European Union Backtracks on Deep-sea Protection

10 October 2008

The annual meeting of the Northwest Atlantic Fisheries Organization (NAFO), which took place in Vigo, Spain September 22-26 2008, failed to take the necessary steps to fully implement the 2006 UNGA resolution on the protection of deep-sea ecosystems on the high seas.

In adopting the 2006 resolution, high seas fishing nations agreed to, among other measures: assess the impact of all bottom fishing; identify areas where vulnerable marine ecosystems (VMEs) such as concentrations of deep-sea corals and sponges are known or likely to occur; and implement measures to protect these ecosystems from bottom fishing, in particular bottom trawling, by December 31, 2008 or close these areas altogether to bottom fishing.

Unfortunately, NAFO countries* did not follow through on this commitment in Vigo, nor have NAFO member countries agreed to a follow-up process over the coming months to meet the timeline set by the UN GA Resolution and agreed by NAFO itself at a meeting earlier this year in May 2008.

The European Community has the largest fleet of vessels bottom fishing on the high seas in the Northwest Atlantic. The role of the European Community in the NAFO negotiations was particularly disturbing - rather than play a lead role for conservation and the implementation of the UN GA resolution, EC negotiators backtracked on the stated policy of the European Union on this issue over the past two years.

This policy was announced by the Commission with great fanfare in November 2006:

"EU united in call for effective action against destructive fishing methods at UN General Assembly

"The European Union will again be calling for an effective package of measures to tackle the impact of destructive fishing practices on the high seas at the UN General Assembly debate on sustainable fisheries which resumes today in New York. The Member States of the EU have given their unanimous support to the position that will be advanced by the European Commission on their behalf. Based on the conviction that Regional Fisheries Management Organisations (RFMOs) are key to the effective governance of high seas fisheries, the Commission will propose a radical overhaul to the regulatory approach by both RFMOs and States. Today, any activity that is not regulated is implicitly permitted. In the future, fishing with bottom gears that may have adverse impacts on vulnerable ecosystems would need to be assessed before it is authorised. This far-reaching change in the way in which fishing activities with potential destructive effects are regulated represents a decisive step forward in ensuring both better fisheries governance and effective environmental protection." [emphasis added].

The statement specifically acknowledged that as a result of its adoption areas containing vulnerable marine ecosystems would need to be closed, including in areas where fishing is already taking place: "It includes the call for a freeze on the current footprint of bottom fishing, so as to prevent its extension into new areas. It would also mean the immediate closure of all known vulnerable habitats to destructive fishing practices while continuing current efforts to map such sites. Both these measures are to be implemented through RFMOs where these exist. Where there are no RFMOs yet, they should be implemented through the unilateral action of Flag States concerning their own vessels, or through interim agreements between Flag States, pending the establishment of an RFMO.

"The EU is also calling for the reversal of the burden of proof in establishing in which areas of the high seas bottom fishing may continue to be carried out. That is, rather than assuming that bottom fishing within the existing footprint is harmless to deep sea ecosystems unless it can be demonstrated otherwise, flag states and RFMOs will require clear evidence of the non-harmful nature of fishing activities for the vessels concerned to retain their licences." http://ec.europa.eu/fisheries/press_corner/press_releases/archives/com06/com06_82_en.htm

Shortly after the EU policy was announced, the UN GA adopted resolution 61/105 in December 2006 calling for urgent action to protect vulnerable marine ecosystems (VMEs) from bottom fisheries on the high seas, included several provisions which closely mirrored the EU position. The resolution called on all high seas fishing nations to conduct environmental impact assessments of all bottom fishing activities, and to close areas where VMES are known or likely to occur unless or until regulations were in place to prevent serious damage to these ecosystems. This latter provision in particular came the closest to incorporating the "reverse burden of proof" advocated by the European Union.

Commissioner Borg welcomed the adoption of the resolution by the UN GA at the time, recognizing that the measures it contained reflected to a large extent the EU position. He noted that while the Commission had supported even stronger provisions in some respects, the resolution nonetheless contained a "powerful package of measures which should lead to the elimination of destructive fishing impacts on vulnerable habitats."

Commissioner Borg's views were echoed by a joint statement of all European Union member countries to the UN General Assembly in December 2006 during the debate on the adoption of the resolution:

"The agreement we have reached under this year's draft resolution is important, although the European Union would have preferred a stronger outcome. It is now up to regional fisheries management organizations and States in respect of their flagged vessels to assume that fishing that has adverse impacts on vulnerable marine ecosystems must be tightly regulated to prevent such impacts or prohibited when prevention is not possible.

