Europe’s Double Standard for China’s Overfishing

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A decade ago, in January of 2010, the EU implemented a bold new initiative to counter the growing problem of overfishing around the world. This EU initiative consisted of an indirect enforcement system against nations located outside of Europe, by controlling the access of those nations to import their fishery products into the European marketplace. While fully respecting the sovereignty of these other nations, the EU developed an innovative way to shape and influence their behavior, thereby having a positive effect on a global threat. Over this past decade, the EU has implemented this initiative effectively against a number of nations. But an issue has arisen from an overlooked reality that the EU has not applied this initiative to the nation in the world that is the most culpable for overfishing: the People’s Republic of China. Therefore, a closer examination of this question is justified.

The Global Security Challenge of Overfishing

Overfishing in the world’s oceans is one of the greatest threats to global food security. In its 2018 State of World Fisheries and Aquaculture, the U.N. Food and Agriculture Organization reported haunting statistics, which show just how dire the situation has become: in 1974, 90 percent of the world’s fish stocks were fished “within biologically sustainable levels;” but in 2015, only 67 percent of those fish stocks are in good shape. In other words, after forty years of global overfishing, one-third of all fish stocks are on the verge of becoming what could arguably be described as a man-made disaster. Unless the nations of the world take effective action, the future of these fisheries could become a catastrophic risk to not just the global maritime environment, but all of humanity.

Fortunately, many nations around the world recognize this growing security challenge, and have sought to take actions to counter the growing threat of illegal, unreported, and unregulated (IUU) fishing. Significant examples of these collective efforts are codified in the multilateral treaty regimes of the 1982 U.N. Convention on the Law of the Sea, the 1995 U.N. Fish Stocks Agreement, and, the 2009 Port State Measures Agreement. Despite these and other cooperative efforts, however, some states continue to either deliberately ignore this growing security threat, or fail to show the appropriate level of concern about countering it.

The EU Effort to Counter Overfishing Globally

One collective action to motivate these deficient states and thereby counter IUU fishing globally has been a policy initiative undertaken by the EU over the past decade. In 2008, the EU adopted Council Regulation 1005 to “prevent, deter and eliminate illegal, unreported and unregulated fishing.” As stated in the regulation’s preamble, this initiative seeks to target “behavior falling under the definition of IUU fishing and which causes the most serious damage to the marine environment, the sustainability of fish stocks and the socioeconomic situation of fishermen abiding by the rules on conservation and management of fisheries resources.” The primary way in which this EU initiative seeks to counter overfishing globally is by prohibiting the trade of illicit fishery products originating from deficient states within the collective marketplace of the EU member states. Such targeted action by the EU is more than merely symbolic in nature, especially given that the EU is “the largest single market for fish and fish products” in the world.

The indirect enforcement system established by Regulation 1005 involves a two-step process. First, if there are “well-founded doubts as to the compliance, by fishing vessels or fishery products” from a “third country” (i.e., a state that is not a member of the EU), then the EU will issue an “alert” to the government of that third country, and EU member-states will take a number of investigatory and verification actions against that country. These “pre-identification” actions increase scrutiny upon the trade of that country’s fishery products in the EU market. Second, if the EU determines that this third country “fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market state,” then the EU will identify that country as a “non-cooperating country in fighting IUU fishing” and prohibit importation of fishery products from that country into the EU market. Once identified as such, the non-cooperating nation must take specified actions to “rectify” the situation and “ensure compliance with conservation and management measures by its fishing vessels” in order to be removed from the EU’s prohibited list. Using a metaphor from the world’s most popular sport, this two-step process has been colloquially characterized as a “yellow card-red card” system, with the offending nation receiving a yellow-card warning for suspected infractions, followed by a red-card ejection from the EU’s collective fish market for continued violations.

Over the past ten years, the EU has engaged over two dozen nations around the world under the enforcement framework of Regulation 1005. In a June 2019 press release, the EU reported the success of these engagement efforts, with nearly all of those identified states clamping down on IUU fishing by their fishing fleets. That same press release also included a table, which listed the 25 specific “third countries,” as well as their status in the yellow card-red card system. A quick review of the country list shows that the EU has applied Regulation 1005 globally, as the list includes nations located in almost every region of the world outside of Europe. The list also includes a twenty-sixth entity, which has an ambiguous status in international relations: Taiwan. In fact, the primary purpose of the EU’s June 2019 press release was to announce that it was lifting Taiwan’s “yellow card” status because of significant reforms that Taipei had instituted during the three preceding years.

As a practical matter, this EU initiative has entered the collective psyche of these and other national governments, thereby shaping and influencing state behavior towards potential progress in countering overfishing globally. For example, in late 2018, this author helped facilitate a dialogue in Bangkok among many of the Southeast Asian nations, during which senior officials from their respective maritime law enforcement agencies discussed the shared challenge of how to counter IUU fishing more effectively. Of note, what repeatedly came up in their group discussions was what specific actions their governments could and should undertake, either to avoid receiving an EU yellow card or have one successfully rescinded. With conversations like these happening half a world away from Europe, one conclusion is unavoidable: this EU effort to counter IUU fishing is clearly having a global impact.  

China as the Worst Offender

Unfortunately, what is noteworthy about the EU’s yellow card-red card list of countries is not only the specific states that are on the list, but also the states that are not. One nation that is glaringly absent from the list is China. The obvious question to ask is: Why?

