briefing paper - Keeping Illegal Fish and Timber off the Market

Israeli Perspectives on the Palestinian Refugee Issue
briefing paper
Keeping Il egal Fish and Timber
off the Market
A Comparison of EU Regulations
Heike Baum¼ller, Duncan Brack and Katharina Umpfenbach
Energy, Environment and Resource Governance | October 2009 | EERG BP 2009/04
Summary points
In response to the global problem of illegal logging and fishing, and the
failure of the international community effectively to address the problem, the
European Union has moved to tighten its own regulations.
The EU regulation to combat illegal fishing introduces comprehensive
certification and traceability requirements for anyone wishing to import fish
products into the EU, and provides for extensive enforcement measures that can
be used by European authorities to ensure compliance with the regulation.
The EU regulation on illegal logging establishes a licensing system with
countries that have entered into voluntary partnership agreements (VPA) with
the EU. An additional regulation is currently being developed to try to ensure
that illegal timber from all countries is excluded from the EU market.
The broad scope of the illegal fishing regulation, in terms of its geographical
reach and its emphasis on enforcement is, at least in part, motivated by the
‘common property’ nature of global fisheries resources, which makes it
difficult to address the impacts of illegal fishing at the national level.
The bilateral VPA process recognizes the national character of forest
governance. While slow in their implementation, the VPAs – with their
emphasis on capacity-building and stakeholder engagement – have the
potential to trigger long-lasting governance reforms.
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Introduction
mentation, it is a good time to compare and contrast the
Ilegal trade in natural resources is a serious global dif erent approaches to similar problems, and highlight
problem.Ilegalfishingandlog ing,andtheinternational areasthatmightne dfurtherstrengthening.
trade in ilegaly sourced fish and wood products, causes
environmental damage, costs governments bilions of Origins
dolars in lost revenue, promotes cor uption, and under- Although both ilegal fishing and log ing have trig ered
mines the rule of law and good governance. It retards widespread international discus ions, there are stil no
sustainabledevelopmentinsomeofthepoorestcountries international legaly binding rules to addres the prob-
of the world. Betwe n them, the value of ilegal fish and lems.
timbercouldbeasmuchas$40bilionayear,one-eighth
ofthevalueoftheilegaltradeinnarcotics.1
In recent years a number of international initiatives
have be n adopted to tackle the ilegal trade; many of
‘As the world’s largest trading
them focus on the role of consumer countries, which
bloc, the European Union has a
contribute to the problem by importing fish, timber and
particularly important role to play,
wood products without ensuring that they are legaly
and has recently adopted rules
sourced.Astheworld’slargesttradingbloc,theEuropean
Union has a particularly important role to play, and has
to curb illegal logging and
recently adopted rules to curb ilegal log ing and fishing
fishing and the import of illegal
and the import of ilegal products into the European
products into the European
market.
market.
IneachcasetheEUhashadtodealwiththedif icultyof
’
devising mechanisms to exclude ilegal products without
unduly impairing the trade in legal products, an impor-
Ef ortstocurbilegalfishinghavemadecomparatively
tant source of export revenue for many developing more progres . The UN Food and Agriculture
countries.InpracticetheapproachestheEUhastakenin Organization’s International Plan of Action (IPOA),
thetwosectorsarequitedif erent,largelybecauseoftheir agre d in 20 1, sets out voluntary measures for govern-
specific characteristics. Fisheries are not restrained by ments to prevent, deter and eliminate ilegal, unreported
national boundaries, and fishing on the high seas in and unregulated (IUU) fishing. The subsequent interna-
particularisoftenafre foral;thereareobviouslimitsto tional agre ment on port state measures reached in 20 9
nationalmeasures,andaverystrongincentivetoadopta wil be the first-ever global treaty focused specificaly on
broader international approach. By contrast, forests the problem of IUU fishing.2 In contrast, despite many
always lie within national boundaries, and an approach high-leveldiscus ions,includingthe19 8–20 2G8Action
focusedmoreonnationalmeasuresandagre mentswith ProgrammeonForests,noconcertedglobalactionhasyet
timber-producing countries makes more sense – though be ntakenonilegallog ing.
italsohasitslimitations.
