China in IUU Fishing / by Francisco Blaha

Pretty much on a weekly basis we hear something on the news on Chinese-flagged fishing vessels involved in IUU activities worldwide or working in some disputed waters in the South China Sea. So what is the deal? Why are they not punish in some way or another?

 The Chinese Fishing boat sunk in Argentina

The Chinese Fishing boat sunk in Argentina

I have been going on China’s massive Distant Water Fleet and Subsidies for a while now (see here, here, here, here, here or read this from the BBC or just do Google search). It has signed (but not ratified): the 1995 Compliance Agreement (flag states to license high seas fishing vessels). And has not signed: the 2009 Port State Measures Agreement (port states to inspect fishing vessels).

We talked with friend Pramod Ganapathiraju about this, and he is clear:

Chinese fishing vessels are engaged in both unregulated and illegal fishing activities for squids in the South Atlantic off Uruguay and Argentina, sharks and tuna in Latin America, the Pacific, Indian Ocean, and in many fisheries in West Africa. Chinese vessels also have a high level of illegal fishing activity off South Korea, and many islands of the South China Sea.
To give you a small sample: For the past five years, 5 Chinese squid jiggers were detained off Argentina while one Chinese squid jigger escaped into Uruguay after illegal fishing during the hot pursuit by Argentina coast guard and was never arrested. (at least one was sunk a few weeks ago)
Off South Korea in 2015, more than 43 Chinese vessels were arrested while the actual number that was detected illegally fishing and never detained is ten times higher than the arrested ones. China has a different policy with each country to get their vessels released sometimes even without fine for example off West Africa. Some countries in the South China Sea don't even arrest them even when they see them illegally fishing within the EEZ, as they don't want a trade war with China. China is often seen as a bully by navies and coast guards in this region.
We can also track IUU activities using AIS data. But, recently I came to know across information with the Chinese asking their vessels to switch off AIS transponders as several NGOs have blown their cover by publicizing detection of illegal fishing through media for their interests. The same thing happened with Fu Yuna Yu fleet that I was tracking this year. This year a source from Burma forwarded information showing illegal Chinese and Taiwanese longliners fishing in the Bay of Bengal, but not even one of them was visible on the AIS. Tracking illegal vessels is a surveillance activity and should not be publicized until the vessel is arrested or seized through courts as every time a cover for one illegal vessel is exposed, ten to twenty others become invisible.

Registration of fishing vessels in China is handled by regional offices responsible for fisheries management such as the Port Supervisory Authority under the Bureau of Fisheries. The system is highly decentralised as the harbour master of the vessel’s home port is responsible for the registration of the fishing vessel. Existing data on vessel registration and authorisation to fish a is not readily available, and it appears to be fragmented and not entirely consistent. Allegedly 50% of the over 2000 Chinese fishing vessels operating in other countries are over 24m.

I never have seen a Chinese fisheries inspector in the field, and the few bureaucrats I meet at international meetings, never give any straight answers to any questions in regards the IUU activities of their fleet.

All Chinese EU IUU catch certificates I've seen look very dodgy... Chinese operators in the Pacific are using their “own" version of the EU CCS and allege that is for their own legislation (that they never provide) saying that it has different requirements (i.e. transhipment – Section 7 - includes landing and sorting into containers), but when you see the form they send it refers to the EU legislation… is soo dodgy… (and they out incredible pressure on the lower ranks of officers in the Pacific). Many countries went into yellow for less than this. See below small snippets of one:

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 Seems the Chinese IUU Catch Certificate still refers to the EU legislation :-)

Seems the Chinese IUU Catch Certificate still refers to the EU legislation :-)

So the IUU fishing involvement seems clear to everyone. Furthermore, there is also the 13% rebate that the government gives to the exporters so one would think that would also be against WTO rules as the government subsidies but again, no one seems to be tackling them on that either.

