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Source: US Global Legal Monitor

(Dec. 1, 2020) Illegal fishing in West Africa has been a longstanding challenge in the region, threatening livelihoods, nutritional security, and export revenues, while also causing damage to marine environments and contributing to increased pollution. Now a new app, developed by the Environmental Justice Foundation (EJF) and launched on November 10, 2020, can be used by communities to gather evidence against illegal vessels, mostly industrial trawlers.

As the EJF notes, the new app is a simple, user-friendly tool based on the Collect software program. Community members can open the app and take a photograph of the allegedly illegal vessel, capturing its name and/or ID number, and record the vessel’s location. The app then automatically provides the evidence to a central database, which the authorities concerned can use to identify perpetrators.

Illegal, Unreported, and Unregulated Fishing

Multiple international organizations, nongovernmental organizations, and intergovernmental organizations have been involved in combatting illegal fishing in West Africa. According to estimates of the Food and Agriculture Organization of the United Nations (FAO), approximately 7 million people in the region depend directly on fishing as a source of income, and illegal fishing amounts to more than US$2 billion in lost profits annually.

While the international legal framework governing fisheries is quite complex, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes the basic rights and duties of states in relation to all maritime activities. UNCLOS has 168 parties, and there is a healthy debate among academics and practitioners whether its provisions reflect customary international law. Article 57 of UNCLOS grants states an exclusive economic zone of 200 nautical miles from the coast “for the purpose of exploring and exploiting, conserving and managing the natural resources … [in] the zone.” However, the EJF reports that illegal industrial trawlers have been consistently invading the exclusive economic zones in the region due to lack of resources and governance to combat the practice.

The World Bank has also played a role in combatting illegal, unreported, and unregulated (IUU) fishing in the region, beginning with its implementation of the West Africa Regional Fisheries Program (WARFP) in 2010. The WARFP was specifically designed as a regional program to address three key constraints for West Africa: (a) lack of capacity to govern and manage the resource sustainability and prevent overexploitation, (b) inability to prevent IUU fishing, and (c) failure to add value locally to caught fish.

As has been noted by the International Labour Organization and the International Organization for Migration, the issue of IUU fishing can also lead to transnational crimes, such as human trafficking, forced labor, and exploitation of migrant and youth workers. In addition, the United Nations Sustainable Development Goal (SDG) Target 14.6 is “eliminating subsidies to illegal, unreported and unregulated fishing and for prohibiting certain forms of fisheries subsidies that contribute to overcapacity and overfishing, with special and differential treatment for developing and least-developed countries.”

FAO Plan of Action

The FAO developed an International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Plan of Action) in 2001. The International Institute for Sustainable Development (IISD) notes that

[t]he Plan of Action is a voluntary instrument developed within the framework of the FAO Code of Conduct for Responsible Fisheries. It offers the advantage that it is formulated in general terms and can apply to all states, entities and fishers. Paragraph 3 of the Plan of Action describes IUU fishing as (i) fishing that contravenes national laws, the rules of regional fisheries management organizations (“RFMOs”) or other rules of international law, (ii) fishing that is not reported or misreported as a matter of national law and the rules of RFMOs and (iii) fishing that is not currently captured by fisheries conservation and management measures and is conducted in a manner inconsistent with state responsibilities for the conservation of living marine resources under international law. The unique feature of this description is that it does not itself prohibit or otherwise regulate fishing. Instead, Paragraph 3 refers to national law, RFMO rules and other rules of international law. It also makes it clear that it is those laws that actually define what is or is not covered by its description of IUU fishing.

The World Trade Organization, which is currently in the process of developing its own rules on the prohibition of IUU fishing subsidies, also relies on the definition in the FAO’s 2001 Plan of Action. Interpol, the International Criminal Police Organization with 190 member countries, has increasingly been involved in combatting illegal fishing in West Africa through its Fisheries Crime Working Group. The agency has identified several modi operandi common in fisheries crime, including surveillance avoidance, transhipment, abuse of vessel registries, licensing abuses, and interactions with artisanal vessels and sisterships.

The newly developed EJF app should provide a useful tool for communities plagued by IUU fishing to increase surveillance and provide evidence to prevent further outside exploitation of their exclusive economic zones. As the Fisheries Programmes Manager of EJF notes, illegalities are reported often, but fishers are commonly unable to provide accurate evidence of the incidents for the law to be applied to the offenders.