Rights, Obligations, Prohibitions: A Practical Guide to Understanding Judicial Decisions on Coastal State Jurisdiction over Living Resources in the EEZ.

Back in 2017 when we wrote with Gilles Hosch the FAO "green book", Seafood traceability for fisheries compliance – Country-level support for catch documentation schemes, I realised that was a “legal tension” between the rights and obligations when it came to certifying the legality of catches in between flag states and coastal states where the harvest took place.

 The legalese in between words like “primary responsibility” on the flag state side, the “rights” of coastal states, did evade me at the time… then when last year I got involved in the Rhodes Academy of Ocean Law Policy, some very smart legal minds I got to meat over, a lot of those questions got echoed, and while sometimes not totally answered at least context makes them clearer, and I explored some aspects here.

 Yet only now I got this 2018 paper by my colleague Camille Goodman, surely a precursor to her book on the Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone, which I highly recommend

 As usual, her work is excellent…. Please read the original, in the meantime, I quote the abstract and conclusions.

 Abstract

Given the ambiguous, open-ended and highly qualified nature of the legal framework governing the coastal State’s regulation of living resources in the exclusive economic zone (EEZ), there is an important role for international courts and tribunals in reviewing the innovations and interpretations offered by coastal States, and clarifying the meaning of relevant provisions. In light of the significant body of jurisprudence that is now available in this area, this article seeks to provide some practical guidance regarding the nature and extent of coastal State jurisdiction over living resources in the EEZ, by reference to the approaches taken by international courts and tribunals.

Conclusion

From the Truman Proclamation to the establishment of straight baselines and extended fishery zones, unilateral assertions of jurisdiction have played a decisive role in changing and developing the law of the sea. However, the establishment of new or innovative precedents within the laboriously negotiated and widely ratified framework of the LOSC is likely to present significant challenges, and ‘unsuccessful unilateralism is far more likely today to result not merely in protest, but in litigation, and probable defeat’. Accordingly, it is important for coastal States to develop a clear understanding of the rights, obligations and prohibitions that apply under the LOSC, in order to find effective and workable solutions to the contemporary challenges of fisheries governance within the limits of existing law. Given the role of the dispute settlement system in ensuring the uniform application and interpretation of the LOSC, the growing body of jurisprudence from international courts and tribunals contains much useful guidance for coastal States to consider in this regard. At the same time, it is also important to reflect on the broader, combined effect of this jurisprudence, and to ask whether international courts and tribunals are fulfilling their role in striking the balance required to effectively maintain the compromise embedded in the regime for the EEZ.

In this regard, the key recurring theme in the jurisprudence is the concept of reasonableness in all its forms: reasonableness in the rule of due regard, and what coastal States must do; reasonableness in the margin of appreciation and what coastal States may do; and reasonableness in terms of the enforcement measures that are necessary to ensure compliance with the coastal State’s laws, and what coastal States may not do. However, the approach to – and the application of – ‘reasonableness’ is different in each of these situations. In particular, international courts and tribunals are likely to take a more generous approach to assessing the reasonableness of prescriptive exercises of jurisdiction by the coastal State, and a narrower, more textual approach to the reasonableness of enforcement jurisdiction. Appropriately enough, this approach finds its basis in the way that the balance between coastal State rights and flag State obligations in the EEZ is struck in the LOSC itself. The sui generis legal frame- work that is established in the LOSC for the EEZ implicitly gives the predominant role in enforcement to the flag State, by placing limits on the enforcement rights of the coastal State. However, this must not be interpreted so strictly as to reduce the enforcement jurisdiction that has been assigned to the coastal State under the LOSC; to do so would undermine the coastal State’s prescriptive jurisdiction, and reduce the effectiveness of the careful compromise that is embodied in the EEZ concept.

Ideally, the interpretation of the EEZ regime would take into account the overall scheme of the LOSC and consider not only the rights but the obligations of the coastal State with respect to the living resources of the EEZ, and the nature and extent of regulatory powers that might be needed to give effect to those obligations. It is thus encouraging that recent decisions and opinions of international courts and tribunals show some evidence of a departure from the traditional sectoral approach toward a more integrated understanding of the LOSC, such as the interpretation of flag State obligations so as to include responsibility with respect to activities of their fishing vessels in the EEZ of a coastal State, and the recognition of due diligence obligations for all States to protect and preserve the marine environment in all maritime zones. Perhaps such increased recognition of the obligations that are embedded in the LOSC will assist courts and tribunals to take a more integrated approach to the interpretation of the rights to which they correlate, as they continue to pursue the crucial task of providing consistent interpretation and application of the legal framework for circumstances where the only certainty is constant change.

My take on: Remotely assessing the potential of at-sea transhipment events via AIS/VMS

Following the advancement of technologies and platforms using AIS in the last few years (and events like the Sun Flower 7), many discussions have arisen around classifying the contact between two vessels at sea as a transhipment. Most of the present classifications are based on the time that both vessels are alongside each other and, in some cases, if these vessels are a fish carrier and an FV.

if it was only so easy

So I have been dwelling on writing something of help about it. I originally wanted to make an information-type paper of sorts, yet it is challenging to articulate it in a traditional paper structure as there is no thesis to prove, and the overlapping nature of the factors at sea cannot be easily categorised into a risk-based matrix, as (at least in my tiny brain) there is not a fully defined rank of priorities that can be mathematically defined as to be in an algorithm.

From my experience at sea, it is never just one fact, many others relate to many operational aspects, such as weather, design of vessels, sizes of hatches, type of gear, logistics of salt in PS or bait in LL and so on. Hence the probabilities of transhipment between two vessels going alongside respond to a matrix of possibilities and cannot be defined by any single event.

As an overall approach, I will discuss the variables identified over separate “thematic” areas… yet with the caveat that there are overlapping between them, and in no way or form do I claim this is a definitive list.

To start, let us agree that transhipment is defined by the FAO TS guidelines (which I was proud to be part of) “Transshipment” means the direct transfer of any quantity of fish onboard from one vessel to another vessel regardless of the location of the event, without the fish being recorded as landed;

Reasons for vessels to get together?
To be honest… pretty much everything, my personally weirdest situation was to deliver to a fellow skipper the ashes of his dad (a hardcore anarchist) that wanted his remains to be dispersed on the high seas and in no one’s territory… so… basically you can think it, chances are, it can happen.

Salt Bags in the wet deck of a PS

Transferring of “consumables” is a massive reason why carriers get together with FV, but also Carrier to Carrier may get alongside. Based on a study I did in 2021 for the FFA membership, a conservative annual estimate of 15,000,000 bait cartons are used by the Long Line fleet (approximately 2000 vessels), and around 2,800,000 bags of salt (which is over 140000 tons) are used by the PS fleet to prepare the freezing brine, and most of this is delivered by carriers to FV.

Furthermore, add to these monstrous numbers, above a substantial amount of parts, fishing gear, FADs supplies, oil, food and crew are moved in between vessels.

Why not get them to port, you may rightfully ask… well… port infrastructure in the Pacific is limited and expensive (just on salt would be around 7000 containers a year). Furthermore, all these goods would have to enter a “bonded port warehouse/area” not to pay import duties since they are not really imported into a country since they will be used elsewhere, and all that requires space, complexity, capacity, money, people, control systems… and all that is hard to develop in the region.

Crew wise is not just due to people being considered “goods” but because the reality that it is virtually impossible to get transit visas via Australia, NZ and USA (the 3 main airline hubs feeding the Pacific, yet at the same time the champions of crew rights) if you are poor -i.e. no credit card- and from SE Asia or Africa.

Finally, while possible, in my experience, in over 90% of FV to FV encounters, there is not fish transhipment… but goods, crew, parts, net panels, lubricants, chemicals and sometimes salt or bait. In very good weather, with low fish catch rates, and between vessels whose masters are from the same region (even if their vessels are flagged to different countries), getting alongside can also be social.

This is not to be confused with “net to hatch” operations in PS… as it tends to be regulated, it usually includes the presence of observers in both vessels and is not part of what we define as transhipment.

So getting at sea for transhipment is just one of at least 5/6 reasons vessels get alongside…  yet of course, the more stuff you exchange, including fish, the more time you need together, as generally, bait, parts, salt, food, etc. are not stored at the same place than fish, so they need to be moved from wherever they are to the area of crane access, also very rarely fish go one way, and goods the other as the logistics of bringing fish to the deck of the FV and getting it into the holds of the carrier are very different to those of getting goods from the carrier and sending them to the FV.

Where will they meet?
That is mostly a function of the type of vessels and the jurisdictions in which they fish. In the WCPO, PS will meet with carriers and other FV for goods transfers and not for transhipment at sea, as there forbid, furthermore, there is back 100% observer coverage… also PS transhipments take a long time (as we will discuss later), will focus mainly on LL.

In the case of LL, the situation is different due to the impracticability exemption of the WCPFC CMM 2009-06, which requires WCPFC Members to make vessel-specific determinations as to impracticability and submit a plan detailing the steps being taken to encourage transhipment in port (which has not happened yet). Unfortunately, transhipment on the high seas has become the norm for some fleets rather than the exception. Over 50% of the almost 3000 longline vessels in the region are registered to tranship on the high seas.

Most high seas transhipments in the WCPO occur outside the Pacific coastal countries' exclusive economic zones (EEZs). The fleet managers of the Longliners pre-arrange rendezvous points with the carriers' managers, and meetings take place in these pre-arranged locations based on where most of the LL is at expected times, and the carrier's schedule also depends on the weather.

Yet some of these rendezvous points seem to be very stable over time, for example, the Seishin a Korean carrier very active in the WCPO LL transhipment scene, meets on successive trips FS vessels in the HS pocket out of FSM at very similar positions in the equatorial calms 0.35 S/160.00S

seishin likes the spot… this are te trasnhimentes in 2 different trips February and April 2023, with roughly the same Longliners

the Seishin trips this year January to March and then again April to May 2023, always outside EEZ or in HS pockets

The logistics of getting vessels alongside at sea.

Rule #1: Skippers may be the boss on board, but the weather is the king at sea.

Weather ALWAYS decides

Getting vessels alongside is not something that any skipper does just for fun, it is already complicated when the weather is fine, and it gets exponentially worse when the weather gets rougher.

Skippers need to be aware of the right approach angle between the manoeuvring fishing vessel and the carrier’s constant heading, then the speed of approach in the function of wind and sea conditions, then the swinging of both carrier and FV, since the FV failing to appreciate the swing can cause serious damage, particularly after their bring down engine power, among other many other issues.

I described the overall process in the carrier's inspection guide is did for TMT, but basically, we have:

Alongside (ropes tied) – the fishing vessel comes alongside the carrier vessel. The carrier lowers large (Yokoyama) fenders are lowered from the carrier vessel before FV comes towards the carrier vessel, generally from the rewards side, now most carrier masters (and depending on the design) secure arriving vessels of the port side of the carrier, but sometimes it may be on starboard, but as said in most cases leeward side. Ropes are secured at the bow first and then at the stern (if there is a problem, the carrier master faces a bit of the wind, and the stern will come alongside by itself).

Depending on the weather and the size difference in between the freeboards of both vessels, this manoeuvre can take up to 30 minutes. Note from here is when things start to vary, the more we move towards transhipment, the more deck arrangements, cranes set up and manning, hatches openings, nets in between the vessels, pallets, chutes, etc need to be made, and the longer it takes.

It is important to understand the operational range of a carrier crane (is always the carrier crane doing the transfers) needs t align with the very reduced open area of the Longliner, they can’t load and unload from any part… it is most of the time an arad of 6 to mt long and 4 to 6 wide only.

Again, depending on the weather, this can take another 30-40 minutes to set up everything (cranes, nets in between the vessels, pallets, chutes, etc.  Hence in best-case scenarios, it may take 40 to 60 minutes from the time both vessels get in rope throwing distance from each other.

Movement of fish and goods in between vessels
Things move in between vessels in cargo nets and/or “strings” in the case of LL. In LL most frozen fish fish has a closed loop of monofilament drilled through their carcass (generally at the caudal end) to help with their movements and transfer, most likely added when the fish were hauled onboard the longliner. When moving the fish in “strings” a closed circle of thick rope is passed through the monofilament loops to cluster the fish together. Then ends of the looped rope go in the hook at the end of the carrier's winch/boom cable and that way they pass over (see pictures below)

Most transhipping longliners (Asian fleet) longliners have a very similar same deck configuration, so is not really possible to do two things at once (receiving goods and sending over fish). They have small hatches, one or two on deck, one more central, and two equally sized hatches towards the stern and bow end of the deck, and these may be horizontal ones on dry lockers.

Fish is tied up to the hook of the carrier winch and passed over to the carrier either in strings or cargo nets…. The bottleneck for speed is how much fish cons come at once through the hatches (as you can see in the picture above on the left), and not the size of the nets.

While the fish is being transferred, the crew manually or using a small winch/pulleys system moves the fish from holds and lockers to the deck to then get into nets and or stings… this is the process that defines the speed of transhipment.

Also, there is the loading strategy of the master... initially, you want to keep species separated to facilitate transhipping, but you also need to consider the boat stability and fishing rates per species of the trip before; sometimes is all YF and so on.

Some of the rates of ALB TS are faster than other species, this is because it tends to be a much more target-specific fishery. Therefore, you have much albacore being stored next to each other, which makes the process easier.. .vessels targeting albacore in the South are quite more homogenous in the catch rates over the tropical ones. 

Then when vessels get alongside, you may only have a contract to unload Albacore, for example, and have to crawl to the guts of the freezer and sort them out, 1 by 1, other times, you retain YF and BET and send by-catch away... again 1 by 1. 

Furthermore, you may be receiving supplies and bait as well, and that needs to go where fish is not coming out, so it gets quite logistic sometimes.

Crew rest
Carriers are commercial vessels under ILO and IMO rulings, unlike fishing vessels, the crew on board are seafarers and not fishers, and their working conditions are more controlled, including food breaks and crew rest. And while there is variability, these are mostly respected.

Transhipment rates?
This depends on many factors, but fundamentally how much fish is transferred and what method is used (nets or strings). A reasonable estimate is around 10 tons an hr for nets in LL and around 7-8 for strings. This is measured from the time of the first transfer until the last.

Any time calculation must include stoppages for rain, weather, rest and movement of fish between hatches and cargo transfer occasionally. My friend Deidre Brogan reports total transhipment times in between 10 and 53 hours. But none below 10 hrs is something I will agree to.