States and regional fisheries management organizations must responsibly discharge the duties they have contracted under the law of the sea and be ready to stand accountable before the international community. The protection of the marine environment, and in particular vulnerable marine ecosystems, is a common responsibility. The European Union is committed to taking expeditious action, in conjunction with its partners, in following up on what has been agreed by the General Assembly."1

In 2007, in a Communication from the European Commission on "Destructive fishing practices in the high seas and the protection of vulnerable deep sea ecosystems," the Commission stated in reference to the implementation of the UN GA resolution that:
"It is important to underline that RFMO members can choose to apply stricter rules to their vessels and operators if they so wish. The EU should aim at ensuring that RFMO measures attain a high degree of protection and effectiveness in preventing destructive fishing impacts. However, the EU must reserve itself the right to adopt stricter rules for itself if it considers that the RFMO measures do not go far enough in this respect."

Fast forward to 2008 as the UNGA resolution goes through the process of implementation by Regional Fisheries Management Organizations.

NAFO adopted a framework agreement to implement the UN GA resolution May 2008. The EC and Canada had originally proposed an agreement for the implementation of the UN GA resolution at the NAFO Annual Meeting in September 2007. However, this was not agreed and instead NAFO decided to hold an Extraordinary Meeting in May 2008 to adopt measures to implement the UN GA resolution. Unlike in 2007, however, the EC proposal to the May meeting would have delayed full implementation of the UN GA resolution until 2011, despite the fact that the UN General Assembly set a deadline of December, 2008. This was an early sign of the EC backtracking on its international commitment. Fortunately, a number of other NAFO parties argued in favor of meeting the 2008 deadline, and ultimately an expedited process was agreed so that specific measures and regulations could be adopted at the Annual Meeting of NAFO in September.

Unfortunately, however, in September, NAFO failed to act to implement key provisions of the UN GA resolution on protecting vulnerable marine ecosystems due in large part to the EC.

NAFO Contracting Parties reviewed information on the known locations of VMEs, primarily concentrations of corals and sponges, in addition to seamounts and canyon areas in the high seas portions of the NAFO convention - the NAFO "Regulatory Area".

Six areas within the NAFO Regulatory Area were identified as VMEs, in addition to a depth extension of the Division 30 coral area closed in 2007, which automatically should have led to their closure under the terms of the 2006 UNGA resolution. This should have automatically triggered their closure unless or until regulations were in place to prevent significant adverse impacts under the terms of the 2006 UNGA resolution2. All the data used to identify these areas as VMEs came from 2003-2007 trawl surveys conducted by Canada and Spain and was based on concentrations of corals and sponges as recorded in trawl contents. Additional data included concentrations of long lived fish species and the existence of unique habitats such as seamounts and canyons in accordance with recently adopted FAO Guidelines on the management of deep sea fisheries on the high seas. However, NAFO did not agree that these areas would be closed, or to regulate bottom fisheries within these areas to prevent significant adverse impacts. Rather, NAFO decided that more information was necessary before any of these areas would be closed to bottom trawl fishing, or otherwise subject to more restrictive measures. Why?

The Spanish fishing industry (Spain has the largest deep sea trawl fleet fishing in the NAFO area) has often argued that in historically fished areas on the high seas, where bottom trawl fisheries have taken place, any corals or VMEs that may have previously existed in these areas have already been destroyed - thus there is no point in closing any of these areas to bottom trawling. Apparently, a number of NAFO Contracting Parties, including the EC, agreed with this argument. They were reluctant to agree to close any areas where fishing currently or has previously occurred - i.e. in "historically" fished areas - arguing that if VMEs were found within historically fished areas, there must not be a conflict with fishing activity.

This position is counter to the approach taken within the EEZ's of NAFO Contracting Parties, where areas of corals have been closed in heavily fished areas. In addition, this position ignores the important fact that fishing activity is inherently patchy in nature, with some areas being heavily trawled and others very lightly trawled. This pattern was evident in data presented by the NAFO Secretariat on the extent and location of bottom trawl fishing in the NAFO Regulatory Area over the past six years. Several of the VMEs identified were, in fact, in lightly fished areas. The failure to close the six high seas areas to bottom trawl fishing, or to agree to regulate bottom trawling in these areas to prevent significant adverse impacts from bottom trawling, was in direct contravention of the UN GA resolution, and EC support for this approach runs directly counter to the stated position of the European Commission.

In the meantime, what will happen to corals, sponges and other vulnerable species in these areas - especially considering that the fishing industry may take the view that these areas could be closed in 2-3 years time?

NAFO did agree to a "move-on" rule - meaning that fishing vessels are required to move two nautical miles from an area where they have accidentally encountered VMEs by bring up corals or sponges in the nets. However, the effectiveness of this measure as a means of protecting VMEs is questionable given that the move-on rule only applies if a vessel brings up more than a half tonne (1000kg) of sponges or 200kg of corals in the nets. There is also a question of enforcement - how will NAFO enforce the rule? Given past track records, this is hardly a prudent decision. It should also be noted that the thresholds agreed in the encounter protocol were well above those recommended by NAFO's Joint Working Group of Fisheries Managers and Scientists which met just prior to the NAFO Annual Meeting.

NAFO also agreed that "new" or previously unfished areas would be subject to an "exploratory" fisheries protocol. However, the protocol does not require prior impact assessments before allowing fishing in pristine deep-sea areas, nor does it provide any protective measures for pristine areas other than the "move-on" rule mentioned previously.

