XXXIV/BG/41, 23 September 2015.

      (8)  Information retrieved from http://hdr.undp.org/en/statistics