It can be possible that they may get together for a while to do some transhipment and or goods transfer, and then separate because of weather or to re-arrange loads and then get back alongside … so times can be added over events, yet the time to get alongside will have to be accounted every time.

For Purse Seiners is totally different, the size of the hatches on the deck is the limiting factor in terms of the speed of unloading. This is due to the volumes of fish that fit in a net that comes from the well through the hatch onto the deck.

As it can be seen in the pictures below:

Is not possible to have a full exact rule of the volumes coming out at once, yet older vessels with up to 1000-ton carrying capacities, such as those of Taiwanese and Japanese origin, have nets with 700 to 800kg being brought at once. Newer American, Korean and USA-made vessels cap at around 1200-1 700 kg while the bigger European vessels cap lift up to 2 500 kg at once.

You could be doing, in the best-case scenario 10 to 15 transfers per hr, so depending on the type of vessel, we have 9 to 25-30 ton/hr

Weather rules

Weather/ Sea conditions
Having two vessels alongside, mainly when there is a big size difference between them, is an intrinsically risky situation.

Once vessels are alongside, even small changes in sea conditions can change the heaving, swaying and surging of the smaller vessel, which may lead to the separation of vessels until conditions get better.

Separating / Off siding
Separating is a fast manoeuvre as you let the weather play in your favour, and ropes are let go more easily than when getting alongside. It can take 5-10’

When is it worth doing a TS?
One thing that is not usually part of the discussion is what will be gained from a TS? At sea is all about money, and volumes are accounted for since money is always involved, so you, as a LL are going to get with another vessel for transferring 10 mt? what is the point of that, you would have spent more in fuel to get to the rendezvous point than the advantage gained for the TS.

Of course, high-value fish, like bluefin tuna, will skew the reasons… you could pass a few tons of deep-frozen BF (-35 to -60C) to a carrier with the capacity to maintain such temperatures (not many around)… nevertheless, the whole logistics of the manoeuvring and travel time still apply.

Conclusion
It is complicated… it depends… and all those answers we hate (but are a reality in fisheries)

All that I wrote here is to show that there are no simple answers to complicated questions. It is not linear. Not to say that: How long do two vessels need to be together at sea to be considered a TS? It is a totally valid question I tried to answer.

So again, considering all the caveats on everything I wrote, the generalised assumption that there is a potential for transhipment off longliners for encounters in between of less than 4 -5 hrs is one that I find difficult to digest.

Remember that it takes up to 1 hr for vessels to get alongside and prepare everything for TS, and then at best, do 10 tons/hr for a LL vessel that can carry 200 to 500 tons. Even for 4 hrs of transhipment, we are talking 30 tons at best… and as said is not always possible to do fish one way, bait and parts the other,

So, for Longline, I will go to almost nil probability around less than 4 hrs, low for 4 to 6. Medium 6 to 9 and high above 9 hrs

For Purse Seiners, I will suspect a TS only after 24 hrs aside, and reminding that this could take various in and outs of the vessels over a few days.

So… not sure if it helps anyone, but if it at least makes you realise that it is not linear, I’m happy with that. Of course, if you suspect a potential transhipment… then nothing beats boarding once the vessel gets to port and finding evidence.

Social harvest control rules for sustainable fisheries

I have been going on about harvest control rules for a while now (I started to work on them back when I was in FAO ROME in 2009) and had a go in December last year at the “scaremongering” driven by the MSC, and some of their lobby groups are way more about their fear of losing money and their relevance in a world that is starting to see beyond their business model rather than the long-term SKJ sustainability and actually accused them of being quite colonial when pointing fingers FFA, PNA & SPC that have been working on this for a long time, and look at the HCR form their perspectives as the owners of tuna in the region and the main interested one in the biological but as well social sustainability of the resource.

Hence, I had a very interested look when I read the title of this new paper, and smiled when I realized that the main author is my friend and colleague Kate M. Barclay, (whom I admire and have been honoured to collaborate in the past), as well as Megan Bailey and a cast of thousands from Wageningen University.

Furthermore is a Ghoti paper, which is my favourite type of paper in the Fish and Fisheries journal.

Their take is in for suggesting that social issues should be brought into HCRs for two reasons:

First, fisheries policy objectives are usually a combination of biological objectives (such as healthy marine ecosystems) and socio-economic objectives (such as fleet profitability,  sustaining coastal communities).  Even simple socio-economic objectives, such as fleet profitability, may be used to determine optimal fisheries policy. Currently, most of the effort and skills of fisheries scientists and managers goes into determining total allowable catch (TAC) in relation to biological criteria. Putting one or more quantifiable and relevant social considerations centrally into the analysis for decisions about catch will lead to better alignment with socio-economic objectives.

Second, by making socio-economic objectives implicit rather than explicit the legitimacy of policy and management risks being undermined. Social HCRs (sHCRs) could enable trade-offs between social and biological objectives to be made explicit and feed into pre-defined mechanisms, including compensation or allowing continued fishing in recognition of social benefits, or phased approaches to fisheries reform.

Over the long term, introducing sHCRs could be part of moving management beyond assumptions that biologically sustainable fisheries will inevitably lead to generalised societal benefits, and instead make explicit social benefits and losses for particular groups within society on the basis of specific management strategies.

It is an interesting take and one that makes you shift perspectives and see things from a different angle, and in my (surely not relevant) opinion, that is always a good thing.

As usual, read the original (is for free), I quote the abstract and conclusions below.

Abstract
Fisheries are supposed to be for the benefit of society, producing food, providing livelihoods and enabling cultural continuity. Biological productivity goals for fish stocks operationalised through Harvest Control Rules (HCRs) are central to contemporary fisheries management. While fisheries policies often state socio-economic objectives, such as enhancing the livelihoods of coastal communities, those are rarely, if ever, in- corporated into operationalised management procedures. The lack of articulation of social objectives and lack of monitoring of social outcomes around HCRs amounts to poor public policy. In this article, we explore the potential for social HCRs (sHCRs) with reference points and agreed predefined actions to make the social dimensions of fisheries explicit. sHCRs cannot cover all social dimensions, so should be considered as one tool within a broader framework of fisheries governance. Moreover, successful sHCRs would require sound deliberative and participatory processes to generate legitimate social objectives, and monitoring and evaluation of fisheries management performance against those objectives. We introduce two potential types of sHCRs, one based on allocation of catch within biological limit reference points, and one for when fishing exceeds biological limit reference points. The application of sHCRs, we argue, can fos- ter accountability and help avoid non-transparent negotiations on size and distribution of the catch. Our proposal is a call to action for policy makers and fisheries managers to properly integrate social criteria into fisheries governance, and for both biophysical fisheries scientists and social scientists to do better in practical collaboration for methods and knowledge development to support this integration.

CONCLUSION
Our call for sHCRs does not replace bHCRs. Instead, building on systems already established for biological management, we argue that sHCRs can be one element in improving fisheries management by making social objectives and impacts explicit and requiring fishery managers, fishers and politicians alike to openly deliberate them in a socially inclusive, equitable and evidence-based manner. Implementing sHCRs would require identifying and prioritising social objectives, then building datasets and monitoring systems for evaluating progress towards those objectives. Scientific evaluation of the social performance of fisheries will be a significant step for- ward over the current situation where, if social objectives are in- cluded at all in fisheries management (such as ‘stability’ through the EU common fisheries policy, see Condie et al., 2014), these benefits are assumed, rather than assessed. Such a process would also make explicit and assessable claims that social goals are achieved through good environmental stewardship. sHCRs can be used to make a sub-set of the social objectives of fishing operational and measurable in management. In doing so, sHCRs can contribute to addressing the enduring challenge of ensuring that the social dimensions of sustainability are central to fisheries policy.

We hope this article generates debate amongst biologists and social scientists alike to recognize that setting HCRs is by definition an interdisciplinary undertaking. Social objectives are implicitly included in the operation of bHCRs and bHCRs inherently have social effects. Developing sHCRs is one way of marrying biological and social objectives in fisheries. By making a priori decisions on who gets how much fish under specified conditions sHCRs could provide a framework for a politics of distributional justice informed by scientific evidence. We also propose that sHCRs could improve the policy process in situations where fishing occurs beyond what is biologically recommended. While it may be unpalatable to allow for overfishing in fisheries management, even temporarily, the reality is that overfishing is already often allowed for social reasons and that the policy process around such decisions is poor. sHCRs can provide a transparent framework for assessing and holding fisheries agencies accountable for achieving social objectives. Where temporary overfishing is deemed socially necessary, sHCRs provide a means of setting justification for it, evaluating the outcomes and pre-decided plans for rebuilding stocks afterwards. Making more explicit which social objectives are pursued through sHCRs may also enhance the legitimacy of HCRs by providing clarity on the social relevance of setting biological references and limits. sHCRs may even open up debate around the wider role of HCRs in fisheries where stakeholders have struggled to see the relevance of, or lacked the willingness to set bHCRs. 

Inter-generational equity and the opportunity to 'hear well'

 What are the legal consequences for States who have caused climate harm not just to existing States, but also to ‘past and future generations’ of people affected by climate change?

That is a compelling question that immediately called my attention to an essay!.

Kiritimati Island

Since my relatively recent involvement in the law of the sea realm, I'm getting fascinating info from different aspects that relate to labour rights, fisheries, climate change and the Pacific… in these last two topics, plus my entrenched views on colonialism and development. This recent essay, “General principles, inter-generational equity and the ICJ advisory opinion on climate change: An opportunity to hear well” by Imogen Saunders, an Associate Professor at the ANU College of Law and Director of the Centre for International and Public Law, on her University website, did really facinated me, so I quote it here below in its entirety…. But please also refer to the original since many other essays may interest you.

In 29 March 2023, the United Nations General Assembly adopted by consensus a resolution which requested the International Court of Justice to give an Advisory Opinion on the obligation owed by States concerning climate change.  This resolution came at the request of Vanuatu, and was first the initiative of law students at the University of the South Pacific who formed the Pacific Islands Students Fighting Climate Change.

As well as requesting the ICJ to consider the obligations of States to ensure the protection of the climate system and the environment, the UNGA Resolution also asks the ICJ to consider the legal consequences for States who have caused climate harm not just to existing States but also to ‘past and future generations’ of people affected by climate change.

This consideration of liability to future generations presents an opportunity for the ICJ, and for States making written statements to the Court, to make use of Article 38(1)(c) of the Court’s Statute and embrace legal pluralism in a deeply meaningful fashion to consider custom and traditional laws and practices of peoples - many of which will be the most impacted by the effects of climate change and rising sea levels.

This concept of owing duties to future generations is not new.  Often referred to as inter-generational equity, it is the idea that humans must use resources in a way not only that is fair to those living and relying on them now, but also in a way that is fair to those who will need those resources in the future.  It is enshrined in soft law environmental law instruments, such as the Rio Declaration Principle 3.  However it has not yet been found to be a general and binding rule of international law.  This upcoming Advisory Opinion could change this, and the under-utilised third source of international law might be the best way to achieve this. 

Article 38(1)(c) sets out the third source of international law that the ICJ can consider: the ‘general principles of law recognised by civilised nations’.  To use this source, one must assess both horizontal and vertical generality of any given legal rule or principle.  Horizontal generality requires a rule be found across a wide number of domestic legal systems; vertical generality requires the rule be suitable for abstraction from the domestic to the international legal plane.  This horizontal assessment of domestic legal systems has historically been mostly limited to traditional state based systems - and within this, most often to a small cluster of European nations.  This led Judge Ammoun to famously lament in 1969 the North Sea Continental Shelf case that the use of the source was a ‘Concert of Europe’: something that in truth has not changed that much in the subsequent 50 plus years.

However, the source shows potential far greater than its use so far, potential that was harnessed both by Judge Ammoun and later by Vice-President Weeramantry in the Gabcikovo-Nagymaros Project case.  It is important to note that the lack of recognition of diverse legal systems and diverse voices in international law is well known and well established. International law can be notoriously bad at giving voice to the marginalised: from the failure of the League of Nations to hear indigenous petitions to it to the failure of Australia, the US, New Zealand and Canada (each with substantive disparity between their own indigenous and non-indigenous populations) to vote in support of the United Nations Declaration on the Rights of Indigenous People in 2007.

This has led to international law being referred to as ‘European’ international law: and although movements including the Third World Approaches to International Law (TWAIL) have challenged this, the Western domination of international law and its structures continues.

How then can General Principles change this?  Nowhere in the text of Article 38(1)(c) is the scope of the principle limited to the (traditional) domestic legal systems of States: rather all that is required is that the relevant principles are recognised by ‘civilized’ nations. 

While many argue that the ‘civilized’ is anachronistic, having no modern meaning, the history of the use of the source suggests this modifier may have actually influenced the restriction of legal systems examined to mostly (white) European ones.  To countermand such an approach, a broad reading of Article 38(1)(c) could take it encompass all domestic legal systems in a plural sense, recognising that beyond and beneath State law lies well established indigenous, traditional and/or customary legal systems.  To examine these legal systems for horizontal generality would allow us to truly say we are no longer restrained by exclusionary and weaponised concepts of ‘civilization’.  

Indeed, this is precisely what Vice-President Weeramantry did in his Separate Opinion in the Gabcikovo-Nagymaros Project when he argued that the source ‘expressly opened a door’ for the import of principles from ‘living law’ into international law.  In that case, Weeramantry looked to indigenous legal systems for support of a principle of sustainable development. Non-state legal systems as a basis for a General Principle were also considered by Judge Ammoun in North Sea Continental Shelf, Judge Weeramantry in Greenland and Jan Mayen, Judge Tarazi in the Tehran Hostages case, Judge El-Kosheri in the Aerial Incident at Lockerbie and Judge Al-Khasawneh in the Aerial Incident of 10 August 1999.

On these lines, when considering an argument to found the principle of inter-generational equity as a binding norm of international law, Article 38(1)(c) could be used to look not just at States who have this principle enshrined in their written domestic laws, but also at legal cultures, including indigenous, religious and customary, who have the principle enshrined in their laws.  As Edith Weiss writes, ‘the concept of intergenerational fairness in using and conserving the planet strikes deep chords in the major cultural and legal traditions of the world, including the Judeo-Christian, Islamic, African customary law, and Asian nontheistic traditions’.  Using Article 38(1)(c) in an expansive and truly global fashion would allow the ICJ and those making statements to it to draw on these traditions to help found a General Principle of inter-generational equity.

