EN Official Journal of the European Union C 354/1

COMMISSION DECISION

of 15 November 2012

on notifying the third countries that the Commission considers as possible of being identified as non-cooperating third countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing

2012/C 354/01

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1005/2008 of 29 September 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 (1), and in particular Article 32 thereof,

Whereas:

1. INTRODUCTION

(1) Regulation (EC) No 1005/2008 (the IUU Regulation) establishes a Union system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing.

(2) Chapter VI of the IUU Regulation lays down the procedure with respect to the identification of non-cooperating third countries, démarches in respect of countries identified as non-cooperating third countries, the establishment of a list of non-cooperating countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any emergency measures.

(3) In accordance with Article 32 of the IUU Regulation, the Commission should notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification of third countries of the possibility of their being identified as non-cooperating countries shall be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission should also take all the démarches set out in Article 32 with respect to those countries. In particular, the Commission should include in the notification information concerning the essential facts and considerations underlying such identification, the opportunity of those countries to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and measures taken to rectify the situation. The Commission should give to the third countries concerned adequate time to answer the notification and reasonable time to remedy the situation.

(4) Pursuant to Article 31 of the IUU Regulation, the European Commission may identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country may be identified as a non-cooperating third country if it fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.

(5) The identification of non-cooperating third countries will be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

(6) In accordance with Article 33 of the IUU Regulation, the Council may establish a list of non-cooperating countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.

(7) Pursuant to Article 20(1) of the IUU Regulation, third country flag States are requested to notify the Commission of their arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by their fishing vessels.

(8) Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with third countries in areas pertaining to the implementation of that Regulation.

2. PROCEDURE WITH RESPECT TO BELIZE

(9) The notification of Belize as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 17 March 2010.

(10) From 8 to 12 November 2010, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to Belize in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(11) The mission sought to verify information concerning Belize’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by Belize in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(12) The final report of the mission was sent to Belize on 7 February 2011.

(13) The comments of Belize on the final report of the mission were received on 23 February 2011.

(14) A subsequent mission of the Commission to Belize to follow up the actions taken in the first mission was conducted from 7 to 10 June 2011.

(15) Belize submitted additional written comments on 4 April 2011, 12 July 2011, 14 November 2011 and 27 January 2012.

(16) Belize is a Contracting Party to the Inter-American Tropical Tuna Commission (IATTC), the International Commission for the Conservation of Atlantic Tuna (ICCAT), the Indian Ocean Tuna Commission (IOTC) and the South Pacific Regional Fisheries Management Organisation (SPRFMO). It is a Cooperative non-Member of the Western and Central Pacific Fisheries Commission (WCPFC). Belize has ratified the United Nations Convention on the Law of the Sea (Unclos) and the United Nations Fish Stocks Agreement (UNFSA). It accepted the 2003 Food and Agriculture Organisation (FAO) Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement).

(17) In order to evaluate the compliance of Belize with its international obligations as flag, port, coastal or market State (2) set out in the international agreements mentioned in recital 16 and established by the Regional Fisheries Management Organisations (RFMOs) mentioned in recitals 16 and 18, the Commission sought and analysed all the information it deemed necessary for the purpose of such an exercise.

(18) The Commission used information derived from available data published by ICCAT, WCPFC, IOTC, IATTC, the North East Atlantic Fisheries Commission (NEAFC) and the South East Atlantic Fisheries Organisation (SEAFO) either in the form of Compliance Reports or in the form of IUU vessel lists as well as publicly available information retrieved from the United States Department of Commerce Report to Congress Pursuant to Section 403(a) of the Magnuson-Stevens Fisheries Conservation and Management Reauthorisation Act of 2006, January 2011 (the National Marine Fisheries Service (NMFS) report).

3. POSSIBILITY OF BELIZE OF BEING IDENTIFICATIED AS A NON-COOPERATING THIRD COUNTRY

(19) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Belize as flag, port, coastal or market State. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

3.1. Recurrence of IUU Vessels and IUU trade flows (Article 31(4)(a) of the IUU Regulation)

(20) The Commission established on the basis of information retrieved from RFMO IUU vessel lists that a number of IUU vessels in these lists that carried the flag of Belize after their inclusion in the RFMO IUU vessel lists (3). Those vessels are Goidau Ruey No 1, Orca, Reymar 6, Sunny Jane, Tching Ye No 6, Wen Teng No 688.

(21) In this respect it is recalled that, pursuant to Article 18(1) and (2) of the UNFSA, the flag State is responsible vis-à-vis its vessels operating on the high seas. The Commission considers that the existence of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists is a clear indication that Belize has failed to undertake its flag State responsibilities under international law. Indeed, by having the afore-stated number of IUU vessels, Belize has failed to exercise its responsibilities effectively, to comply with RFMO conservation and management measures and to ensure that its vessels do not engage in any activity which undermines the effectiveness of such measures.

(22) Pursuant to Article 19(1) and (2) of the UNFSA, the flag State is required to ensure compliance by vessels flying its flag with RFMO conservation and management rules. Flag States are also required to conduct expeditious investigations and judicial proceedings. The flag State should also ensure adequate sanctions, discourage repetition of violations and deprive offenders of the benefits accruing from their illegal activities. In this respect it is noted that the existence of a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists highlights the failure of Belize to fulfil its obligations under Article 19(1) and (2) of the UNFSA. The failure of Belize to fulfil its compliance and enforcement obligations infringes also Article III (8) of FAO Compliance Agreement stating that each party shall take enforcement measures in respect of fishing vessels entitled to fly its flag which act in contravention of the provisions of the FAO Compliance Agreement, including, where appropriate, making the contravention of such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall be of sufficient gravity as to be effective in securing compliance with the requirements of the FAO Compliance Agreement and to deprive offenders of the benefits accruing from their illegal activities.

(23) The failure of Belize to fulfil its compliance and enforcement obligations under Article 19 of the UNFSA is also confirmed by the information gathered in the course of the mission of 8 to 12 November 2010. That mission revealed that the relevant Belizean authorities were not empowered to require information from and to conduct administrative investigations of operators, registered owners and beneficial owners of the fishing vessels flagged to Belize. Furthermore, that mission revealed malfunctions in the system of authorised observers carrying out verifications of activities of economic operators, in particular with regard to landings outside the Belizean exclusive economic zone (EEZ), since certain authorised observers were at the same time acting as representatives of beneficial owners of vessels flagged to Belize. In this respect it should be noted that the importance of effective actions vis-à-vis beneficial owners is confirmed by relevant FAO and Organisation for Economic Cooperation and Development (OECD) documentation which highlights the importance of information on beneficial owners in order to combat illicit activities (4) and the need for records of fishing vessels and beneficial ownership (5).

(24) In addition, pursuant to Article 20 of the UNFSA, States must cooperate either directly or through RFMOs to ensure compliance with and enforcement of RFMO conservation and management measures. A set of specific requirements provided for in that Article sets out the obligations of States to investigate, cooperate with each other and sanction IUU fishing activities. It is also foreseen that for vessels reported to have engaged in activities undermining the effectiveness of RFMO conservation and management measures, States may have recourse to RFMO procedures to deter such vessels until such time as appropriate action is taken by the flag State. In this respect, it is noted that the existence of a number of vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists demonstrates the failure of Belize to fulfil its obligations under international law with respect to international cooperation in enforcement.

(25) It is also recalled that, in accordance with Article 118 of the Unclos, Belize must cooperate in the conservation and management of living resources in the areas of the high seas. In this respect the existence of a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists which are still engaged in fishing operations highlights the failure of Belize to fulfil its flag State obligations. Indeed recognised IUU fishing vessels undermine conservation and management of living resources.

(26) The non-compliance by Belize with respect to IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists is also in breach of Article 217 of the Unclos which requires flag States to take specific enforcement actions in order to ensure compliance with international rules, the investigation of presumed violations and the adequate sanctioning of any violation.

(27) The existence of a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists also demonstrates the lack of ability of Belize to follow the recommendations in the FAO International Plan of Action to prevent, deter and eliminate IUU fishing (IPOA IUU). Point 34 of the IPOA IUU recommends that States ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing.

(28) In addition, it is pertinent to note that Belize was mentioned in the NMFS report. According to the NMFS report two Belize-flagged vessels were sighted by the French authorities in the IATTC area. The allegations concerning the IUU fishing by the two vessels were refuted since Belize provided explanatory information. However, Belize was identified as a country ‘of interest’ by the United States authorities (6).

(29) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it under international law as a flag State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or by its nationals and has not taken sufficient action to counter documented and recurring IUU fishing by vessels previously flying its flag.