In response to slow progres at the international level,
With both sets of measures at an early stage of imple- the EU has moved to tighten its own regulations in both
1
IUU fishing estimated at $10–23bn a year – Marine Resources Assessment Group/University of British Columbia, The Global Extent of Illegal Fishing (April
2008); illegal logging estimated at £23bn a year – American Forest & Paper Association, Seneca Creek Associates and Wood Resources International, Illegal
Logging and Global Wood Markets: The Competitive Impacts on the US Wood Products Industry (November 2004); illegal trade in narcotics estimated at
$322bn a year – UN Office on Drugs and Crime, World Drug Report 2007 (UNODC, 2007).
2 This agreement, which was signed up to by 91 countries in September 2009, commits participants to take a number of steps to close their ports to IUU
fishers. To enter into force, the agreement will have to be formally adopted by the FAO Conference (in November 2009) and ratified by 25 states.
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areas.Theregulationtoprevent,deterandeliminateIUU countries, particularly in Africa and Southeast Asia, have
fishing ( EC) No 10 5/20 8) was adopted by the EU also expres ed interest. Each VPA wil be tailored to the
Council of Fisheries Ministers in September 20 8 and is particular circumstances of the partner country, but they
settoenterintoforceon1January2010;itwil besupple- wil al restonsimilarprinciples.WithintheEU,theregu-
mented by more detailed implementing rules. The lationtointroducetherequirementforlicensedproducts
regulation aims not only to combat IUU fishing in fromVPAcountrieswasadoptedinDecember20 5.3
European waters, but also (and primarily) to close the
ThewayinwhichtheFLEGTlicensingschemeisbeing
Europeanmarkettoilegalycaughtfishfromoverseas.
built up through agre ments with individual countries,
As a folow-up to the ilegal log ing discus ions at the however,rendersitvulnerabletoevasion;ilegalproducts
G8 level, in 20 3 the EU published its Action Plan for could simply be trans-shipped via non-partner countries
ForestLawEnforcement,GovernanceandTrade(FLEGT), to the EU to escape the ne d for a licence. After a long-
the most ambitious set of measures proposed by any drawn-out proces of analysis and consultation, in
consumer country or bloc to date. At the core of the October 20 8 the European Commis ion published its
FLEGT approach is the negotiation of bilateral voluntary proposal for tackling the problem through a ‘due dili-
partnership agre ments (VPAs) with timber-exporting gence’ regulation (se below).4 The regulation is stil
nations, legal y binding commitments betwe n the makingitswaythroughtheEU’slegislativeproces es.
partnercountriesandtheEUtotradeonlyinlegaltimber
products. The VPAs wil establish a licensing system for What is ‘legal’?
legal timber, providing the means for distinguishing The IUU fishing regulation does not define legality as
betwe nlegalandilegaltimberthatareotherwiselargely such,butratherreferstonationalandinternationalregu-
lacking; although the voluntary timber certification lations. Importers of fish and fish products5 into the EU
schemes(suchasthoseoftheForestStewardshipCouncil wil have to provide a catch certificate to show that the
or the Programme for the Endorsement of Forest catches ‘have be n made in ac ordance with applicable
Stewardship)shouldguarante legality,theyarestil fairly laws, regulations and international conservation and
uncommon in developing countries (though they are management measures’ – these last being only vaguely
expandingrapidly).
defined as ‘measures to conserve and manage one or
The VPAs are also intended to include provisions for more species of living marine resources and that are
capacity-buildingas istancetopartnercountriestosetup adoptedandinforceinac ordancewiththerelevantrules
the licensing scheme, improve enforcement and, where of international and/or Community law’. The flag state6
neces ary, reform their laws. The first two were agre d wil notify the relevant national laws to the European
withGhanainSeptember20 8andtheRepublicofCongo Commis ion.
