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Tackling IUU Fishing: Developing a Holistic Legal Response

Published online by Cambridge University Press:  10 November 2017

Barış Soyer ,
George Leloudas  and
Dana Miller
Barış Soyer
Affiliation:
Institute of International Shipping and Trade Law, Swansea University (United Kingdom (UK)) Email: b.soyer@swansea.ac.uk.
George Leloudas
Affiliation:
Institute of International Shipping and Trade Law, Swansea University (UK). Email: g.leloudas@swansea.ac.uk.
Dana Miller
Affiliation:
Institute for the Oceans and Fisheries, University of British Columbia, Vancouver, BC (Canada). Email: dmiller@oceana.org.
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Abstract

Illegal, unreported and unregulated (IUU) fishing is a global problem, which threatens marine ecosystems in addition to putting food security and regional stability at risk. It is often linked to major human rights violations and even organized crime. Legal measures, such as introducing monitoring and surveillance systems or denying services to vessels engaged in IUU fishing, are often implemented at national and international levels to combat such practices. Academics and economists have suggested that IUU fishing might be discouraged equally well by taking the profit out of it. Building on this premise, this article analyzes the extent to which the availability of liability insurance contributes to the problem of IUU fishing. To this end, an empirical study has been carried out, which supports the contention that vessels suspected of involvement in IUU fishing have no serious difficulty in obtaining liability insurance from the market and insurance sector, thereby inadvertently facilitating IUU fishing. The authors conclude that to deter IUU fishing, access to insurance for those involved in it should be restricted. Some success can be achieved if certain steps are taken to improve the risk assessment procedures of underwriters. However, it is advocated that the most effective approach would be the reform of European Union or domestic legislation and putting providers of liability insurance under a clear positive obligation to refuse cover to those involved in IUU fishing.

Keywords

Illegalunreported and unregulated (IUU) fishingEmpirical studyLiability insuranceUnderwriting practicesEuropean Union (EU) legislationBrexit
Type
Articles
Information
Transnational Environmental Law , Volume 7 , Issue 1 , March 2018 , pp. 139 - 163
Copyright
© Cambridge University Press 2017 

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Footnotes

The authors gratefully acknowledge the support of the Waterloo Foundation towards carrying out the research upon which this article is based. The authors also wish to express their gratitude to Daniel Pauly and U. Rashid Sumaila for their academic support.

References

1 Food and Agriculture Organization of the United Nations (FAO), The State of World Fisheries and Aquaculture 2016: Contributing to Food Security and Nutrition for All (FAO, 2016), pp. 38 Google Scholar and 35 respectively (FAO Report).

2 Ibid., p. 81.

3 The term ‘illegal, unreported and unregulated fishing’ (IUU fishing) is formally described in FAO, International Plan of Action to Prevent, Deter and Eliminate IUU Fishing (FAO, 2001) (IPOA-IUU), available at: http://www.fao.org/docrep/003/y1224e/y1224e00.htm. The authors acknowledge that there is an ongoing debate on the precise definition of IUU fishing and, in particular, the possible overlap between the three components of the term – namely illegal, unreported, and unregulated: see FAO, Report of the Expert Workshop to Estimate the Magnitude of Illegal, Unreported and Unregulated Fishing Globally (FAO, 2015), pp. 26–35, available at: http://www.fao.org/3/a-i5028e.pdf. It is also acknowledged that there could be instances of unregulated and unreported fishing which do not amount to ‘contravention of national laws or RFMO [Regional Fisheries Management Organizations] conservation and management measures’ (ibid., p. 34). It is outside the scope of this article to engage in this debate. In most instances, those involved in unregulated or unreported fishing are involved in illegal fishing activities as well. The insurance-related analysis in Section 3 below cuts across these three components, in that it focuses on illegality in the broad sense of ‘contravention of national laws or RFMO conservation and management measures’. In a similar vein, the discussion of regulatory aspects in Section 4 below follows the formal definition of the IPOA-IUU as reproduced in almost identical terms in Art. 2(2)–(4) of EU Regulation (EC) No. 1005/2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Amending Regulations (EEC) No. 2847/93, (EC) No. 1936/2001 and (EC) No. 601/2004 and Repealing Regulations (EC) No. 1093/94 and (EC) No. 1447/1999 [2008] OJ L 286/1 (EU IUU Regulation).