3.2. Failure to cooperate and to enforce (Article 31(5)(b), (c) and (d) of the IUU Regulation)

(30) The Commission analysed whether Belize has taken effective enforcement measures in respect of operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(31) Available evidence confirms that Belize has not fulfilled its obligations under international law with respect to effective enforcement measures. In this respect it is recalled that there is a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists. The existence of such IUU vessels highlights the failure of Belize to honour its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 18(1) and (2) of the UNFSA. Furthermore, that situation is also a clear indication that Belize is not fulfilling the requirements of Article 19(1) of the UNFSA which sets rules for flag States on compliance and enforcement. The performance of Belize in this matter is also not in accordance with the requirements of Article 19(2) of the UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the benefits accruing from their illegal activities.

(32) By acting in the way described Belize failed to demonstrate that it fulfils the conditions of Article 94(2)(b) of the Unclos which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Indeed, the existence of a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists constitutes corroborating evidence of the lack of Belize to exercise its full jurisdiction over its fishing vessels.

(33) Furthermore the performance of Belize with respect to effective enforcement measures is also not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

(34) With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Belizean-flagged vessels until 2012.

(35) With respect to the existing capacity of the Belizean authorities, it should be noted that, according to the United Nations Human Development Index (7), Belize is considered as a high human development country (93rd in 187 countries). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (8) where Belize is listed in the category of lower middle income countries. Account taken of its position it is not considered necessary to analyse the existing capacity of the Belizean competent authorities. This is because the level of development of Belize, as demonstrated in this recital, cannot be considered as a factor undermining the capacity of the competent authorities to cooperate with other countries and pursue enforcement actions.

(36) Notwithstanding the analysis under recital 35 it is also noted that on the basis of information derived from the mission in November 2010 it cannot be considered that the Belizean authorities are lacking financial resources but rather the necessary legal and administrative environment and empowerments to perform their duties.

(37) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(5)(b), (c) and (d) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

3.3. Failure to implement international rules (Article 31(6) of the IUU Regulation)

(38) Belize has ratified the Unclos and the UNFSA. It accepted the FAO Compliance Agreement. Furthermore, Belize is a Contracting Party to IATTC, ICCAT, IOTC and SPRFMO. It is a Cooperative non-Member of WCPFC. Until the end of 2011 Belize was also a Cooperative non-Member of NEAFC. However, Belize's status as Cooperative non-Member has not been renewed by NEAFC for the year 2012.

(39) The Commission analysed any information deemed relevant with respect to the status of Belize as Contracting Member of IOTC and ICCAT and as Cooperative non-Member of WCPFC. Since Belize has been a Cooperative non-Member of NEAFC until the end of 2011 the Commission has also analysed the information deemed relevant as regards that RFMO.

(40) The Commission also analysed any information deemed relevant with respect to the agreement of Belize to apply conservation and management measures adopted by IOTC, ICCAT, WCPFC and NEAFC.

(41) It is recalled that ICCAT issued a letter of Concern to Belize regarding its reporting deficiencies in 2010 (9). Indeed, in that letter, Belize was identified for its failure to fully and effectively comply with its obligation to communicate statistics as set out in ICCAT Recommendation 05-09 to establish a rebuilding programme on North Atlantic albacore. In the same letter, ICCAT highlighted that Belize had not provided all the necessary information and reports such as on Task II (size samples) and that it had submitted the compliance tables after the relevant deadline.

(42) In another letter of Concern ICCAT issued in 2011 (10), Belize was again identified as failing to fully and effectively fulfil its statistical reporting obligations (ICCAT Recommendation 05-09). Furthermore, Belize had not provided within the deadline all the necessary information and reports such as Bigeye Task I (statistics referring to fleet), the internal actions report for vessels longer than 20 m and lists of vessels.

(43) In the letter of Concern ICCAT issued in 2012 (11), Belize was identified as failing to fully and effectively fulfil the obligations in accordance with Recommendation 09-05. Furthermore, it was determined that Belize had overharvested its quota of northern albacore. Belize was requested to provide a management plan for its northern albacore fishery, including a schedule for pay-back of the overharvested amount.

(44) The Commission also analysed information available from ICCAT on the compliance of Belize with ICCAT rules and reporting obligations. For this the Commission used the ICCAT 2010 Compliance Summary Tables (12) as well as the ICCAT 2011 Compliance Summary Tables (13).

(45) In particular, according to the available information, Belize did not submit to ICCAT in 2010 the report on internal actions for vessels above 20 m referring to Conservation and Management Measures. Furthermore, in 2010 BET Task I (statistics referring to fleet) data were received after the relevant deadline. Internal actions and the vessel list were provided late.

(46) In addition, a number of elements were revealed during the mission to Belize in November 2010. With respect to the operational abilities of the Vessel Monitoring System’s (VMS) operational abilities, it was revealed that for concrete cases, problems of absence or interruption of VMS signal during fishing campaigns have been detected. The VMS was used in a relatively passive manner and it was not used appropriately to check if catch activities were in conformity with the scope of the fishing licences. With respect to the system of authorised observers, some situations of conflict of interest were detected, where certain observers carrying out verifications of activities of economic operators, in particular landings outside the Belizean EEZ, were at the same time acting as representatives of beneficial owners of vessels flagged to Belize.

(47) Information available from the WCPFC (14) shows that Belize was requested to provide additional missing information as regards the provision of all available operational level (logsheet) data for the years 2009-2011 as well as the provision of the number/type and name of the fishing vessels that would be operating in the WCPFC Convention Area should its Cooperative non-Member status be renewed (15).

(48) The draft WCPFC Compliance Monitoring Scheme Report for 2010 (16) shows that Belize did not provide full information on the VMS. Additional information was requested for the purpose of ensuring that vessels have Automatic Localisation Communicators (ALC) in high seas areas determined by WCPFC rules and comply with the VMS requirements established by WCPFC. Additional information was also requested as regards compliance with the conservation and management measures and the equipment of ALCs referred to in WCPFC (Reg. 2007-2).

(49) WCPFC also requested additional information from Belize on a number of other points. Further information was requested as regards the current fishing effort by vessels fishing for North Pacific albacore (WCPFC Regulation 2005-3 on North Pacific albacore) as well as full information as regards the number of vessels fishing for striped marlin between 2000-2004 (WCPFC Regulation 2006-4 on striped marlin in the Southwest Pacific). Further clarification was requested as regards the shifting of the fishing effort to areas N of 20S (WCPFC Regulation 2009-3 on South Pacific swordfish). Further additional information was requested on the implementation of the 5 % fin to weight ratio (WCPFC Regulation 2009-4 on sharks). As regards the catch and effort reporting, further additional information was requested on the reporting of number of vessels against annual limit (WCPFC Regulation 2005-02 on South Pacific albacore). Belize was identified as non-compliant with regard to the reporting of catches of North Pacific albacore every six months for the small coastal fisheries (WCPFC Regulation 2005-03 on North Pacific albacore). Additional information was required as regards the reporting of all catches of albacore north of the Equator and all fishing effort directed at albacore north of the Equator annually by gear type (WCPFC Regulation 2005-03 on North Pacific albacore). With respect to the spatial and temporal closures and gear restrictions, additional information was requested from Belize on monitoring as regards the mitigation measures (WCPFC Regulation 2007-04 on seabird mitigation). Finally, as regards driftnets, additional information was required from Belize as regards the prohibition of the use of large-scale driftnets on the high seas in the convention area (WCPFC Regulation 2008-04).

(50) According to information derived from the IOTC Compliance Report for the year 2010 (17), Belize was identified as non-compliant because it failed to participate in the Scientific Committee meeting and had not submitted its National Report for the 13th Session of the Scientific Committee.

(51) In addition, Belize was non-compliant or only partially compliant in 2010 as regards several resolutions adopted by IOTC. In particular, as regards Resolution 09/02 and earlier resolutions on the limitation of fishing capacity, eight of the vessels reported as targeting tropical tunas in 2006 were also reported as targeting albacore and swordfish in 2007 (which amounts only to partial compliance). This resulted in a double counting effect. As regards Resolution 07/02 on the IOTC record of vessels authorised to operate in the IOTC area, some information submitted by Belize was not to IOTC standard (partial compliance). As regards Resolution 09/03 on establishing a list of vessels presumed to have carried out IUU fishing in the IOTC area, Belize failed to provide its opinion on IOTC’s request to de-register two vessels listed in the 2010 IOTC IUU vessels list (partial compliance). As regards Resolution 08/02 on a regional observer programme to monitor at-sea transhipments vessels, Belize effected two transhipments under the regional observer programme in 2010 but the at-sea transhipments were in partial compliance with the IOTC regional observer programme for monitoring at-sea transhipments. As regards Resolutions 01/02 and 05/07 concerning management standards and controls of fishing vessels Belize, did not provide any information on the level of implementation during 2009. As regards Resolution 10/02 as well as Resolutions 05/05, 09/06 and 10/06 on mandatory statistical requirements, Belize only provided partial information on the by-catch of sharks (partial compliance) and did not submit information on the size frequency, by-catch of marine turtles and by-catch of seabirds (non-compliance). As regards Resolutions 01/06 and 03/03 on the IOTC bigeye tuna Statistical Document Program, Belize did not report to IOTC its assessment of export data versus import data (partial compliance).

