Source & Author: EJF
In recent years, Spain has taken significant steps to ensure its nationals are effectively sanctioned for involvement in IUU fishing activities. Following another set of fines against companies and individuals announced last week, we assess what may be learnt from the Spanish approach.
Last week saw the Spanish government announce the outcome of the first phase of Operation Sparrow II, the third in a series of major operations targeting Spanish nationals implicated in illegal fishing. The results demonstrate the Spanish fisheries authorities’ continuing commitment to tackling the involvement of Spanish nationals in such activities, and willingness to impose deterrent levels of sanctions to discourage future offences.
Overall, the operation resulted in administrative fines of over €5 million imposed against 6 companies and 6 individuals, as well as the withdrawal of fishing licences for between 5 and 14 years, and the prohibition against access to subsidies for between 5 and 12 years. Significantly, the national companies and individuals were engaged in the ownership, management and operation of the vessels Viking and Seabull 22 – both on the IUU list of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) – thus the sanctions target those benefitting financially from the lucrative profits associated with illegal fishing activities.
The case highlights the considerable reach of the EU’s 2010 Regulation on IUU fishing, on which Spain’s fisheries legislation is based. Spain amended its fisheries law in 2014, in response to the EU IUU Regulation’s requirements. The updated law provides a strong legal basis to identify and impose deterrent sanctions against Spanish interests in IUU fishing operations wherever in the world they take place, including those connected to vessels operating under “flags of convenience” or owned by “shell” companies in tax havens.
Spain’s updated law has been applied in a number of operations targeting unauthorised fishing of Patagonian toothfish in waters regulated by CCAMLR. The first of these, Operation Sparrow I, revealed clear linkages between Spanish fishing companies and individuals linked to the infamous syndicate Vidal Armadores, and four internationally blacklisted vessels –Kunlun, Yongding, Songhua and Tiantai – resulting in combined penalties of almost €18 million against Spanish operators in 2016.
Based on an analysis of recent administrative cases and discussions with the Spanish authorities, it is possible to discern a number of crucial elements for the successful prosecution of nationals engaged in IUU fishing. Underlying many of these aspects is a state’s political will to modify legislation, and to commit the necessary resources and capacity to conducting investigations.
- Legal framework
Measures against nationals need to be embedded in a solid and comprehensive legal framework, underpinned by good fisheries governance and by international laws and guidelines (e.g. those adopted by the UN, FAO, RFMOs and EU).
The effective prosecution of nationals also relies on strong flag, coastal, port and market State measures, where applicable. Port and market State measures, in the form of robust control and inspection procedures, are especially crucial for the successful application of measures against nationals. The effective control by flag States over their vessels and fishing authorisations, as well as strong monitoring, control and surveillance (MCS) systems and licence schemes by coastal States, are also required.
- Categorisation of the infringement in national legislation
This is a crucial element to successfully prosecute nationals involved in IUU fishing. The national legislation needs to describe all possible infringements in a comprehensive and clear manner, including the:
- Types of entity that can be prosecuted, for example, the shipowner, operator, reefer company, broker, insurance company, crew, etc.
- Types of offence that can be prosecuted, which must comprise a thorough description of what constitutes IUU fishing and supporting activities, including those related to stateless vessels, and related offences such as obstruction of inspection efforts.
- Form of relationship to the IUU fishing vessel or activity, for example, (beneficial) ownership or operation of an IUU vessel, financial or commercial activities linked to IUU activities, etc.
- Provision for prosecution of both natural and legal persons, as well as for joint and several liability.
- Grading of infringements (seriousness of the offence). In Spanish legislation, any infringement related to a vessel on an IUU vessel list is automatically upgraded to the next level of infringement with the associated sanction (e.g. a serious infringement by a blacklisted vessel is categorized as a very serious infringement).
- Powers of investigation and provisional measures
Wide powers of investigation need to be incorporated into national legislation. In the case of Operation Sparrow I and II, powers conferred in Spain’s legislation allowed authorities to undertake inspections of company records and premises, including of beneficial owners, which were key to obtaining the evidence required.
Authorities must be able to undertake inspections of all parts of a vessel, company premises or buildings, and even households (with a legal warrant, where appropriate). Spain’s law also includes an obligation to cooperate with the authorities during inspections, which, if not fulfilled (e.g. by concealing or destroying evidence, or refusing entry to inspectors), can result in a separate infringement – in this case, obstruction of inspection efforts.