Finally, neither the Commission, nor Member States whose vessels bottom trawl fish in the NAFO Regulatory Area, have conducted impact assessments of fishing activities planned by EC vessels in 2009, nor has a process been put in place by which to conduct such assessments. Again, this is in contravention of a key provision of the UN General Assembly resolution which calls on all flag States and RFMOs to conduct impact assessments of bottom fishing activities on the high seas before 31 December 2008 and, on the basis of the impact assessments, ensure that bottom fisheries either do not cause significant damage to deepwater corals, sponges and other VMEs or prohibit their vessels from bottom fishing.

While NAFO did agree to close two additional seamounts this year (in addition to four closed in 2006) 20% of all seamounts areas are still open to exploratory fishing and this will not be reviewed until 2010. Last year, NAFO closed one area of known coral concentration based on data from trawl surveys since 2003. This was seen as a significant step by the organization. Ironically, the same information was used this year to identify additional areas, but Spain in particular argued that the data was not recent enough, and made public statements in the Spanish media discrediting the data sources that had been positively assessed the previous year.

NAFO has asked its Scientific Council to further refine the coral data by January 2009, and the sponge data by June 2009. A meeting of the Joint Working Group will be held in early 2009 as well, however there is no process in place to agree on recommendations put forward by this committee until the NAFO Annual Meeting in September 2009. Furthermore, Spain has announced that it will send a research vessel to the Northwest Atlantic in 2009 and 2010 to survey deep sea ecosystems in the region. This is a welcome initiative but it may mean any measures, if agreed, would not be put in place until the 2010 or 2011 fishing year once the research survey results are in, well after the deadlines NAFO and its Contracting Parties agreed to within the organization and at the UN General Assembly.

In the final coup de grace, Commissioner Borg put out a press release welcoming continued progress in NAFO to protect the marine environment. One can only wonder how it is that fishing industry lobbyists were able to overturn the unanimously agreed policy by Member States with no transparency or public accountability. The UN GA resolution, so warmly welcomed by Commissioner Borg in 2006, has not yet been translated into meaningful action on the water in the NAFO area. . This begs the question as to whether these organizations are up to the task, and whether the UN GA should reconsider the original moratorium proposal - a black-and-white agreement which would remove all of the shades of gray exploited by the fishing industry lobby and its backers in the European commission and elsewhere.

The EU's role in this is critically important. EC fleets take the majority of the fish caught on the high seas in the Northwest Atlantic using bottom gear, primarily bottom trawl gear, the method of fishing most destructive to deep-sea corals, sponges and other vulnerable marine ecosystems. NAFO's failure to agree to regulations to fully implement the UN GA resolution cannot be blamed entirely on the EU - other NAFO countries apparently were also reluctant to close any areas to bottom fishing where their vessels are currently fishing or have fished in the past. Nonetheless, the EC bears the lion's share of the responsibility for implementing protection measures and should have shown leadership in working with other countries in obtaining a much stronger agreement from NAFO. And even if other NAFO countries were not willing to go along, what happened to the EU's reserving for itself "the right to adopt stricter rules for itself if it considers that the RFMO measures do not go far enough"?

Clearly the EU is backtracking and this does not bode well for the effective implementation of the UN GA resolution in the Northwest Atlantic, the Northeast Atlantic (the North East Atlantic Fisheries Commission meets in November) and elsewhere. The EU has adopted a good regulation for the management of EC fleets bottom trawling on the high seas in the Southwest Atlantic but it remains to be seen whether and how effectively this will be implemented. The EU has the largest fleet of bottom trawl vessels fishing on the high seas worldwide. The 2006 UN GA resolution represents a commitment on the part of high seas fishing nations to address and solve a serious problem of concern to the international community as a whole. The success or failure of the UN GA resolution to protect deep-sea biodiversity on the high seas will in large depend on the willingness of the EU to implement the resolution and effectively regulate its high seas fleets. The jury is still out on this, but the signal sent by the European Community at NAFO raises serious concerns.


* Canada, Cuba, Denmark (on behalf of of the Faroe Islands and Greenland), the European Union, France (on behalf of St Pierre and Miquelon), Iceland, Japan, Republic of Korea, Norway, Russia, Ukraine and the United States

1 Statement to the United Nations General Assembly upon the adoption by the UN GA of resolution 61/105 by Mr. Hakapaa (Finland) on behalf of the European Union. Agenda Item 71: Oceans and law of the sea. 7 December 2006. (Official Records of the UN General Assembly, A/61/PV.68)

2 The 2006 UN General Assembly resolution called on States and RFMOs (e.g. NAFO) to "close such areas [where VMEs are known or likely to occur] to bottom fishing and ensure that such activities do not proceed unless it has established conservation and management measures to prevent significant adverse impacts on vulnerable marine ecosystems" (para 83c of UN GA res 61/105).