4 Agnew, D.J. et al., ‘Estimating the Worldwide Extent of Illegal Fishing’ (2009) 4 PLOS ONE, pp. 1–8 CrossRefGoogle ScholarPubMed, at 4.

5 Pramod, G. et al., ‘Estimates of Illegal and Unreported Fish in Seafood Imports to the USA’ (2014) 48 Marine Policy, pp. 102–113 CrossRefGoogle Scholar, at 105.

6 Agnew et al., n. 4 above, p. 1.

7 K. Bray, ‘A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing’, FAO, 2000, Doc. AUS:IUU/2000/6, available at: http://www.fao.org/docrep/005/Y3274E/y3274e08.htm.

8 Ibid.; J.M. Davis, ‘Monitoring Control Surveillance and Vessel Monitoring System Requirements to Combat IUU Fishing’, FAO, 2000, Doc. AUS:IUU/2000/14, available at: http://www.fao.org/docrep/005/y3274e/y3274e0g.htm.

9 Bray, n. 7 above; Swan, J., ‘Port State Measures to Combat IUU Fishing: International and Regional Developments’ (2006) 7(1) Sustainable Development Law & Policy, pp. 38–43 Google Scholar.

10 Swan, ibid.; Erceg, D., ‘Deterring IUU Fishing through State Control over Nationals’ (2006) 30(2) Marine Policy, pp. 173–179 CrossRefGoogle Scholar. The most important international measure against IUU fishing is the binding FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing of 2009, Rome (Italy), 22 Nov. 2009, in force 5 June 2016, available at: http://www.fao.org/3/a-i5469t.pdf (PSMA). Further discussion on this measure will follow in this section.

11 Ogden, R., ‘Fisheries Forensics: The Use of DNA Tools for Improving Compliance, Traceability and Enforcement in the Fishing Industry’ (2008) 9(4) Fish and Fisheries, pp. 462–472 CrossRefGoogle Scholar; Jacquet, J. et al., ‘Conserving Wild Fish in a Sea of Market-Based Efforts’ (2010) 44(1) Oryx, pp. 45–56 Google Scholar.

12 I. Urbina, ‘A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes’, The New York Times, 28 July 2015, available at: http://www.nytimes.com/2015/07/28/world/a-renegade-trawler-hunted-for-10000-miles-by-vigilantes.html.

13 Environmental Justice Foundation (EJF), Pirate Fishing Exposed: The Fight against Illegal Fishing in West Africa and the EU (EJF, 2012)Google Scholar.

14 N. 3 above.

15 N. 10 above.

16 N. 3 above.

17 EU IUU Regulation, n. 3 above, Ch. VII.

18 PSMA, n. 10 above, Arts 9, 11 and 18. See also Flothmann, S. et al., ‘Closing Loopholes: Getting Illegal Fishing under Control’ (2010) 328(5983) Science, pp. 1235–1236 CrossRefGoogle ScholarPubMed.

19 As of June 2017, the PSMA had 48 parties. For the challenges associated with implementing the requirements of the PSMA, see M. Camilleri, ‘The FAO Port State Measures Agreement: Towards Its Effective Implementation’, Royal Institute of International Affairs, 10th International Forum on IUU Fishing, 16–17 Mar. 2017, available at: http://www.chathamhouse.org/sites/files/chathamhouse/Matthew%20Camilleri.pdf.

20 Schmidt, C., ‘Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing’ (2005) 20(3–4) International Journal of Marine and Coastal Law, pp. 479–507 CrossRefGoogle Scholar; Sumaila, U.R., Alder, J. & Keith, H., ‘Global Scope and Economics of Illegal Fishing’ (2006) 30(6) Marine Policy, pp. 696–703 Google Scholar, at 697.

21 Sutinen, J.G. & Kuperan, K., ‘A Socio Economic Theory of Regulatory Compliance’ (1999) 26(1) International Journal of Social Economics, pp. 174–193 CrossRefGoogle Scholar.

22 Sumaila, Alder & Keith, n. 20 above, p. 697.

23 Gallic, B. & Cox, A., ‘An Economic Analysis of Illegal, Unreported and Unregulated (IUU) Fishing: Key Drivers and Possible Solutions’ (2006) 30(6) Marine Policy, pp. 689–695 CrossRefGoogle Scholar, at 690.

