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Flagging a Warning By Steve Trent, Environmental Justice Foundation (EJF)
The Environmental Justice Foundation (EJF) argues for action against Flags and Ports of Non-Compliance regarded as "the scourge of today’s maritime world".
Illegal, Unreported and Unregulated fishing operations (IUU), often called ‘pirate fishing, are undermining attempts at sustainable fisheries management, causing extensive damage to the marine environment and jeopardising the food security and livelihoods of poor coastal communities.
African waters support some of the world’s most productive marine ecosystems, upon which millions of people depend for food and income. Yet most countries in the SADC region lack the resources to effectively police their territorial waters (Exclusive Economic Zones, or EEZs), which extend 200 miles out to sea and are increasingly targeted by illegal fishing fleets.
Vessels that fish illegally do so primarily to minimise the costs associated with legal fishing methods, exploiting a variety of loopholes that are the result of weak national and international legal frameworks and poor or non-existent enforcement. These conditions allow unscrupulous businesses to maximise catch and minimise cost.
This article examines two such loopholes: the use of Flags of Non-Compliance (FONC), where the flag State fails to exercise effective control over its vessels, and Ports of Non-Compliance (PONC), where a port State is either unable or unwilling to exercise reasonable measures and controls to combat IUU activities.
FONC and PONC are key elements fueling pirate fishing operations. Effective action against them would be both highly beneficial and cost-effective in combating IUU fishing.
Flags of Non-Compliance (FONC)
Flags of Non-Compliance (also known as Flags of Convenience) have been described by Franz Fischler, former EU Commissioner for Fisheries, as "the scourge of today’s maritime world." They represent one of the simplest and most common ways in which unscrupulous fishing operations can circumvent management and conservation measures, and avoid penalties for IUU fishing. Under international law, the country whose flag a vessel flies is responsible for regulating and controlling its activities. Yet certain countries allow any vessel, regardless of nationality, to fly their flag, charging nominal fees and making no pretence at responsible action to regulate the flagged ships, and ignoring any offences that are committed.
Generally, a FONC country has a so-called ‘open registry’, making a business from granting its flags to vessels (including fishing vessels) that are owned by nationals from other States. However, it can be argued that the definition of a FONC country also includes any country granting authorisation to a vessel to fly its flag as well as authorisation to fish, if that country lacks the resources (or the intent) to monitor and control the vessels flying its flag. Unscrupulous ship-owners have long used Flags of Non-Compliance to evade regulations, such as tax and safety standards. FONC registration greatly reduces operating costs for vessel owners, as they do not have to pay for licenses and vessel monitoring systems, and can avoid regulations and laws requiring insurance, labour law compliance, crew training and the purchase of safety gear. Crew members employed on FONC vessels are often subject to abuses and appalling working conditions, including very low wages, inadequate food and water and the absence of any meaningful safety procedures.
FONC are notoriously easy, quick and cheap to acquire, obtainable over the Internet for just a few hundred dollars. IUU vessels can therefore re-flag and change names several times in a season to confuse management and surveillance authorities, a practice known as ‘flag hopping’. Backed by shell companies, joint-ventures and hidden owners, FONC severely constrain efforts to combat IUU fishing, as they make it extremely difficult to locate and penalise the real owners of vessels that fish illegally. As a result, FONC fishing vessels have proliferated over the past 20 years. As fishing fleets have expanded, and as marine resources have become scarcer, FONC have increasingly been used as a means of avoiding measures designed to manage fisheries and conserve stocks. In international waters, measures to regulate fishing only apply to countries that are members of Regional Fisheries Management Organisations (RFMOs). Therefore, if a vessel re-flags to a State that is not a party to these agreements and often FONC countries are not members of RFMOs or other fishing agreements then it can fish with total disregard for agreed management measures. Further complicating the situation, however, is the fact that in recent years many FONC countries have become members of RFMOs, and do, for a while and up to a point, abide by regulations. FONC and IUU vessels are therefore not necessarily the same thing, but the proven culpability of many FONC vessels in IUU present a compelling argument for an end to their use by fishing vessels.
Ports of Non-Compliance (PONC)
Most fishing vessels must at some point visit a port to land their catch, refuel and take on provisions, and IUU vessels are no exception. Regulating access to port facilities States can therefore be a highly effective way of controlling IUU fishing. However, certain ports fail to do so, and poor port controls are a weak link exploited by the IUU fishing industry to gain access to the marketplace, and to ensure logistical support for their vessels.