To do so could be of particular significance in this Advisory Opinion, spearheaded and led as it has been by Pacific Islands students, communities and States.  By examining Pacific customary law (as well as other indigenous and customary legal systems) as a basis for a General Principle on intergenerational equity, Pacific voices and Pacific law could be truly heard well by international law. 

Kiritimati Island

Implications for the global tuna fishing industry of climate change-driven alterations in productivity and body sizes

As I dive deeper into the impacts of climate change in fisheries in the region I call home and into the future of RMI fisheries a place that has been literally many 2nd home for a few years now, the more anguished I get.

I have been writing a bit about this and will continue to do so because, as the paper I present here clearly says: that “high trophic level species (like tuna) will be more impacted by climate change than by fishing pressure under the assumption that they remain nearby their MSY levels”.

So even if we keep looking and managing the stocks well as we do in the WCPO and run tight control over IUU fishing, all things we can and are doing…. The impact of Climate Change (something we didn't create) is having a more significant impact on our fisheries and future than what we actually do well… and that is DEEPLY upsetting.

The paper “Implications for the global tuna fishing industry of climate change-driven alterations in productivity and body sizes” is published by a group of heavyweights based in AZTI, the Basque research institute that is a reference in tuna fisheries.

I don't have access to the original, so I just quote the abstract below… but tackle the original if you have access (and send me a copy?).

Tunas and billfishes are the main large pelagic commercial fish species. Tunas comprised around 5.5 million t and USD 40 billion in 2018. Climate change studies and projections estimate that global fisheries productivity will decrease overall due to climate change. However, there are seldom projections of the climate-driven productivity of the higher trophic levels where tunas and billfishes belong. In this work, we use a mechanistic model to evaluate the effects of climate change and fishing for globally distributed and commercially exploited seven tuna species and swordfish which are divided into 30 stocks for management purposes, under a range of climate change (RCP 2.6 and 8.5) and fishing scenarios (from no fishing to 1.5 times the fishing mortality (F) at the Maximum Sustainable Yield, FMSY) from two Earth System Models (IPSL and MEDUSA). The results suggest that high trophic level species will be more impacted by climate change than by fishing pressure under the assumption that they remain nearby their MSY levels. However, no-fishing scenarios project much higher biomass. The overall productivity of the target species will decrease by 36% and only the Pacific bluefin showing a slight increase in the future. Five species; Atlantic and Southern bluefins, swordfish, bigeye, and albacore are estimated to decrease in biomass and size at different rates. These species represent almost a third of the landings in the Atlantic Ocean and 10% in the Pacific Ocean being the bluefins, the highest-valued tuna species. On average, the body size is expected to decrease up to 15% by 2050. Fish price and demand are partially driven by body size and therefore, revenues can be reduced even in stocks with an increase in productivity. The fishing industry can adapt to the changing climate by increasing the value of fish through sustainability certifications and reducing fuel consumption and time at sea with higher digitalisation. Reducing fuel consumption would also be an additional mitigation measure to climate change since it would reduce CO2 emissions.

I agree with the fuel issue consumption, but as expected to disagree on the ecolabelling issue… and here, I do agree with the FFA Trade and Industry news that suggests that as premiums associated with certified sustainable tuna have now eroded mainly due to a high-level of uptake by fishing companies (is there any tuna fishery not certified?), other options for increasing the value-proposition for tuna will likely need to be considered.

As you all know… I’m not a fan of private certifications… all the opposite…. and I think more and more people realise that there is no value in them other than squeezing money out of producers and giving more work to the regulators that need to get involved in commercial issues.

in any case… this all affects the future of people I work with everyday and are my friends.

Due Diligence Obligations on the State of Nationality to Combat IUU Fishing

As I sat last week on an update of where FFA is up to in terms of their “Persons of Interest - PoI” initiative (which I wrote about here a few years back), my mind was in 3 places:

Asian master in a Micronesian flagged vessel

1) Overall Due Diligence by DWFN
This, to a large extent, motivated me to write my last blog before this one: What About Flag State Performance? Yet I’m fully aware that operators from rich countries flag their vessels to poor countries for various reasons and drop the responsibilities of compliance on them, while they know these flagging countries are not always able or willing to do so.

2) Resourcing and cost recovery
This is all very nice and necessary, but POI is another thing to do… for the same amount of people in MIMRA earning the same salaries. This will have an operational impact and a cost which we are not clear about yet. I understand we need to get the legal basis to pursue PoI before pushing through, but it cannot just be a legal-led process. It also needs to be an operational-led process… which is something I’m repetitive about. 

Also, I think that an easy solution for these infringers/violators is to impose higher access fees to fish to those vessels/persons associated with IUU fishing records. Vessel days/licensing is more expensive because of alleged infringements and having them embedded into license conditions. The system purifies itself, and it would be something worth considering as an incentive for compliance…  I worry that if you bluntly deny them the right to fish based on what they could say are “mistakes”, they become martyrs … yet If you make it more expensive for them to fish, we justify it as cost recovery.

3) Roles of Nationals
What are the responsibilities of the state of nationality of this PoI… particularly now when the fag state primarily does not guarantee at all a tangible link between the vessel and operators based in the flag state… we have many vessels in the region flagged to Nauru, FSM, Vanuatu, Kiribati, Fiji, Solomons, RMI, etc… where no nationals of the flag state are on board. This wasn't at all the case when I started fishing…

The role of “national” is present in all multilateral legislation and treaties from UNCLOS onwards all the way to PSMA and others… but I’ve never seen it described in detail about IUU until today!

To my luck, a recent paper by two young and brilliant acquaintances: Arron N. Honniball and Valentin J. Schatz goes deep into the role of nationals: “Nationals” at Forty: From an Undefined UNCLOS Term to Due Diligence Obligations on the State of Nationality to Combat IUU Fishing.

It is an excellent and informative paper that I can only recommend being read in its entirety. For now, I quote the conclusions.

Conclusions

“One reason why IUU fishing has been such a persistent problem is that many States have not been successful in controlling the fishing activities by their nationals.” (IUU International Plan of Action Implementation)  

This article has sought to demonstrate the extent to which international law recognizes the jurisdiction and responsibilities of the State of nationality when addressing IUU fishing. Practice at the global, regional, and unilateral level points towards an increasing recognition and depth of the State of nationality’s responsibilities, albeit in a much softer form than the more established responsibilities of flag, coastal, and port States. Since the 1990s, the international community has recognized the necessity of regulating nationals to combat IUU fishing. Global treaties do not impose explicit jurisdictional obligations on the State of nationality. Still, the broad wording of relevant provisions of UNCLOS (particularly Articles 58(3) and 117) can arguably be interpreted as a sufficient basis for (due diligence) obligations of States of nationality to take the necessary measures to prevent their nationals from engaging in or supporting IUU fishing.

A more concrete affirmation of these obligations in treaty or customary law has yet to occur, but soft law and obiter dicta of international courts and tribunals clearly demonstrate the winds are very much in favor of recognition and are only expected to harden further.

Moreover, regional fisheries management organizations have further strengthened and elaborated upon the regulatory expectations of parties and cooperating non-parties with respect to their nationals. This includes both prescription and enforcement jurisdiction, although regional fisheries management organization parties have to date been careful to use conditional language or implementation (e.g., “to the greatest extent possible”) or limiting investigation requirements to reported cases or allegations. Nonetheless, there is a clear trend towards further development of nationality-based measures.

The previously “small minority of countries” regulating their nationals involved in IUU fishing, regardless of flag, is a growing club. The practice of the EU is of particular importance, although a recent study commissioned by the European Commission showed “significant weaknesses” in the legislative frameworks and enforcement systems of EU member States. Specifically, the weaknesses are regarding their obligations and sanctioning of nationals for infringements of relevant EU law, as well as “(nearly) non-existent sanctioning of, on the one hand, nationals having engaged in IUU fishing activities outside EU waters, either operating or on board fishing vessels registered in third countries or vessels without nationality and, on the other, nationals supporting IUU fishing activities wherever their location.

The State of nationality therefore no longer presents a potential area for the evolution of international fisheries law, but rather an area where significant developments are already ongoing. Its active personality basis of prescriptive jurisdiction is not limited by the territory, maritime zone, or vessel where a national’s conduct occurs. It can thus not only address IUU fishing wherever it may occur but equally the natural and juridical persons, and not merely vessels, involved. This disincentivizes nationals engaging in or supporting IUU fishing, enables the punishment of non-compliance, and “sends a strong signal to other countries.” While enforcement may be limited by a lack of awareness of what a national is doing with respect to or aboard a foreign vessel, and unenforceable until the national returns to the State’s territory (except with respect to juridical persons, assets, licenses, and other issues not dependent on the presence of natural persons), these limitations are also seen in respect of other jurisdictional capacities. Cooperation may partially address these limitations, including greater information sharing or promoting the owners and operators of parties and cooperating non-parties flagged vessels within a State’s territory to enable effective enforcement.

Exercising due diligence in the regulation of nationals and the further development of the applicable threshold of due diligence arguably represents the next bastion in international fisheries law’s defences against IUU fishing.

Significant States of nationality should recognize these developments and proactively fortify their domestic legal systems through sufficient prescriptions and enforcement of provisions governing their nationals, domiciles, and, where applicable, residents. 

What about Flag State Performance? (or the disproportonate burden of PSM)

Over the last few years, we have seen a valid focus on Port State Measures, and area I work a lot on its planning and operational aspects. This was all strengthened in 2009 with FAO’s PSMA, which has been gaining strength, particularly after its implementation.

Melvin getting ready to board one of the carrriers involved in the over 450 trasnipment in for we authorise and control.

And while I’m always cautious to stress that signing an agreement is not implementing it and that you can be doing excellent PSM without having signed the treaty. As a key tuna port in the world, we here in Majuro have focused a lot of effort on it. Every incoming fishing vessel (including RMI flagged) goes through a risk assessment that creates the Arriving Vessel Intelligence Report (AVIR). The intelligence analysis and risk determination allow for the identification of risks in three different categories corresponding to three steps in the analysis, including (i) identity – whether the vessel is who it says it is, (ii) manoeuvring – the vessel’s activity and operations and whether these were adequately reported, and (iii) licensing – whether the vessel is allowed to be in the location it was. The risk analysis performed by MIMRA is focused on fishing vessels to assess the legality of the catch and on carriers' activities not directly related to transhipments.

But it really pisses me off that we are actually, and to a large extent, taking on something that Flag states should be doing! How is it up to us to inspect and authorise vessel unloading when the flag state has access to the same tools we have(or more), and they do not do it… 

UNCLOS is clear in article 94: Duties of the Flag State. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, furthermore flag State responsibilities extend into  Articles 58.3 (rights and duties of other states in the EEZ), 62.4 (utilisation of living resources of the EEZ), and 192 (general obligation to protect and preserve the marine environment).

And if that wasn't enough, the International Tribunal for the Law of the Sea delivered in 2015 its Advisory Opinion regarding IUU fishing activities. 

The Tribunal distinguished the flag State’s responsibility under UNCLOS from its liability.

The flag State, in fulfilment of its obligation to effectively exercise jurisdiction and control in administrative matters under article 94 of the Convention, has the obligation to adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities in the exclusive economic zones of other Member States…. The foregoing obligations are obligations of “due diligence”.

With respect to liability, the Tribunal declared that the liability of the flag State does not arise from a failure of vessels flying its flag to comply with the applicable laws and regulations because “the violation of such laws and regulations by vessels is not per se attributable to the flag State” (¶ 146).

Instead, the liability of the flag State arises from its failure to comply with its own “due diligence” obligations. Thus, the flag State will not be liable if it has taken “all necessary and appropriate measures to meet its ‘due diligence obligations” to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZ of the coastal States.

So if we, as a developing country port state, exercise sufficient due diligence to evaluate the activities of foreign vessels, it should be to validate and strengthen the fag state due diligence, not to take responsibility on their failings as it is now! These are your vessels; how come you don't authorise unloading based on checking on the compliance of their fishing trips, independently from where they are!

I already hear them saying… but we have hundreds of vessels fishing worldwide… we cannot control them all…. Well, sorry, but that does not exempt you from your responsibilities… if they cannot control each one of these fishing beyond your EEZ, they should not licence them to leave. Or directly, they should not flag them if they don't have the means to be responsible for them as required by international law.

Back in 2017, in the traceability for fisheries compliance book we wrote for FAO we identified what are the ideal Flag state configuration; we recommend that there needs to be some form of flag State authorisation of the unloading. 

And in the recent “Advancing end-to-end traceability along capture fisheries and aquaculture value chains” , we also identify Unloading (transhipment at sea, in port or landing, or any combination thereof) where Flag state best practices request vessels to seek to unload authorization from the flag state (independent of port entry or transhipment at sea).

And I will stake it a step further when it comes to transhipments in the HS, and it should be the role of the flag state of that carrier to do an analysis similar to the one we do in Port States before authorising the reception of fish... they have access to the same tools we have… this is essential “due diligence” and equivalent measures.

I’m starting to get unnerved by the present trend of having ports in countries that have not signed to PSMA qualified as “Port of Convenience” regardless of whether they implement PSM or not… Signing a piece of paper does not make you compliant! We in RMI have not signed yet, but we comply with every aspect of PSM; we even publish our PSM system online, something I have not seen many (if any) PSMA signatories do.  

While in the meantime, flags state (many from well-off developed DWFN) keep ignoring their responsibilities and obligations of due diligence as recognised in international law. 

My solution for this? Have an independent body set up by FAO COFI to evaluate flag state performance (perhaps using a version of this one prepared by PEW?) that accesses their compliance and has trade tariffs proportional to the level of compliance… the better a country is, the lesser tariff it pays.

In my experience, you have no incentive to change if it does not hurt your pocket.