(52) Furthermore, according to the IOTC Compliance Report for 2011 (18), Belize was still not compliant or only partially compliant in 2011 as regards several Resolutions adopted by IOTC. In particular, as regards IOTC Resolution 07/02 on the list of authorised vessels of 24 m in length overall or more, some mandatory information was missing and no information on operating ports was provided (partial compliance). As regards IOTC Resolution 06/03 on the adoption of VMS for all vessels greater than 15 meters in length overall, no information on technical failures was provided (partial compliance). As regards the mandatory statistical requirements and IOTC Resolution 10/02, catch and effort data were not up to the IOTC standard. Data were provided per individual vessel activities rather than aggregated information (partial compliance). Size frequency data were not to IOTC standard as well. Again, data were provided per individual vessel activities rather than aggregated information (partial compliance). As regards the implementation of mitigation measures and bycatch of non-IOTC species, Belize was only partially compliant with IOTC Resolution 05/05 on the submission of data regarding sharks. As regards observers, IOTC Resolution 11/04 on the Regional Observer Scheme and on the mandatory 5 % at sea for the vessels longer than 24 m, Belize had informed in the past that it had observers who were to be deployed on its vessels. However, the current plan is for the programme to start only in 2013. Consequently Belize is non-compliant with the IOTC requirements. In addition as regards observers, Belize is not in compliance with IOTC Resolution 11/04 on the observer reporting obligation. As regards the Statistical Document Program, Belize is not in compliance with IOTC Resolution 01/06 because no information on the annual report has been provided.

(53) With respect to NEAFC, Belize was a Cooperative non-Member of NEAFC until the end of 2011. However, due to the lack of compliance with the NEAFC rules, the status of Cooperative non-Member has not been renewed by NEAFC for the year 2012. In particular, the reporting obligations have not been complied with. In addition there have been problems as regards compliance with the VMS requirements. Problems with the inspection system have also been observed. EU inspectors were not provided with the necessary information, including VMS data and transhipment reports. That had a negative effect on the inspection scheme of the NEAFC area. Due to the problems that were identified, the Belizean application for renewal was rejected in a vote taken during the 30th annual meeting of NEAFC (19).

(54) The failure of Belize to provide to ICCAT the information referred to in recitals 41 to 45 indicates the failure of Belize to fulfil its obligations as flag State laid down in the Unclos and the UNFSA.

(55) The shortcomings revealed by the mission conducted by the Commission in November 2010 and referred to in recital 46 provide further evidence of the failure of Belize to fulfil its obligations as flag State laid down in the UNFSA.

(56) Indeed the failure to provide timely information on conservation and management measures, statistics, lists of vessels and compliance tables undermines the ability of Belize to fulfil its obligations under Articles 117 and 118 of the Unclos which stipulate the duties of States to adopt measures for their respective nationals for the conservation of living resources of the high seas and to cooperate on conservation and management measures for living resources in the areas of the high seas.

(57) The elements mentioned in Section 3.3 of the Decision demonstrate that the performance of Belize is in breach of the requirements of Article 18(3) of the UNFSA.

(58) On account of its failure to submit information on transhipments to the ICCAT, Belize acts in breach of Article 18(3)(a) of the UNFSA which requires States whose vessels fish on the high seas to take control measures to ensure that those vessels comply with RFMO rules.

(59) Belize does not comply with the recording and timely reporting requirements of Article 18(3)(e) of the UNFSA on account of its failure to submit to ICCAT information on annual reports, Task I (fleet characteristics), Task II (data on size samples), internal action reports for vessels longer than 20 m, compliance tables and lists of vessels.

(60) Belize does not fulfil the conditions stipulated in Article 18(3)(g) of the UNFSA in view of the information gathered during the mission in November 2010 carried out by the Commission concerning the monitoring, control and surveillance abilities of the Belizean authorities.

(61) Furthermore, as explained in recitals 47 to 52, information from WCPFC and IOTC indicates that Belize is not fulfilling its obligations pursuant to Article 117 of the Unclos and Article 18 of the UNFSA with respect to management and conservation measures.

(62) In addition, Belize does not comply with Article 18(3)(f) of the UNFSA on account of the shortcomings identified by the NEAFC that resulted in the rejection of the Cooperative non-Member status of Belize for the year 2012, in particular the failure to report to NEAFC as well as the deficiencies discovered in the observers scheme including the VMS data and the transhipments at sea.

(63) Furthermore, it was revealed by the mission in November 2010 that Belize keeps an International Merchant Marine Registry responsible for vessel registration which does not ensure that vessels flying the flag of Belize have a genuine link with the country. The lack of such genuine link between that State and the vessels that are registered in its registry is in breach of the conditions set out for the nationality of ships in Article 91 of the Unclos. This conclusion is further confirmed by the International Transport Workers’ Federation (ITF) which considers Belize as a flag of convenience (20).

(64) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

3.4. Specific constraints of developing countries

(65) It is recalled that, according to the United Nations Human Development Index (21), Belize is considered as a high human development country (93rd in 187 countries). It is also recalled that, according to Regulation (EC) No 1905/2006, Belize is listed in the category of lower middle income countries.

(66) Account taken of that ranking Belize cannot be considered as a country having specific constraints directly derived from its level of development. No corroborating evidence could be established to suggest that the failure of Belize to discharge the duties incumbent upon it under international law is the result of lacking development. In the same manner, no concrete evidence exists to correlate the revealed shortcomings in respect of the monitoring, control and surveillance of fishing activities with the lack of capacities and infrastructure.

(67) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Belize with respect to fisheries are not impaired by its level of development.

4. PROCEDURE WITH RESPECT TO THE KINGDOM OF CAMBODIA

(68) From 18 to 20 October 2011, the Commission carried out a mission to the Kingdom of Cambodia (Cambodia) in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(69) The mission sought to verify information concerning Cambodia’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels as well as measures taken by Cambodia in order to implement its obligations in the fight against IUU fishing.

(70) Cambodia agreed to send the Commission a plan of action on the discussed issues, together with a complete list of fishing vessels, including reefers and fishing carrier vessels. Cambodia did not send any reply or follow-up letter to the Commission following its mission.

(71) Cambodia did not sign or ratify any of the international agreements governing fisheries, inter alia, the Unclos, the UNFSA, the FAO Compliance Agreement, but it has ratified the 1958 Geneva Convention on the High Seas (22) and acceded to the 1958 Convention on the Territorial Sea and the Contiguous Zone (23) and it has accepted the Regional Plan of Action to promote responsible fishing practices including combating IUU fishing in the Asia-Pacific Fisheries Committee (APFIC) (APFIC RPOA) (24), as well as the Regional Guidelines for responsible fishing operations in Southeast Asia (RGRFO-SEA) (25) issued by the Southeast Asian Fisheries Development Center (Seafdec) (26). APFIC, of which Cambodia is a member, is an advisory body that works to improve understanding, awareness and cooperation in fisheries issues in the Asia-Pacific region. Seafdec, of which Cambodia is a member, is an advisory body promoting sustainable fisheries development.

(72) In order to evaluate the compliance of Cambodia with its international obligations as flag, port, coastal or market State, the Commission considered appropriate to use the Unclos as the primary basic international legal text, namely Articles 91, 94, 117 and 118, setting out obligations of States and established by the relevant RFMOs, together with the framework established by APFIC and Seafdec referred to in recital 71. The provisions of Unclos on the navigation in the high seas (Articles 86-115 of Unclos) have been recognised as customary international law. These provisions codify pre-existing rules of customary international law and take over almost verbatim the wording of the Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, which Cambodia has respectively ratified and acceded to. For this reason, it is immaterial whether Cambodia has actually ratified Unclos. The Commission sought and analysed all the information it deemed necessary for the purpose of such an exercise.

(73) The Commission used information derived from available data published by RFMOs, in particular ICCAT, the Commission for the Conservation of the Atlantic Marine Living Resources (CCAMLR), WCPFC, NEAFC, NAFO and SEAFO either in the form of Compliance Reports or in the form of IUU vessel lists, as well as publicly available information retrieved from the NMFS report.