The existence of such Ports of Non-Compliance (also known as Ports of Convenience) is seen by many as one of the main factors facilitating IUU fishing, despite the fact that the full and proactive application of port controls does not necessarily require substantial additional resources. PONC are generally accepted to exist where the port State is unwilling or unable to exercise measures to combat IUU fishing activities, including but not limited to inspections to detect IUU-caught fish, and prohibitions on landing and trans-shipment of illegal catches.
In some notable cases, PONC are also Free Trade Ports (or Free Economic Zones). These zones are significant in regulating IUU fishing activities, as they usually are special customs areas with favourable customs ‚ regulations, or no customs duties and controls for landings or trans-shipment. Illegally caught fish can therefore often easily enter the market, or be shipped onwards undetected by the flag or port State.
The use of FONC and PONC in IUU fishing – the case of Guinea
The role and need to address both PONC and FONC in IUU fishing can be demonstrated by examining the investigations of the UK-based NGO the Environmental Justice Foundation (EJF) in Guinea.
Guinea loses an estimated US$110 million every year to IUU activities, the worst in Africa. Fishing is a crucial economic and social activity in the country, providing 70 000 direct and indirect jobs, primarily in the artisanal sector. EJF has been working in Guinea since 2004, documenting the extent and impacts of IUU fishing in the country Extensive investigations and interviews with local communities and enforcement authorities presented a picture of a widespread, and growing, problem of IUU fishing. Foreign fishing vessels were engaging in a variety of illegal practices, such as fishing without licenses, using illegal and destructive fishing gear, and entering the 12-mile zone reserved for artisanal fishers.
As a result, local communities reported a decrease in both the size of catches and fish, and serious concerns about their livelihoods and food security. In some cases, fishers had lost all their fishing gear when it had been run over by illegal vessels. In at least one case, local fishers were killed when their canoe was hit and sunk by a trawler deliberately fishing in the artisanal zone.
EJF partnered with Greenpeace International to investigate the extent of IUU fishing further off the coast. They observed 104 foreign fishing vessels, over half of which (53) were either engaged in, or linked to, IUU fishing activities. Many of the illegal activities observed were part of operations designed to launder the illegal catches into the legal market. They included: the illegal trans-shipping of fish between vessels at sea (banned by Guinean Law), the repacking of fish caught by an IUU vessel into boxes stamped with the name of a legal boat, and more than one vessel purporting to be a single (legal) ship.
Fishing vessels engaged in IUU activities were flagged to a variety of countries, including those with FONC open registries, such as Honduras and Malta. Several other vessels deliberately hid their identification, or appeared to have no registry at all. However, the IUU fleet was dominated by Chinese flagged vessels. Although China is not an open registry, the involvement of Chinese vessels in IUU fishing activities has been globally reported. China clearly lacks the resources, and possibly the will, to monitor and control its fishing vessels, and can therefore be considered a FONC country. While some of the Chinese vessels were legally licensed to fish, many more were not, and both licensed and non-licensed vessels were observed engaging in IUU operations. Many of the fishing vessels observed off the coast of Guinea rarely, if ever, come into harbour. Key to their operations are Refrigerated Supply Vessels, commonly known as Reefers.
Pirate fishing vessels trans-ship their catches to reefers, which will ply back and forth between the fishing ground and a port where illegal fish can be unloaded. On the return trip, reefers refuel, provide supplies and maintenance, and even rotate the crews of IUU fishing vessels at sea. EJF observed seven reefers in Guinean waters; the majority of these were flagged to FONC countries, and all were engaged in illegally trans-shipping catches at sea. One such reefer was BINAR 4, registered to FONC Panama, and observed illegally trans-shipping fish from four Chinese flagged fishing vessels. All four were legally licensed to fish in Guinean waters, but again, trans-shipment at sea is prohibited under Guinean law.
When the vessels registered the presence of EJF/Greenpeace, they separated the fishing vessels heading back towards the Guinean fishing grounds, while the reefer was followed by EJF and Greenpeace to Las Palmas de Gran Canaria, located in Spain’s Canary Islands.
Las Palmas probably serves as the largest point of entry for fish from West Africa coming into Europe, acting as a gateway through which illegally caught fish can enter the huge European market. The port’s status as a Free Economic Zone enables it to have favourable customs regulations and weaker control over the trans-shipment of goods.