Advancing end-to-end traceability along capture fisheries and aquaculture value chains

Back in 2020, I was contacted by my colleague Nada Bougouss from FAO with the idea of “writing a technical report on the minimum requirements, authoritative sources and verification mechanisms. An expert consultative workshop will then follow the report. I believe this is timely and will be of high value, especially with the DGST official launch of their Standards next week. KDEs and CTEs are not clearly defined, and it seems businesses and gov. speak different languages to mean the same things, the proposed guide will help clear the ambiguity”

I liked the idea, as it was to extend over aquaculture, and I’m pretty strong on the idea of writing things with other authors that represent diversity and development countries' origin (I did in the past with my Ken Katafono, and with Katrina Nakamura) I wanted to involve somebody with ample experience in aquaculture in Latin America, so I asked my colleagues Yahira Piedrahita and then Vincent Andre, that is very versed in SE Asia and has written before for FAO as co-authors… and they (thankfully accepted) and later once we had the final draft I got my friend Mariah Boyle to do a review that undoubtedly made the book much better

The resulting Guidance document: “Advancing end-to-end traceability along capture fisheries and aquaculture value chains” has been just published, and it responds to a critical need for consensus towards establishing end-to-end traceability through globally agreed and standardized understanding of the critical tracking events (CTEs) along the fish value chain, as well as sources of key data elements (KDEs) related to fish production and product identification. In particular, the Guidance aims at developing insights and addressing gaps in developing and implementing traceability systems for both the private sector and government. Supported by deliberations through various consultations between 2021 and 2022, it also provides technical advice in the enforcement and adequate verification of traceability in fish value chains and seeks to act as a benchmark of existing traceability systems to evaluate their efficacy and identify associated gaps.

While our guidance document is intended to support countries in implementing traceability in fisheries and aquaculture value chains. It discusses the role of traceability for official assurance, yet it draws on the efforts and learning from initiatives led by the private sector in implementing traceability throughout the fish value chain.

In the context of value chains, the document considers that value chains for capture and culture fisheries differ from fishery to fishery, country to country, and frequently within regions.

Moreover, a fish value chain can be defined as interlinked value adding activities that convert inputs into outputs, which in turn add to the bottom line and help to create a competitive advantage. A value chain typically consists of inbound distribution or logistics, manufacturing operations, outbound distribution or logistics, marketing and selling and after-sales service. These activities are supported by purchasing or procurement, research and development, human resource development and corporate infrastructure.

Most of the analysis in this guidance document and the resulting recommendations are based on the identification of CTEs and KDEs under the purview of the “regulatory realm” (see Section 2.2) for specific state actors; how they are covered and how country-level mechanisms could or should serve to support them or supply traceability solutions in segments where solutions are absent and must be provided by individual states.

This guidance document uses for its analysis the literature and initiatives identifying KDEs as well as traceability standards developed by different industries and non-governmental organizations (NGOs), as well as non-regulatory standards from the “non-regulatory realm” (see Section 2.3). Yet, it does not propose any specific KDEs or standards for non-regulatory purposes, such as any form of private certifications, ecolabels, fair trade or social standards, and does not enter the area of organic or bio-certification.

Development process

CTEs and KDEs per type of state (Flag, Coastal, Port, Processing and Market)

A two-part process was followed in the development of this guidance document. The first part consisted of a desk study based on secondary sources, bibliographies and the analysis of initiatives by NGOs, governments, the private sector and independent experts, followed by an online public consultation that took place during March and April 2021. Comments and feedback were collected from a wide range of stakeholders from 42 countries.

The second part was the organisation of three virtual regional consultations in 2021 and 2022 (Asia, North Africa and the Near East, and Latin America [(FAO, 2022b)]) with the participation of more than 120 representatives from 34 countries and six international and regional fishery and aquaculture organisations. Delegates and participants deliberated on the CTE and KDE listings and provided additional comments to corroborate their relevance and comprehensiveness.

Read the whole thing if you are keen (we ought to do very accessible), and is free. Otherwise, below are the discussion and recommendations:

Discussion

The aim of this guidance document is to support countries by providing technical advice on the CTEs and KDEs required for robust traceability along the seafood value chain, and the identification of supporting verification mechanisms for official assurance. The guidance document also introduces leading private sector-led initiatives across the seafood value chain as the substrate over which electronic traceability-type solutions can work.

There are many intrinsic and extrinsic challenges in implementing successful and cost-effective traceability. These challenges have created some issues for the operators and the CAs in control of food safety, particularly when engaging in transnational trade.

The GDST initiative correctly identified the opportunities that new digital technologies present for making traceability more possible and affordable than ever, but effective and widespread traceability has faced two major obstacles:

1. Inconsistent demands and formats for information coming from regulators, private certifications, and even retailers or other downstream companies. This has led to confusion, higher compliance costs and lower motivation among producers.

2. Incompatible digital information management systems resulting from the large number of uncoordinated CTEs/KDEs, standards, traceability solutions and solution vendors. This impedes information flow while causing rigidity in business relations and raising barriers to onboarding new suppliers and customers.

By compiling and analysing the CTEs and KDEs from the regulatory realm and incorporating the applicable ones from the non-regulatory realm, this document hopes to facilitate the development of traceability systems that extend over the whole value chain.

The best-case scenario would be that many of the same CTEs and KDEs would be adopted globally for seafood supply chains. If this could be accomplished, many of the challenges relating to traceability – such as inconsistent data formats and interoperability challenges – would be reduced and the resources of companies and governments could be redirected toward verifying the information in the systems and other improvements.

Nevertheless, the authors are very aware that no “one size fits all” solution is possible, and that the views, CTEs and KDEs presented here constitute guidance only, and may not be applicable in their entirety for some products, or even for the same product in different jurisdictions.

Yet, two issues have been identified not only in this guidance document, but also in prior ones (Blaha, Borit and Thompson, 2015) and these remain a non-technical challenge:

Different authorities

Even if traceability systems are well designed and generally well implemented, they can fail with a lack of implementation at a single step. Therefore, it is vital to ensure coordination between the different operators in the production chain and in the control of traceability systems by the CAs involved.

For example, the understanding that IUU happens “at sea” is the one CTE where most of the relevant fishing data (KDEs) are recorded. Besides this being the easiest point to perform this activity, it is possible that this situation is due to the traditional view that MCS (including traceability as a tool for MCS) is something that only happens at the vessel and wharf level, and does not concern processing and the risks of laundering illegal fish. While at the same time the sanitary CA (which requires many of the same KDEs) does not extend its oversight to the vessels and wharfs, nor integrates and cross- checks acquired data with the fisheries authorities.

National (in country) and across-countries traceability

A further topic of importance is the integration of cross-countries (between countries) and national (inside the country) traceability, particularly in the light of many countries with excess processing capacity and low labour costs that import fish and fishery products for further processing and re- export (e.g. China, Viet Nam and Thailand).

National  traceability  is  organized  by  national  administrations  and  governed  by  national  laws. While  many  countries  require  traceability,  especially  requirements  associated  with  exports  to  an international  market,  it  is  often  enforced  with  varied  degrees  of  effectiveness.  Few  to  no  countries provide  standardized  CTEs  and KDEs  and  electronic  traceability  systems  where  specific  types  of products  are  electronically  traced  through  the  entire  national  supply  chain  from  point  of  landing/ import to point of export/re-export.

The cross-countries traceability (in between countries) stops at the point of entry into a country and restarts at the point of exit. If a product does not re-emerge as an export following landing or import, it is deemed to have gone into domestic consumption.

This understanding is to be incorporated into the traceability system’s design so as to accommodate the reality that in many countries, the largest importers of fish raw materials are not processors but diversified  import–export companies.  These  companies  are  sometimes  servicing  a  variety  of  food- related  sectors,  and  often  supply  to  and  distribute  fish  on  behalf  of,  large,  and  probably  small,  re- processors.  Although  this  service  comes  at  a  price,  it  may  offer  essential  flexibility  in  the  dynamic channelling  of  raw  material  to  a  network  of  factories  as  market  conditions  change.  Although  this situation is perfectly legal, the fact that fish may change hands one or more times while in the country has implications for traceability systems.

Finally, interoperability will be always be a challenge to implementing new technology because of the lack of traceability standardization in seafood value chains – both from a technical perspective, where existing traceability systems may not be able to talk to each other, and also from the perspective that there is a need for standardized KDEs to be recorded and shared. This document hopes to contribute to this last point.

 Recomendations

As demonstrated in this document, establishing a consistent and widely adopted set of KDEs and CTEs is an essential part of functional and integrated traceability systems – both for companies and national CAs.

While technology has enabled many examples of successful implementation and is constantly evolving, implementing advanced technology is secondary to having well-developed traceability along the value chain, not only with accurate and well-defined KDEs and CTEs, but with standards that facilitate integration, management and transmission of data. Hence, prior to deciding which technology is to be used, it is critical to define what data are to be acquired, and to determine the sources and jurisdictions involved at each type of state or entity of the traceability system to be built.

All types of states, entities and operators have essential roles to play in the implementation of traceability mechanisms. Some responsibilities and duties are directly related to the implementation of rigorous traceability mechanisms, whereas others are only loosely related – but together they provide the conditions in which traceability functions can be enforced.

The overall recommendation of this document for countries is to: 1) identify and define standardized KDEs and CTEs for commercial and regulatory traceability; and 2) follow strict due diligence (using a holistic and integrated approach) involving all stakeholders at legal, commercial and operational level prior to commitment.

In order to achieve the two recommendations above, critical forethought needs to be given to the following (not exhaustive) list of considerations:

Use of defined and flexible standards

• Once the identification and definition of the CTEs and KDEs is completed, stakeholders across the supply chain should consider adopting industry-wide use of the standards using globally unique identification of units as a significant step forward for electronic and interoperable seafood traceability.

• An example of such standard is the GDST Standards and Guidelines for Interoperable Seafood Traceability Systems, Version 1.0. These industry-developed standards are designed to improve the reliability of seafood information, reduce the cost of traceability and contribute to supply chain risk reduction and to securing the long-term social and environmental sustainability of the sector.

Traceability and value chain considerations for due diligence

• An exhaustive understanding of all possible is needed - as distinct from desirable - supply-chain events and scenarios under consideration.

• Consideration should be given to small-scale producers supplying domestic markets and potential gaps in national traceability systems where information is challenging to capture.

• Clear identification and definition of the CTEs and KDEs are needed in the value chain under consideration.

• For regulatory purposes, the segments of analysis need to consider the administrative, logistic and legal aspects associated with the types of states, entities and operators that have custody of fishery and aquaculture products as they move through national and international supply chains, from harvesting and processing to the consumer end market.

• A clear understanding of the current operational and logistical advantages and limitations of the traceability system in existence (if any) is needed.

Good Bye Peter Flewwelling

I keep this blog very fishery oriented on topics of my interest, and a lot of it around the Monitoring, Control and Surveillance area, which is where I work the most… but today will be a bit more personal

As I sat on a meeting for the WCPFC Transhipment IWG… it occurred to me how come I am here, considering my origin and past.

As usual, it comes to people, mentors and opportunities… so in this post, I want to thank a mentor who unfortunately died a couple of weeks ago.

I met him in one of my 1st jobs as a consultant in 2000 in Sri Lanka, and we kept in touch since then.

He embodied the role of a mentor for his capacity and humanity. He literally wrote the first books on fisheries MCS back in 1994 for FAO after his days in the Canadian Navy and kept the same good and cool attitude from then till his last job as the Compliance Manager of the NPFC

 He was the 1st that welcome me as a fisherman into the fisheries officers’ world, and I know he was genuinely happy for me when I kept getting jobs along that line of work, and there was always an encouraging answer to my many questions along the way.

He worked worldwide and always supported people… and so many people got in touch with similar stories to mine in terms of the support and guidance he gave so generously.

He had a great laugh and was always keen to see the positives… I know he would not like tears, so I here celebrate his life and say a public thank you for the help provided…

And I’m sure I’m not the only one that feels the same!

Pacific Handbook for human rights, gender equity and social inclusion in tuna industries

I always remark that SPC does top-quality publications not only in terms of content but also in terms of design, and as such, I’m always proud (and humbled) when they use my pictures for their excellent publications, yet this time is a double pride since are not only my photos but also many references to the paper I co-authored last year with K Nakamura and Y Ota (A practical take on duty to uphold human rights in seafood workplaces) and many of my blog entries.

This one, the Pacific Handbook for human rights, gender equity and social inclusion in tuna industries comes from the hand of my friend Professor Kate Barclay plus  Aliti Vunisea, Megan Streeter, Senoveva Mauli and Natalie Makhoul, all of whom I interacted with in the past.

This publication follows the footsteps of the existing SPC Handbook on gender equity and social inclusion in coastal fisheries and aquaculture (that also used many of my pictures) as they adopted the idea of a practical handbook with tools, case studies, tips and stories to speak to fisheries practitioners and to support the application of gender equity and social inclusion (GESI) principles in the tuna industries.

This new ‘Tuna Handbook’ also includes human rights (HR) topics complementing gender equity and social inclusion concepts with an extended outlook into more specific human rights issues such as working conditions and labour rights. In addition, the ‘Tuna Handbook’ expands on the dual responsibilities of the public sector and the tuna industry as the private sector player.

In a nutshell, the handbook has 9 modules (all with my pictures in the covers) that are divided into four thematic areas:

1. Introduction – the basics: Module 1 1 (Overview) and Module 2 (MEL and Social Analysis) 

2. Site-specific human rights and GESI issues – from the sea to the shore: Modules 3, 4 and  5 (HR and GESI at sea/in port areas/in onshore processing facilities)

3. Broader human rights and GESI relevance: Modules 6, 7 and 8 (HR and GESI in the informal SSF tuna sector/in fisheries science and management/stakeholder engagement)

4. The national scale: Module 9 (Fiji case study)

All modules are also stand-alone publications, which can be downloaded separately.

The handbook is primarily addressed to fisheries practitioners working for national fisheries agencies but also to the private sector, civil society, and intergovernmental organisations. Educational institutions may also benefit from the handbook to support the integration of human perspectives, social science and their dynamics into course development and research.

Needless to say, I was even more flattered when Kate (she is at the top of this field) said publicly: “Apart from your amazing photos, Francisco, your blogs and papers have some of the best ideas and points for human rights in tuna fisheries for the region. Thank you!” as someone relatively new to the academic field of Labour rights at sea and coming from an operational angle, her words are really encouraging.

So, if you are interested in the topic, make sure you dig into this publication as it sets the stage in the Pacific with lessons learned for the rest of the world.

The usual culprits in the HS transhipment scene

I have written ad nauseam on HS transhipment in the WCPFC and abuse of the impracticability exemption. I also proposed some solutions, and I’m working on the deck in the intercessional working group for transhipment reform at the WCPFC.

In principle, it should not be too hard to fix, really… is only a small group of countries doing it, and they are the same across all oceans.

