UNTOC is the principal global legal instrument to prevent and combat the scourge of transnational organized crime. CITES on the other hand is an unlikely champion, because the drafters of the Convention did not include provisions on wildlife crime within its scope (Sellar 2018), yet it has been one of the most active and visible entities addressing illegal wildlife trade. This role is recognized through three General Assembly resolutions on tackling illicit wildlife trafficking (see e.g., A/RES/73/343), and CITES has co-founded the International Consortium on Combating Wildlife Crime (ICCWC). ICCWC is collaborative effort of five inter-governmental organizations working to bring coordinated support to the national wildlife law enforcement (CITES, INTERPOL, the United Nations Office on Drugs and Crime: UNODC, the World Bank and the World Customs Organization: WCO).
The first binding instrument targeting IUU fishing specifically entered into force in 2016 with the FAO Port State Measures Agreement (PSMA). However, while the importance of this milestone and the potential of the tools offered by the PSMA should not be underestimated - it needs to be noted that, as evident in its name, the PSMA focuses on port-based options to deter IUU fishing and, as such, does not comprehensively cover all approaches related to combatting illegal fishing.
A GAP IN THE MANDATES?
The absence of a singular framework for countering IUU fishing may explain why experts in the field and even representatives of relevant international organizations have repeatedly highlighted that lack of coordination in the implementation of, as well as gaps between, existing mandates presents a challenge (e.g.. at 12th Chatham House International Forum on IUU Fishing, 18-22 May 2020, Blue Justice webinar“ The Synergies and Convergence of IUU Fishing and Transnational Organized Fisheries Crime”, 14 October 2020).
One difficulty lies in the term itself, as IUU fishing by definition does not only include illegal activity. Whether a particular activity is illegal or unreported or unregulated – or legal – will often depend on the national legal framework under which they are examined. CITES can offer a useful “focus glass” to resolve this ambiguity, as explained in the first UN World Wildlife Crime report (UNODC 2016) and still evident in the second (UNODC 2020), because its requirements for legal international trade (legality, sustainability, and reporting in the annual trade report) mean that trade has to be “Legal, Regulated and Reported” or it is illegal (Scanlon, 2017). However, this is only useful for species listed on the CITES Appendices. While the aquatic species selected for the World Wildlife Crime reports (2016: sturgeons; 2020: eels) offer important insights in their own right, their inherent connection to rivers and land also make them not very representative of the large volume of IUU fishing that takes place at sea.
With an increasing number of marine species listed on the CITES Appendices commonly caught in the context of large commercial fisheries, often labeled “bycatch” despite their economic importance, and traded in significant volumes internationally, the usefulness of CITES as a “focus glass” for IUU fishing is bound to increase. This prediction is strongly supported by CITES’ definition of international trade, which includes “introduction from the sea” (IFS). Put simply, IFS means all specimens of CITES-listed species fished in the high seas by any of the CITES 183 Parties that are subsequently landed in any state fall under CITES regulation (See CITES’ website on IFS). As an example of how mandates can be mutually supportive, CITES Resolution 14.6 Rev. Cop16 recommends that Parties approving (or rejecting) applications for IFS:
"take into account whether or not the specimen was or will be acquired and landed: i) in a manner consistent with applicable measures under international law for the conservation and management of living marine resources, including those of any other treaty, convention or agreement with conservation and management measures for the marine species in question; and ii)through any illegal, unreported or unregulated (IUU) fishing activity."
Another existing example of such a mutually supportive mandate that can help weave a tighter net against IUU fishing comes from the PSMA. Specifically, in its port State inspection procedures (Annex B), the PSMA explicitly requires a review of documentation mandated by Regional Fisheries Management Organizations (RFMOs) and CITES.
A FOURTH PROTOCOL UNDER THE UNTOC.
UNTOC defines an “organized criminal group” as a group of three or more persons, aiming to commit a serious crime for financial or material benefit, with “serious crime” being defined as an offence that may be punishable by a maximum of four or more years in prison. Applying this definition to the marine context, it becomes clear that many countries' illegal fishing operations may qualify as organized criminal groups, and thus fall under UNTOC’s mandate.
The draft fourth protocol to UNTOC (“Protocol against the Illicit Trafficking in Specimens of Wild Fauna and Flora”), proposed at the sidelines of the UNTOC’s tenth Conference of the Parties in 2020, contains many opportunities to extend the applicability of UNTOC, and improve synergies between international frameworks, to combat the most serious forms of IUU fishing.
