Post by Anaïd Panossian, Legal expert in Law of the Sea and Fisheries.
In April 2014, the Spanish tropical tuna fisheries sector signed an agreement with the Spanish administration on 'third country vessels'. This agreement shall allow the Spanish government to apply the same requirements in terms of control, monitoring and surveillance to Spanish owned tuna companies, fishing under a non-EU flag as those applied to Spanish vessels flying an EU flag. It concerns vessels under joint ventures, including with The Seychelles.
Such an agreement was mainly motivated by the constraints imposed by the European Union in the implementation of its IUU regulation for the import of fish products. It should help to facilitate the paperwork required by the IUU regulation to integrate the EU market, since the vessels would meet the requirements of the EU legislation.
This agreement should allow easier tuna landings of these vessels flying non-EU flags on the EU markets. This agreement is also part of a broader initiative of Spain to demonstrate its commitment against IUU fishing and for greater transparency in global tuna fisheries.
A report by Louis Leroy-Warnier, mainly based on interviews with Spanish stakeholders, investigates the rationale for, the strengths and limitations of this agreement, and the opportunity of a transposition of such agreement at the European level.
This type of agreement raises some questions.
It is first encouraging to see that efforts are made to monitor the activities of the fleets who are not anymore under the flag of an EU Member State but whose capital remains European.
Indeed, large gaps remain on the management of fleets of European origin now operating under joint ventures, chartering or private agreements. Such a system could help lead the way to better monitor these fleets.
Questions can be raised about the legal validity of such an agreement since it does not seem to be binding. How does the Spanish administration intend to ensure effective control of these fleets? With what means?
The report questions the administration's liability in case of non-compliance with the provisions of this agreement. But since it is not a priori a binding agreement, it should not be possible.
The role of the flag State should also be clarified in this case, because the first obligation of control and monitoring of its fleets is with the flag state. How can such an agreement be consistent with such obligations?
In any event, it is certainly a step forward, the significance of which still needs to be evaluated, but certainly is in line with a strengthening of monitoring and control of fleets with European capital that are no longer EU flagged. This initiative could be reproduced by other Members States and other EU companies, until the EU itself finalizes an appropriate framework establishing conditions for the establishment and monitoring of EU capital based fishing joint ventures in third countries, the creation of which is in particular encouraged through its bilateral fisheries agreements, and other types of access such as chartering and private agreements by its Member States.