24 London (UK), 23 Mar. 2001, in force 21 Nov. 2008, available at: http://www.imo.org/en/About/conventions/listofconventions/pages/international-convention-on-civil-liability-for-bunker-oil-pollution-damage-(bunker).aspx. The Bunkers Convention requires the registered owner of ships of over 1,000 gross tonnage to obtain compulsory insurance against oil pollution damage from bunker oil or have in place financial security (Art. 7). In order to prove that the compulsory insurance or financial security is in place, the vessel carrying the flag of a contracting state should carry on board a Bunkers Convention Certificate. Similarly, a vessel, although she does not carry the flag of a contracting state, would be required to present a Bunkers Convention Certificate in order to enter into a port in a contracting state. This means that fishing vessels over 1,000 gross tonnes will need to have such a certificate in place if they are flying the flag of a contracting state or attempting to enter into a port in a contracting state. As of June 2017, the Convention had 84 parties.

25 For more extensive findings of the authors who worked with other academics on this project, see Miller, D. et al., ‘Cutting a Lifeline to Maritime Crime: Marine Insurance and IUU Fishing’ (2016) 14(7) Frontiers in Ecology and the Environment, pp. 357–362 CrossRefGoogle Scholar.

26 P&I clubs are mutual insurance organizations which traditionally provide cover for a wide range of third party liabilities – such as collisions, pollution, loss of life, personal injury and illness, wreck removal, and also fines – arising from the operation and use of the entered vessels. The cover generally includes civil penalties, exemplary damages and other impositions similar in nature to fines. Although the maxim ex turpi causa non oritur actio (a tainted source gives rise to no cause of action) would certainly prevent the benefit of a policy of life insurance to accrue to the murderer of the assured, the maxim must be applied with caution when it comes to liability insurance. If the assured is not allowed to recover for fines imposed at all, this would to a large extent defeat the purpose of such insurance. Furthermore, recovery for fines in this context would not be against public policy, as stressed by Friedman J in Shooter v. Incorporated General Insurances Ltd (The Morning Star) 1984 4 SA 269, pp. 282–4, especially if the assured itself is not at fault. In practice, cover for fines is generally provided only where the owner is not personally at fault, and often only as a matter of discretion.

27 Central to the operation of P&I clubs is the concept of mutuality – i.e. that their members, usually shipowners, insure each other, being at the same time assured and insurer. As a result, and in contrast to commercial insurers, the clubs are non-profit organizations that prioritize the insurance needs of their members. This is reflected in the omnibus rule that appears in the Rule Book of most P&I clubs – namely, that the directors of the clubs have discretion to settle claims that fall outside the cover provided by the club provided that they are P&I in nature. No such discretion is normally exercised by commercial insurers. It should also be borne in mind that P&I clubs which have formed the International Group of P&I Clubs (IG) operate a pooling agreement and obtain reinsurance cover. Such measures help to keep the cost of insurance cover low compared with the cover provided by commercial insurers.

28 For the 2015–16 statistics, see FP Marine Risks, ‘P&I Review 2015–2016’, available at: http://www.fp-marine.com/content/uploads/2015/12/PI-Review-15-16-final.pdf.

29 Recovery might be possible for pollution liability caused by bunkers, as the Bunkers Convention 2001 (n. 24 above) allows third parties to bring direct action against liability insurers for such claims (Art. 7(10)). As against a third party, a liability insurer (which will invariably be a P&I club) may invoke all the defences under the Convention which the assured would have been able to take (i.e., damage resulting from an act of war, hostilities, civil war, insurrection; or a natural phenomenon of an exceptional, inevitable and irresistible character; or damage resulting from an act or omission done with the intent to cause damage by a third party; or damage resulting from the negligence or other wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function), together with an additional defence where the pollution damage arises out of the assured’s wilful misconduct. However, other defences which a liability insurer may have been able to raise against the assured under the contract cannot be raised in any direct action brought against the insurer. The position would be the same for wreck removal liabilities given that Art. 12(10) of the Nairobi International Convention on the Removal of Wrecks (Nairobi, (Kenya), 18 May 2007, in force 14 Apr. 2015, available at: http://www.imo.org/en/About/conventions/listofconventions/pages/nairobi-international-convention-on-the-removal-of-wrecks.aspx) allows direct action against the liability insurer by third parties.

30 The Shipowners’ Club Rules 2016, 25 Jan. 2016, available at: https://www.shipownersclub.com/publications/club-rules-2016. Other clubs offering cover for fishing vessels have similar provisions: see, e.g., Rule 23 of British Marine, ‘Terms and Conditions 2015–16’, available at: https://www.britishmarine.com/documents/products/BM_PI_Terms_Jan_2015.pdf.

