Originally from Natural Resources and the Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources in Areas under National Jurisdiction and Beyond - International Law Institute Series on International Law, Arbitration and Practice, Volume 2

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I.    INTRODUCTION

Council Regulation (EC) No. 1005/2008 establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing (hereinafter the IUU Regulation)  is a legal instrument adopted by the European Union (EU) which in recent years has been extensively deployed to keep fishery products that have not been fished in accordance with international law, off the EU market. It creates several interrelated market mechanisms to this effect, one of which is the possibility for the EU to restrict trade in fishery products coming from third countries that, according to the European Commission (hereinafter, the Commission), have failed to fulfil certain fishing related obligations under international law. The IUU Regulation refers to these countries as non-cooperating third countries. Once identified as such, they are put on what I refer to here as the EU’s “third country blacklist.” 

The EU’s involvement in enforcing international fisheries-related obligations on third countries raises several issues. This article focuses on one of them, namely the ambiguity and lack of transparency in the IUU Regulation’s threshold for determining when a third country has failed to fulfil its fisheries-related obligations under international law. This ambiguity and lack of transparency, in both the substantive and procedural aspects of blacklisting, is problematic for various reasons. For example, the question remains whether or not the EU operates lawfully from the perspective of the rules of the World Trade Organization (WTO), of which it is a member. This is more difficult to assess because of the lack of transparency in the Regulation. Furthermore, there is a growing body of jurisprudence on the level of responsibility that is required from States to ensure that certain fishing activities are not carried out, whether by their nationals and vessels flying their flag or by others in their Exclusive Economic Zone (EEZ). Does the Regulation’s threshold for determining that a third country has failed to discharge its flag State duties under international law differ from that standard, and does the Regulation set a higher threshold? Again, in order to answer this question, the Regulation and the Commission’s application of its provisions could benefit from more transparency. 

In light of the above, this chapter is structured as follows. Part II will introduce the IUU Regulation and, in particular, the substantive requirements that the EU utilizes to establish the third country blacklist. Part III will outline some of the international obligations the Regulation aims to enforce, and discuss the issues this raises. Part IV will detail the procedural requirements for blacklisting third countries. I will then offer some concluding remarks.