in March 20 9. Negotiations have concluded with
Theregulationdoesoutlinewhatitconsiderstoconsti-
Cameroon(theagre mentisstil awaitingsignature),and tute ilegal behaviour by fishing ves els. In addition to
are stil under way with the Central African Republic, citingtheinternationalyagre ddefinitionofIUUfishing
Gabon, Indonesia, Liberia and Malaysia; many other intheFAO’sIPOA,7theregulationlistsanumberofilegal
3 European Council Regulation No 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber into the
European Community.
4 European Commission Proposal for a Regulation laying down the obligation of operators who place timber and timber products on the market, COM(2008)
644 final of 17 October 2008.
5 The regulation does not cover aquaculture products and excludes certain fishery products of minor importance in terms of conservation and trade (as listed in
the Annex).
6 Flag state refers to the authority under which a country exercises regulatory control over the commercial vessel which is registered under its flag.
7 Illegal fishing takes place where vessels operate in violation of the laws of a fishery; unreported fishing is fishing that has been unreported or misreported to
the relevant national authority or regional organization, in contravention of applicable laws and regulations; and unregulated fishing generally refers to fishing by
vessels without nationality, or vessels flying the flag of a country not party to the regional organization governing that fishing area or species.
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activities, such as the use of prohibited fishing gear, (Art. 2(d) . The scope of the legislation is simpler than in
fishinginclosedareas,orobstructinganinspection.
the VPAs. However, the European Parliament is
There is no international agre ment on ilegal log ing at empting to broaden this, and the final regulation may
or the trade in timber.8 Al measures adopted against adoptascopemorelikethatusedintheVPAs.
ilegal log ing at an international level therefore rest on
definitionsofwhatislegalinthecountrywherethetimber How is legality determined?
isharvested.
Any imports of fish or fish products into the EU have to
The negotiations over the VPAs include agre ment on be ac ompanied by a catch certificate to show that
thescopeofthelawsrelevantto‘ilegal og ing’,outofthe catches have be n made legal y.10 The certificates wil
many that af ect forest management and trade in timber, ne d to be pas ed along the entire supply chain,
and these are generaly drawn up after a multi-stake- includingproces orsthatimportandthenre-exportfish
holder consultation proces in the VPA country. The key to the EU, to prevent il egal y caught fish being chan-
lawsincludethoserelatingto:
nel ed through third countries. Catch certificates are
is ued by the flag state of the ves el(s) which made the
Rightsalocationproces esandac es rights;
catch from which the fishery products have be n
Companyregistrationrequirements;
obtained. The onus thus rests on the flag state to ensure
Socialobligations,includinglabourrequirements;
that the catches have inde d be n made legal y. How it
Rightsoflocalcommunitiesandindigenouspopula- validates this is up to the flag state.
tions;
Environmental safeguards, forest management,
timberharvesting,proces ingoperationsandas oci-
atedfinancialandfiscalobligations;
‘It is unclear on what basis the
Transportandcommercializationoftimber.9
notifications were judged to be
sufficient, and in particular
Foreachrequirement,theVPAwil listcriteria,indicators
andconcreteverifiers–suchasthedocumentsoperators
whether the Commission
ne d to produce in order to prove compliance – that wil
assessed not only whether an
form the basis for enforcement. In some countries, forest
authority existed to implement
law is not always clear, and laws agre d by national
and enforce conservation
governments sometimes conflict with those adopted by
regional or local governments. Some VPAs are therefore
measures, but also whether such
expected to include commitments to a programme of
measures were in place and
legalreform.
effective.’