This new study by my colleague Gohar Petrossian and colleagues (based on her prior work) for PEW does illustrate it again… and again…

Read the original, here are some brief quotes

Flag trends

The study found that most carrier vessels were flagged to just a few countries: Panama (54% of key carriers); Taiwan, Province of China (10%); China (9%); and Liberia (5%). When looking at relationships between flags, Panamanian-flagged carrier vessels had the largest number, 2,082, of encounters with fishing vessels flagged to China, accounting for 24% of all detected transshipments. (See Figure 2.) Carrier and fishing vessels both flagged to Taiwan had the second-strongest connection at 1,109 encounters, or 13% of all transshipments.

Several countries, including Panama, allow foreign-owned or -controlled vessels to register under their flag through an “open registry.” In recent years, several countries have highlighted issues regarding Panama’s monitoring and control of its registered vessels. For example, in December 2019 the European Union issued a second formal warning to Panama because of the country’s persistent failures to meet its obligations to fight illegal, unreported and unregulated (IUU) fishing. And the United States National Oceanic and Atmospheric Administration recorded several violations by Panamanian-flagged vessels in its 2019 and 2021 biennial reports to Congress.

Global transshipping networks

The study identified 12 distinct networks or “communities” of key carriers and estimated their relative importance and contribution to the overall global network. Five of those communities, which the research team referred to as A, B, C, D and E, collectively accounted for 65% of all activities, with the top three communities (A, B and C) conducting almost half (49%) of global transshipment. Not surprisingly, given the analysis’s focus on RFMOs that oversee tuna and squid fisheries, four of the top five communities were largely associated with tuna and tuna-like fisheries and the fifth was probably associated with squid fisheries.

Community A
The top community included 23 key carriers—mostly flagged to Panama and Liberia—that conducted nearly a quarter (22.7%) of the transshipment events examined. Community A’s transshipment activity spanned multiple ocean basins and RFMO management boundaries, with noticeable hot spots in the Western and Eastern Central Pacific regions, Indian Ocean, Southeast Atlantic and the Eastern Central Atlantic, as well as near the EEZs of the West African coast.

Community B
This group of 12 key carriers, flagged to Taiwan and Panama, engaged in the second-highest proportion of transshipment events (14.7%), primarily in the Western Indian Ocean and Western Pacific.

Community C
This group, which accounted for 11.4% of the activities and contained five key carriers, showed low overall geographic spread, with transshipment events concentrated in the southeast Pacific region and just outside the EEZs of French Polynesia and Pitcairn Islands.

Community D
Like Community A, Community D’s encounters, which made up 8.2% of activities and involved eight key carriers, were spread across the Western and Eastern Central Pacific regions—mainly the equatorial Pacific. However, unlike the other communities, this group conducted significant activity immediately outside of several EEZs, including those of the Solomon Islands, Nauru, Tuvalu, Kiribati, Tokelau and French Polynesia. (these are my focus see one example below of the many I have)

is not doing nothing “ilegal” but where is the impracticability of hamering the costal waters of Fanning (always outside the 12nm) and then after being fishing near kiritimiati (a official port) and doing over 200 to tranship in 4 nm of the EEZ, instead of doing less than 100 to Kiritimati… inpracticability yeah right…

 Community E
The 19 key carriers in Community E mainly engaged with Panama-flagged fishing vessels. This community operated in a wide geographic area with hot spots in the Northwest Pacific Ocean and high seas areas close to the EEZs of Russia, Peru and Argentina, which are associated with productive squid fisheries.

Conclusion

By identifying the key carriers and the vessel communities of which they are a part, this study sheds light on the global reach of these carriers and the true scale of the transshipment network. These findings, in turn, highlight the need for better coordination among countries, businesses and market stakeholders, especially for oversight of activities on the high seas. To effectively manage increasing transshipment activities, stronger regulatory frameworks are needed oceanwide to ensure that vessels are operating within legal requirements and illegal catch does not reach the marketplace.

Obviously, I agree with these points…and I think that we around all initiatives have to act in a pack and puch from all corners... add requirements for EM for TS in HS, and add observers.... since the present scenario is not functioning...

We should also push for an independent observer programme, here is what I wrote for PEW last year (summary already lodged here https://www.wcpfc.int/file/672477/download... ) this could make the TS at sea very expensive and such push the vessels to come over to port at a reduced rate.... look at the fees that IATTC observer earns (340USD/day) and the ones agreed to that and paying it are China, Japan, Korea, Panama, Chinese Taipei, Vanuatu... and this is one way less profitable fishery than the WCPFC… so coming to port should be cheaper

 this is gonna be a loooooong swim in rough waters… when it shouldn’t be

Enforcement approaches against illegal fishing in national fisheries legislation

This blog post has been brewing for a while and is about a paper published recently…. There are two factors to it.. 1) it deals directly with a key component of my work, and 2) the lead author is a friend and mentor!

here is where you start with evidence findeng…. but never where you finish (My broh Stephenson doing his weor on a carrier)

I got to know Blaise back in Tonga in 1998 when he was starting his career at FAO, and I was on my 1st consultant job getting over my impostor syndrome from coming to work as an FAO consultant with people and boats I was fishing with 3 years before!

Working with Blaise in Palau a few years back

In any case, I think the liking was mutual, and we have always stayed in contact since then, he has always been incredibly generous with his advice on professional and personal matters, and I have been lucky to work with him on PSM issues back in his home country PNG and a few more after that.

Besides being incredibly capable, his best quality (at least in my opinion) is very simple to define; he is a “gutpela man” (good person, kind and thoughtful) in Tok Pisin.

The topic of the most recent paper he was the main author says it all in the title: “Enforcement approaches against illegal fishing in national fisheries legislation.” This topic is pertinent for me since my work on MCS is delimited by the strength and extent of the legislative framework that covers it. In my past life as a compliance guy with the industry, I used my mantra of “how can you regulate what you don't understand” to my client's advantage when things went to court, and my role in finding holes and technical inconsistencies in prosecution cases… not that I’m proud of it…. But I see worst with really powerful accountancy firms that make corporate clients pay lesser proportionate tax than a teacher…

In any case, the reality is that soon as things get into court, everything takes time, and it gets VERY expensive… so it is much better to settle outside court…

Yet, for this to be an option, the case you build and the evidence has to be so irrefutable that it is cheaper for the vessel owner to cut their losses and get on with stuff. And here is where I focus a lot of my work on mentoring.. where to find and secure irrefutable evidence on board fishing vessels… which normally is beyond the documents the skipper presents.

For us in MIMRA, this has worked very well; in none of the 5 cases we brought to our legal counsel through the implementation of our PSM procedures was pursued into the court system. The vessels’ owners realised that is was better to settle since the cases were waterproof (pun intended). Here are the public details of one of these cases.

Blaise and co-authors explore a few overarching questions underpinning the scholarly debate on illegal fishing and crimes in the fisheries sector.

First, whether criminalising illegal fishing or subjecting such fishing to criminal law processes leads to better compliance with fisheries legislation or is a more effective approach to tackling illegal fishing. Second, whether the problem of illegal fishing persists due to the lack of its criminalisation or the resistance by States to criminalising illegal fishing activities.

They analyse the primary fisheries legislation of States and the EU to understand better the enforcement approaches adopted therein, the responses used to empower national authorities, establish processes, delineate liability, and fix the sanction scheme, including the level of sanctions in terms of severity for illegal fishing.

They ultimately aim to demonstrate that the options used to combat illegal fishing set out in national fisheries legislation are not limited to a single type of enforcement approach.

Indeed, their assessment of national fisheries legislation shows that most States seem to follow a dual enforcement approach, which includes provisions enabling the use of both administrative and criminal processes and sanctions to enforce against illegal fishing and fishing-related activities.

They rightly support a multipronged approach to address illegal fishing, which may include legal solutions such as criminalising serious fisheries violations.

As usual, I recommend you read the original, as it also dwells on the role of regional organisations, especially FFA.

I just quite the conclusion here below:

The ‘most appropriate’ legal strategy to tackle illegal fishing through regulatory frameworks does not rely on and should not depend upon the law-maker’s emphasis on a particular enforcement approach, whether administrative, civil or criminal. As seen in this assessment, most States endorse a dual enforcement approach in their primary fisheries legislation with respect to the authority competent for processing fisheries offences, the respective process, applicable liability and sanctions for illegal fishing. The findings reveal that most countries have employed both administrative and criminal processes and sanctions to combat illegal fishing in their primary fisheries legislation. Hence, there is no single solution, at least in terms of what the national fisheries legislation by foreign fishers should provide for, with a view to tackling illegal fishing. It is not by purely focusing on management and MCS provisions, or in solely establishing rigorous processes and severe penalties of criminal sanctions and years of imprisonment that States can combat illegal fishing.

A vital consideration for ensuring that the primary fisheries legislation of a country is robust in facilitating effective enforcement to tackle illegal fishing is that the relevant laws take advantage of the most efficient and practical enforcement options made available by the countries’ legal system and practice. At the same time, the fisheries legal framework must implement and be consistent with relevant international and regional instruments and standards. Notably, in accordance with the LOSC, national legislation of concerned States must include a provision on prompt release of the arrested foreign vessel and crew (Article 73(2), LOSC) and must not impose, for the violation of fisheries legislation, the penalty of imprisonment and any other form of corporal punishment in their respective EEZs, unless otherwise agreed by the concerned States (Article 73(3), LOSC). The procedure of prompt release is separate from, not incidental to or prejudicial to the coastal State’s judicial or administrative proceeding (on the merits) against the vessel and crew for the violation of its fisheries laws .

Due to the complex nature of illegal fishing, the solution for this persisting global problem in fisheries seems to require a multipronged approach targeting different facets of the problem. The actions and thinking promoted by legal scholars and international organizations is that combatting illegal fishing and crimes in the fisheries sector should not be limited or restricted to a single enforcement approach and softening the actions against illegal fishing, especially when it is accompanied by transnational organized crime dimensions. Irrespective of whether a country has established and emphasises an administrative/civil and/or criminal processes to enforce fisheries legislation, it is important that in applying the existing framework, States are attentive to the particularities of the fisheries context, especially with respect to the special needs of small-scale fisheries.

We submit that illegal fishing activities that involve elements of transnational organized crime should be considered a serious violation (or a serious crime), which should consequently attract congruent enforcement action. Indeed, members of the Pacific Islands Forum Fisheries Agency (FFA) have enjoyed relative success by treating illegal fishing as a serious matter regardless of whether administrative or criminal enforcement is used. The imposition of severe penalties for illegal fishing and the overall reduction in IUU fishing in the FFA region is a result of a combination of efforts, actions and approaches, including: building knowledge; revising legislation to ensure better MCS (through e.g., evidentiary provisions, higher penalties and forfeiture of vessels); raising awareness and education (stakeholders, enforcement officers, parliamentarians, judges) to change public and judiciary perception so that illegal fishing is considered a serious crime.

Steps towards recognising illegal fishing as a serious violation deserving severe penalties, as noted above, include: associating it with crimes in the fisheries sector and other aggravating aspects such as the harm it causes to ecosystems and the environment; considering its transnational nature; treating it as a crime against humanity; or treating it as a serious crime where organised criminal groups are involved in such fishing. In addition to these options, Lindley and Techera draw attention to the lack of synergies in the operation of the international community’s toolkit essential to address illegal fishing, suggesting a ‘regulatory pluralism approach’ and the need to put in place a ‘collaborative global body charged with bringing the instruments and actors’ together. Indeed, most scholars point to the importance of examining, interpreting and applying various fields of law relating to illegal fishing, and the concomitant and coordinated efforts from the respective institutions and stakeholders to address the problem.

Our message is essentially the same, noting that, as regards national fisheries legislation, both criminal and administrative or civil enforcement approaches could be adopted by States, in line with State legislative practice.

At the international level, inter-agency collaboration particularly through the FAO and UNODC, has advanced the work in clarifying the linkages, challenges and legal responses to crimes in the fisheries sector. We add to this initiative by having demonstrated how States have approached enforcement to address illegal fishing in national fisheries legislation and emphasising how to build on that. Our findings show that the use of criminal proceedings to tackle illegal fishing are not any close to an innovation in States’ legislative practice, nor could such practice be considered insufficient by lack of criminalization of illegal fishing activities. Criminal proceedings are already in place and appear to have not been used effectively enough by States to tackle illegal fishing. This needs to change, commencing with viewing certain illegal fishing as a serious violation warranting adequate and sustained enforcement effort leading to the imposition of severe penalties to have the desired deterrent impact.

My own experience and take on the labour issues on board fishing vessels

I’m always kind of cautious about writing on being a fisherman and the issues that it brings (the same way that about being a fisheries observer, even if it was less time) because it only a take, my own one, based on my experience in some fisheries a while ago and to a point a privileged one, being part European and a big intimidating looking man (so I been told).

Yet that does not invalidate my experiences, particularly when I read so much about labour issues in fishing by people that, while well intended, never spend much (or any) time as commercial fishers in fishing boats. 

I have been working in this area for a few years, and I have been involved in some worthwhile initiatives, have published both academically and non-academically, and have been qualified by ILO as an inspector on labour issues on fishing boats. So, my interest is not an amateur one.

Yet it did confront me at a recent conference where I was a speaker and the panellist on IUU fishing. I put a lot of time into explaining the MCS structure we use in the FFA region, the methodology we used for our IUU qualification report in 2016, how we used the results to both guide better MCS operations and better data sources, and how the 2021 quantification update showed a fall in 50% of the estimates… yet 90% on the discussion was on labour issues. And they are not the same… they may happen in the same workplace, yet they may not be automatically related.

Furthermore, the discussion mainly mixed safety at sea, human rights violations and labour issues in one bag, considering that all fishing fleets are equally distributed everywhere. And somehow setting the picture that all fishermen are simultaneously criminals and labour rights victims.

And this is not my experience… so I was asked to write about it… so yeah, this blog entry is the result.

Again, what I write below is what I have seen in almost 40 years of working in commercial fishing in the South Atlantic, eastern, western and South Pacific and a little bit in the Indian Ocean, across side and stern trawlers, squid jiggers, demersal and surface longliners, purse seiners, pole and liners.

Yet I’m the 1st one to recognise that most of that experience did happen a while ago, while I was halfway in between the deck and the bridge either as deck boss and/or 3rd /2nd  mate/navigator and when DWFN had mostly crew from their own states and reflagging to open registries wasn't as common then as is today.

Overall, in my experience, I’ll say that I have personally witnessed and/or experienced the issues I will qualify below in 60 to 70% of fishing trips I have been on, so yes, they are prevalent.