31 The matter will be discussed further below in this section.

32 An example of such an exclusion may provide as follows: ‘No claim shall be recoverable from the club if it arises out of or is consequent upon the entered vessel carrying contraband, blockade running or being employed in an unlawful trade, or if the committee having regard to all circumstances shall be of the opinion that the carriage, trade, voyage, or any other activity on board or in connection with the insured vessel, was imprudent, unsafe, unduly hazardous or improper’ (this kind of exclusion often appears in P&I rules).

33 As indicated earlier (see n. 3 above), it needs to be stressed that not all IUU fishing is necessarily illegal. Technically speaking, unregulated fishing occurs because (a) there is no RFMO to regulate the stock in the geographical area, or (b) it is a new and unregulated stock, or (c) the stock is fished within the boundaries of an RFMO that has a regulatory focus on other species, or (d) fishing occurs within the boundaries of an RFMO and the vessel implicated is either without nationality or registered in a country not party to the RFMO. A vessel that incurs liability when involved in unregulated fishing activity could, therefore, be able to recover from liability insurers. However, it is common to see in practice that vessels are often involved not only in unregulated fishing activities, but also fish illegally – that is, they fish in waters under the jurisdiction of a state, without the permission of that state, or in contravention of its laws and regulations; or operate in contravention of the conservation and management measures adopted by that organization and by which the states are bound, or relevant provisions of the applicable international law; or in violation of national laws or international obligations, including those undertaken by cooperating states to a relevant regional fisheries management organization.

34 Royal Boskalis Westminster v. Trevor Rex Mountain [1997] LRLR 523, per Rix J, p. 589. On appeal, Phillips LJ indicated that a s. 41 warranty ‘probably refers to English law, not foreign law’, but did not express a final view: see [1999] QB 674, p. 736. See also Sea Glory Maritime Co. v. Al Sagr National Insurance Co. (The Nancy) [2013] EWHC 2116 (Comm), [2013] 2 All ER 913, Blair J at [295]. It is not thought that the submission made here is affected by the recent decision of the Supreme Court on the illegality principle in general in Patel v. Mirza [2016] UKSC 42; [2016] 3 WLR 399.

35 Most of such rules are incorporated into English law by secondary legislation: see, e.g., the Iraq (United Nations Sanctions) Order 2003 (SI 2003/1519), which incorporates United Nations (UN) sanctions against Iraq.

36 See, e.g., Foster v Driscoll [1929] 1 KB 470, and Regazzoni v. K.C. Sethia (1944) Ltd [1956] 2 QB 490; also, more recently, Beijing Jianlong Heavy Industry Group v. Golden Ocean Group Ltd [2013] EWHC 1063 (Comm); [2013] 1 CLC 906, at [17]–[20]. See also Euro Diam Ltd v. Bathurst [1987] 2 WLR 1368, which indicates that common law would bar a claim if the insurance contract is sufficiently connected with the illegal acts arising under the foreign law.

37 The Act came into force on 12 Aug. 2016 and is applicable to all marine insurance contracts entered into on or after this date.

38 Eight P&I clubs with rules subject to English law have agreed to contract out of various provisions of the Insurance Act 2015. These clubs are content to apply the provisions of the Act that deal with pre-contractual information duties of the assured (duty of ‘fair presentation’ as referred to in the Insurance Act 2015) but they have made provision in their rules to exclude the application of new proportionate remedies stipulated in the 2015 Act. Accordingly, any breach of the duty of fair presentation will entitle the association to avoid the policy regardless of whether the breach of the duty of fair presentation is innocent, deliberate or reckless.

39 See, e.g., March Cabaret Club & Casino Ltd v. The London Assurance [1975] 1 Lloyd’s Rep 169 (QB); James v. CGU Insurance Co plc [2002] Lloyd’s Rep IR 206 (Comm Ct) and North Star Shipping v. Sphere Drake Insurance plc [2006] EWCA Civ 378, [2006] 2 All ER 65.

40 Insurance Act 2015, Sch 1. If the P&I club has contracted out of this provision, avoidance will be available as the sole remedy regardless of whether the non-disclosure is fraudulent, negligent or innocent.

