I’ve on the quiet end of blogging for the last few weeks, as I’m going through some emotional struggle and work reshuffling. But then a paper come out that wakes me, so I take a break and quote some of the pearls I read.
looking beyond the horizon on trade restrictive measures
The paper is “Unilateral Trade Measures and the Importance of Defining IUU Fishing: Lessons from the 2019 USA “Concerns” with China as a Fishing Flag State”. I have corresponded with the author Arron N. Honniball in the past and is obvious that we align in views yet he works at a level that I just look from below.
The topic is one of much interest to me and I wrote a lot about it: TREMs (Trade Restrictive Measures) associated with IUU fishing… a tool that both the EU and the US apply but in very different ways.
paper does not has alink yet, but from all accounts Arron is good man, and I’m sure he would be happy to share the paper if you ask nicelly. I just quote the intro and bits I loved from the conclusion. But please read it all.
Introduction
On September 19, 2019, the USA’s National Oceanic and Atmospheric Administration (NOAA) publicly released its 2019 biennial report to Congress, Improving International Fisheries Management, identifying Ecuador, Mexico and the Republic of Korea as states whose vessels are reportedly engaged in illegal, unreported or unregulated (IUU) fishing activities under Section 609(a) of the High Seas Driftnet Fishing Moratorium Protection Act.
The biennial identification of foreign states is the first step in the USA’s unilateral three- step identification and certification procedure which analyzes the enforcement of international fisheries law by foreign states. The USA will take measures against any state receiving a negative certification, including the closure of U.S. ports and U.S. markets to that state’s fishing vessels, catch and fishery products. Additional economic sanctions may also be imposed. The USA is not unique in imposing such trade measures. The EU, as well as numerous Regional Fisheries Management Organizations (RFMOs), also identify non- cooperating or non-compliant states that may be subject to comparable trade measures.
Nonetheless, unilateral measures in pursuit of a global common interest, i.e., “ending” IUU fishing, may raise questions of legitimacy, sufficiency or coherence if domestic laws and policies substantially differ from their purported international law and policy basis. Systemic differences may first and foremost arise from different definitions of IUU fishing. Unlike the EU’s practice, which largely follows the inter-national law “definition” of IUU fishing in the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), the USA has prescribed a definition of IUU fishing that is fundamentally different in scope. To highlight this difference and its legislative impact, this article first intro-duces the USA’s identification and certification procedure (Part II). More specifically, this article addresses the consequences and acceptability of the U.S. definition of IUU fishing as not including vessels engaged in illegal fishing in the waters under the jurisdiction of a foreign state.
A novel section in the OMNV Report to Congress entitled “Concerns with China’s Fishing Practices” is then both demonstrative of such a legislative gap and the currently hobbled U.S. response (Part III). When the USA implements the identification and certification procedure, the U.S. definition of IUU fishing precludes consideration of alleged widespread illegal fishing by Chinese- flagged vessels in the exclusive economic zones (EEZs) of foreign states. States have a certain degree of flexibility in defining IUU fishing. However, this practice demonstrates that the current definition results in an identification and certification procedure that is inconsistent with U.S interests and is insufficient to address the USA’s global policy objectives and responsibilities. The lessons learned should promote U.S. legislative reform and equally assist other market states in designing unilateral measures that properly address a global common interest.
The OMNV Report to Congress also raises concerns with IUU fishing by stateless vessels with the “characteristics” of Chinese flagged vessels (Part IV). The identification and certification procedure seeks to address poor governance by foreign states. Given the lack of an attributable flag state for vessels without nationality, state- to-state trade measures targeting flag states should exclude IUU fishing by vessels with-out nationality. Any possible trade measures against a flag state on the basis of the “characteristics” of stateless vessels is inappropriate.
This article concludes with the way forward for the USA and other states adopting unilateral trade measures to combat IUU fishing (Part V). Wider lessons on ensuring transparent and unbiased implementation of market state measures are also raised.
Finally, this article focuses on China because it is the subject of the new “concerns” section of the OMNV Report to Congress. An independent IUU Fishing Index also ranked China as the worst performing flag state in 2019 (excluding landlocked states).1 But, it is not the objective of this paper to address the factual basis of NOAA’s concerns, nor the Chinese response. The arguments below concern the appropriate substantive design of trade measures. These design arguments do not affect the market states’ procedural discretion in implementation, nor suggest China must be identified.
Parts of the conclusions (some jewels there)
Designing state- to-state trade measures to exclude flag states facilitating illegal fishing in foreign EEZs was seen as unnecessary and inconsistent with international and national interests. From the international perspective, it excludes the most well defined and universally accepted form of IUU fishing, which is also subject to multilaterally agreed flag state obligations. If unilateral trade measures are building on the primary responsibility of flag states, they should first and foremost apply here. (love this one!)
Moving forward, the USA should amend the identification and certification procedure to include flag states responsible for illegal fishing in foreign EEZs. This will remove an unnecessary and discriminatory distinction in the design of U.S. trade measures combating IUU fishing. If necessary, the USA may then still exercise its discretion in implementation to focus identifications on fishing activities that directly infringe upon U.S. fisheries interests. Any question of identifying flag states for IUU fishing by stateless vessels with “characteristics” of that flag state should be dropped. If the USA wishes to make progress here, it will need to follow the EU’s example and design trade measures that address coastal states, port states, market states and states of nationality that are facilitating IUU fishing.
For the EU moving forward, the non- cooperating states procedure follows the IPOA- IUU definition of IUU fishing. The critiques of bias or discrimination in EU trade measures therefore result not from design, but implementation.127 This is in part due to the initial audits and informal dialogues remaining confidential. Commentators and states only have access to the EU’s reasoning in the more limited cases of a foreign state being issued a pre- identification notification (“yellow card”). Perhaps the EU has or is engaging China in confidential dialogue. The lack of transparency on which states are subject to continuing informal dialogues or have implemented reforms necessary to avoid a yellow card therefore increases the perceived discrimination. It would be in the interest of the EU and its partners to follow the transparency evident in the Reports to Congress. Similar to NOAA’s “concerns,” the EU could list its ongoing informal dialogues and omit any substantive details that could jeopardize the process. Informal dialogues that conclude in a yellow card being unnecessary could then be reported in detail similar to NOAA’s reporting on states considered but not identified. These minor reforms would greatly improve procedural transparency and shed further light on how states interpret their obligations to combat IUU fishing in international law.
Finally, whether trade measures are substantively and procedurally fit for purpose and whether they should then be implemented against a foreign state are separate questions. The difficult and potentially controversial task of identifying states - including if this should include China-is left to NOAA