Now, as with anything in nature, events are distributed in the shape of a bell curve, which is the most common type of distribution for a variable, so much so that it is also known as the “normal” distribution. 

The highest point on the curve, or the top of the bell, represents the most probable event in a series of data (its mean, mode, and median in this case), while all other possible occurrences are symmetrically distributed around the mean, creating a downward-sloping curve on each side of the peak. The width of the bell curve is described by its standard deviation.

Now, by far, the most common labour issue I have seen and experienced in my life is to be paid what I was promised and on time. And I’ll say this way over 50% of the issues most fishermen face… yet this is seldom mentioned…and most of the focus is on the almost human rights side of things.

Also, in my experience, the payment issues arise from two elements:

1. The nature of fishing… while there are many different ways in which fishermen get paid, most of them involve some share arrangement of catch value, and you get to that after the fish is sold (one of the many jobs I had was to the crew rep at the time of “weight in” of catch.. so from here you make some estimates) so basically you don't really know your full payment until it arrives… and mostly id does not arrive to you, but to your dependents somewhere in the word that have no idea how much you estimated.

   and

2. the overall dodginess of the company you work for, which (again, in my experience) relates to the overall dodginess of the country where they are from… transparency international corruption indexes align pretty well with my best and worst experiences (NZ was the best if you keen to know… the worst are like comparing if you rather have diarrhoea or vomiting)

The rest is a gradual descent into human interactions and pettiness… and for that, we need to understand the overall relationship structure of males in confined spaces, as you see in jails, the armed forces, mining, oil industry, etc..  a lot of it has been analysed in the military (and I know it from personal experience having joined the Navy as a cadet at 12 years old).

Sociological research in the navy suggests that tyrannical behaviours include arbitrariness and self-aggrandisement, belittling others, lack of consideration, a forcing style of conflict resolution, discouraging initiative, and noncontingent punishment. And if you see, a lot of the issues analysed in the “labour rights” literature( aka bullying, physical, emotional and sexual abuse, etc.) are (for me) deeply rooted in the nature of the job and the people on board.

Research calls this petty tyranny, and it is argued to be the product of interactions between individual predispositions (beliefs about the industry, their subordinates, glorifying themselves, and preferences for action) and situational facilitators (institutionalised values and norms, power asymmetry, and stressors).

Consequently, this causes low self-esteem, performance, work unit cohesiveness, rank endorsement, high frustration, stress, reactance, helplessness, and work alienation among pairs, abuse by those pairs, depression, and, unfortunately, as witnessed once suicide. It is further argued by scholars on the topic (since the 50s), that these effects may trigger a vicious circle that sustains and even enhances tyrannical behaviour. 

On one side, it is also essential to understand the type of people that go into fishing and why they are doing it…

I wrote a bit on my case here, but in a nutshell, when I started, the primary qualifications you needed to go fishing were a hard stomach and to don't give a shit about much, really… so it was somewhat natural fitting for me. It was rough, but the entry requirement was (and still is really low). 

Yet you soon realise that it is not a job for “normal” people. If you don't know if you are coming back every time you get out fishing, everyday life looks different.

Also, the basis of your relationship with fellow humans changes… when you share living quarters that are barely liveable with people you never meet before, yet you hear ALL their body’s noises less than a meter from you… one develops an open mind and thick skin.

I soon realised I didn’t have to like the bloke next to me… nor he had to like me! But we needed to trust each other because our lives depended on each other. I fished with awesome people and some real shitheads whose views about aspects of life I despised… but they were “solid” fishermen, and I’ll have them as crew anytime.

But also, you don’t really get involved in their dealings with others unless they are shitheats with you… then you need to react and stand your ground.

Yet if you cannot (for whatever reason) hold yourself against the real shitheads, the petty tyrants… your life can descend fast into nasty places due to progressive bullying and physical harm.

Life at sea sorts out people quite fast; either you deal with it, or you don't, and as such is better if you don’t go back... but as said, that is a luxury many don’t have… and there (at least in my tiny brain) is where the most prominent problems arise.

And I wish the culture in fishing boats, as the culture in jail or in the navy, could be changed overnight to be more progressive and inclusive; they are definitively changing. Yet, never at speed needed… and I’m not sure if they ever will, unfortunately, to the extent that some expect.

If you have never been in the armed forces, ordinary jails or fishing boats, you can look into many war movies and see that these situations are unfortunately not uncommon on jobs of this nature. I was always quite lucky in both my navy and fishing experience to be a big, odd, yet dependable guy… as to people not to mess too much with me. But on the other side, my time and experiences in the navy were the loneliest and most depressive time of my life… I had dragged my PTSD since then, over most of my career, until very recently when I had no other option than to confront it with professional help if I wanted to maintain my family, and I will always be very thankful and indebted to my wife for helping me to confront a lot of it.

In any case, fishing was (and still is) the option for people on the margin of “normal” society, for the “unadapted” (what a concept!), to have a chance to make relatively good money (at least in comparison with the other options available) if one had the guts to deal with it.

Also, from personal experience, I met more people with dyslexia, PTSD and what I got to know later as Asperger’s or autism spectrum syndrome than in any other context I have been.

That was then… today’s picture is different; while it still has some of those guys, but now includes the poorer (and sometimes options-less) citizens of complex countries in SE Asia (Philippines, Indonesia, Vietnam, Myanmar, etc). I fished with many of them, and their angle was different; their options are so much more limited than for westerners (or part Europeans like me), so they get into fishing because it is one of the few things they can do and not because they are not really good for anything else (as in my case). 

Needless to say, and as a corollary, for every shithead I worked with, I also fish with some of the most unique, resourceful, resilient and genuinely gentle people I’ll ever met, they allow me to have a worldview that most rich westerners dont have in fishing.

In any case, among the slide to the extremes of the normal distribution (again, in my experience), after payment issues, we have bullying/emotional abuse 30%, then physical abuse 10%, and then sexual harassment (1%) last in the extremes.

my onboard bell curve of shit experiences

The fact that they all happen is a tragedy, no doubt.  Yet not all happen in the same frequency and distribution; that does not need to be forgotten as it does help in strategising the measures to deal with these issues that (again) are not exclusive to fishing.

It really worries me that the criminalisation discourse I see worldwide, is cornering fishermen to a dual role of simultaneously being environmental thugs and victims of labour abuses, with no qualifiers in between them or any risk exposure, and this is not fair.

Thankfully I never had to work on vessels where I’ve seen people on bonded labour of slavery… I would have done something for sure; I know these events do happen… yet they occur in fleets that I had no exposure too.

So yeah, this is my take for whatever it is worth… it comes with the advantage of being a no-one and not having to tow an institutional line; you are free to disagree… but please don't discredit my experience because it is different to yours… or your saviour narrative.

Thailand denies port use to a carrier setting FADs in the WCPO... this is good news!

Back in November last year, I was talking to a friend that is a fishing master on a Purse Seiner around here in the Marshall Islands, in regard to the work I had been doing with starboard.nz, I was showing him the capabilities of the system, and we started analysing the “strange” movements of a carrier (Sun Flower 7), as you can see below:

why? wind and currents are going south east to north west

Why would a carrier do that? For both of us the 1st reaction was the same… its dropping FADs… but then the former Search and Rescue guy in me was… could it be like a search pattern? I checked it with the local seaptrol and it wasn't a SAR call for that area

It was interesting to note that they started doing that pattern in the EEZ of Kiribati… so I went back in the system to find another vessel doing similar stuff…

In fact then I foud quite a few more and all related to the same country of owership (Korea) even if flagged to other usual open regiestries… and yes I adviced the right people… and Starboard started developing and algorithm to pick up that behavior

popular area? 2 different carriers a couple of months apart

polular area in 2021-22

So I talked to a few captains, show them the patterns and they all agree with the FAD setting behaviour.

Why is this an issue?

A carrier deploying FADs is considered as fishing under the FFA HMTCs but, most importantly: the WCPFC Convention. 

The WCPFC Convention's definition of fishing includes the deployment of FADs

(iv) placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; 

So in principle, if deploying FADs, that carrier was fishing, which it is not licensed to do. They are only licensed to pick up fish and pass provisions and materials (that may include FADs) but not to deploy them on behalf of FVs (as deploying FAD is part of fishing as defined in the WCPFC convention).

So even if it does not have a net, is fishing by definition while dropping and activating e-FADs on behalf of Purse Seiners (at a charge)

We could not do anything here in Majuro, since the vessel wasn't coming into port… Both Pohnpei and Honiara did not pick up on it since their PSM are incipient and usually focus on Purse Seiener's behaviour… and not on carriers.

So when realising that the vessel was going to Bangkok… I sent all the info I had, and I knew they would pick up on it 

And so they did.

Back in 2016 and 17 worked in Thailand, helping with the yellow card that the EU dropped on them, particularly with the set-up of their PSM and the traceability and fish accountability system from landings to exports. So I have maintained good relationships with some people there, particularly with a VERY nice, clever and committed Thai-English friend working with, whom I have been communicating throughout the whole process, particularly in terms of providing operational knowhow to discredit some of the excuses the vessel captain was providing.

Interestingly the captain was arguing that they were retrieving FAD and not setting them… in fact he argued “verbatim: I consider the floating objects, including, buoys floating as marine debris. Collecting buoys by the crews will support and protect the resources and the Ocean.”

I think is an interesting defence… we are not dropping them, we are picking them up… yet how you prove one or the other?  in any case, both are defined as fishing as discussed above)

Well, having an independent observer programme in all carriers would help… the WCPFC is the only RFMO without one (I wrote about it here).

Yet as a fisherman, you know what a vessel can do and how it operates.

How do you collect whole FADs (they are not small) at 10kts constant and navigate in geometrical patterns and straight lines? In what perfect weather universe FADs are at constant perfect drift at the same longitude and latitude after who knows how much time at sea?

Why would they go from A to B if they are retrieving.... and then to C and then to D... if A and C are closer… fuel is gold at sea.

The captain argued that he was picking them by reducing the speed to 3 knots (but this is not evident nor in the AIS record).

He said they had 2 teams, 1 at the bow and 1 at the midship. 3 crew per team. They used a rope with hooks to haul them up on deck… the eFAD sounder (the only valuable bit of the whole FAD is tied up to the FAD main body), so they will have to bring it all on board… a wet FAD could be anything above 100 kg… and they lift them on board?

And if so… what did they do with the rest of FAD after that? They argue that they transferred the buoys to 2 Purse Seiners (so they discarded the rest of the FAD overboard?) That is a MARPOL violation per se.

They showed some made-up receipts from 2 vessels for the 24 FADs buoys they allegedly collected, saying that they missed many… but then how they knew when picking them up is a straight line that those FAD would belong to those 2 boats only? And they had no records of the made and serial# of the FADs delivered. 

When questioned that the Purse seiners know the position of the FADs perfectly, they have Inmarsat D+ or Iridium (depending on the brand) transmitting positions every hour or less... so the PS can pass the position to the carrier constantly, and therefore they could go straight to the positions. Then the answer was that the FADs weren’t transmitting anymore, which brings us back to the question… how they knew winch ones of the 2 vessels to pick up… otherwise, they are just stealing random FADs?

Image of a Korean style FAD Source here

Furthermore., at that speed, if you recover something from the water, particularly a whole FAD set up, until you bring it to the deck, it will drag by the side of the vessel, and by physics get underneath and even if you cyut off, the main body of the FAD will be minced by the propeller of the carrier or worst getting tangled on it.

Nothing in that recovery scenario makes any absolute sense.

Interestingly it looks like the Korean Fisheries Monitoring Centre was arguing that under WCPFC CMM 2009-02 para 6: A FAD and/or associated electronic equipment may be retrieved by a vessel during the period of a FAD closure if the FAD and/or associated electronic equipment are retrieved and kept on board the vessel until landed or until the end of the closure. Interpretation: no violations because the vessel (Sunflower7) kept the collections until landing.

Yet again, under the WCPFC convention, the retrieving of FADs is fishing… and a carrier is not licensed to fish… furthermore, the FADs weren't kept on board. Nevertheless… it shows an area that where clarification may be needed at WCPFC technical and compliance committee.

From a fisheries MCS perspective, this is also interesting because the fish on board was loaded after the FADs event, so it may be perfectly legal (that was the job of the PSM work of FSM and Solomon Islands, where the carrier got fish from transhipping Purse Seiners), yet what is evaluated here by Thailand are the actions of the vessels before receiving fish, so I guess this is one for the lawyers to argue.

Anyway… I was absolutely stoked when I was informed yesterday that the carrier was denied port use in Bangkok and seemed to be heading north… Now wherever this vessel go will be a test to a few assumptions of IUU fishing… if it goes back to Korea and they don't do anything, this is pretty bad in terms of their obligations under FAO PSMA (they are a party to that agreement)… and denying port use is a big deal… so keeping an eye on it.

News on the port use denial are just coming in media in English, you can see a google translation here from a Thai news site, and a bit from Thai TV below

This is good news… my role in this saga was minimal; I just found it, analysed it and passed it to the right people. I’m no one at the enforcement level. This is proof that cooperation works and things happen when a government like Thailand puts their foot down… we need more of that by more governments. Congratulations, and thanks to all involved!

Update 23/3, this is now very oficial… this is the 1st time i see a port use denial under PSMA, and being communicated to the WCPFC… this is big

Labour standards and “equal pay for equal work” principle in tuna vessels

Based on my presentation at TUNA 2022, during the 17th INFOFISH World Tuna Trade Conference and Exhibition in Bangkok, last October. My friends from the INFOFISH magazine asked me to write an article around the issues of labour on board tuna vessels from my personal experience and perspective as an ex-fisherman, that now work on compliance aspects and does research and policy work on this topic. But also that none of these initiatives addresses exploitation and the “equal pay for equal work” principle.

The article was just published in the issue 2/2023 (March/April 2023) of the INFOFISH International magazine. but you you can download the pdf from here or read from the images below.

I wrote this article for INFOFISH to provide an update on the current global developments (both positive and negative), and ask who should legally be looking after the interests and welfare of workers on board tuna vessels.

I’m really thankful to INFOFISH for the opportunity and for respecting my take on this complex topic… that would not be really complex if flag states lived up to their obligations. I had to smile at the last bit of what they wrote about me as the author: “This article has undergone minimal editing so as to adequately convey Francisco’s strong opinions in his inimitable style and candour, on why we must think of people before profits.”