The cur ent draft of the ‘due diligence’ regulation –
which wil apply to al timber entering the EU, regardles
of source – adopts a similar but les elaborate approach,
For catch certificates to be ac epted by European
defining any activity as ilegal that is not ‘in ac ordance authorities, the flag state initial y has to notify the
with the applicable legislation in the country of harvest’ Commis ionthatithassuitablenationalar angementsin
8 Apart from the Convention on International Trade in Endangered Species (CITES), which covers a small number of tree species.
9 Falconer, J. (2009). FLEGT VPA Update. Presentation at the Illegal Logging Update Meeting, Chatham House, June 2009. The VPA texts themselves are not
yet publicly available, but are expected to become so soon.
10 European will not have to submit a catch certificate provided that the catch is not exported to a third country and then re-exported to the EU. These vessels
instead fall under the control scheme of the EU’s Common Fisheries Policy.
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place. The Commis ion can request additional informa- legal y sourced rests with the partner country. However,
tion if the notification does not cover al the elements set in contrast to the fishing regulation, the VPAs wil
out in the regulation. EU member states wil only ac ept contain provisions for independent third-party moni-
certificates from importers once the details of the flag toring of the functioning of the system in the partner
state’s competent authorities have be n published in the country. The VPAs set out the terms of reference for the
Of icial Journal of the EU and on the website of the monitoring organizations, and the extent to which their
Directorate General for Maritime Af airs and Fisheries findingswil bemadepublic.Eitherparty–theEUorthe
(DGMare).
partner country – wil be able to suspend the agre ment
Intheory,thisnotificationrequirementcouldprovide if it believes it neces ary.
a lever to encourage flag states to strengthen their fish-
The VPAs wil contain provisions for traceability
eries management and conservation measures, but it systemstotrackthetimberthroughthesupplychain.Itis
remains to be se n how ef ective it wil be. As of 6 hoped that this wil include imports from third countries
October 20 9, 36 flag states1 had submit ed complete intotheVPApartnercountry,andtheFLEGTlicencewil
notificationswhileanumberofothercountrieshadbe n indicate the country of harvest. The Cameroon VPA wil
asked for additional information. It is unclear on what restrict imports to products already pos es ing a FLEGT
basis the notifications were judged to be suf icient, and or other authorized licence, and in both Cameroon and
in particular whether the Commis ion as es ed not only Congo mils wil be required to source only legal timber,
whether an authority existed to implement and enforce whetherdomesticorimported.
conservation measures, but also whether such measures
In contrast to the IUU fishing regulation, the licensing
were in place and ef ective. The EU regulation does not systemwil onlyapplytotimberproductstradedbetwe n
provide for a mechanism to monitor changes after the theVPApartnercountriesandtheEU;thereisnorequire-
initial notification or as es whether the measures are ment for FLEGT licences for products from other
being enforced.
countries, even if these originated in partner countries
Europeanmemberstatescancar youtverificationson (forexample,timberproducedinGhanaandproces edin
a case-by-case basis, for instance if they have grounds to Chinawouldnotne dtoshowalicenceattheEUborder).
question the authenticity of the catch certificate or have Al the partner countries which have agre d VPAs so far,
information to indicate that the importer has not however,intendtolicenseal theirtimberexportsregard-
compliedwiththerelevantlaws.Indeterminingilegality, les of destination, so the system may begin to spread
Europeanauthoritiescanuseawiderangeofinformation, beyondthedirecttradebetwe nthepartnercountriesand
including port inspections, a Community alert system, theEU.
sightingsatsea,anIUUfishinginformationsystem,catch
The‘duediligence’regulationisdesignedtoprovidethe
and trade data, ves el registers and databases or regional underpinningfortheFLEGTlicensingsystem;itwil apply
fisheries management organization (RFMO) catch docu- to al timber imports, including those from non-VPA
ments,amongothers.
countries, and also to domestic EU production. It is stil
In the case of timber, the VPAs similarly establish a unclear, however, precisely how it wil guarante legality.
licensing system to guarante legality. Any operator Ac ording to the original draft of the regulation, formal
exporting timber from a VPA partner country into the proofoflegalityisnotrequiredforeverytimberproduct.