Abuse of this status by fisheries companies has resulted in Las Palmas being identified as the most notorious Port of Non-Compliance in Europe, providing services to IUU (and legal) fishing fleets operating off the coast of West Africa, and hosting a number of companies that operate IUU vessels. Las Palmas currently has only five port inspectors, far too few to effectively police the approximately 360 000 tonnes of fish passing through the port annually.
IUU fish are ‘laundered’ into the legal market, first between legal and illegal fishing (including FONC) vessels at sea, during trans-shipment onto reefers, and then for a third time in Las Palmas. Of the 53 vessels EJF/Greenpeace documented as engaged in, or linked to, IUU fishing activities in Guinea, port authority records show that 17 had visited Las Palmas to unload their catches, make repairs and take on fresh supplies. Some of these IUU vessels are reefers that had entered the port on multiple occasions, further illustrating the significance of PONC in illegal fishing. Further EJF investigations in the Canaries and the UK led to the final step in the supply chain the sale of seafood in the European marketplace, linking it back to West Africa, via Las Palmas. The culpability of both FONC and PONC in IUU fishing can be further witnessed by an investigation by Marie-Helene Aubert, French MEP and Rapporteur for the Draft Report on the EU action plan against IUU fishing. A reefer was spotted in Las Palmas harbour; it had the name Lian Run painted on the bows; embossed behind the painted name Lian Run was another, the Sierra Grana. The port authorities had no record of a vessel under either name, and claimed the vessel was called the Lian Run 21, even though this name did not appear in the port database.
A later search of the vessel’s displayed International Maritime Organisation (IMO) number gave a fourth name, the Timanfaya9. The ship was flying the flag of Panama, and was unloading fish that had been caught by 15 different vessels10, among them some that EJF and Greenpeace had observed fishing illegally. The captain presented the MEP’s delegation with a declaration, saying the fish had been legally caught in Guinea; however, the delegation included a Guinean fisheries inspector who claimed that she knew nothing of the Lian Run11.
Reasons and action to counter PONC and FONC
The United Nations International Plan of Action on IUU fishing (IPOA-IUU) has identified the need to address both Ports and Flags of Non-Compliance as paramount in efforts to combat IUU fishing. It suggests further strengthening compliance of international fishing regulations by a Treaty on Port State Measures to control IUU fishing.
The European Union, both a major fishing body and the largest seafood market in the world, has identified effective regulatory measures to eliminate both PONC and FONC as vital in efforts to address its role in IUU fishing globally. In its recent Proposal for a Council Regulation establishing a community system to prevent, deter, and eliminate illegal, unreported and unregulated fishing, the European Commission (EC) has outlined comprehensive action on port controls, as well as a system that not only blacklists IUU vessels, but also non-cooperating third States.
For SADC nations, the argument to introduce strong and effective measures to address both PONC and FONC is equally compelling. Lack of resources hampers the ability of SADC nations to address the widespread environmental, social and economic impacts of IUU fishing; therefore measures that not only effectively address these impacts, and are financially feasible, are vital.
Effective Port Controls and the exclusion of FONC vessels from SADC ports represents one of the most cost-effective strategies to combat IUU fishing. As well as representing value-for-money, action on PONC and FONC can be potentially very effective. The exploitation of both PONC and FONC by IUU vessels is purely economic. IUU vessels save operating costs when they are able to avoid the legal costs of fishing, and are assured a market for their illegal catches. Removing this economic incentive will act as a deterrent for IUU operators; for example, there will be a radius from a PONC from which it will still be profitable to fish. Pirate fishermen would not operate without a market for their catch. Therefore, a regional SADC agreement to reinforce measures such as improved MCS and the control of landings will eventually increase the operating costs of IUU vessels to the point where it is no longer profitable.
FONC also accrue large financial benefits to operators, as they do not pay for licenses, vessel monitoring systems12, and avoid regulations and laws. An agreement by SADC nations to refuse entry to vessels identified as registered to FONC will remove these financial advantages.
Fisheries management capacity varies widely across the SADC region. Although some common regional strategies need to be developed, what is appropriate and applicable for one country may not be appropriate for another. That said, there are common actions that every SADC nation should take, in order to effectively combat IUU fishing, and particularly the roles of PONC and FONC.