5. POSSIBILITY OF CAMBODIA OF BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

(74) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Cambodia as flag, port, coastal or market State. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

5.1. Recurrence of IUU Vessels and IUU trade flows (Article 31(4)(a) of the IUU Regulation)

(75) The Commission established on the basis of information retrieved from RFMO IUU vessel lists several incidences of IUU activities of vessels flying the Cambodian flag (27) or having a Cambodian fishing licence. The fishing vessel Draco-1 (current name: Xiong Nu Baru 33) was sighted fishing illegally in the CCAMLR area in January 2010 (28) and in April 2010 (29) while flying the flag of Cambodia. In addition, the fishing vessel Trosky (current name: Yangzi Hua 44) was sighted fishing illegally in the CCAMLR area in April 2010 (30) while flying the flag of Cambodia.

(76) Furthermore, in the framework of work conducted with respect to presumed IUU fishing activities, the Commission has gathered factual evidence, through Union catch certificates, of repetitive infringements by a Cambodian vessel of ICCAT conservation and management measures that lead to their being classified as IUU fishing activities. Those infringements referred to a Cambodian carrier vessel that received fish at sea from purse seiners. In accordance with ICCAT Recommendation 06-11, purse seiners are not allowed to tranship tuna species at sea within the ICCAT area. In addition, the Cambodian carrier vessel was not registered under the ICCAT Registry of carrier vessels entitled to operate within the ICCAT area as provided for in Section 3 of ICCAT Recommendation 06-11.

(77) In this respect it is recalled that, pursuant to Article 94(2) b of the Unclos, the flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. This basic principle is reinforced by point 7.1 of the APFIC RPOA and point 8.2.2 of the RGRFO-SEA. The Commission considers that the existence of IUU vessels in the RFMO vessel lists that carried the flag of Cambodia after their inclusion in these lists, as well as the sightings on IUU activities carried out by its vessels in RFMOs, are clear indications that Cambodia has failed to undertake its flag State responsibilities under international law. Indeed, by having a number of IUU vessels, Cambodia has failed to exercise its responsibilities effectively, to comply with RFMO conservation and management measures and to ensure that its vessels do not engage in any activity which undermines the effectiveness of such measures.

(78) It is noted that the flag State has the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. This basic principle is reinforced by points 3.1 and 4.1 of the APFIC RPOA and point 8.1.4 of the RGRFO-SEA. In accordance with Article 94 of the Unclos and read in conjunction with point 7.1 of the APFIC RPOA and point 8.2.7 of the RGRFO-SEA, a flag State is required to ensure that vessels flying its flag comply with RFMO conservation and management rules.

(79) The existence of IUU vessels in the RFMO vessel lists that carried the flag of Cambodia after their inclusion in these lists also demonstrates the lack of ability of Cambodia to follow the recommendations in the IPOA IUU. Point 34 of the IPOA IUU recommends that States ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing. This principle is also present in point 7.1 of the APFIC RPOA.

(80) In addition, it is pertinent to note that Cambodia was mentioned in the NMFS report. According to the NMFS report, several Cambodian-flagged vessels engaged in fishing activities that violated CCAMLR conservation and management measures (31). The NMFS report does not identify Cambodia as a country with vessels engaged in IUU fishing activity, given the fact that certain actions (de-registration) were taken to address the illegal fishing activities of those Cambodian-flagged vessels. However, the NMFS report expresses concerns about addressing IUU fishing activities by deregistering vessels in lieu of applying other sanctions and consequently Cambodia was identified as a country ‘of interest’ by the US authorities.

(81) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it under international law as a flag State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or by its nationals and has not taken sufficient action to counter documented and recurring IUU fishing by vessels flying its flag.

5.2. Failure to cooperate and to enforce (Article 31(5)(b), (c) and (d) of the IUU Regulation)

(82) The Commission analysed whether Cambodia has taken effective enforcement measures in respect of operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(83) Available evidence confirms that Cambodia has not fulfilled its obligations under international law with respect to effective enforcement measures. In this respect it is recalled that RFMO IUU vessel lists record IUU vessels that carried the flag of Cambodia after their inclusion in these lists or at the time of listing. The existence of such IUU vessels highlights the failure of Cambodia to honour its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 94 of the Unclos, read in conjunction with point 7.1 of the APFIC RPOA and point 8.2.7 of the RGRFO-SEA.

(84) Furthermore, with respect to compliance and enforcement, the mission referred to in recital 68 revealed that Cambodia does not have any specific legislation to address IUU fishing activities. The only measure taken is de-registration of fishing vessels. Nevertheless, such action does not entail the conduct of investigations of illegal fishing activities carried out by vessels or the imposition of sanctions for established infringements. Indeed de-registration of a fishing vessel does not ensure that offenders of infringement are sanctioned for their actions and deprived from the benefits of their actions. This is even more important for the case of Cambodia which, as explained in recital 96, keeps an International Ship Registry responsible for vessel registration which is located outside Cambodia and which does not ensure that vessels flying the flag of Cambodia have a genuine link with the country. The simple administrative decision to remove a fishing vessel from the register without ensuring the possibility to impose other penalties is an act that does not ensure deterrent effects. Such an action also does not ensure flag State control over the fishing vessels as required under Article 94 of the Unclos. In addition, Cambodia’s performance with respect to compliance and enforcement is not in accordance with point 18 of the IPOA IUU which stipulates that in the light of the Unclos provisions each State should take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. Cambodia’s performance in this respect is also not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from their illegal activities. This principle is reiterated in point 8.2.7 of the RGRFO-SEA.

(85) With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Cambodian-flagged vessels until 2012.

(86) With respect to the existing capacity of the Cambodian authorities, it should be noted that, according to the United Nations Human Development Index (32), Cambodia is considered as a medium human development country (139th in 187 countries). On the other hand, Cambodia is listed in Annex II to Regulation (EC) No 1905/2006 in the category of least developed countries. In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of Cambodia to fulfil its cooperation and enforcement duties. Nevertheless, it is recalled that shortcomings in cooperation and enforcement are linked with the lack of an adequate legal framework that enables appropriate follow up actions rather than with the existing capacity of the competent authorities.

(87) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(5)((b), (c) and (d) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

5.3. Failure to implement international rules (Article 31(6) of the IUU Regulation)

(88) Cambodia did not sign or ratify any of the international agreements specifically governing fisheries. Cambodia has ratified the 1958 Geneva Convention on the High Seas and acceded to the 1958 Convention on the Territorial Sea and the Contiguous Zone. Cambodia is a member of two advisory bodies, namely Seafdec for which it accepted the RGRFO-SEA, and APFIC for which it accepted the APFIC RPOA.

(89) From the mission of the Commission to Cambodia it does not result that Cambodia has undertaken any steps towards the implementation of the APFIC RPOA or the recommendations of the RGRFO-SEA.

(90) The Commission analysed information deemed relevant from available data published by RFMOs, in particular ICCAT and CCAMLR.

(91) It is recalled that Cambodia has a long history of letters of Identification issued by ICCAT. The first such letter was issued to Cambodia in 2006. The most recent letter of Identification issued by ICCAT to Cambodia is of 2011 (33). That letter continues to express concern regarding possible IUU activities of fishing vessels flying the Cambodian flag. Cambodia did not reply to the additional request for information contained in ICCAT’s letters of Identification dated 16 December 2009, 4 October 2010 and 18 January 2011. In the absence of a reply from Cambodia providing the requested additional information, ICCAT decided to maintain Cambodia’s identification in 2012. In addition, ICCAT expressed its serious concern about possible transhipment activities by Cambodian purse seiners in the Gulf of Guinea.

(92) At the ICCAT 2012 annual meeting, ICCAT requested detailed information from Cambodia regarding the alleged transhipments in the Gulf of Guinea, any responsive actions taken by Cambodia, Cambodia’s monitoring, control and surveillance measures and Cambodia’s procedure and rules for vessel registration, with a view to reviewing the situation of Cambodia.

(93) The failure of Cambodia to provide to ICCAT the information referred to in recitals 91 and 92 demonstrates the failure of Cambodia to fulfil any type of flag State obligations relating to management and conservation measures provided for by Unclos. Its performance is also not in conformity with the recommendations of the APFIC RPOA (point 7.1) and of the RGRFO-SEA (point 8.2.7).

(94) In addition, during 2010 CCAMLR reported several sightings of Cambodian-flagged vessels. Such communications can be found in CCAMLR circulars transmitted to its members (34), namely COMM CIRC 10/11 Sightings of IUU-listed vessels Typhoon-1 and Draco I, 10/45 Sightings of IUU-listed vessels Draco I and Trosky.

