Report | April, 2023
Oceana’s Position Paper on the latest Memorandum of the Office of the President through the Executive Secretary holding in abeyance the implementation of Vessel Monitoring Measures under the Fisheries Administrative Order 266
In June 2014, the European Commission issued to the Philippines a “yellow card” formal notice as one of the non-cooperating countries in the international fight against illegal, unreported and unregulated (IUU) fishing. A yellow card warning precedes the red card rating by the EU which means that the Philippine marine products are temporarily banned in the European market.1
From 2018-2021, the Philippines exports an annual average of Php 12-13B worth of fish to the European Union. According to Philippine Statistics Authority and Bureau of Fisheries and Aquatic Resources, majority or at least 21% of our fisheries products are exported to the European Union.2
The EU advised the Philippine government to fulfill its commitment in deterring and preventing IUU fishing and end unsustainable fishing practices that compromise not only the country’s marine resources but also the long-term livelihood of around 1.8 million fishery stakeholders.3
It bears stressing that the fight against IUU fishing is anchored on the commitment as member of the United Nation’s Food and Agriculture Organization (UN-FAO), which adopted the International Plan of Action (IPOA) to prevent, deter and eliminate IUU fishing. The Philippines likewise formally adopted a National Plan of Action (NPOA) through Executive Order No. 154 in 2013.
Notably, as a response to the yellow card warning, the Philippines passed Republic Act 10654, which amended the Philippine Fisheries Code of 1998 (Republic Act 8550) on February 27, 2015. Some of the key provisions in the amended fisheries code include the addition of IUU fishing as an offense, increased sanctions and penalties for violations, improved traceability and catch certification schemes, improved monitoring control and surveillance systems, particularly vessel monitoring measures, citizen suits, ban on harassment suits against enforcers and denial of lower court’s authority to issue restraining order and injunctions and integration of ecosystem based management and the precautionary principle in fisheries management.
The yellow card was lifted in 2015, when RA 10654 became effective, and as a result, the Philippines was able to join the ranks of cooperating countries in the global fight against IUU fishing, and the consequent active trade relations with the EU which eventually benefits the whole fishery sector.4 The lifting of the yellow card also enables the country to meet its inclusive growth objective in the EU preferential trade scheme, the Generalized System of Preferences Plus (EU-GSP+), which eventually benefits the fisheries sector through its market access in the EU.5
Local government units especially the coastal cities and municipalities which have jurisdiction over the municipal waters, fisherfolk and multisectoral sectors applauded when Agriculture Secretary Dar issued FAO 266 which establishes the vessel monitoring rules for all commercial fishing vessels in the country, The technology to track, identify and observe behaviors of the commercial fishing vessels is an essential measure to stop illegal, unregulated and unreported fishing.
Suspending FAO 266 is a grave abuse of discretion and exercised without authority as the duty to enforce laws are mandates of the Executive Department.
However, these reforms are now in danger. This is primarily due to the regressive policies and actions of the current administration.
About the Memorandum Order
The Executive Secretary issued a controversial Memorandum suspending the implementation of Fisheries Administrative Order 266 ex abundanti cautela (“with an abundance of caution”) dated 13 March 2023. This was specifically addressed to the following agencies: Department of Agriculture, Bureau of Fisheries and Aquatic Resources, Office of the Solicitor General, Department of Trade and Industry, and National Telecommunications Commission. This reversed its earlier Memorandum dated 2 February 2023 directing the DA and BFAR to implement FAO 266 all over the country, according to laws, rules and regulations pursuant g to the favorable recommendations of the Office of the Solicitor General in its Memorandum to the President dated 28 September 2022, except for the three (3) commercial fishing operators subject of the pending case.
The Memorandum reasoned their suspension on the principle of respect for the three branches of government until the Supreme Court has not issued its final resolution on the constitutionality of FAO 266. Further to avoid the possible ban to export fish to the European Union, “the DA is directed to cooperate to prevent, deter and eliminate IUU fishing,” and to submit their recommendations therefor to the Office of the President within 60 days from receipt of the Memorandum.
We strongly object to the recent Memorandum based on the following reasons:
Firstly, the Memorandum is regressive and contradicts the Amended Fisheries Code, the Constitutional mandate for the State to protect its marine wealth and our international obligations. Suspending the implementation of FAO 266 undermines the state’s obligation to establish and strengthen its monitoring, control, and surveillance system, which in turn impedes the ability to effectively and efficiently enforce fishery laws. This has a negative impact on the sustainability of fishery resources as uncontrolled fishing resulted in overfishing, depletion of fish stocks, and harm to the marine environment which we are now experiencing.