Has the EU not identified China in its counter-IUU fishing system because the evidence does not support including China on the list? No, to the contrary. In January 2019, the Geneva-headquartered non-government organization Global Initiative Against Transnational Organized Crime and the Poseidon-Aquatic Resource Management Ltd. jointly published the IUU Fishing Index, which they described as “a tool designed to provide a better understanding of illegal, unreported and unregulated (IUU) fishing worldwide.” The developers of the Index identified 40 factors about fisheries, the fishing industry, and fisheries enforcement, and applied those factors globally to 152 nations. Applying those factors to a comprehensive review of relevant data, this Index “benchmarks countries according to both their exposure and response to IUU fishing.”

Based upon analysis of these factors and data, the developers of the IUU Fishing Index determined that the nation earning the world’s overall worst-performing score for IUU fishing was China. In addition to earning the world’s worst overall score, China also earned the world’s worst-performing score in two of the Index’s three specific categories (i.e., as a flag state and as a port state), and the world’s 13th worst-performing score for the Index’s third category (i.e. as a coastal state). In the report publishing the results of the Index, these experts concluded that “there is a pressing need to hold these countries accountable for their actions (or lack thereof), to monitor progress and to take remedial actions where and as appropriate.” Who was the first of “these countries” cited by the report’s conclusions? China.

If one compares the worst-performing nations in the IUU Fishing Index with the list of nations who have received yellow and red cards under the EU counter-IUU initiative, most of the results would be expected. In fact, there is significant commonality between the nations who ranked poorly in IUU Fishing Index and the nations that have received yellow and red cards. Admittedly, not every nation drawing scrutiny by the EU has the same status. Among the 25 nations, only six have actually received red cards. Of those, three have been subsequently removed from the list, based upon reforms taken by their respective governments. That still leaves nineteen other nations who have received pre-identification yellow cards from the EU. Yet China is not even among those recipients of yellow cards.

Alternatively, has the EU not pre-identified or identified China in its counter-IUU fishing initiative because the EU does not import fishery products from China? No, this second assumption would also be false. In 2018, the European Market Observatory for Fisheries and Aquaculture Products published The EU Fish Market, a report that compiles and analyzes global data regarding the production, consumption, export, and import of fishery products. Of note, China ranked as the second-overall country of origin for fishery products imported by the EU, totaling 8 percent of total volume and 7 percent of total value. Yet, even if China exported little to no fishery products into the EU, that fact would arguably be irrelevant. Recall that Regulation 1005’s triggering threshold for a particular nation to receive a yellow card is “well-founded doubts as to the compliance, by fishing vessels or fishery products” from that nation. Thus, the actual standard is whether the specific state complies with established standards; it is not whether the deficient state exports no, a little, or a lot of fishery products into the EU marketplace.

Conclusion

If you were a senior government official from Belize, Guinea, Thailand or any of the other twenty-five nations that has thus far received a yellow or red card from the EU, you would understandably have questions for your EU counterparts:

Systematically, is this is a realpolitik situation of discriminatory treatment by developed nations against only developing states? For example, Japan and Russia scored poorly in some portions of the IUU Fishing Index, but the EU has not awarded a yellow or red card to either of them. Why not? Does the EU not apply its fisheries initiative against powerful states in the world because it seeks to avoid jeopardizing other valuable aspects of those economic relationships?

Specifically, in terms of the world’s worst offending state for overfishing, is the EU applying a double standard to China’s extremely deficient behavior? There is significant evidence showing that China has not complied with applicable law, rules, standards, and norms for fisheries management and conservation. There is undisputed data showing that China exports significant quantities of fishery products into the EU. Why has the EU not applied this particular regulation to this particular nation? If the standard that the EU applies truly is “well-founded doubts” as to a nation’s compliance with conservation and management measures for fishing, then how exactly are there not such “well-founded doubts” about China, when China earned the top ranking in a global IUU fishing index as the overall worst-performing nation? This significant discrepancy smells fishy and warrants a public explanation by the appropriate EU officials.

 

Image Source: Asc1733

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Arron N Honniball says

April 16, 2020

Thank you Jonathan for raising an important issue in the procedural transparency of the EU non-cooperating third-country identification procedure. I’d share some of your concerns, but there are always a few issues which strike me whenever the ‘China issue’ is raised in discussions and I’d be interested in your insight.

First, the identification (yellow card) is the first step in the formal procedure and is publicly available. However, before that occurs there is the informal procedure which is on a confidential bilateral basis. If you compare the reported ‘successes’ of the informal and formal processes you’ll see that many engagements by the EU are successful without the need for a formal identification of the third country. There are no procedural rules on this informal process. The Commission Decisions on identification demonstrate the reported informal processes range wildly in length and depth. This immediately raises the prospect that perhaps the EU has engaged – or is engaging - with China. It’s might just not be at the same stage as the other countries you mention and therefore without a ‘yellow card’ it remains confidential.

Given the fact that China is one of the largest and more complex fishing nations in the world I would argue it is conceivable that its informal process would be considerably longer that engagements with other states. Sadly, back in 2016 when I asked an EU representative if China was the subject of the informal process they refused to breach that confidentiality requirement. Do you have any insights from your practical experiences on if there have or have not been any informal bilateral engagements with China? In my opinion this would be fundamental to the arguments of discrimination.

Secondly, to play the devil’s advocate, realpolitik could also suggest why the EU has not targeted big offenders in the earlier precedent-building stage of the non-cooperating third-country identification procedure. The Commission might want quick and effective early cases to both build up its actual identification thresholds (e.g. what are ‘port duties’ - which is not detailed in the IUU Regulation) and have successes to report back to the European public for domestic support. Taking on the ‘big’ offenders will require a much longer procedure and the real danger of failure. Only now that is has added meat to its interpretation of ‘duties incumbent upon it under international law as flag, port, coastal or market State’ (art. 31(3)), and earned some political maneuverability might it now wish to pursue a larger catch and take on the big offenders.