(95) By acting in the way described in the above recital Cambodia failed to demonstrate that it fulfils the conditions of Article 94(2)(b) of Unclos which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Indeed, de-registration of fishing vessels is not per se a sufficient measure for a flag State to take, as that measure does not address the IUU activity, does not ensure punishment of IUU fishing activities by the application of administrative and/or criminal sanctions established by law and leaves the fishing vessel free to continue operating in breach of internationally established conservation and management measures.

(96) Furthermore, it was revealed by the mission referred to in recital 68 that Cambodia keeps an International Ship Registry responsible for vessel registration which is located outside Cambodia and which does not ensure that vessels flying the flag of Cambodia have a genuine link with the country. The lack of such genuine link between the State and the vessels that are registered in its registry is in breach of the conditions set out for the nationality of ships under Article 91 of the Unclos. This conclusion is further confirmed by the ITF which considers Cambodia as a flag of convenience (35).

(97) Finally, it should be noted that, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, Cambodia has not developed a national plan of action against IUU fishing.

(98) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

5.4. Specific constraints of developing countries

(99) It is recalled that, according to the United Nations Human Development Index (36), Cambodia is considered as a medium human development country (139th in 187 countries). On the other hand, Cambodia is listed in Annex II to Regulation (EC) No 1905/2006 in the category of least developed countries. Account taken of the ranking of Cambodia the Commission analysed if the information gathered by the Commission could be linked with its specific constraints as a developing country.

(100) Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of Cambodia derived from its level of development cannot justify an absence of specific provisions in the national legal framework referring to international instruments to combat, deter and eliminate IUU fishing activities. Furthermore, those constraints cannot justify Cambodia’s failure to establish a sanctions system for infringements of international management and conservation measures in respect of fishing activities conducted on the high seas.

(101) In view of the situation explained in this Section of the Decision, and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, the development status of Cambodia may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Cambodia, the development level of that country cannot excuse or otherwise justify the overall performance of Cambodia as flag State with respect to fisheries and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

6. PROCEDURE WITH RESPECT TO THE REPUBLIC OF FIJI

(102) The notification of the Republic of Fiji (Fiji) as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010.

(103) From 16 to 20 January 2012, the Commission, with the support of the EFCA, carried out a mission to Fiji in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(104) The mission sought to verify information concerning Fiji’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by Fiji in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(105) The final report of the mission was sent to Fiji on 9 February 2012.

(106) The comments of Fiji to the final report of the mission were received on 8 March 2012.

(107) Fiji is a member of the WCPFC. Fiji has ratified the Unclos and the UNFSA.

(108) In order to evaluate the compliance of Fiji with its international obligations as flag, port, coastal or market State set out in the international agreements mentioned in recital 107 and established by the relevant RFMO mentioned in recital 107, the Commission sought and analysed all the information it deemed necessary for the purpose of that exercise.

(109) The Commission used information derived from available data published by the WCPFC.

7. POSSIBILITY OF FIJI OF BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

(110) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Fiji as flag, port, coastal or market State. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

7.1. Recurrence of IUU Vessels and IUU trade flows (Article 31(4)(a) of the IUU Regulation)

(111) With respect to Fiji flagged IUU vessels it is noted that on the basis of information retrieved from RFMOs vessel lists there are no such vessels in provisional or final IUU lists and no evidence of past cases of Fiji flagged IUU vessels exists that would enable the Commission to analyse the performance of Fiji with respect to recurring IUU fishing activities.

(112) In the absence of information and evidence as explained in the above recital it is concluded, pursuant to Article 31(3) and 31(4)(a), that it is not necessary to evaluate the compliance of Fiji’s action to prevent, deter and eliminate IUU fishing, with its duties under international law as a flag State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or by its nationals.

7.2. Failure to cooperate and to enforce (Article 31(5)(b) and (d) of the IUU Regulation)

(113) The Commission analysed whether Fiji has taken effective enforcement measures in respect of operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(114) Available evidence confirms that Fiji has not fulfilled its obligations under international law with respect to effective enforcement measures. Indeed, during the mission referred to in recital 103, the Commission revealed that Fiji has not introduced in its national law (‘Marine Spaces Act’ and ‘Fisheries Act’) any specific measure for the management and the control of the Fiji flagged vessels fishing beyond the waters under Fiji jurisdiction.

(115) During the mission referred to in recital 103, the Commission revealed that there are no specific rules and measures in the legal system of Fiji to specifically address IUU fishing infringements committed on the high seas and to prevent, deter and eliminate IUU fishing activities. It is also clear that no measures are in place in Fiji legislation to sanction not only Fiji flagged vessels but also Fijian nationals involved in IUU fishing activities committed outside the waters under Fiji jurisdiction.

(116) The lack of specific legal provisions on IUU fishing infringements committed on the high seas is a clear indication that Fiji does not fulfil the conditions of Article 94(2)(b) of the Unclos which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Furthermore, the lack of specific legal rules addressing IUU fishing infringements committed on the high seas highlights the failure of Fiji to honour its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 18(1) of the UNFSA. In addition the absence of a legal framework to enforce and control operations of fishing vessels is in breach of Article 217 of the Unclos which requires flag States to take specific enforcement actions in order to ensure compliance with international rules, the investigation of presumed violations and the adequate sanctioning of any violation.

(117) Fiji has also failed to demonstrate that it complies with the recommendations in point 18 of the IPOA IUU which stipulates that in the light of the Unclos provisions each State should take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. Furthermore, Fiji has also failed to demonstrate that it cooperates and coordinates activities with other States in preventing, deterring and eliminating IUU fishing in the manner set out in point 28 of the IPOA IUU.

(118) Account taken of the situation explained in recitals 113 to 117 it is concluded that the level of sanctions for IUU infringements provided for in Fiji legislation is not in accordance with Article 19(2) of the UNFSA which provides that the sanctions applicable in respect of violations should be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and should deprive offenders of the benefits accruing from their illegal activities. Furthermore, the performance of Fiji with respect to effective enforcement measures is also not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels, and to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive the benefits accruing from such fishing.

(119) In this respect it is also recalled that, in 2007, when assisting Fiji to elaborate its national plan of action to prevent, deter and eliminate IUU fishing (NPOA IUU), FAO had already urgently invited Fiji to consolidate and update its fisheries management laws and to strengthen its enforcement mechanisms to ensure that conservation and management measures are complied with (37). Despite FAO’s request and Fiji’s commitment taken in its NPOA IUU adopted in 2009, Fiji legislation has not yet been revised in order to comply with the FAO recommendations.

(120) With respect to the existing capacity of the Fiji authorities it should be noted that according to the United Nations Human Development Index (38), Fiji is considered as a medium human development country (100th in 187 countries). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 where Fiji is listed in the category of upper middle income countries.

(121) On the basis of information derived from the mission referred to in recital 103 it cannot be considered that the shortcomings explained in this Section of the Decision are derived from any lack of financing resources since the failures to enforce and consequently cooperate are clearly linked with the lack of the necessary legal and administrative framework.

(122) Furthermore, it should be highlighted that, in accordance with the recommendations in points 85 and 86 of the IPOA IUU concerning special requirements of developing countries, the Union has already funded a specific technical assistance programme with respect to the fight against IUU fishing (39). Fiji benefited from this programme.

(123) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(5) (b) and (d) of the IUU Regulation, that Fiji has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

7.3. Failure to implement international rules (Article 31(6) of the IUU Regulation)

(124) Fiji has ratified the Unclos and the UNFSA. Furthermore, Fiji is a Contracting Member of WCPFC.

(125) The Commission analysed any information deemed relevant with respect to the status of Fiji as Contracting Member of WCPFC.

(126) The Commission also analysed any information deemed relevant with respect to the agreement of Fiji to apply conservation and management measures adopted by WCPFC.

(127) In order to evaluate the level of compliance of Fiji with WCPFC conservation and management rules and reporting obligations, the Commission used the draft Compliance Monitoring Scheme Report for 2010 (40) and the draft Final Compliance Monitoring Report for 2010 (41).