41 By virtue of the Insurance Act 2015, s. 5(3), the insurer is presumed to know ‘(a) things which are common knowledge, and (b) things which an insurer offering insurance of the class in question to insureds in the field of activity in question would reasonably be expected to know in the ordinary course of business’.

42 It was deliberated recently in The Nancy (n. 34 above) whether the underwriter in question was deemed to possess information that appears on databases such as Lloyd’s MIU and Sea-web. Blair J was convinced that the fact that the information is available online does not give rise to a presumption of knowledge on the part of underwriters. However, from the judgment it is clear that an underwriter is presumed to hold information to which he has access as long as he has an interest in such information when it is received.

43 Inversiones Manria SA v. Sphere Drake Insurance Co. (The Dora) [1989] 1 Lloyd’s Rep 69.

44 A series of authorities indicates that courts have been receptive to the idea that the assured’s running of its business affairs in a dishonest and criminal fashion could amount to moral hazard: see, e.g., Insurance Corporation of Channel Islands v. Royal Hotel Ltd [1998] Lloyd’s Rep IR 151; James v. CGU Insurance Co. plc [2002] Lloyd’s Rep IR 206, and more recently Sharon’s Bakery (Europe) Ltd v. AXA Insurance UK plc [2011] EWHC 210 (Comm); [2012] Lloyd’s Rep IR 164.

45 Gard, ‘Rules for Ships 2017’, available at: http://www.gard.no/web/publications/document/chapter?p_subdoc_id=781872&p_document_id=781871.

46 In the UK, s. 163A(5) of the Merchant Shipping Act 1995 provides that a ship entering or leaving a port without having a certificate to show that there is insurance cover with regard to liabilities that might arise under the Bunkers Convention will be detained by the port authority that has jurisdiction, and the master or the owner shall be liable on summary conviction to a fine not exceeding the statutory maximum (£5,000).

47 E.g., it would be very effective if vessels with a history of IUU fishing are offered liability cover subject to a condition that they keep their GPS system in operation at all times in order to monitor their whereabouts. Equally, it would be very prudent if such vessels are required by the provisions of the insurance policy to undergo spot checks on a regular basis to prevent IUU catches.

48 See Sunderland Marine, ‘Anti-Corruption and Ethics Statement’ (2014), available at: http://www.sunderlandmarine.com/assets/Publications/UK-2014/Anti-Corruption-Ethics-Statement-010814.pdf. Sunderland Marine is part of North of England P&I Association and a provider of liability cover for fishing vessels.

49 ICC Commercial Crime Services, ‘IMB Piracy Reporting Centre’, available at: https://icc-ccs.org/piracy-reporting-centre.

50 For an analysis of the challenges, refer to the FAO report, n. 1 above, pp. 94–5.

51 European Commission, Fisheries, ‘The EU Rules to Combat Illegal Fishing (IUU)’, available at: https://ec.europa.eu/fisheries/cfp/illegal_fishing/info.

52 This Plan can be incorporated into marine insurance contracts on a voluntary basis and is often incorporated into contracts entered into in Scandinavian insurance markets, available at: http://www.nordicplan.org/The-Plan.

53 A huge number of fishing vessels are insured under the Nordic Plan, which provides a separate set of rules concerning fishing vessels.

54 Marine Insurance Act 1908.

55 Marine Insurance Act 1909.

56 Marine Insurance Act 1963.

57 Marine Insurance Ordinance 1997.

58 Marine Insurance Act 1993.

59 Marine Insurance Act 1994.

60 European Commission, ‘Communication on the Application of Council Regulation (EC) No. 1005/2008 establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’ COM (2015) 480, p. 1 (IUU Communication)Google Scholar.

61 European Commission, ‘Communication on a New Strategy for the Community to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’ COM (2007) 601 final, p. 7 Google Scholar, para 2.1.

62 Ibid.

63 Ibid.

64 EU IUU Regulation, n. 3 above, and Commission Regulation (EC) No. 1010/2009 laying down Detailed Rules for the Implementation of Council Regulation (EC) No. 1005/2008 establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing [2009] OJ L 280/5. These two regulations are supplemented by a number of implementing regulations and decisions of the Commission that deal, among other things, with the lists of IUU vessels and non-cooperating third countries (NCTCs) and the arrangements with third countries regarding the catch certificates. The Commission, occasionally, amends the said regulations with respect to the definition of fishery products and certain inconsequential provisions of Regulation (EC) No. 1010/2009. For a full list of the EU’s IUU legal framework, see http://ec.europa.eu/fisheries/cfp/illegal_fishing/info/index_en.htm.

