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EU fails to overturn IOTC decision on FADS

14 mai 2023, 21:00

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EU fails to overturn IOTC decision on FADS

The meeting of the Indian Ocean Tuna Commission (IOTC) that ended on Friday was expected to be a showdown between the EU pushing back against FAD limits put in place by the IOTC earlier this year. However, the Mauritius meeting has left this matter unresolved.

The Mauritius meeting
The  meeting of the Indian Ocean Tuna Commission (IOTC), held in Mauritius between May 8 and 12, resulted in a series of nine proposals being adopted, including measures related to electronic monitoring, catch reduction targets for bigeye tuna, measures to reduce by-catch involving sea birds and cetaceans, and a proposal from Mauritius for member-states to voluntarily announce a 30-day ban on fishing for critically endangered yellowfin tuna stocks.

What remained unresolved, however, was a key set of proposals on limiting the use of drifting Fish Aggregating Devices (FADs), used primarily by European and East Asian purse seine trawlers and blamed by coastal states for leading to the overfishing of tuna stocks in the Indian Ocean. Since 2015, the IOTC has listed yellowfin as overfished, with conservation groups warning of an imminent population collapse in the region as early as 2025, with bigeye also now listed as in the red. Back in February this year, during a special session of the IOTC held in Mombasa, a group of 11 coastal states led by Indonesia managed to push through a series of decisions at the IOTC limiting the use of FADs – the first such restrictions successfully passed by the IOTC – that included a mandatory 72-day ban by 2024 on the use of FADs in the Indian Ocean (excluding the territorial waters of small island states such as Mauritius and Seychelles) as well as limits on the maximum number of FAD devices allowed to be used by each purse seiner. The measures approved by the IOTC back in February attracted opposition from the EU and a number of other states. Mauritius, whose fishprocessing industry relies on tuna supplied by EU – primarily French and Spanish – purse seiners and for whom tuna makes up a quarter of its exports was also uneasy about the IOTC decision in Mombasa.

The number of FADS

The other issue left over from Mombasa was the decision to limit the number of FAD devices that each purse seiner would be allowed to use. Back in February, the IOTC approved a proposal by 11 coastal states led by Indonesia to limit the number of allowable FAD devices from 300 to 250 and then further down to 200 by 2025. At the meeting in Mauritius, the EU reiterated its proposal made in Mombasa to reduce the number of allowable FAD devices down to 280 in 2024, then to 260 in 2026, and then further down to 240 by 2028. Higher than the number decided by the IOTC in February. When it came to limits on the number of FAD devices, the South Korean proposal was virtually identical to that of the EU: 280 by 2024, and 260 by 2026. But here too, the EU and South Korea failed to get enough support to have the IOTC revise its earlier decision.

The FAD closure

Ahead of the meeting in Mauritius, the EU came up with its own counterproposal to push back against the mandatory 72-day ban on the use of FADs in the Indian Ocean. What the EU proposed was essentially sending this to the IOTC’s scientific committee (SC) that would look into the idea of establishing a FAD closure period and the findings of the committee would then be used by the IOTC to decide on the measure at a session in 2024. “Through this stepwise way forward the IOTC will follow a sciencebased approach in its decision-making. Should the SC not be able to provide clear advice, the commission will in any case decide the way forward at its next annual meeting in 2024,” the EU’s proposal said. South Korea, another fishing heavyweight in the region, came up with its own version of the proposal to send the matter to the IOTC’s SC as did Mauritius.

Conservation groups have warned that the populations of yellowfin tuna in the Indian Ocean could collapse as soon as 2025.

The EU’s idea was backed by industry groups such as the International Seafood Sustainability Foundation (ISSF), but criticized by conservation groups such as the French NGO Bloom and the International Pole and Line Foundation (IPLF) which pointed out that arguing that a lack of scientific data could not be used to stonewall measures to regulate FAD use since both the IOTC itself as well as the UN Fish Stocks Agreement which states that “states shall be more cautious when information is uncertain, unreliable or inadequate and that the absence of adequate scientific information shall not be used as a reason for postponing to take conservation and management measures”. Also, that the IOTCs own SC has been slow to transmit data on FADs to the secretariat of the organization and that similar temporary FAD bans have been put in place in other oceans, such as the Atlantic in 2019, to help rebuild bigeye stocks there. In the Indian Ocean, EU fishing ships are blamed for using FADs for 95 per cent of their tuna catch, for these FADs leading to the catching of juvenile yellowfin and bigeye tuna before they could reproduce further putting pressure on the viability of these tuna populations, catching non-targeted species such as silky sharks (a report by the Blue Marine Foundation estimated that at least 100,000 silky sharks were being caught as bycatch each year) and turtles and abandoned FADs causing ecological damage and threatening marine life.