EU wil have to provide a FLEGT licence, which wil be Instead, al operators who first place timber on the EU
is uedbyadesignatedlicensingauthorityinthepartner market are put under an obligation to pos es a due dili-
country. As with the IUU fishing regulation, responsi- gence system designed to ensure legality. The system wil
bility for ensuring that the timber has inde d be n ne dtoprovideac es toinformationontheoriginofthe
11 The list of flag states is available at http://ec.europa.eu/fisheries/cfp/external_relations/illegal_fishing_en.htm.”
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products as wel as on compliance. In its ac ompanying What measures can be taken against
Q&Adocument,theCommis ionspecifiesthattheriskof ilegal fishing/logging?
ilegalitymustbeminimizedratherthanfulyexcluded:‘it Under both the IUU fishing regulation and the VPAs, the
is not required that [operators] ensure legality beyond certificationorlicensingschemeisdesignedtoguarante
reasonable doubt. Operators have to show due diligence. legality; fish and timber products that are not ac ompa-
In other words, they ne d to ensure legality to their best nied by a catch certificate (from a flag state) or a licence
ability.’12 Any products ac ompanied by a FLEGT licence, (fromaVPApartnercountry)wil bebar edfromentryto
however (or a CITES export permit) wil be ac epted as the EU. As noted, ensuring the integrity of the licensing
legal.
systemwil betheresponsibilityoftheflagstateorpartner
country,subjecttoindependentmonitoringinthecaseof
timber.
In addition, the IUU fishing regulation provides for a
‘The level of proof of legality
range of enforcement measures, both against ves els that
which timber operators will need
engageinilegalactivitiesandagainstcountriesthatfailto
seems likely to vary with the
take ef ective action against IUU fishing. The decision on
degree of risk associated with
whether these measures wil be applied rests primarily
with the European authorities, i.e. the competent
the source.’
authority of the EU member state, the European
Commis ion or the Council (depending on the measure).
European authorities can also request the flag state to
Itremainstobese nhowthiswil workinpractice.The investigate and enforce measures against IUU fishing.
levelofproofoflegalitywhichtimberoperatorswil ne d Examplesofmeasuresinclude:
se mslikelytovarywiththedegre ofriskas ociatedwith
the source; the regulation includes a risk as es ment
EU member states can apply financial and/or crim-
procedure,thoughnodetailsareyetavailable.Thenotion
inalsanctionsagainstanyonefoundtohaveviolated
of‘firstplacer’isalsoambiguous,giventhecomplexityof
theregulation.
timbersupplychains,andmayne dtobefurtherdefined.
TheCommis ioncanaddboatsthathaveengagedin
Enforcement wil be up to member states, which have to
IUU fishing to its ‘Community IUU ves el list’ if the
nameacompetentauthority.
flag state fails to investigate and enforce measures
Thedraftregulationalsoalowsoperatorstouse‘recog-
against them. Among the punitive actions, listed
nised monitoring organisations’ to run the due diligence
boatswil notbealowedtofishinEuropeanwaters,
system for them if they prefer not to set up their own.
entertheportofanEUmemberstate,andimportto
Again, it is not yet clear how this wil work, but it se ms
orexportfromtheEU.
likely that al operators, whether or not they use moni-
The Council can identify a country as a so-caled
toring organizations, wil make extensive use of the
‘non-cooperating third country’ if it has failed to
voluntary certification schemes and a range of simpler
implementadequatemeasurestodealwithrecur ent
legality verification schemes cur ently in existence or
ilegal fishing by ves els flying its flag, fishing in its
under development. This wil direct at ention in turn on
watersorusingitsports,aswel astopreventmarket
whether these schemes are realy robust enough to guar-
ac es for ilegaly caught fishery products. Actions
ante legality.
against such countries include prohibiting imports
12 European Commission (2008). Questions and Answers on the Proposed Regulation laying down the obligations of operators who place timber and timber
products on the EU market. October 2008, question 18.