65 See Table 1 above.

66 EU IUU Regulation, n. 3 above.

67 Ibid., Art. 1(1).

68 Ibid., Art. 1(3).

69 A Community fishing vessel is defined in EU IUU Regulation, n. 3 above, Art. 2(6), as ‘a fishing vessel flying the flag of a Member State and registered in the Community’.

70 Ibid., Art. 27(1).

71 Ibid., Art. 33.

72 Ibid., Art. 31(3). Art. 31(4)–(7) provides a list of factors that the Commission takes into consideration when evaluating the anti-IUU fishing efforts of third countries.

73 Ibid., Art. 30(1). RFMOs are regional fishing management organizations set up to regulate fishing in particular areas – e.g., the Indian Ocean Tuna Commission.

74 Ibid., Art. 29(2) and (3). The blacklist was set up in May 2010 by Commission Regulation (EU) No. 468/2010 establishing the EU List of Vessels Engaged in Illegal, Unreported and Unregulated Fishing [2010] OJ L 131/22. Since 2010, it has been amended on a yearly basis, with the latest amendment in July 2015 being Commission Implementing Regulation (EU) No. 2015/1296 amending Regulation (EU) No. 468/2010 establishing the EU List of Vessels Engaged in Illegal, Unreported and Unregulated Fishing [2015] OJ L 199/12.

75 EU IUU Regulation, n. 3 above, Art. 35.

76 To name a few: any engagement in fish processing operations or participation in any transhipment with IUU fishing vessels is prohibited; EU IUU fishing vessels are permitted to access only their home ports, and third country IUU vessels are not permitted to enter Community ports; the importation of fishery products caught by IUU fishing vessels/vessels of NCTCs is prohibited, including the exportation/re-exportation of fishery products from IUU fishing vessels for processing.

77 EU IUU Regulation, n. 3 above, Art. 40(2).

78 For the infringements to be subject to the Regulation, they must be committed within the territory of a Member State, including maritime waters under their jurisdiction, by Community fishing vessels or Member State nationals: EU IUU Regulation, n. 3 above, Art. 41(1) and (2). The EU IUU Regulation also provides in Art. 41(3) that it applies to ‘serious infringements detected within the territory or within waters as referred [above] … but which have been committed on the high seas or within the jurisdiction of a third country and are being sanctioned pursuant to Article 11(4)’.

79 EU IUU Regulation, n. 3 above, Art. 42(1)(a), which refers to Art. 3.

80 Ibid., Art. 42(1)(b).

81 Ibid., Art. 42(1)(c).

82 Ibid., Art. 43(1). The Regulation in Art. 43(1) recommends a number of immediate enforcement measures, such as the immediate cessation of fishing activities, re-routing the vessel to the port, seizure of the fisheries products and suspension of the authorization to fish.

83 EU IUU Regulation, n. 3 above, Art. 44.

84 These sanctions include the temporary immobilization of the fishing vessel; confiscation of prohibited fishing gear, catches or fishery products; suspension or withdrawal of authorization to fish; reduction or withdrawal of fishing rights; and a temporary or permanent ban on access to public assistance or subsidies.

85 EU IUU Regulation, n. 3 above, Art. 46.

86 SI 3391/2009 (IUU Fishing Order), which implements the EU IUU Regulation and its implementing Regulation No. 1010/2009 (n. 64 above) into English law.

87 IUU Fishing Order, ibid., ss. 9(7) and 10(1). At the same time, ss. 12–15 and 20 define the powers of British officers when investigating whether an infringement under the EU IUU Regulation has been committed.

88 EU IUU Regulation, n 3 above, Art. 47(3). The IUU Fishing Order (n. 86 above) implements this provision in s. 18.

89 EU IUU Regulation, n. 3 above, Art. 39(3).

90 Ibid., Art. 44(2).

91 Regulation (EU) No. 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No. 1954/2003 and (EC) No. 1224/2009 and repealing Regulations (EC) No. 2371/2002 and (EC) No. 639/2004 and Decision 2004/585/EC [2013] OJ L 354/22. The Regulation was minimally amended recently by Regulation (EU) No. 2015/812 amending Regulations (EC) No. 850/98, (EC) No. 2187/2005, (EC) No. 1967/2006, (EC) No. 1098/2007, (EC) No. 254/2002, (EC) No. 2347/2002 and (EC) No. 1224/2009, and Regulations (EU) No. 1379/2013 and (EU) No. 1380/2013, as regards the Landing Obligation, and repealing Regulation (EC) No. 1434/98 [2015] OJ L 33/1.

