While the EU “yellow and red card” of some countries in relation to their persuasiveness to IUU fishing has received substantial media attention, the US has done something similar since 2009 by identifying countries in their the biennial reports by the NOAA to Congress filed under the provisions of the MSRA, and a regulation under development to track and certify the legal source of imports of certain fish species “at risk” from IUU fishing. (I covered the 2017 one here)
While their ways and modus operandi are entirely different, one could argue that their final objective is the same. So how they compare over countries and regions? One is to assume that countries that are persuasive to IUU fishing would be similar under both systems, yet no one has made that comparison until it was tackled by my friend Gilles Hosch in a study he published in 2016 and that I blogged about here.
It took me a while to get to the details, which I resume and quote here, but I recommend you read from the original, since what he writes is always good and solid stuff.
The EU began identifying the first countries at the end of 2012, through a procedure which is now widely referred to as the “yellow and red card” approach. As part of this procedure, the EU Commission has initiated “dialogues” with as many as 50 countries. The list of countries the Commission formally engages with is not public. These dialogues take place pursuant to Article 51 of the EU IUU Regulation, and are initiated as “mutual assistance requests.” Under this process, a country may receive a visit by a delegation composed of EU Commission and/or European Fisheries Control Agency staff, who may then issue a report regarding their findings to the EU Commission.
Based on these reports, the Commission decides on whether it is satisfied with the third country’s performance regarding IUU fishing. If it is not, the EU Commission may request that the third country implement changes that the EU Commission deems necessary in order to avoid formal identification under the regulation. If this dialogue is successful, the third country may avoid entirely a formal identification under the regulation. While this dialogue process appears to be very consultative, it is not particularly transparent: none of these bilateral exchanges or reports are made public, so gauging their effectiveness is impossible.
If mutual assistance requests formulated by the EU Commission and bilateral dialogue do not produce results that the EU Commission deems satisfactory, then it will formally “pre-identify” the country, by issuing a formal Commission decision listing the third country’s shortcomings (i.e. issue a “yellow card”).
The Commission’s pre-identification decisions are public and establish fairly long lists of shortcomings, which collectively serve to identify the country’s failure in addressing IUU fishing and provide the justification for the identification. While the design of the identification system suggests it can be linked to non-compliance with the CCS requirement, in the first Commission decision of 15 November 2012, none of the shortcomings listed in respect of the eight countries related to non-compliance with the EU CCS.
The US approach limits the definition of IUU fishing to operations in international fisheries in which it is directly involved, either as a member of an RFMO or as a party exploiting a high seas resource not yet managed by an RFMO. The US definition, with its focus on US interests, stands in stark contrast to the broad FAO definition adopted by the EU, on the basis of which the EU can identify a third country for failing to adequately manage fisheries resources within its own Exclusive Economic Zone (EEZ).
The rules for identification and certification are provided for in the MSRA (Section 609), and are further detailed through the final rule published in the Federal Register in 2011 (Vol. 76, No. 8). A country is “identified” if, in the view of the US administration, it has vessels under its flag engaged in IUU fishing. The “certification” which follows can be positive, in which case the identification is lifted, or negative, and trade restrictive measures (TREMs) may be imposed (Mexico was the first one to get such joy in 2017). This procedure is similar to the yellow, green, and red card approach of the EU, with the difference that the identification under the MSRA (equivalent to an EU yellow card) is a formal step in a regulated process.
Under the MSRA, the process starts with identification, and a two-year consultation and cooperation process follow “for the purpose of encouraging such nations to take appropriate corrective action with respect to the IUU fishing activities described in the biennial report” (Federal Register 2011). Identification can only relate to IUU activities that occurred over the preceding three years. In EU law and practice, no such limitation applies and consultations in the form of less formal or more formal cooperative dialogue are conducted at all stages.
Potential TREMs under the Moratorium Protection Act may be issued in relation to specific fish or fisheries products from given countries that have been negatively certified. This implies—potentially—that the scope of US TREMs would be limited to specific products, rather than a blanket embargo on all fish products.
Since 2009, 28 countries have been identified under the MSRA as having had vessels engaged in IUU fishing. Some of these countries, including EU member states, appear on the list several times, indicating that there is no immediate limit on how many times a country may be identified, delisted, and re-identified. The reasons for the identification are published in the biennial reports to Congress and are posted online. With very few exceptions, reasons provided for the identification pertain to established and documented infringements of fishing vessels to specific RFMO conservation and management measures.
In any case, the contrast in the geographical focus of the identifications could not be starker. For the EU it seems that the hub of IUU fishing was the Pacific Island countries (we have only two left*) and only recently started to move towards Asia, while for the US is mostly South America. How come each system has identified such different regions is perplexing.
The EU "card system" has catalysed positive changes in many countries, and in an unexpected twist in my opinion, it has been more successful than the Catch Certification system itself. I have written at length about this.
Furthermore, and I always make this point, while the EU impose the rules - beyond how good they are - they also fund the assistance to help comply with them. No one else does that.
*Kiribati and Tuvalu