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of fish products from ves els flying their flag and a requirementsplacedonthematal .Thisiscur entlyan
fre ze on negotiating new fisheries partnership area of debate.
agre ments with the EU (to grant European fle ts
ac es toalistedcountry’swaters),aswel aspos ible Are there exceptions for smal operators?
terminationofexistingagre ments.
The IUU fishing regulation does not distinguish betwe n
TheEUcanimplementshort-termemergencymeas- smal and large operators. In response to concerns that
ures if actions by a third country undermine smal-scale fishers are likely to find it particularly chal-
conservation and management measures by an lengingtocomplywiththenewregulationsowingtotheir
RFMO. This provision could potentialy strengthen largenumber,geographicrangeandinformaloperations,
the enforcement mechanisms of RFMOs, which to the Commis ion wil introduce a simplified catch certifi-
datehavegeneralyprovedtoberatherweak.
cate in the implementing rules. Thus only one certificate
wil be required to cover a single consignment of catches
In the case of the VPAs, should major compliance prob- landed in a flag state by several smal fishing ves els (as
lems arise, they would be discus ed in the joint oversight definedbylength,buildortonnage).
commit e comprisingrepresentativesofboththepartner
country and the EU. The ultimate sanction, should the
systemfail,wouldbesuspensionoftheagre ment,which
eitherpartycando.
‘In the absence of clear criteria
Asnotedabove,the‘duediligence’regulationdoesnot
for accepting flag states’
demand proof of legality of timber products; it simply
notifications of their
requires timber operators who place products on the EU
market for the first time to pos es (or subscribe to,
conservation rules, and a
throughmonitoringorganizations)duediligencesystems.
mechanism to monitor
Member states’ competent authorities wil take action
enforcement of the notified
against timber operators who do not pos es such
regulations, there is a risk that
systems,andarealsoresponsibleforoverse ingtheef ec-
tivenes of the systems in general. They would therefore
acceptance simply becomes a
presumably act against operators whose systems proved
rubber stamp.’
incapableofexcludingilegaltimber.
Theregulationwil not,however,establishanof ence
of importing or sel ing il egal products – in sharp
In contrast, no special licensing ar angements are
contrast to the US Lacey Act.13 This has be n criticized providedforsmal operatorsundertheVPAs;al products
as a key weaknes of the draft regulation – if il egal exported from the partner countries to the EU wil be
products do manage to penetrate the EU market, licensed, regardles of the size of the producer. Similarly,
perhaps through ‘first placers’ in EU member states there is no exception for smal producers in the ‘due dili-
with poor enforcement capabilities, there is no pos i- gence’ regulation. Concerns have be n raised about the
bility of interdiction further down the supply chain, as impactonsmal producersinsidetheEU,butitisdif icult
timber operators other than first placers have no to se how any exemption could be included without at
13 The Lacey Act, dating from 1900, makes it ‘unlawful for any person … to import, export, transport, sell, receive, acquire, or purchase in … foreign commerce …
any fish or wildlife taken, possessed, transported, or sold … in violation of any foreign law’. This was extended to plants, including timber, in 2008. By estab-
lishing an underlying offence of handling illegal timber, and leaving it up to operators to work out what steps to take to avoid doing so, the Lacey Act is a mirror
image of the EU ‘due diligence’ regulation, which establishes no such underlying offence, and thus needs to go into some detail on what timber operators need
to do to avoid handling illegal products.