Industry involvement in international tuna fishery negotiations

I have always been very open about my industry background; I’ll say that it has been fundamental to whatever I know about fishing. My academic career gave that experience a formal knowledge framework around fishing and sustaining fishing, while my work with the government and intergovernmental institutions gave me the regulatory, operational and legal framework in which fishing happens.

Corporate reach at WCPFC

I was a fisherman working in science, then a scientist working in industry and then a fisherman/scientist working in government. I was very fortunate to have had that opportunity, and I wish more people have the opportunity to spend time in each of these three realms.

As a ex-fisherman, I always believe that as industry is part of the problem, they have to be part of the solution; and now that as a government advisor, we cannot pretend to regulate what we don't understand.

Hence I was very happy to read this paper by some authors I know, Laurenne Schiller, Quentin Hanich and Megan Bailey (I think I still need to meet Graeme Auld): Increasing industry involvement in international tuna fishery negotiations. 

The paper, for me, has two great takeaways: the 1st is that industry involvement in decision-making (at least in the WCPFC) is not inconsistent with good management and sustainability; in fact, one could argue it is necessary. The 2nd one is of personal interest, and is the analysis of the affiliations of the industry players and the very interesting graph that I chose to illustrate this blog entry; mainly since we talk a lot about the “domestication” of the industry when flagging to the Pacific Islands (PICs), yet these are not PICs companies… they are DWFN based companies that find economically and, in many cases, good political opportunities in flagging their vessels in PICs. The paper dully recognises that “Future work should investigate the detailed relationships between companies and countries we observed here, as the flags these companies use may lend deeper insight into the region’s complex corporate seascape”.

It is a good read with great graphs with the bonus advantage of explaining the delegations' works and the different participants' roles per delegation. As usual, read the original! I quote below the Science for society and Summary (I don't usually see those headers) and Conclusions!

Science for society

Tuna is a food staple for many families, and billions of cans are consumed annually. Most tuna comes from the Western Pacific where fishing companies pay to fish in island country waters. Ensuring the catch is sustainable is the collective responsibility of all countries, so governments meet annually to negotiate fishery quotas and restrictions. Little is known about how companies participate in these negotiations, although outcomes affect their businesses, and whether they abide by outcomes affects the long-term sustainability of tuna. By combining negotiation attendance lists and interviewing attendees, we found industry attendees now almost outnumber those from government, and 15 of 158 companies accounted for 41% of recent industry representation. While 70% of island delegations had foreign industry representatives, interviewees suggested current company involvement does not negatively affect negotiation decisions and may even help ensure sustainable tuna fisheries in this region.

Summary

The private sector can play a prominent role in global ocean governance. Yet, industry stakeholders are diverse, and how specific companies engage with policymakers remains poorly understood. Here, we focus on Western and Central Pacific tuna fisheries, which provide ∼60% of global tuna catch and a critical source of income for developing island states. We identified relationships between companies and governments in international fishery negotiations from 2005 to 2018. Relative industry attendance nearly doubled during this time, and 15 of 158 companies have dominated corporate representation since 2014. Further, industry members outnumbered government policymakers on half of the ten largest delegations, and 70% of island state delegations included foreign companies. Meeting attendees corroborated the influence of industry stakeholders, but this differed across countries. During our study period, management of tuna fisheries improved overall, suggesting that company involvement does not hinder sustainability outcomes and could play a supportive role when agendas are aligned.

Conclusions

Increasing industry involvement at WCPFC is happening during a time of strong regional leadership by island state governments and sustainable fishing effort, suggesting that industry influence is not interfering with, and may even be supporting sustainable fishing practices in this region. The nature of business interests (i.e., where they make profit) relative to the resource in question likely dictates the degree to which business and sustainability interests can be aligned.

In internationally managed fisheries, such alignment is partly driven by increasing drive to access sustainable seafood markets and suggests that industry involvement in international negotiations can be constructive when country and company objectives are aligned. Still, wellbeing and equity of local communities must be at the forefront of fisheries management decisions to ensure long-term benefits to both nature and people.

Thus, we suggest that the best way for the private sector to support sustainable fishery outcomes in this part of the world is by ensuring their engagement in negotiations does not undermine the sovereign rights of SIDS and their aspirations of ensuring the long-term tuna viability of tuna populations in the region.

Do large oceanic MPAs work for tropical tunas? Yeah.... nahh

There was a lot discussions a few months ago in terms of the closure of the Phoenix Islands Protected Area (PIPA) in Kiribati… with far-flung accusations being made against the iKiribati people and China bashing since Kiribati recently re-established diplomatic with them… and (of course!) they must have something to do with it.

The WCPO showing the EEZ of coastal States (light blue), PIPA (yellow) and the three large oceanic MPAs evaluated in the study.

I feel that there is a lot of “amateurism” around MPAs as “magic bullets”. As with most things in fisheries, their utility varies depending on many things… i.e. their utility will be vastly different from a coral reef with demersal species to an open chunk of ocean with pelagic ones.  Furthermore, I’m a strong believer that to fix a problem; you need a toolbox, not just a hammer… (when you only have a hammer, all problems look like nails?)

Furthermore, I had a long-standing beef with MPAs and other conservation measures mostly promoted (and sometimes imposed) by developed countries on people from developing states as blanket statements (30 by 30), where in most cases, locals are only involved in a tokenistic way.

So, I was really interested to see this paper appearing on my radar: “Limited conservation efficacy of large-scale marine protected areas for Pacific skipjack and bigeye tunas” Particularly because I know and immensely respect 3 of the authors, John Hampton and Simon Nicol, both are top scientists at SPC and know the pacific very well (I know about joe, Patrick and Inna but never met them) But crucially I’m verty pleased to see my friend and colleague Kaon Tiamere that is the Acting Director of the Licensing and Compliance Division at the Kiribati MFMRD.

They did not only dig deep into PIPA data but also analysed the likely tuna conservation efficacy of several much larger hypothetical MPAs, each constituting around 33% of the WCPO ocean area. While these larger areas may have a slightly greater impact on tuna stock conservation than the PIPA, and may also be targeted at a much broader range of conservation outcomes, the study concluded that they were unlikely to be effective frontline fisheries management tools for tropical tuna

This paper is crucial reading (in my humble opinion) for those pushing for massive MAPs for pelagic regions, so please read the original

Before I dive into the paper, I like to quote the words of my 3 friends on the SPC release on this paper. Crucial are Kaon’s words as a good antidote to the “white saviourism” of many in the rich environmental NGO world... “Kiribati MFMRD has been concerned that, over the past eight years, the PIPA closure has been negatively impacting Kiribati foreign tuna vessel licence fee revenue which is a critical source of income for Kiribati. These losses are difficult to justify if, as these new analyses suggest, there is little tuna conservation benefit resulting from the PIPA. The Government has decided to re-open the PIPA to tuna fishing from January 2023, and that decision is supported by the results of this work.”

Simon Nicol, Principal Fisheries Scientist (Fisheries & Ecosystem Monitoring & Analysis): “large MPAs like these may provide benefits where fisheries exploit fairly sedentary species and impact habitats but provide only modest contributions to conserving stock-wide abundance of tuna. Additionally, they can disrupt benefits to Pacific Island countries with processing and service industries, whose competitive advantage relies on their proximity to fishing grounds for the vessels that supply their canneries or use their transhipment and service facilities”.

John Hampton, Chief Scientist at SPC’s Fisheries, Aquaculture and Marine Ecosystems Division: “Tropical tunas such as skipjack and bigeye tuna have a wide distribution in tropical and sub-tropical waters of the Pacific, and are capable of spawning anywhere where the water temperature is greater than about 25°C. Their larvae drift in the surface water currents, and as they grow they are able to move widely through the region. So closing off one part of the area tends not to offer much if any protection to species like this.” In addition, “What we tend to see when areas like the PIPA are closed is that the vessels that would have fished there simply move their activities to adjacent areas, which again limits their conservation effectiveness, at least for tuna.” 

“Many countries in the Pacific region have implemented MPAs motivated in part by perceptions of how they would positively impact tuna stocks. This study shows that some of these perceptions were probably overly optimistic. We encourage evaluations like this one, based on the best scientific information on the biology of the stocks and fisheries concerned, be undertaken prior to MPAs being implemented.”

As said before, read the original for free! I just quote below the abstract and the last part of the discussion.

Abstract
Large-scale, no-take marine protected areas (MPAs) have been established in several locations in the Pacific and expansion of such areas to reach 30% of the ocean area is actively promoted in some quarters. Justification for the establishment of large oceanic MPAs often includes the conservation benefits that they would bring for tuna stocks, which are the subject of important commercial fisheries in the Pacific. The aim of this paper was to evaluate the conservation efficacy of an existing MPA, the Phoenix Islands Protected Area (PIPA) and a series of large hypothetical MPAs each constituting approximately 33% of the western and central Pacific Ocean, for two important and contrasting tuna species, skipjack and bigeye tuna. The evaluation was conducted by comparing control and counterfactual simulations in which the estimated population and fishery dynamics of the species were modelled using a high-resolution modelling framework known as SEAPODYM (Spatial Ecosystem And Population DYnamics Model). We found that stock-wide conservation benefits of the PIPA for these species, assuming that total fishing effort is maintained, to be weak to non-existent, and only modest increases in spawning biomass of both species occur within and in the near vicinity of the PIPA itself. For the larger 33% hypothetical MPAs, changes in stock-wide spawning biomass were estimated to be -0.1% to +5.8% for skipjack tuna and +4.8% to +12.0% for bigeye tuna. Conservation efficacy of MPAs for species such as tropical tunas is limited by their wide larval dispersal and high mobility of later life stages, which spatially dissipate the protective effects of MPAs. Also, the displacement of fishing effort from MPAs to areas remaining open can have negative consequences for stocks and fisheries performance in those areas. We conclude that large oceanic MPAs are not likely to be effective frontline management tools for tropical tunas and other species having similar life history characteristics.

 Discussion (last part)
The period covered by the study (1998-2019) encompasses the full range of typically observed environmental variability in the Pacific, including several strong El Niño and La Niña events, thus capturing any interactions between spatial management effectiveness and environmental variability.

 Our findings have contrasted two species of tropical tuna with differing population dynamics and degrees of fishing induced biomass depletion, and should also be informative regarding the likely effects of MPAs on other widely distributed, mobile pelagic species such as yellowing tuna, whose population and exploitation characteristics lie somewhere between skipjack and bigeye tuna. However, our examples do not include species whose biomass has been depleted to levels below biological sustainability limits or stocks that systematically migrate to discrete spawning grounds. How MPAs might contribute to the conservation of pelagic stocks with these characteristics remains untested. No tropical tuna stocks in the WCPO have been depleted to levels below their biological sustainability levels (Hare et al., 2021). Similarly, while stock structure for tropical tuna stocks in the Pacific remains uncertain (Moore et al., 2020), the most recent information from genetic studies has not detected strong evidence of fidelity to discrete spawning grounds (Grewe et al., 2015; Anderson et al., 2020; Natasha et al., 2022).

We recognise that large oceanic MPAs such as the PIPA may have conservation value in areas not analysed in this paper, for example in the protection of coral reef ecosystems and their resident species that might otherwise be heavily fished. However, where the objectives of, and justification for, MPAs include enhancing the conservation of widely distributed pelagic species, this should be carefully evaluated during the planning stage, for example using methods such as those of Ovando et al. (2021) and that presented in this paper. This would allow expectations to be realistic and evaluated against the likely economic and social costs and benefits that would occur.

Ad Hoc Expert Panels: Regional Fisheries Management Organizations (RFMOs)

I’ve been at times asked to be part of expert consultations (FAO a couple of times and PEW), and I never paid much attention to the differences between consultations and panels… particularly in the frame of RFMOs.

some of my favourite experts

And as I’m now quite keen on seeing things through the lenses of UNCLOS, so I was quite interested in reading this analysis by Valentin J Schatz, for two of the most credible and prestigious law institutions in Law Oxford Public International Law and Max Planck Encyclopedias of International Law.

As usual, I recommend you read the original… I just quote the intro and Concluding Remarks below:

Introduction
1 Ad hoc expert panels are a means of the → peaceful settlement of international disputes in the framework of regional fisheries management organizations (‘RFMOs’) (→ Dispute; → Fisheries Disputes; → Fisheries, Commissions and Organizations). From the perspective of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (‘UNFSA’), RFMOs are international organizations established by two or more States through → fisheries agreements for the purpose, inter alia, of establishing conservation and management measures (‘CMMs’) in a subregion or region for one or more → straddling and highly migratory fish stocks (Harrison, 2019, 84; → Marine Living Resources, International Protection). As such → fish stocks are not confined to waters within national jurisdiction but are also present on the high seas (→ Fisheries, High Seas), their conservation and management requires cooperation. Against this background, ad hoc expert panels may be placed in the broader context of both dispute settlement in the law of the sea (→ Law of the Sea, Settlement of Disputes) and, more specifically, the settlement of international disputes to which international organizations are parties.

2 In simplified terms, there are two different categories of ad hoc expert panels, which should be distinguished, although this distinction may not always be clear. The first category represents a consensual procedure on the basis of international law for the settlement of disputes of a technical nature between two or more RFMO members by panellists of their own choosing. The second category—Review Panels—shares most of the general features of the first category but constitutes a special procedure between RFMO members and the RFMO itself to review a decision of the RFMO and/or recommend alternative or interim measures (→ International Organizations or Institutions, Legal Remedies against Acts of Organs).

3 Ad hoc expert panels differ from the traditional means of dispute settlement non- exhaustively listed by Article 33 Charter of the United Nations, 1945 (‘UN Charter’) and Article 279 United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’), which include → negotiation, inquiry (→ Fact-Finding), → mediation, → conciliation, → arbitration, and → judicial settlement of international disputes. Accordingly, they fall within the scope of the catch-all term ‘other peaceful means’ under Article 33 UN Charter. A comparison with other means of dispute settlement illuminates the nature of ad hoc expert panels, although any categorization in abstract terms is rendered difficult by the fact that they take a variety of different shapes. Generally, ad hoc expert panels share many elements of other forms of → alternative dispute resolution, most importantly conciliation and arbitration (Harrison, 2019, 92). Against this background, they may be categorized as ‘hybrid’ or ‘mixed’ procedures whose features may be placed on a spectrum between what could be called ‘quasi-arbitration’ (eg compulsory Review Panels rendering binding recommendations) and ‘quasi-conciliation’ (eg voluntary ad hoc expert panels rendering non-binding recommendations). The → Permanent Court of Arbitration (PCA) refers to ad-hoc expert panel proceedings as ‘other interstate proceedings’ rather than ‘interstate arbitrations’ or ‘interstate conciliations’ (see PCA Cases webpage). To the extent that a type of ad hoc expert panel does not render binding decisions, it may also be qualified as a → quasi-judicial body (cf Romano, 2011, 255).