The EU’s lifting of the yellow card in 2015 was due to our commitment to undertake extensive reforms in our legal framework. When we passed the Amended Fisheries Code, we pledged to implement new traceability regulations to ensure control over fish products in the supply chain. We also pledged to guarantee that Philippine fishing vessels operating in areas regulated by the WCPFC (Western and Central Pacific Fisheries Commission), IOTC (Indian Ocean Tuna Commission), and ICCAT (Commission for the Conservation of Atlantic Tunas), RFMOs (Regional Fisheries Management Organizations), as well as national and foreign vessels fishing in Philippine waters, are not allowed to engage in any fishing activity unless they comply with the vessel monitoring measures.
However, it has been eight (8) years since the amended fisheries code was enacted, and we have failed to fulfill our promise to ensure real-time VMM coverage6. The Philippines still falls short in deterring IUU activities mainly because we have not fully implemented a system of transparency and traceability on our fishing vessels. There is only 58% compliance by commercial fishing vessels of this requirement.
Data shows apparent commercial fishing intrusion in municipal waters has been continuously detected and recorded through Visible Infrared Imaging Radiometer Suite (VIIRS) satellite data in Karagatan Patrol, an online platform for reporting illegal fishing established by Oceana in partnership with the League of Municipalities of the Philippines complemented by a web app developed by Oceana to share satellite boat detection data, municipal waters delineation, marine protected areas and location of enforcement agencies among others. This is despite the dire state of overfishing in the country, and the palpable need to tighten measures against illegal fishing. This also http://karagatanpatrol.org/perpetuates a longstanding problem for artisanal fisherfolk. These fishers have been significantly disadvantaged by such intrusions for decades.
Vessel Monitoring Mechanism has been identified as one of the specific management measures under harvest controls to ensure that overfishing is addressed, and our fisheries will be sustainable. Data from the Philippines Statistics Authority shows that the volume of marine fisheries both from the commercial and municipal fisheries have been declining at least for the last decade. Data from the National Stock Assessment Program (2017) indicates that 80% of our fisheries stocks are highly exploited.
The Fish in Nutrition Systems study, conducted by MRAG Asia Pacific and the Philippine Department of Science and Technology – Food and Nutrition Research Institute (DOST-FNRI), highlights that artisanal fisherfolk and their fisherfolk remain the most food insecure among all sectors.
Second, the move of putting on hold the implementation of FAO 266 is inconsistent with our obligations under international agreements such as Article 94 of UNCLOS (United Nations Convention on the Law of the Sea), which requires states to take measures to ensure the effective exercise of their jurisdiction and control over their vessels. It also violates the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUUF), which aims to promote sustainable fishing practices by ensuring that all fishing vessels are registered and monitored.
Additionally, halting the implementation of FAO 266 also runs counter to Article 11(1)(11) of the FAO Code of Conduct for Responsible Fisheries, which calls for the implementation of appropriate measures to ensure the traceability of fish and fisheries products. The Vessel Monitoring Measures (VMM) under the Fisheries Administrative Order 266 were designed to implement a binding provision under the Fisheries Code and achieve the goals various international agreements and conventions to which we voluntarily bound ourselves to by allowing the state to track the movement of fishing vessels and ensure compliance with fisheries regulations.
Third, with respect to effective enforcement measures, the IPOA IUU in point 21 advises States to ensure that sanctions for IUU fishing vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. But how can we adhere to this mandate when the Memorandum itself hinders the ability to take advantage of a potent tool that allows enforcers to monitor illegal fishing activities effectively? If this continues, we run the risk of alienating ourselves from the EU, which is one of our biggest markets, and this could deal a significant blow to our fishing industry and Filipino fishermen. The same provision also advises States to ensure there is consistent and transparent application of sanctions. However, until now the Fisheries National Administrative Register (FNAR), a database which contains all decisions, resolutions or orders involving violations of the Fisheries Code, and the IUUF List of Fishing Vessels, are still not publicly accessible.
Lastly, the Memorandum violates the bounden duty of the government to protect the legitimacy and constitutionality of laws and regulations including FAO 266. In its Memorandum, the government justifies the suspension on the principle of respect among the three (3) branches of government. We do not agree. In fact, the constitutionality of FAO 266 has been defended by the government at the outset, when it was questioned by the industry plaintiffs in the lower court. The lower court stopped its implementation despite the well-settled rule that proscribes all courts, except the Supreme Court, from issuing TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.7 Hence, the justification is flawed because the doctrine of separation of powers precisely forbids an impermissible interference of an agency’s authority to ensure the implementation of the Amended Fisheries Code and its regulations, such as FAO 266.
In conclusion, we urge the Philippine government to reconsider its decision to suspend the implementation of FAO 266 and prioritize the sustainable management of our fisheries. We need to fulfill our obligations to our people and protect their rights to a healthy, safe and sustainable environment, and under international agreements and the Amended Fisheries Code to promote transparency, traceability, and accountability in our fishing industry. By doing so, we prioritize the needs of our people and can avoid being issued another yellow card and losing access to important markets such as the EU.
It is crucial that we learn from the past and take decisive action to ensure the long-term viability of our fisheries and the welfare of Filipinos.