(128) In particular, according to the available information, Fiji has failed to comply with the requirement to report on the number of vessels fishing for swordfish as provided for in WCPFC Conservation and Management Measure (CMM) 2009-03. It has also failed to comply with the requirement to provide catch and effort data and size composition data for bigeye tuna and yellowfin tuna as provided for in WCPFC Conservation and Management Measure 2008-01. It has also failed to comply with the requirement to report on the implementation of the FAO guidelines and information on interactions with sea turtles as provided for in WCPFC Conservation and Management Measure (CCM) 2008-03. It has also failed to comply with the WCPFC CMM 2007-01 and with the VMS standards, specifications and procedures as defined in points 7.2.2, 7.2.4 and 7.2.3 of the WCPFC VMS Standards Specifications Procedures (SSPs). Finally, Fiji has failed to comply with the requirement on non-national observers provided for in the regional observer programme as defined in WCPFC CMM 2007-01.

(129) The failure of Fiji to provide to WCPFC the information referred to in recital 128 demonstrates the failure of Fiji to fulfil its obligations as flag State pursuant to the Unclos and the UNFSA.

(130) Indeed the failure to report catch and effort data as provided for in the WCPFC conservation and management measures, to ensure a correct application of the VMS use rules and to implement correctly a regional observer programme, undermine the ability of Fiji to fulfil its obligations under Articles 117 and 118 of the Unclos which stipulate the duties of States to adopt measures for their respective nationals for the conservation of living resources of the high seas and to cooperate on conservation and management measures for living resources in the areas of the high seas.

(131) The failure of Fiji to implementing the WCPFC conservation and management measures is in breach of the requirements of Article 18(3) of the UNFSA.

(132) Indeed Fiji is in breach of Article 18(3)(e) of the UNFSA by failing to transmit vessels positions, catches figures and fishing effort figures of vessels fishing on the high seas in a manner consistent with the rules of a relevant RFMO.

(133) By failing to implement correctly the regional observer programme of a relevant RFMO, Fiji also acts in breach of Article 18(3)(g)(ii) of the UNFSA.

(134) In addition, by failing to implement correctly the VMS system of a relevant RFMO, Fiji also acts in breach of Article 18(3)(g)(iii) of the UNFSA.

(135) Finally, Fiji does not fulfil the conditions stipulated in Article 18(h) of the UNFSA in view of the information gathered during the mission referred to in recital 103 that revealed a complete absence of legal provisions regulating transhipments on the high seas.

(136) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (6), that Fiji has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

7.4. Specific constraints of developing countries

(137) It is recalled that according to the United Nations Human Development Index (42), Fiji is considered as a medium human development country (100th in 187 countries). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 where Fiji is listed in the category of upper middle income countries.

(138) Account taken of that ranking Fiji cannot be considered as a country having specific constraints directly derived from its level of development. No corroborating evidence could be established to indicate that the failure of Fiji to discharge the duties incumbent upon it under international law is the result of lacking development. In the same manner, no concrete evidence exists to directly correlate the established shortcomings in respect of the monitoring, control and surveillance of fishing activities with the lack of capacities and infrastructure. In fact for the reasons explained in the above recital there are indications that the failure to comply with international rules is directly linked with lack of proper legal instruments, in particular specific provisions in the national legal framework referring to measures to combat, deter and eliminate IUU fishing activities.

(139) With respect to control and management capacities it is evident that the significant increase of the Fiji flagged fleet, as already observed in October 2009 by FAO in its National Fisheries Sector Overview (43), needs to be accompanied with relevant actions to enhance effective monitoring, control and surveillance of fishing activities. Nevertheless, Fiji is an upper middle income country and no corroborating evidence exists to confirm that there are development constraints directly linked with its performance. In fact it should be highlighted that by authorising a significant increase of its registered fishing fleet, without adapting its control system and without adapting its legal framework to the international fisheries legal framework, Fiji has acted in a manner which is not consistent with its international obligations.

(140) It is also pertinent to note that the Union has already funded, in 2012, a specific technical assistance action in Fiji with respect to the fight against IUU fishing (44).

(141) In view of the situation explained in this Section of the Decision, and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Fiji with respect to fisheries are not impaired by its level of development.

8. PROCEDURE WITH RESPECT TO THE REPUBLIC OF GUINEA

(142) The notification of the Republic of Guinea (Guinea) as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010.

(143) From 16 to 20 May 2011, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to Guinea in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(144) The mission sought to verify information notified by Guinea to the Commission concerning Guinea’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by Guinea in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(145) The final report of the mission was sent to Guinea on 2 August 2011.

(146) A subsequent mission of the Commission to Guinea was conducted from 27 to 30 September 2011 to follow up the actions taken in the first mission.

(147) The comments of Guinea on the final report of the mission were received on 15 November 2011.

(148) Guinea submitted additional written comments on 21 November 2011, 1 December 2011, 26 March 2012 and 22 May 2012.

(149) Guinea is a Contracting Party to ICCAT and to IOTC. Guinea has ratified the Unclos and the UNFSA. Guinea is also a member of the Fishery Committee for the Eastern Central Atlantic (CECAF) which is a sub-regional fisheries advisory body. The purpose of the CECAF is to promote the sustainable utilisation of the living marine resources within its area of competence by the proper management and development of the fisheries and fishing operations.

(150) In order to evaluate the compliance of Guinea with its international obligations as flag, port, coastal or market State set out in the above international agreements mentioned in recital 149 and established by the relevant RFMOs mentioned in recitals 149 and 151, the Commission sought and analysed all the information it deemed necessary for the purpose of such an exercise.

(151) The Commission used information derived from available data published by ICCAT, NEAFC, NAFO and SEAFO either in the form of Compliance Reports or in the form of IUU vessel lists as well as publicly available information retrieved from the NMFS report.

9. POSSIBILITY OF GUINEA OF BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

(152) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Guinea as flag, port, coastal and market State. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

9.1. Recurrence of IUU Vessels and IUU trade flows (Article 31(4)(a) of the IUU Regulation)

(153) The Commission established on the basis of information retrieved from RFMO IUU vessel lists (45) that there are two Guinean-flagged IUU vessels in the relevant IUU lists (46). Those vessels are Daniaa (previous name: Carlos) and Maine.

(154) The Commission established on the basis of information retrieved from RFMO IUU vessel lists (47) that one IUU vessel in the relevant IUU lists (Red, previously named Kabou) carried the flag of Guinea after its inclusion in these lists (48).

(155) Furthermore, three Guinean-flagged purse-seiner vessels were harvesting tuna species from 1 January 2010 to 1 June 2011 within the ICCAT area without holding an international fishing licence delivered by a flag State party to ICCAT. The only fishing licences held by those vessels during that period correspond to fishing licences delivered by Togo for fishing activities within the EEZ of Togo, which is neither a contracting nor a cooperating party to ICCAT. In addition, those vessels were operating within the ICCAT area from 1 January 2010 to 1 June 2011 without VMS devices installed on board in violation of ICCAT Recommendation 03-14. Following official requests notified by the Commission to the Guinean authorities in accordance with Article 26 of the IUU Regulation on 14 March 2011, 26 July 2011 and 20 September 2011, the Guinean authorities applied, in April 2011, an administrative sanction against those vessels for the facts stated in this recital and in accordance with the relevant Guinean legal provisions. Furthermore, according to available information, Vessel Monitoring System (VMS) devices were installed on board those vessels in June 2011. In addition, the three vessels conducted repeated illegal transhipments at sea within the ICCAT area from 1 January 2010 to 29 May 2011 to a carrier vessel which was not recorded in the ICCAT Registry of carrier vessels (49) entitled to operate within the ICCAT area as provided for in ICCAT Recommendation 06-11. In accordance with that Recommendation, purse seiners cannot tranship at sea tuna species within ICCAT area. The Commission found that recurrent transhipments at sea were effected in breach of the ICCAT Recommendation 06-11 from January 2010 to May 2011 with more than 30 such transhipments effected during that period were documented.

(156) In this respect it is recalled that, pursuant to Article 18(1) and (2) of the UNFSA, the flag State is responsible vis-à-vis its vessels operating on the high seas. The Commission considers that the existence of IUU vessels in RFMOs IUU lists currently flagged to Guinea or carried the flag of Guinea after its inclusion in these lists is a clear indication that Guinea has failed to undertake its flag State responsibilities under international law. Indeed, by having the afore-stated number of IUU vessels Guinea has failed to exercise its responsibilities effectively, to comply with RFMO conservation and management measures and to ensure that its vessels do not engage in any activity which undermines the effectiveness of such measures.

(157) Pursuant to Article 19(1) and (2) of the UNFSA, the flag State is required to ensure compliance by vessels flying its flag with RFMO conservation and management rules. Flag States are also required to conduct expeditious investigations and judicial proceedings. The flag State should also ensure adequate sanctions, discourage repetition of violations and deprive offenders of the benefits accruing from their illegal activities. In this respect it is noted that the existence of IUU vessels flagged to Guinea in the RFMO IUU lists highlights the failure of Guinea to fulfil its obligations under Article 19(1) and (2) of the UNFSA.