Concluding Remarks
34 Compulsory ad hoc expert panel procedures can make an important contribution to the prevention and settlement of disputes of a technical nature in the framework of RFMOs. In particular, the incorporation of Review Panel procedures in the decision-making procedures of RFMOs can be a suitable alternative to the unfettered rights of members to opt-out of CMMs, which undermine the effectiveness of conservation and management by RFMOs (Lodge and others, 2007, 75–76). Review Panels procedures can also increase accountability of both RFMOs and their members with respect to conservation and management obligations laid down in the legal frameworks of RFMOs, including UNCLOS and the UNFSA. The findings and recommendations of the two SPRFMO Review Panels were accepted and complied with (eg SPRFMO Annual Report, 2013, 2). Generally, the existence of Review Panels coincides with younger generation RFMOs (eg SEAFO, SPRFMO, or WCPFC) and older generation RFMOs whose constitutive treaties have been amended after the adoption of the UNFSA (eg NAFO and, although the procedures are not currently in force, NEAFC). In 2006, the General Assembly of the United Nations (‘UNGA’) (→ United Nations, General Assembly) has urged States to undertake performance reviews of RFMOs, using the best practices of RFMOs (UNGA Res 61/105 (8 December 2006), para 73). Following this call, recent performance reviews have criticized the absence of both modern decision-making procedures and effective dispute settlement procedures in older generation RFMOs, such as the International Commission for the Conservation of Atlantic Tunas (‘ICCAT’) (Report of the Independent Performance Review of ICCAT, 2016, 59–60) or the Indian Ocean Tuna Commission (‘IOTC’) (Report of the 2nd IOTC Performance Review, 2016, paras 65–69, 176–78).

Blue Shark catch and trade report

Normally I would not blog on reports/studies published by NGOs. I generally keep myself to reports by inter-governmental organisations and some academic papers. As much as I respect some NGOs, my experience doing some research for them is that they need their results to fit their narratives. And generally plain facts don't have the doom factor that they need to keep their business model going…

I’m not making a moral judgement on that attitud, I just don't take part doing research for them.

So generally, I would not be blogging on a shark report commissioned by an NGO… yet in this case, I know personally (and trust the integrity) 3 of the authors. Furthermore… the results explain the behaviour and decisions of some of the members of the WCPFC witch is the only RFMOs I have insight access to.

As always… read the original… I just quote below some findings of the report I find very revealing.

Taiwan and Spain catch as much blue shark as all other flag States globally combined. The top five blue shark fishing nations (Taiwan and Spain, along with Japan, Indonesia and Portugal) account for close to 80% of global blue shark landings.

Most blue shark catch is from targeted longline fleets, and this is evident in all sea basins; it is misleading to consider blue shark as ‘just bycatch’ in tuna and swordfish longline fisheries. In the Atlantic Southwest 5 tonnes of blue shark are caught for every 1 tonne of tuna; the majority of longliners here are targeting sharks and tuna is the bycatch.

Large-scale commercial fleets harvest 90% of blue shark catches, the overwhelming majority of which are longliners. Distant Water Fishing nations catch 74% of the global blue shark catch.

A Global ex-vessel value of tuna species (2018), and minimum global ex-vessel value of blue shark (20182019) (source: Poseidon)

The ex-vessel value of blue shark meat and fins in 2019 is estimated to be $411 million. The total value of blue shark meat is five times more than the value of the fins at this stage in the supply chain.

Although finning and dumping of carcasses has likely diminished with the rising value of shark meat globally, incentives to engage in finning remain, particularly where shark meat remains undervalued, or in fisheries where non-shark target catch (e.g. tuna and swordfish) is a lot more valuable than shark; where high-grading at sea makes financial sense at given times, and where reefers continue to accept illegal consignments of fins at sea.

The last two decades has seen the global shark meat trade increase significantly, doubling in value since the early 2000s. At the same time, shark fin exports have been relatively stable.

The blue shark meat trade is more complex than the fin trade as there are more end-user markets. It involved 177 countries in the 2017-2019 period. In 2019, the volume exported equated to 67,326 t when converted to LWE, which is 35% of the global blue shark catch.

Except for China, which gained prominence as an exporter and importer of blue shark meat, the main exporting (Spain, Portugal, Taiwan, and Indonesia) and importing countries (Brazil, Italy, Greece & Singapore) have remained stable over this period. The key bilateral trades are shown in the figure below.

Top 10 bilateral flows of blue shark meat 2017-2019 (source: ARTiS data)

When trade connections are analysed further, we find that China acts as a ‘keystone,’ connecting imports and exports to many other trading nations. Thailand, Taiwan and Vietnam were also other key trading countries in Asia, while Morocco, the USA and New Zealand (I wonder if this accounts for the Spanish “swordfish” fleet that unloads here to send to Spain), were key in Africa, America and Oceania, respectively.

Brazil is the top consumer nation of shark meat and blue shark specifically, but most consumers don’t know they are eating shark meat. More than half of Brazilian consumers of “cação” (which commonly uses blue shark meat) say they have never eaten shark in their lives (Bornatowski et al. 2015). The role of Uruguay is key in this trade, acting as a regional hub; processing and trading landings by different international fleets into Brazil, which are classified as re-exports. This situation is underpinned by a weak regulatory framework that fails to identify products down to the species level throughout the supply chain.

The lack of specific labelling in many shark meat supply chains means that consumers often do not know they are buying shark meat.

Hong Kong remains the centre of the fin trade, but shark fin consumption in Hong Kong is declining and other Asian markets (Taiwan, China and Indonesia) are increasing their share of the trade.

The blue shark has the highest known population growth rates among pelagic sharks, which explains the species’ comparative resilience to fishing pressure, but fishing effort is largely unmanaged and, in many regions, increasing. Blue shark is estimated to be declining in the Atlantic and Indian oceans and increasing in the Pacific.

Of the four t-RFMOs covered, only IOTC is constrained by its Convention to directly manage oceanic sharks. Management rules of the four t-RFMO provide for bans on shark finning, which directly benefits blue shark conservation. Many countries have also introduced measures to ban shark finning by their fleets and by their nationals, often extending these measures to trade rules. But overall, shark management plans remain fragmented and patchy, with numerous gaps as well as areas of overlapping (and conflicting) protection.

Recommendations

1. RFMOs should increase direct management of blue shark fisheries to properly manage fishing mortality relative to stock status.

2. RFMOs should improve monitoring, reporting and observer coverage on vessels targeting blue shark.

3. Support global and regional efforts to tackle IUU fishing by Distant Water Fleets as these will directly benefit blue shark fisheries. This includes implementation of the Port State Measures Agreement (PSMA) and governance capacity building in the regions associated with major blue shark fisheries (e.g. Southwest Pacific, Eastern Central Pacific, Southeast Atlantic).

4. Encourage the use of specific trade codes for the key traded shark species and improved inspection to ensure their correct use.

5. Prevent blue shark products from IUU fishing and endangered shark species being traded as blue shark by improving trade control through; a. development of Catch Documentation Schemes (CDS) in RFMOs; or b. listing blue shark as an Appendix II CITES species, which has a similar requirement to a CDS.

6. Support campaigns to improve seafood labelling and traceability requirements and raise consumer awareness in key consumer markets such as Brazil, Southern Europe and global pet food markets.

7. Encourage blue shark-targeted fisheries to undergo third-party certification as a driver for improved governance, e.g. to reduce the bycatch of juveniles and other shark species. (not sure about this one)

8. Promote sustainable, healthy shark fin alternatives to consumers in key Asian domestic markets & their expat communities overseas.

9. Spatial protection measures should be supported. To aid compliance, these should include mitigation for the impact of restrictions on the livelihoods of small-scale fishers.

Climate-driven redistribution of Pacific tunas and the joint role of WCPFC and IATTC

I remember reading papers of my interest, on wondering about the authors, who they are, where they work, and so on… it must be a sign of my age (and more concise interests?) that now I read a really good collegiate paper by 16 authors, and I know personally 11 of them!

Average biomass distributions (kg km–2) of skipjack, yellowfin and bigeye tuna in the Pacific Ocean basin for 2015 (2011−2020) (left), and mean anomalies (kg km–2) from the average 2015 biomass distribution of each tuna species projected to occur by 2050 (2044−2053) under the RCP 8.5 greenhouse gas emissions scenario (right).

I have written before about the impact of climate change on the distribution of pacific tuna stocks, the impact on tuna dependent PICs and now this paper (by many of the same authors as the others) that tackles what both tuna RFMOS in the pacific should do about this, not only from the management perspective but also from the global legal framework set-up by UNCLOS and UNFSA.

As usual, I recommend you read the original, as nothing beats that! I just quote here the abstract and the “Discussion and actionable recommendations” (which is a very nice subtitle!)

Climate change is predicted to alter the distributions of tropical tuna stocks in the Pacific Ocean. Recent modelling projects significant future shifts in tuna biomass from west to east, and from national jurisdictions to high seas areas. As the distributions of these stocks change, the relevant regional fisheries management organisations (RFMOs)—the Western and Central Pacific Fisheries Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC)—will need to develop an expanded framework for cooperation and collaboration to fulfil their conservation and management responsibilities under international law. The key elements of a possible expanded framework for cooperation can be developed, and fundamental areas for collaboration identified, by applying and adapting principles established in the United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, and the constituent instruments of the RFMOs themselves. Our analysis reveals a wide range of important issues requiring cooperation, and three clear priorities. First, a formal mechanism for cooperation is needed to enable effective and efficient decision-making and action by the two RFMOs on key issues. Second, further cooperation is required in scientific research and modelling to better understand the biology and distributions of Pacific tuna stocks and how they will respond to climate change, and to inform stock assessments and harvest strategies. Third, the RFMOs must cooperate to define appropriate limits on fishing for each stock in a way that ensures they are compatible across the two organisations, taking into account their different members and management regimes.

Discussion and actionable recommendations

As our analysis has shown, there are a wide range of important issues on which WCPFC and IATTC will need to cooperate to combat climate-driven changes to the distribution of tropical Pacific tuna stocks. Some of these need to be addressed as a priority, while some will be more appropriately addressed over a longer timeframe. Some are complex and will require potentially delicate and difficult discussions, while others are more straightforward and should be easily achievable. Drawing together the issues identified across the four areas of RFMO activity discussed above, three concrete actions with cross-cutting effects can be identified as priorities.

First, WCPFC and IATTC must establish a more comprehensive approach to cooperation, elevating it to a formal governance issue, in order to ensure that the two organisations can take and implement timely, informed, effective, and transparent decisions. At present, cooperation between the two RFMOs is based on a rather ad hoc combination of: observing meetings; exchanges between Executive Directors; sharing the text of conservation and management measures; exchanging data; authorizing reciprocal observer coverage; and cooperating on some northern stocks through the Joint Working Group. In adopting measures for the overlap area as a short-term solution in 2012, the two organisations agreed that a longer-term process should be established to explore avenues for managing tuna stocks in the entire Pacific Ocean (IATTC, 2012b; WCPFC, 2013). Ten years later, the time has come to establish a more formal mechanism to facilitate that sort of process, which will be critical to successful cooperation in the other issues identified in this paper. A low risk and immediately actionable starting point toward this would be to establish a joint working group, involving Secretariat staff and/or members of both Commissions, which could be charged to examine and provide recommendations on specific priority matters for cooperation—but over time, a more sophisticated mechanism is likely to be required.

A second priority for cooperation is to advance scientific knowledge of key issues to improve understanding of the biology and distribution of Pacific tuna stocks and how they will respond to climate change, and inform the conduct of stock assessments and the development of harvest strategies. International law requires States to make decisions based on the best scientific evidence available, to cooperate in scientific research, and to strengthen scientific research capacity in relation to highly migratory stocks—and it is evident from the discussion above that such research is essential to enable the two RFMOs to consider and prioritize action on other issues. Since there is already a significant practice of scientific collaboration to build on, such as the Pacific-wide stock assessments for northern stocks which have been facilitated by the ISC, we suggest that agreement to cooperate on further issues—including sampling, modelling approaches and data collection—should be sought and actioned as quickly as possible.

Third, it is clear that WCPFC and IATTC must cooperate to define appropriate limits on fishing for each stock in a way that is compatible across the two organisations, taking into account their different members and management regimes. This is likely to be a complex task, which will necessarily be informed by some of the other areas of cooperation discussed in this paper—such as stock assessments, the development of harvest strategies, and a common understanding of how fishing limits are currently managed across the two RFMOs. It will also require an effective mechanism for cooperation, which ensures that the process is robust and transparent, and that the legitimate rights and interests of all States—as well as conservation and management principles—are properly taken into account. In this respect, one starting point might be for the two RFMOs to agree on some principles for dealing with shifting stocks to guide their work.

Finally, this discussion has also revealed some broader legal and policy issues which will require further consideration. First, as a matter of the international legal framework, further clarification is required as to how the ‘duty to cooperate’, which applies to each State whose nationals are fishing on the high seas, applies between RFMOs with jurisdiction over straddling and highly migratory stocks in adjacent areas of high seas. In this respect, the predicted climate-driven redistribution of Pacific tropical tuna stocks has highlighted a gap in the UNFSA, which does not clearly provide a framework for cooperation between RFMOs, or establish how ‘compatibility’ applies in relation to stocks which straddle areas of high seas under the competence of two different RFMOs, or the shift in distribution of fishery resources as a result of climate change. Second, not only are fish stocks predicted to move from an area under the jurisdiction of one RFMO to an area under the jurisdiction of another RFMO, but from areas under national jurisdiction to areas of high seas. This raises extremely difficult questions about the sovereign rights of coastal States, the potential to recognize or compensate loss and damage, and the allocation and transferability of rights from the EEZ to the high seas. Given the importance of tuna stocks to communities and economies in States across the Pacific Ocean—and particularly the predicted effects on many of the SIDS in the WCPO—finding just and equitable solutions to these difficult questions will require not only careful legal and policy analysis, but further cooperation between WCPFC and IATTC.