The fact that this conclusion is not immediately obvious may partially be due to fish being too rarely discussed as a component of wildlife, despite awareness raising events (e.g. 2019 World Wildlife Day). Indeed, fish are not even universally considered wildlife in national legislation (Wyatt, Friedman &Hutchinson, under review). It is therefore all the more promising that the draft for the fourth protocol prepared by the Global Initiative To End Wildlife Crime explicitly includes fish (Footnote 20) in its scope:
"While this protocol leaves the precise definition of “wild fauna and flora” to each State, the term as used throughout the protocol does refer to “specimens of both wild plant and animal species,” including“ animals, birds and fish, as well as timber and non-timber forest products.”
This usage of terminology is consistent with the CITES context, which is logical given the aforementioned role that CITES and its ICCWC partners have played in raising the profile of wildlife crime, and consistent with their past work (e.g., UN World Wildlife Crime report, UNODC legislative guide).
Beyond its inclusive scope of the specimens covered, the draft fourth protocol also – just as the UNODC legislative guide - echoes CITES’ definition of international trade by including IFS in the definition of trafficking (Footnote 15 of the draft fourth protocol). Notably, including IFS makes the provisions of the proposed protocol potentially applicable to a wide variety of illegal fishing activities taking place on the high seas, enabling synergies with a number of existing fisheries and conservation frameworks.
One potential stumbling block for making the most use of mutually supportive mandates from international instruments (like CITES and the UNTOC) is if and to what degree they are transcribed into national law. The question of how to resolve different degrees of protection under different multilateral frameworks (e.g., CITES Appendix vs. Convention on Migratory Species (CMS) Appendix I or RFMO non-retention measures) in practice has for example been discussed, but not fully resolved, by the CITES Animals and Standing Committees over the last two intersessional periods (see e.g., document SC70 Doc.48.1 (Rev. 1)). This discussion largely emanates from the fact that Legal Acquisition Findings under CITES, one of the prerequisites for legal trade, require a specimen to be obtained “not in contravention of national laws”. It has, therefore, been argued that only obligations transposed into national law should be taken into account. In contrast, Article 5 paragraph 1 a) of the draft fourth protocol also specifically refers to “contravention of”:
Any international agreement concerning or relating to the protection, conservation, management, trade or use of wild fauna or flora binding on the State Party.
The draft fourth protocol therefore represents a significant evolution that has the potential to help address non-compliance with many relevant international instruments lacking their own compliance mechanisms and also offers a filter to separate the I from the U & U in IUU fishing for a broader set of species than just those listed under CITES. The inclusion of Article 5 paragraph 1 b) in the draft protocol
"Any applicable domestic or foreign law concerning the protection, conservation management, trade or use of wild fauna or flora"
further extends the obligation to also addressing non-compliance with applicable laws of the country where the activity takes place, e.g., a coastal state in whose exclusive economic zone illegal fishing occurs.
The draft fourth protocol further addresses another bottleneck: the UNTOC definition for “serious” organized crime requires that the crime be punishable by a maximum of at least four years in prison. However, given that fisheries crime and other environmental crimes often attract comparatively low penalties (UNODC, undated), the focus on the length of the prison term is misleading and a focus on the impact of a crime on the environment may be more appropriate (Gosling, pers. comm). The draft fourth protocol circumvents this issue, as its scope applies to the prevention, investigation, and prosecution of any trafficking of specimens that meets the requirements of Article 5, i.e., intentional and knowing contravention of applicable international or domestic legal frameworks. While this greatly expands its scope and applicability, it may create a need for other ways to prioritize effort – for example, based on the impact of a crime on the environment.
This more expansive reach means that many IUU fishing activities may fall under the scope of the proposed fourth protocol. In addition to maximizing synergies between existing international and national legal frameworks, this inclusion would also trigger the general advantages associated with UNTOC, including its provisions on international cooperation, mutual legal assistance, information sharing, joint investigations, and the potential to centralize training and assistance. The draft fourth protocol further expands these benefits with provisions on sharing information on known groups and on document verification. It also includes a section on crime prevention.
It is important to note that any activity far from shore, including combatting IUU fishing, comes with specific challenges ranging from logistical (e.g., how to monitor, how to get there) to legal (areas outside of national jurisdiction, insufficient port state controls). If the proposed fourth protocol were indeed used to address IUU fishing, to be most helpful it would need to specifically adapt and enhance its provisions (Discussed during Q&A at the Blue Justice webinar, "The Synergies and Convergence of IUU Fishing and Transnational Organized Fisheries Crime”, 14 October 2020). Addressing the specificities of working in a maritime context would probably be beyond the current draft protocol but may represent an important step either in parallel under the UNTOC or once the protocol has been adopted.