However, at the IOTC session in Mauritius, despite multiple drafts and proposals to merge the proposals of the EU and South Korea on pushing back against the intended 72-day FAD closure period decided by the IOTC in Mombasa, neither proposal succeeded in getting pushed through, leaving the earlier IOTC decision still valid.

In the recent past, coastal states have also used a similar tack to ignore IOTC decisions they did not like.
 

The objections question

Just because the EU and East Asian nations fishing in the Indian Ocean did not succeed in getting the IOTC to revise its decision on FAD limitations favoured by coastal states does not mean that either is necessarily bound by that decision. At least in the short term. And that has to do with a curious loophole within the IOTC. In April, the EU and France formally objected to the decision of the IOTC’s special session on FADs. They were joined by Comoros, Oman, Kenya, Seychelles and the Philippines who also lodged objections. According to the IOTC’s own rules, any country objecting within 120 days of a decision being passed does not have to apply the measure. What this means is that, as an objecting party, the EU is not bound to apply the limitations on FADs decided by the IOTC and which it did not succeed in pushing back at the meeting in Mauritius. Given that the EU’s fishing fleet is the biggest user of FADs in the Indian Ocean, this threatens to render the IOTC decision a dead letter.

The IOTC has been marked by a divide between fishing states from outside the region and coastal states.

In the recent past, coastal states have also used a similar tack to ignore IOTC decisions they did not like. Take the example of yellowfin, on average between 2016 and 2020, an estimated 434,383 metric tonnes have been caught from the Indian Ocean each year. To combat the overfishing of this tuna species, in 2021, the IOTC adopted an interim yellowfin rebuilding plan that set maximum limits on yellowfin catch for each IOTC member-state. However, it was a group of coastal states – India, Oman, Somalia, Iran, Indonesia and Madagascar – that objected to that plan. As well as to a subsequent revised plan to rebuild yellowfin tuna stocks in the region. This has prevented the IOTC from enforcing any cuts in yellowfin catch on these states.

When the EU proposed that the IOTC allow for boarding fishing ships suspected of illegally fishing in the Indian Ocean, it had to withdraw that proposal after China announced that it would object to such a measure. A March 2023 report jointly authored by the World Wildlife Fund, Global Tuna Alliance and the Tuna Protection Alliance lamented that, “At present, an IOTC member can opt out of a decision that it does not like. This ability to object can result in the undermining of conservation. Furthermore, it appears to contradict the members’ duty to cooperate with the other members under the IOTC Agreement, as well as by its general obligations under the Law of the Sea Convention and the UNFSA. There is an urgent need to revise the IOTC Agreement to address this”.

If the IOTC’s own rules stop it from effectively enforcing its own decisions on objecting states – including the EU that as an objecting state is not technically bound to enforce the FAD restrictions set by the IOTC itself – others have looked to another avenue to allow the IOTC to have its way. While the 30 members of the IOTC were meeting at the Intercontinental Hotel in Balaclava, on May 10, the French organization Bloom announced that it was organizing a legal challenge to the objections lodged by the EU and France in the form of a twin set of legal appeals to the European Commission as well as to France’s Directorate General for Maritime Affairs, Fisheries and Aquaculture (DGAMPA). According to the organization, “these unacceptable objections are in total contradiction with the principles of the Common Fisheries Policy and are only going to fuel anti-European resentment in the region as well as the despair of civil society, appalled by the EU’s determination to act against the general interest for the sole benefit of a handful of French and Spanish industrials (sic)”.

At the same time, the Blue Marine Foundation in a separate statement announced that it would back Bloom’s case and submit evidence in its favour: “The controversial objection exempts the EU’s entire industrial purse seine fleet from new rules adopted in February to curb the use of harmful drifting fish aggregating devices (FADs) – a type of fishing gear used by the EU fleet to catch juvenile tuna in their millions. The legal action taken by Bloom and supported by Blue Marine claims that the EU objection is in breach of EU law and, in particular, in breach of the precautionary principle. It will require the European Commission to review its objection on grounds of illegality.”

While the EU may not have succeeded in getting the IOTC to overturn its decision on FAD limitations, it still is not technically bound to implement them on its own fleet. What this means is that for now the fish canneries in Mauritius should not expect any dramatic reductions in the amount of tuna supplied by the EU’s fishing fleet to process and to export. That is, so long as conservation groups abroad do not succeed in getting the EU to withdraw its objection and make its fishing fleet bound by the very same IOTC decisions that it failed to overturn at Balaclava.

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