92 Regulation (EC) No. 1224/2009 establishing a Community Control System for Ensuring Compliance with the Rules of the Common Fisheries Policy, amending Regulations (EC) No. 847/96, (EC) No. 2371/2002, (EC) No. 811/2004, (EC) No. 768/2005, (EC) No. 2115/2005, (EC) No. 2166/2005, (EC) No. 388/2006, (EC) No. 509/2007, (EC) No. 676/2007, (EC) No. 1098/2007, (EC) No. 1300/2008, (EC) No. 1342/2008, and repealing Regulations (EEC) No. 2847/93, (EC) No. 1627/94 and (EC) No. 1966/2006 [2009] OJ L 343/1.

93 Ibid., Recital 39.

94 Ibid.

95 Ibid., Art. 90(1)(a)–(b).

96 Explanatory Memorandum to IUU Fishing Order, n. 86 above, pp. 21–5.

97 Conversely, the UK Marine Management Organization (MMO) interprets the EU IUU Regulation to cover insurance by means of Art. 42(1)(b): ‘Under IUU regulations it is an offence to conduct business directly with any IUU vessel; this includes providing insurance to such vessels’: ‘MMO and FCO Host Joint IU Workshop with the UK Insurance Industry’, 18 Nov. 2015, available at: http://www.gov.uk/government/news/mmo-and-fco-host-joint-iuu-workshop-with-the-uk-insurance-industry. Dana Miller is supportive of this view. Furthermore, it is the opinion of the European Commission that insurers should not be providing support to IUU fishing vessels through the provision of insurance: Commission Communication, ‘Action Plan to Eradicate Illegal, Unreported and Unregulated Fishing’, 28 May 2002 (COM(2002) 180, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:l66008&from=EN. For the reasons analyzed in this section of the article, the authors believe that Art. 39 provides a better avenue for bringing insurance into the scope of the Regulation. Also, it should be borne in mind that this matter is not definitely resolved and clarification might be sought from the European Court of Justice on the correct interpretation of the Regulation.

98 IUU Communication, n. 60 above, p. 1.

99 Ibid., p. 9.

100 Ibid.

101 Ibid, p. 10.

102 A review of the legislation of ten countries – including Canada, the US, Australia, and Chile (all significant fishing jurisdictions) – revealed no such measures in anti-IUU fishing legislation.

103 IPOA-IUU, n. 3 above, para. 73.

104 Ibid., para. 74.

105 OECD, Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing (OECD, 2005), p. 42, available at: http://www.oecd-ilibrary.org/agriculture-and-food/why-fish-piracy-persists_9789264010888-en Google Scholar.

106 Ibid., p. 98.

107 IPOA-IUU, n 3 above, para. 66.

108 See data in Section 2 of this article.

109 Pramod et al., n. 5 above.

110 Regulation (EU) No. 267/2012 concerning Restrictive Measures against Iran and Repealing Regulation (EU) No. 961/2010 [2012] OJ L 88/1.

111 For further analysis see S. Dhingra & T. Sampson, ‘Life after BREXIT: What are the UK’s Options Outside the European Union?’, LSE Centre for Economic Performance, Brexit Paper 01/2016, available at: http://cep.lse.ac.uk/pubs/download/brexit01.pdf.

112 F. Harvey, ‘British Fishermen Warned Brexit Will Not Mean Greater Catches’, The Guardian, 28 June 2016, available at: http://www.theguardian.com/environment/2016/jun/28/british-fishermen-warned-brexit-will-not-mean-greater-catches.

113 See Norwegian Ministry of Trade, Industry and Fisheries, ‘Control and Enforcement’, available at: http://www.fisheries.no/resource_management/control_monitoring_surveillance/Control_and_enforcement /#.V-PQE4WcGcw.

114 See F. Perraudin, ‘UK to “Take Back Control” of Waters after Exiting Fishing Convention’, The Guardian, 2 July 2017, available at: http://www.theguardian.com/environment/2017/jul/02/uk-take-back-control-london-fisheries-convention-michael-gove.