For the purposes of carrying out and concluding an investigation, the national legislation should also include provisional or transitional measures, such as the possibility of retaining a vessel under release on bail.
- Intelligence gathering and reporting requirements
Spain has established an intelligence team to assess potential linkages of corporations and shipowners to IUU fishing and to investigate cases according to internal alerts and risk analysis. This proactive approach ensures that Spanish linkages to IUU fishing are identified as a basis for further action. Nationals enrolling as crew of a third-country flagged vessel are also required to notify the Spanish authorities of this fact.
- Dissuasive sanctions
Economic fines should be accompanied by the revocation of fishing licences for a significant duration, and a prohibition against access to subsidies of any kind in the future. The fines imposed by the Spanish government in Operation Sparrow I were the highest ever imposed by an EU government with respect to IUU fishing activities. Significantly, in terms of deterrence, the penalties also included suspension of fishing permits for between 5 and 23 years, and the prohibition against access to public funds for between 5 and 26 years.
- International cooperation
International and regional cooperation is key to securing a successful prosecution for IUU fishing infringements. Fishing activities are generally international in scope, with linkages to multiple countries in their capacities as flag, port, market and/or coastal States. IUU fishing, in particular, often occurs on the high seas or in EEZs where the level of control and surveillance is inadequate.
In recent administrative operations, Spanish authorities brought together the expertise, intelligence and evidence of several other countries, including Australia, Belize, Cape Verde, Indonesia and New Zealand, as well as other actors such as NGOs. Spain also cooperates with and through Europol and INTERPOL in its investigations, as well as through RFMOs.
As regards cooperation at the EU level, the mutual assistance mechanism of the EU IUU Regulation was fundamental to the success of recent Spanish cases concerning nationals, in particular, to determine the composition and shareholders of offshore companies controlled by the offenders.
Spain has also signed memoranda of understanding (MoUs) on cooperation and exchange of information with several third countries, with additional MoUs currently in preparation. In the case of developing countries, these aspects are generally reflected in broader schemes for the provision of fisheries development aid, as capacity and resources are a pre-condition for successful cooperation in terms of provision of evidence, inspections and/or intelligence.
- Internal cooperation
Investigations into IUU fishing will often concern a range of administrations, including fisheries, tax, finance, police, coastguard, customs and justice. Cooperation between these administrations is key, in particular to share evidence of additional crimes or infringements with the relevant competent authority or prosecuting power.
As IUU fishing can often be linked to other criminal activities, such as environmental crime, drug, weapons or human trafficking, and many crimes of a financial nature (money laundering, fraud, forging of documents, tax fraud, etc.), it can be helpful to provide training and education on IUU fishing to other administrations. Ideally this should be carried out systematically, but it can also be undertaken on a case-by-case basis, or at the request of a judge or other official involved in a procedure related to IUU. Exchanges of views, best practices and experiences can also be encouraged through other relevant fora.
The EU IUU Regulation sets out a detailed measures to assist member states in designing their enforcement and sanctioning mechanisms in national law to ensure perpetrators of IUU fishing are identified, investigated and prosecuted with effective, proportionate and dissuasive sanctions. Yet, many member states are failing to fully implement these measures, whether due to lack of political will, resources, enabling legal framework or recognition that their nationals could potentially be engaged in IUU fishing activities.
The recent investigations by Spain demonstrate the outcomes that may be achieved through implementation of a comprehensive legal framework, supported by strong political will and international and national level cooperation. Other EU member states (and countries outside of the EU) should take the opportunity to consider the lessons learnt from Spain’s experience and apply these to their national contexts. These lessons can assist in securing successful prosecutions of nationals engaged in a broad range of IUU fishing activities, including through beneficial or financial interests and trade in illegally sourced products.
The Spanish experience has shown that, while investigations may be lengthy, significant results can be achieved in terms of the dismantling of networks that perpetuate IUU fishing activities.
 Their last known flag prior to their destruction was Nigeria. The Viking was sunk by Indonesian authorities and Seabull 22 was scrapped in Cape Verde.
 A flag of convenience ship is one that flies the flag of a country other than the country of ownership. See http://www.itfglobal.org/en/transport-sectors/seafarers/in-focus/flags-of-convenience-campaign/.