Hence, the question on everyone’s mind is why does the EU dot out a yellow card on them? I guess the question should be if the EU can pick up a fight with a bigger bully?

Morally I’m happy to admit that the EU has changed its ways big time, particularly the Spanish fleet in regards IUU, and as I always say the amount of support they give smaller countries regarding development assistance is commendable, particularly becomes with not (or minimal) strings attached. Something that China does not do at all.

The reality is that the EU unilateral model of trade embargoes (like to one it has now with Sri Lanka) has never been legally contested the WTO level… and China has big pockets and massive trade leverage, try to tackle them there requires guts and good lawyers.

In a recent and interesting article M.A. Young, International trade law compatibility of market-related measures to combat illegal, unreported and unregulated (IUU) fishing, Mar. Policy(2016),  she writes:

Bearing in mind that approaches to address IUU fishing must be developed in accordance with international law, and particularly the trade law agreements such as the WTO and RTAs, this article concludes with the following recommendations:
First, the unilateral trade measures identified in this article, such as the EU catch documentation and import prohibition scheme, appear to have been designed to ensure that they are fair, transparent, and non-discriminatory. The aim to combat IUU fishing conforms to legitimate objectives expressly recognized in trade law, such as national security requirements, the prevention of deceptive practices, and the protection of human health or safety, animal or plant life or health, or the environment. The implementation of these measures will need to continue in this mode, and it is important to note that the import prohibitions are preceded by the use of less trade-restrictive measures so that more restrictive measures are only used in case of need. As such the measures can provide solid models of WTO-compatible regulation.
Secondly, while the prohibition of imports and other trade measures are currently most often developed on a unilateral basis, the effectiveness of these approaches would be strengthened by a more collective or regional approach, so that the products of IUU fishing are not merely traded in other markets. While some efforts
Have already been made by RFMOs, such as CCAMLR, this could be extended. This would involve cooperation by states, the FAO and/ or RFMOs, and possibly even private bodies, in the following: more widespread compilation and sharing of lists of IUU vessels; the harmonisation of catch documentation schemes and traceability requirements; and the prohibition of fish products being imported, landed, or transshipped by states who have failed to take appropriate measures to ensure compliance by their vessels. The current work of the FAO in elaborating voluntary guidelines on catch documentation schemes is of particular relevance (I worked on it…. But is not going well… topic for another post)
Thirdly, current negotiations on regional trade agreements (RTAs) are important avenues for trade-related IUU measures to be developed through consultation. There is scope, for example, for the inclusion of IUU obligations in the agreements or associated side-agreements and environmental chapters. The Trans-Pacific Partnership (TPP),a ‘mega- regional' trade agreement recently concluded between 12 countries Including major fish consuming or producing ones and now awaiting ratification, includes significant provisions on marine capture fisheries. These provisions call upon states to combat IUU fishing practices and help deter trade in products from species harvested from those practices. While such provisions are not yet in force, and remain to be assessed alongside other TPP rules (such as investor protection and investor state dispute settlement) before the TPP's overall environmental credentials are evaluated, they provide a strong signal of the trade law compatibility of market-related measures to combat IUU fishing.
Fourthly, the cooperation on the use of trade-related measures should be open and transparent whether the relevant trade measures are principally state based – such as a joint import ban or whether they involve private initiatives – such as purchase control documentation with in a supply chain. Industry groups and other private actors should maintain good practices in designing and implementing their initiatives, including in consulting with affected stakeholders and proceeding with transparency, openness and impartiality. As far as possible, there should be mutual supportiveness of the trade, environment, and law of these a regimes (including between the FAO, CITES, WTO and other bodies) as well as policy coordination within states.

So potentially yes… But then, would they test it?  

Nevertheless, they could start with a “Yellow Card” and see… I think the fear there, is that the Chinese may don't give a toss and just continue as usual.

So the EU would be in a situation where they either: lose face and credibility against all the other countries … or lock themselves in a potentially very costly battle with a giant… tough decision.