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the same time exempting imports from smal producers as istance is not built into the regulation and there is
outside the EU (because of the WTO requirement not to lit le acknowledgment of the dif iculties developing
discriminate against imports), which would risk creating countries may face with the new ar angements, other
anobviousloophole.
than taking them into ac ount when deciding on non-
cooperating states and introducing a simplified catch
Broader impacts: governance reform and
certificate for smal ves els in the implementing rules
capacity-building
(se below). The regulation also does not envisage any
Towhatextentaretheseapproacheslikelytostrengthen transition periods for developing countries. The
naturalresourcegovernance?TheIUUfishingregulation European Commis ion is organizing a series of regional
includes a number of provisions that could help to seminars for authorities in developing countries. It is
strengthen governance systems. Anyone who wishes to unclear whether additional capacity-building activities
land or export fish and fish products to the EU can only wil be car ied out to as ist with implementation of the
dosoifthecountryunderwhoseflagthefishwascaught regulation.
canshowthatithasrelevantrulesinplaceandcomplies
In contrast, the inclusion of capacity-building support
with international conservation measures. The regula- for the establishment of the licensing system, and for
tion also has the potential to strengthen regional improving governance and enforcement, was always an
fisheries management by al owing the Commis ion to important part of the VPAs. Although funding for the
adopt emergency measures in the event of a third operationofthelicensingsystemwil havetobeprovided
countryunderminingtheconservationandmanagement by the partner country – though of course the proces is
measures of an RFMO.
designed to reduce the level of ilegal behaviour and
thereby increase tax revenues – it was always recognized
that in most cases EU as istance would ne d to be
providedwithitsestablishment.
The VPAs have also of ered an important means of
‘The wide scope of the
fisheries regulation, including its
improving forestry governance in the partner countries.
emphasis on verification and
Al theVPAssofaragre dwil include:
enforcement by European
An analysis of existing legislation, as part of the
authorities, is at least partly
proces of drawing up the legality definition,
motivated by the “common
together with a gap analysis of existing legislation
property” nature of global
andcommitmenttoreformswhereneces ary.
Agre ment on independent monitoring of the
fisheries resources.’
functioning of the legality as urance and licensing
systems, with outcomes available to the public.
A commitment to national stakeholder involvement
However, in the absence of clear criteria for ac epting
in the joint commit e s to be set up to overse the
flag states’ notifications of their conservation rules, and
proces .
a mechanism to monitor enforcement of the notified
Improvements in transparency, including annual
regulations, there is a risk that ac eptance simply
reporting on the functioning of the system and in
becomes a rubber stamp. The EU regulation appears to
some cases agre ment to make more information
focus more on punishing violations than on preventing
available on forest sector management (e.g. on
themfromoc ur inginthefirstplace.Capacity-building
production,rightsal ocation,financesandaudits).
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TheVPAnegotiationproces itselfhashelpedtoimprove
However, it is also slow and limited in geographical
governance, primarily through the inclusion of partner- coverage.Becauseofthisithasprovedneces arytointro-
countrycivilsociety.
duce a means of dealing with potentialy ilegal products
The‘duediligence’regulationcontainsnoprovisionfor originating in non-partner countries; whether the ‘due
capacity-building or governance reforms, but it se ms diligence’regulation,withitsmajorweaknes ofapplying
likelythatitsintroductionwil ac eleratetheupdateofthe onlyto‘firstplacers’,wil dothisef ectivelyremainstobe
voluntary certification and legality verification schemes, se n.
with an ac ompanying general improvement in forest
governance. The European Commis ion, several EU
memberstatesandsomeEUtimbertradefederationsare
already providing as istance with these kinds of develop-
‘Imposing a fisheries-type
ments.
approach would have effectively
closed the EU market to all
Conclusion: strengths and weaknesses
timber products from high-risk
The analysis above highlights some of the main dif er-
ences betwe n the approaches that the EU has taken to
sources, which includes most
curb il egal fishing and logging and prevent imports of
developing countries. The
il egal fish and timber products. The IUU fishing regu-
optimum solution in the long run
lationcentresonaglobal yapplicablesystemoflegality
is the evolution of the VPA
certification and traceability, and relies on wide-
ranging enforcement measures to ensure compliance,
network into a global licensing
which are largely applied at the discretion of the
system governing trade in
European authorities.
timber.’