(158) In addition, pursuant to Article 20 of the UNFSA, States must cooperate either directly or through RFMOs to ensure compliance with and enforcement of RFMO conservation and management measures. A set of specific requirements provided for in that Article sets out the obligations of States to investigate, cooperate with each other and sanction IUU fishing activities. It is also foreseen that for vessels reported to have engaged in activities undermining the effectiveness of RFMO conservation and management measures, States may have recourse to RFMO procedures to deter such vessels until such time as appropriate action is taken by the flag State. In this respect, it is noted that the existence of IUU vessels currently or previously flagged to Guinea (following their inclusion in RFMO IUU vessel lists) in RFMO IUU lists still operating demonstrates the failure of Guinea to fulfil its obligations under international law with respect to international cooperation in enforcement.

(159) It is also recalled that in accordance with Article 118 of the Unclos, States must cooperate in the conservation and management of living resources in the areas of the high seas. In this respect the existence of IUU vessels currently or previously flagged to Guinea (following their inclusion in RFMO IUU vessel lists) in RFMO IUU lists which are still engaged in fishing operations highlights the failure of Guinea to fulfil its flag State obligations. Indeed recognised IUU fishing vessels undermine conservation and management of living resources.

(160) The non-compliance by Guinea with respect to Guinean-flagged IUU vessels listed in RFMO lists is also in breach of Article 217 of the Unclos which requires flag States to take specific enforcement actions in order to ensure compliance with international rules, the investigation of presumed violations and the adequate sanctioning of any violation.

(161) The existence of IUU vessels currently or previously (following their inclusion in RFMO IUU vessel lists) flagged to Guinea in RFMO IUU lists also demonstrates the lack of ability of Guinea to follow the recommendations in the IPOA IUU. Point 34 of the IPOA IUU recommends that States ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing.

(162) The failure of Guinea as a flag State to fulfil its compliance and enforcement obligations as laid down in Article 19 of the UNFSA is also confirmed by the information gathered during the mission in May 2011 and by information collected by the Commission in accordance with Article 25 of the IUU Regulation. As explained in recitals 174 and 175, the Commission established that fishing vessels flying its flag were committing recurrent IUU fishing activities. This situation prompted the initiation of procedures under Articles 26 and 27 of the IUU Regulation. The procedures under Article 27 are currently on-going in order to establish if IUU fishing activities are adequately sanctioned in a manner that ensures compliance, discourages violations and deprives offenders of the benefits accruing from their illegal activities.

(163) On the basis of information collected during the mission it conducted in May 2011, the Commission revealed that Guinea did not take appropriate measures for preventing, detecting and sanctioning recurrent IUU fishing activities carried out by fishing vessels operating in its waters. Indeed, available information confirms that in spite of the availability of sufficient information for notifying infringements committed by foreign fishing vessels operating within their waters, in particular from observers reports and catch reports, the competent Guinean authorities did not initiate proceedings and did not sanction the vessels concerned Furthermore, there are indications that the provisions of a State agreement between Guinea and a foreign country are not properly enforced by the Guinean authorities.

(164) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Guinea has failed to discharge the duties incumbent upon it under international law as a flag and coastal State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or operating in its maritime waters or by its nationals and has not taken sufficient action to counter documented and recurring IUU fishing by vessels flying its flag or operating in its maritime waters.

9.2. Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)

(165) With respect to whether Guinea cooperates effectively with the Commission on investigations of IUU fishing and associated activities it is noted that evidence gathered by the Commission indicates that Guinea failed to fulfil its flag State obligations as set out under international law.

(166) In this respect the situation with respect the three Guinean-flagged purse-seiner vessels explained in recital 154 is recalled. In this context, it is noted that considering that the Guinean authorities failed to cooperate in the framework of Article 26 of the IUU Regulation, the Commission initiated the procedure of Article 27 of that Regulation vis-à-vis the operator concerned.

(167) The facts described in recitals 154 and 166 indicates that Guinea failed to take enforcement action in response to such IUU fishing following relevant requests made by the European Commission.

(168) The facts described in recitals 154 and 166 indicates Guinea failed to fulfil the conditions of Article 94(2)(b) of the Unclos which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Furthermore, Guinea does not fulfil its compliance and enforcement obligations as a flag State stipulated in Article 19 of the UNFSA since it has failed to demonstrate that it acted and operated in accordance with the detailed rules laid down in that Article.

(169) This situation indicates that Guinea also failed to cooperate and coordinate activities with other States in preventing, deterring and eliminating IUU fishing in the manner set out in point 28 of the IPOA IUU. Guinea also failed to take into consideration the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance (MCS) of fishing from its commencement, through the point of landing, to final destination, including by implementing a Vessel Monitoring System (VMS) in accordance with the relevant national, regional and international standards, including the requirement for vessels under its jurisdiction to carry VMS on board. In the same manner, Guinea failed to take into consideration the recommendations in point 45 of the IPOA IUU which advises flag States to ensure that each vessel entitled to fly their flag fishing in waters outside their sovereignty or jurisdiction holds a valid authorisation to fish issued by the flag State concerned.

(170) The Commission analysed whether Guinea has taken effective enforcement measures in respect of operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(171) It is noted that the available evidence confirms that Guinea has not fulfilled its obligations under international law with respect to effective enforcement measures. In this respect it is recalled that there are vessels in RFMOs IUU lists currently flagged to Guinea or carried the flag of Guinea after its inclusion in these lists. The existence of such IUU vessels highlights the failure of Guinea to honour its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 18(1) and (2) of the UNFSA. Furthermore, that situation is also an indication that Guinea is not fulfilling the requirements of Article 19(1) of the UNFSA which sets rules for flag States on compliance and enforcement. The performance of Guinea in this matter is also not in accordance with the requirements of Article 19(2) of the UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the benefits accruing from their illegal activities.

(172) Furthermore the performance of Guinea with respect to effective enforcement measures is also not in accordance with the recommendations in point 21 of the IPOA IUU which advise States to ensure that sanctions for IUU fishing by vessels, and to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

(173) During the mission it conducted in May 2011, the Commission observed that there is a need to review the applicable sanctions in respect of violations, as provided for in Guinea Decret D/97/017/PRG/SGG’ of 19 February 1977. Guinea reformed its sanction system by adopting, on 1 March 2012, a new decree repealing the previous one (mentioned above in this recital) and increasing the levels of sanction in accordance with the requirements of Article 19 of the UNFSA. Nevertheless, up till now, no concrete information exists on the way this new legal framework is applied.

(174) In this respect, on the basis of documentary evidence collected in accordance with Chapters III and V of the IUU Regulation, it was revealed that the three Guinean-flagged vessels mentioned in recital 166 which were operating within the ICCAT area from 1 January 2010 to 1 June 2011 without VMS devices installed on board in violation of ICCAT Recommendation 03-14 caught at least 8 922 tonnes of tuna species (mainly skipjack tuna) in 2010. This situation prompted the initiation of procedures under Articles 26 and 27 of the IUU Regulation. The procedure under Article 27 is currently on-going.

(175) In the same manner, on the basis of documentary evidence collected in accordance with Chapter III and V of the IUU Regulation, it was revealed that the three Guinean-flagged vessels mentioned in recital 166 carried out more than 30 transhipments at sea representing 14 200 tonnes of tuna from January 2010 to May 2011 in violation of ICCAT Recommendation 06-11. This situation prompted the initiation of procedures under Articles 26 and 27 of the IUU Regulation. The procedure under Article 27 is currently on-going.

(176) In the course of the mission it conducted in May 2011, the Commission observed that in spite of the availability of sufficient information for notifying infringements committed by foreign fishing vessels operating within Guinean waters, in particular from observers reports and catch reports, the competent Guinean authorities were failing to undertake prompt action to initiate proceedings and, where appropriate, to sanction the vessels concerned. Pursuant to Article 62 of the Unclos, the coastal State must promote the objective of optimum utilisation of the living resources in the EEZ. In addition, nationals of other States fishing in the EEZ must comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. In this respect, the administrative practices observed in Guinea are not consistent with the international obligations of coastal States under the Unclos.

(177) Pursuant to Article 20 of the UNSFA, States must cooperate promptly and expeditiously in order to ensure compliance with and enforcement of conservation and management measures and address any alleged violation.

(178) Account taken of the situation in explained in this Section of the Decision, it is considered that the enforcement procedures put in place by Guinea as coastal State are not consistent with the UNSFA. This is because the policy followed by Guinea lacks prompt international cooperation in enforcement and consequently undermines the effectiveness of any enforcement measure in respect of operators responsible for IUU fishing.