A ROLE FOR CIVIL SOCIETY?
In addition to creating mutually supportive mandates and improving coordination between international instruments, it is important to note that the degree to which synergies between mandates can be realized also depends on how legal frameworks are transposed into national law and implemented. This task is one with which Sea Shepherd Legal (SSL), as a non-profit law firm supporting a number of countries in improving their national laws to combat IUU fishing, is intimately familiar. SSL is one of many civil society organizations that support countries’ efforts to combat IUU fishing and wildlife trafficking – on demand and working closely with countries – in concrete ways that go beyond traditional “awareness raising”. The former Chief of the Enforcement Team at CITES, when reflecting on the fact that most information in two major reports on wildlife crime originated from civil society organizations, recently remarked that
"[I]t is hard not to wonder whether some parts of the NGO community have a considerably better understanding of the intricacies of [international wildlife trade] and, very importantly, the persons and [organized criminal groups] who are controlling and facilitating such criminality, than national, regional and international law enforcement agencies." (Sellar 2020).
This opportunity to tap into existing expertise within non-governmental organizations (NGO) to address wildlife crime is also identified in the maritime context, where part of the security community openly ponders the advantages of working with civil society organizations, like SSL’s sister organization Sea Shepherd, to combat IUU fishing in a cost-effective manner (Berube 2020). NGOs are also contributing to maritime domain awareness (Phillips-Levine et al 2020) and are offering technological solutions, such as satellite-tracking and automatic identifications system (AIS) analysis to improve monitoring, control and surveillance - with a significant buy-in by countries willing to share their proprietary data. Such collaboration is a great example for the potential (and great promise) of public-private partnership models (e.g. discussed at IDDRI webinar: "Strengthening Monitoring control and surveillance through a High Seas Treaty", 17 November 2020). Another prime example of beneficial public/private (NGO) partnerships are Sea Shepherd’s global operations involving nine active vessels providing logistical support to combat IUU fishing under ongoing cooperation agreements with nine countries.
These examples clearly demonstrate that the notion of civil society’s rule being limited to awareness raising has increasingly been overtaken by reality. Instead, to reflect the new role of civil society and make the most of it, existing and future frameworks would do well to expand from Multinational to Multi-stakeholder Cooperation (Stable Seas, 2020) and give a larger pool of relevant actors the opportunity to contribute, including at the strategic planning level. Such frameworks should provide vetted stakeholders with a space to exchange experience and insights from combatting IUU fishing and allow the sharing of intelligence in a structured, professional manner that preserves the safety and integrity of informational sources.
In this regard, SSL welcomes the resolution on “Preventing and combating crimes that affect the environment falling within the scope of the United Nations Convention against Transnational Organized Crime adopted by the 10thUNTOC CoP in 2020, which strongly encourages Parties to strengthen their cooperation and work with, among others, civil society, as appropriate.
The fourth draft protocol also takes a step in this direction with its Article 7.3 requesting policies, programs and other measures [for the prevention of illicit trafficking] to include cooperation with civil society, as appropriate. But this limited scope may not do full justice to the variety of roles in which civil society organizations are already making meaningful contributions to the fight against IUU fishing.
A fourth protocol to UNTOC is not the only way to address IUU fishing or encourage a multi-stakeholder approach, but it presents an exciting opportunity to find agreement on some key definitions and concepts, establish a framework that addresses IUU fishing more broadly than other existing tools and create a forum for relevant stakeholders to coordinate their efforts. SSL stands ready to work with its governmental and non-governmental partners to strengthen legal frameworks to combat IUU fishing.
1 Unless specified otherwise the term “IUU Fishing” in this text is used in line with the definitions of the FAO’s 2001 International plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing. Notably the definition of unregulated fishing contained therein only includes fishing activities that are in contravention of a measure of an RFMO by a vessel without nationality; or whose flag state is not a member of that RFMO; or that are inconsistent with State responsibilities for the conservation of living marine resources under international law. It generally does not include unregulated small scale fishing activities within a State’s national waters. We acknowledge the definitions for IUU Fishing in the IPOA IUU include activities that are not illegal, as discussed further below.