The VPA proces similarly focuses on the establish-
mentofalicensingsystem,butisbuildingitupthrough
anetworkofbilateralagre mentsratherthanimposing
When judging the two sets of regulations, it is
it global y. This approach has certain advantages over important to bear in mind that they are dealing with
the fishing regulation’s system: it is consensual, it quite dif erent sectors. The wide scope of the fisheries
delivers capacity-building support and it has triggered regulation, including its emphasis on verification and
long-lasting governance reforms in the partner coun- enforcement by European authorities, is at least partly
tries. It shows that bilateral agre ments can stil be motivated by the ‘common property’ nature of global
valuable as a way of making progres on international fisheries resources. Il egal activities wil impact on the
problems, in the absence of a wider multilateral agre - availability of the resource overal , given that fishare a
ment. It also has important les ons for the cur ent mobile and general y shared resource, including the
at empts, within the climate change regime, to devise a fishing interests of Europe’s distant water fle ts. Fish
mechanism for making payments to developing coun- caught by one ves el wil af ect the supply for al
tries for avoided deforestation. The packages of others,bothimmediatelyandinthelongtermowingto
measures embodied in the VPAs show how capacity- the impact on reproduction rates. Fishing on the high
building, improvements in governance and seas is largely a fre for al , unles a species is covered
independent monitoring – al likely to be ne ded for by an RFMO – and even then management tends to be
reducing deforestation – can be delivered in a mutual y weak – while many national fisheries are poorly
agre d manner.
managed. Even if fishing ef orts are regulated in one
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Keeping Illegal Fish and Timber off the Market
1
0
p
a
g
e
country, il egal fishing in another wil stil af ect trans- forest governance. Imposing a fisheries-type approach
boundary stocks. As a result, national measures are would have ef ectively closed the EU market to al
inherently limited in their ability to addres il egal timber products from high-risk sources, which
fishing.
includes most developing countries. The optimum
By contrast, al forests lie within clear national solution in the long run is the evolution of the VPA
boundaries – which is why agre ing common interna- network intoa global licensingsystemgoverning trade
tional or regional rules for forest management has in timber. Whether this wil be practicable remains to
proved much more dif icult. By choosing the one-to- bese n–buttheimportanceofforestryintheinterna-
one approach of negotiating bilateral agre ments, with tional climate change regime gives a powerful
country-specific legality definitions, the EU has recog- incentive for further action on the timber trade and
nized the reality of the decisively national character of forest governance.
Table 1: Comparison of EU regulations on illegal fishing and logging
IUU fishing regulation
EU FLEGT: VPAs and ‘due diligence’
regulation (DDR)
What ‘proof of legality’ must be
Catch certificate.
VPAs: FLEGT licence for timber
submitted?
shipments.
DDR: no proof of legality required, but
risk of il egality must be minimized.
How is ‘legality’ defined?
Catch certificates certify that catches ‘have
VPAs: defined in relation to laws of
been made in accordance with applicable
country of harvest; scope set out in
laws, regulations and international
VPA.
conservation and management measures’.
DDR: timber must be harvested ‘in
Relevant national laws are notified by the flag
accordance with the applicable
state.
legislation in the country of harvest’.
Who issues the proof of legality?
A public authority from the flag state of the
VPAs: Designated licensing
vessel(s) which made the catches from which
authority.
the fishery products have been obtained.
DDR: ‘first placers’ must possess a
due diligence system which can
provide access to information that
legality is ‘reasonably assured’.
What is the condition for
The flag state has shown that ‘it has in place
VPAs: licensing scheme in place,
authorities to be allowed to issue
national arrangements for the
with functioning subject to
proof of legality?
implementation, control and enforcement of
independent monitoring.
laws, regulations and conservation and
management measures which must be
complied with by its fishing vessels’.
Who is required to submit the
Anyone importing fish or fish products into
VPAs: any operator in a VPA
proof of legality?
the EU (excluding aquaculture products and
partner country exporting timber to
some marine products).
the EU.
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