(179) With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Guinean-flagged vessels until 2012.

(180) With respect to the existing capacity of Guinea as a developing country, it should be taken into account that, according to the United Nations Human Development Index (50), Guinea is considered as a low human development country (178th in 187 countries). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 where Guinea is listed in the category of least developed countries. In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of Guinea to fulfil its cooperation and enforcement duties. Nevertheless, it should be taken into account that the administrative capacity of Guinea has been recently reinforced by Union financial and technical assistance over the three last years in the framework of the Fishing Partnership Agreement which was in force in 2009 (51), and by technical assistance programme with respect to the fight against IUU fishing (52).

(181) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and 31(5) of the IUU Regulation, that Guinea has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

9.3. Failure to implement international rules (Article 31(6) of the IUU Regulation)

(182) Guinea has ratified the Unclos and the UNFSA. Furthermore, Guinea is a Contracting Member of IOTC and ICCAT.

(183) The Commission analysed any information deemed relevant with respect to the status of Guinea as Contracting Member of IOTC and ICCAT.

(184) The Commission also analysed any information deemed relevant with respect to the agreement of Guinea to apply conservation and management measures adopted by ICCAT and IOTC.

(185) It is recalled that ICCAT issued a letter of Identification to Guinea concerning its reporting deficiencies in 2010 (53). Indeed in its letter of Identification Guinea has been identified for its failure to comply with its obligation to communicate statistics as set out in ICCAT Recommendation 05-09. In the same letter ICCAT highlighted that Guinea had not provided all the necessary data and information such as the annual report, the compliance tables, data on Task I (statistics referring to fleet) and Task II (catches size), information related to management measures for large-scale longline tuna vessels, the report on internal measures for vessels of more than 20 meters in length, had not been transmitted to the ICCAT Secretariat. The relevant requirements are provided for in the set of ICCAT resolutions and recommendations listed in recitals 188 and 190. It is also pertinent to note that Guinea was identified by ICCAT in 2009, the identification was maintained in 2010 and 2011.

(186) The Commission also analysed information available from ICCAT on the compliance of Guinea with ICCAT rules and reporting obligations. For this the Commission used the ICCAT 2010 Compliance Summary Tables (54) as well as the ICCAT 2011 Compliance Summary Tables (55).

(187) With respect to 2010, Guinea did not submit: annual reports and statistics, information referring to conservation and management measures and compliance tables. Furthermore Guinea failed to report to ICCAT actions taken with respect to one vessel on the ICCAT IUU list.

(188) In particular, according to the available information, Guinea did not submit to ICCAT in 2010 information on: annual reports (scientific) (provided for ICCAT Convention, Resolution 01-06 and Reference 04-17), annual reports (ICCAT Commission (provided for ICCAT Convention, Resolution 01-06 and Reference) 04-17), trade measures submission of imports and landing data (provided for Recommendation 06-13), transhipment declarations (at sea) (provided for Recommendation 06-11), transhipment reports (provided for Recommendation 06-11), data on non-compliance (provided for Recommendation 08-09), vessels 20 m internal action reports (provided for Recommendation 02-22/09-08), annual list of albacore vessels (provided for Recommendation 98-08), list of Mediterranean-SWO (swordfish) vessels (provided for Recommendation 09-04/09-08), large scale tuna longline fishing vessels (LSTLV) management standard (provided for Recommendation 01-20), vessel chartering (provided for Recommendation 02-21), vessels involved in IUU fishing (provided for Recommendation 09-10), reports on IUU allegations (provided for Recommendation 09-10), vessel sightings (provided for Res 94-09), port inspection reports (provided for Recommendation 97-10), data from ICCAT Statistical Document Programs (provided for Recommendation 01-21 and Recommendation 01-22), validation seals and signatures for bluefin tuna catch documents (BCD) (provided for Recommendation 08-12/09-11), BCD contacts points (provided for Recommendation 08-12/09-11), BCD legislation (provided for Recommendation 08-12/09-11), BCD tagging summary (provided for Recommendation 08-12/09-11), bluefin catch documents (provided for Recommendation 08-12/09-11), BCD annual report (provided for Recommendation 08-12/09-11), compliance with seasonal closure for med SWO (swordfish) (provided for Recommendation 09-04), internal procedure for compliance with closed areas/season in Gulf of Guinea (provided for Recommendation 09-04), compliance tables (provided for Recommendation 98-14), submission of information on East Atlantic and Mediterranean bluefin tuna (provided for Recommendation 06-07, Recommendation 08/05/EC and 09-11).

(189) With respect to 2011, Guinea did not submit: the annual report, Task I data related to fleet characteristics and Task II (catches size) data, information referring to conservation and management measures concerning vessels of more than 20 meters in length and compliance tables. Furthermore Guinea failed to report to ICCAT actions taken with respect to one vessel on the ICCAT IUU list.

(190) In particular, according to the available information, Guinea did not submit to ICCAT in 2011 information on: annual reports (scientific) (provided for ICCAT Convention, Resolution 01-06 and Reference. 04-17), annual reports (ICCAT Commission) (provided for ICCAT Convention, Resolution 01-06 and Reference 04-17), transhipment declarations (at sea) (provided for Recommendation 06-11), transhipment reports (provided for Recommendation 06-11), transhipment (carrier) vessels (provided for Recommendation 06-11), vessels greater than 20 m (provided for Recommendation 09-08), vessels 20 m internal action reports (provided for Recommendation 02-22/09-08), annual list of albacore vessels (provided for Recommendation 98-08), large scale tuna longline fishing vessels (LSTLV) management standard (provided for Recommendation 01-20), vessel chartering (provided for Recommendation 02-21), alternative scientific monitoring approach (provided for Recommendation 10-10), internal procedure for compliance with closed areas/season in Gulf of Guinea (provided for Recommendation 09-04), compliance tables (provided for Recommendation 98-14), submission of information on East Atlantic and Mediterranean bluefin tuna (provided for Recommendation 06-07, Recommendation 08/05/EC and 09-11).

(191) Furthermore, a number of elements were revealed during the mission the Commission conducted in Guinea in May 2011. While Vessel Monitoring System (VMS) devices must be installed on board vessels operating within ICCAT area (in accordance with ICCAT Recommendation 03-14), it was revealed during that mission that the VMS in the Guinean Fisheries Monitoring Centre was not functioning. On the basis of concrete cases, it was revealed that only historical data was partly available for 2010. Due to technical problems, VMS could neither be used for monitoring the activities of Guinean vessels operating on the high seas, nor for monitoring the activities of the foreign fishing vessels operating within Guinean waters.

(192) In the same manner, it was revealed during the mission the Commission conducted in May 2011 that Guinea was not monitoring the transhipment operations at sea of purse seiners flying its flag and operating in the ICCAT area. In this respect recurrent violations of ICCAT Recommendation 06-11 were even authorised by the Guinean authorities who had validated 22 catch certificates which mention transhipments at sea carried out by three Guinean purse seiners operating in the ICCAT area.

(193) Furthermore, it was observed during the mission the Commission conducted in May 2011 that operational and financial means for conducting surveillance operations at sea were not sufficient for ensuring an efficient monitoring of activities conducted by foreign fishing vessels in their waters. It was also observed that several provisions of the Guinean Fisheries Code were not implemented and enforced by the Guinean authorities. Those provisions, which concern the obligation to communicate fishing log books after each fishing campaign and the obligation to transhipment only at port as provided for in the Guinean ‘Plan de pêche’, were not implemented and enforced by the Guinean authorities. Consequently, the omission of the Guinean authorities to enforce those provisions has diminished the effectiveness of the applicable laws and regulations.

(194) During the mission it conducted in May 2011, the Commission also observed that in spite of the monitoring, control and surveillance means, and in spite of relevant scientific advice for determining the allowable catch of living resources in its EEZ (no direct assessment of stocks had been made since 2009), Guinea issued authorisations to fish for more than 60 foreign fishing vessels in 2010 and for 56 such vessels in June 2011. Consequently, the decision of the Guinean authorities to issue those authorisations has have diminished the effectiveness of the applicable laws and regulations.

(195) The Commission also analysed information available from IOTC on the compliance of Guinea with IOTC rules and reporting obligations. IOTC characterised the general level of implementation of IOTC conservation and management measures from Guinea in 2011 as follows: ‘general lack of compliance with IOTC measures and response’ and ‘no report of implementation and was not present to discuss compliance issue’. For 2012, IOTC characterised the identified non-compliance issue for Guinea as follows: ‘general lack of compliance with IOTC measures and response’ (56).

(196) The compliance report (5