3.3 Identification of Non-Complying State
The EU’s procedures to identify a third State as a non-cooperating State has been
considered as an innovative response to IUU fishing.
102 Even though this measure
entails restrictive trade measures and is neither provided for in the IPOA-IUU nor
other international instruments, there has been no legal challenge to this measure.
Some RFMOs have also imposed similar measures to respond to non-complying
States.
103
Non-compliance could arise from two possible scenarios: either the flag States
cannot meet their obligation, or they are economically convenient to ignore the laws.
Accordingly, a decision to identify and declare a flag State as “non complying”
comes after a series of investigation as well as discussions with the relevant flag State
to understand whether the cause of non-compliance is unwillingness or inability. Not
only that it is consistent with the IPOA-IUU,
104 but it also gives the flag State a
second chance to work on its shortcomings. It also shows mutual respect between
sovereign States and emphasises the importance of a careful examination that a State
must take before publicly “shaming” another State for its non-compliance to
international law.
In the EU experiences dealing with non-compliance, it will first pre-identify a
State that has the possibility to be non-cooperative. This process aims to remind third
States to step up their fight against IUU fishing. Instead of punishing them with
immediate ban, the EU engages in dialogues with them to develop a plan to address
possible shortcomings. It is worth noting that the EU also dedicates a section on
specific constraints of developing countries and a special financial instrument for
assisting developing countries in their fight against IUU fishing.
105 When third
States fail to come up with concrete actions against IUU fishing, despite continued
dialogues and assistance, the EU will then issue a pre-identification notification or
identify them as non-cooperating States.
To this day, the European Commission has pre-identified 26 countries; of these,
six countries have acquired the status of non-cooperating third countries, thirteen
countries’ pre-identification have been revoked, while the rest remains under formal
dialogues.
106 Recently, Comoros and St Vincent and the Grenadines have been
identified as non-cooperating countries even though they do not export fisheries
products to the EU. The EU’s experiences in dealing with non-cooperating States
suggest that attaching serious reputational and economic consequences for
102 Tsamenyi et al. (2010), p. 30.
103 Ibid.
104 See IPOA-IUU, para. 66.
105 See EC Regulation No 1905/2006 of the European Parliament and of the Council of 18 December
2006 establishing a Financing Instrument for Development Cooperation.
106 A full list of countries is available at https://ec.europa.eu/fisheries/sites/fisheries/files/illegalfishing-overview-of-existing-procedures-third-countries_en.pdf.
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The EU’s procedures to identify a third State as a non-cooperating State has been
considered as an innovative response to IUU fishing.
102 Even though this measure
entails restrictive trade measures and is neither provided for in the IPOA-IUU nor
other international instruments, there has been no legal challenge to this measure.
Some RFMOs have also imposed similar measures to respond to non-complying
States.
103
Non-compliance could arise from two possible scenarios: either the flag States
cannot meet their obligation, or they are economically convenient to ignore the laws.
Accordingly, a decision to identify and declare a flag State as “non complying”
comes after a series of investigation as well as discussions with the relevant flag State
to understand whether the cause of non-compliance is unwillingness or inability. Not
only that it is consistent with the IPOA-IUU,
104 but it also gives the flag State a
second chance to work on its shortcomings. It also shows mutual respect between
sovereign States and emphasises the importance of a careful examination that a State
must take before publicly “shaming” another State for its non-compliance to
international law.
In the EU experiences dealing with non-compliance, it will first pre-identify a
State that has the possibility to be non-cooperative. This process aims to remind third
States to step up their fight against IUU fishing. Instead of punishing them with
immediate ban, the EU engages in dialogues with them to develop a plan to address
possible shortcomings. It is worth noting that the EU also dedicates a section on
specific constraints of developing countries and a special financial instrument for
assisting developing countries in their fight against IUU fishing.
105 When third
States fail to come up with concrete actions against IUU fishing, despite continued
dialogues and assistance, the EU will then issue a pre-identification notification or
identify them as non-cooperating States.
To this day, the European Commission has pre-identified 26 countries; of these,
six countries have acquired the status of non-cooperating third countries, thirteen
countries’ pre-identification have been revoked, while the rest remains under formal
dialogues.
106 Recently, Comoros and St Vincent and the Grenadines have been
identified as non-cooperating countries even though they do not export fisheries
products to the EU. The EU’s experiences in dealing with non-cooperating States
suggest that attaching serious reputational and economic consequences for
102 Tsamenyi et al. (2010), p. 30.
103 Ibid.
104 See IPOA-IUU, para. 66.
105 See EC Regulation No 1905/2006 of the European Parliament and of the Council of 18 December
2006 establishing a Financing Instrument for Development Cooperation.
106 A full list of countries is available at https://ec.europa.eu/fisheries/sites/fisheries/files/illegalfishing-overview-of-existing-procedures-third-countries_en.pdf.
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