The fisheries policy of the European Union (EU) in West Africa has arisen, like all political equilibriums, from a combination of principle and pragmatism. Politics is considered to be “the art of the possible,” and it can thus be difficult to go from making lofty promises to generating policies that reflect those ideals, even when a genuine will to do so exists. An examination of the relevant science demonstrates how the “cash for access” agreements negotiated between the EU and West African coastal states—intended to exploit the resources within their Exclusive Economic Zones (EEZs)—are fundamentally unsustainable.

Current policy strongly favors the interests of the European fisheries lobby, rather than the long-term principles of sustainable development and equitable treatment of developing states. Legal, environmental and moral concerns are downplayed in favor of short-term economic and political considerations. These agreements harm the long-term prospects for the economic development of West African states, and have other adverse consequences, including malnutrition of their people and increased pressure on terrestrial resources. The absence of effective mechanisms to ensure sustainability, coupled with the lack of efforts to create them, is unjust and breaches both international laws and those of the EU.

The access agreements between the EU and West African countries yield starkly different levels of benefit to each party. European states capture the lion’s share of the value of these fisheries’ resources, while African governments are paid relatively small sums. For example, in 1996, the government of Guinea-Bissau received US$8,250,000 in license revenue in exchange for fish with an estimated value of US$78,000,000. In total, less than 10% of the landed value of the fish remains in the region. This imbalance is likely to be perpetuated due to the consequences of over-fishing, since weakened ecosystems offer a reduced long-term benefit to the states in which they exist. Unchecked, the economic incentives that are currently presented to European fishermen will lead to the collapse of West African fisheries. Consequently, the behavior of the EU and the fishing fleets of its constituent nations violates international law, the internal law of the EU, and the terms of the access agreements. This issue transcends commonplace accusations of hypocrisy, because the costs of these ecologically unsound policies are borne by the present and future inhabitants of some of the world’s poorest countries—countries that the EU has repeatedly committed itself to assisting. Given the problematic legacy of European colonialism, the argument that present-day fishing policies should not be essentially neo-colonialist is further strengthened. The competing argument that the access agreements simply allow for the use of these fisheries at the economically optimal level ignores both the long-term ecological consequences of fishing at a rate above that of natural replenishment and the inequitable consequences of the existing financial arrangements.

Understanding the significance of these agreements requires consideration of both ecology and politics. The ecological problem has been observed in damaged fisheries worldwide: a process of fishing waters to the point of depletion and then moving on to repeat the process elsewhere. To understand what is at stake, this aspect should be examined first. The North Sea, Canada’s Grand Bank, and the Mediterranean were all once rich and widely exploited fisheries. In his groundbreaking 1943 book, The Fish Gate, zoologist Michael Graham explains what he calls the Great Law of Fishing: “Fisheries that are unlimited become unprofitable...[and] inefficient.” That process is accelerated by governmental subsidies, whereby taxpayers help to finance the cost of developing fishing capacity, and bear some of the direct and indirect costs of fishing activity. An analysis of five West African states between 1993 and 1997 established that European fishermen were subsidized such that they paid only 8-26% of the license fees due for their catches. Subsidies are problematic because they are difficult to revoke when evidence of resource deterioration comes to light. Indeed, the increasing depletion of the Grand Bank led to additional subsidies, this time for the decommissioning of existing fishing capacity. Gordon Munro of the University of British Columbia’s (UBC’s) Economics Department and Ussif Sumaila of the UBC Fisheries Centre discuss at length the unintended consequences that arise from such buy-back programs, particularly when fishermen anticipate the development of said programs. Even subsidies that are intended to reduce fishing capacity have often, perversely, achieved the opposite effect: All too often, that “decommissioned” capacity ends up operating in places like Africa. Simply retiring a vessel’s license to fish in the territorial waters and EEZ of its host state does not ensure that the vessel will stop fishing. With unfortunate frequency, such buy-backs finance the purchase of superior fishing gear that is then put to work in the waters off of some distant shore. Such behavior is encouraged by the kind of fisheries agreements that the EU has negotiated in West Africa; it also provides added pressure for more such agreements to be reached.

Unlike agriculture, where investment in technology and capital increases long-term yields, without regulation technological development in fishing can only lead to more rapid resource depletion. Fishing remains sustainable only when regeneration exceeds exploitation. That balance must be at the core of any sensible fisheries policy, like those emerging in Iceland and New Zealand. The comparative barrenness of the North Sea and the Grand Bank demonstrates that this balance has not been respected, even when the states that are involved are the richest, most technologically capable, and most scientifically advanced in the world. Dr. Daniel Pauly, of the UBC Fisheries Centre, equates the process of “fishing outwards” to a hole being burned through a piece of paper. At the center are the now depleted waters of Europe and much of the Atlantic. According to Charles Clover, Environment Editor of The Daily Telegraph, two-thirds of Europe’s commercial fish stocks are already outside their biological safety limits, while cod stocks have collapsed from Canada to Sweden. These problems of depletion have spread to the coasts of Antarctica, Australia, New Zealand, Africa, and elsewhere. They have reached into trenches and onto sea-mounts that were previously inaccessible to fishermen. The global trade system conceals depletion by allowing access to ever more distant stocks, thereby perpetuating the process of fishing outwards while concealing its occurrence.

As well as fishing out, a process of “fishing down” to successively lower levels in the food web occurs, eventually yielding ecosystems containing nothing more than “jellyfish and plankton.” Removing the top predators in an ecosystem does not, as earlier ecological science predicted, vastly increase the numbers of smaller animals. More often, it seems to destabilize food webs and populations. With a resource that is as important and as incompletely understood as the sea, it seems elementary to exercise caution when undertaking activities that have had tragic consequences in the past. When the states in question exist in far more dire circumstances than those of the developed world, such caution is doubly valid, especially as they have fewer means at their disposal to correct environmental mistakes.

Once a particular area, such as the Mediterranean or the North Sea, is depleted, its fishing capacity can no longer be used. The trawler fleets that once fished off of Naples or Plymouth must now travel ever farther afield to fill their holds. Disheartening evidence from depleted fisheries suggests that areas rendered barren may not soon recover, as they experience what is known in the ecological literature as the Allee Effect: a phenomenon whereby depleted resources are less productive and behave differently than healthy ones. This effect can drive species that are not eliminated by human activity to extinction regardless, as observed with the passenger pigeon. Such worrisome examples make the vast harvesting capacity of modern fleets deeply troubling. Much existing capacity arose through subsidies that directly and indirectly created incentives to enlarge and modernize fleets. Modern fleets are often huge and self-contained, with massive ships carrying fuel, hospitals, and other necessities serving groups of freezer trawlers that can remain at sea for weeks and operate over thousands of kilometers. The pressure to find new areas in which to employ such capacity can be enormous, and the ecosystem damage caused by the introduction of a modern fleet is considerable. Since European industrial fishing capacity started to operate in West Africa during the 1960s, West African fish stocks have declined significantly. Dr. Jacqueline Alder of the UBC Fisheries Centre and Dr. Ussif Sumaila cite “a decline in biomass by a factor of 13 for fisheries” off the northwest coast of Africa. Dr. Daniel Pauly argues that fish stocks off of West Africa have declined by 50% since industrial exploitation began 40 years ago. The point at which West African fisheries could collapse from over-exploitation is unknown.

Sensible long-term decision-making requires the will to discipline present demands in consideration of future needs. That discipline is the essence of “sustainable development” as defined in Our Common Future, the report of the 1987 Brundtland Commission, which helped to shape discussion at the 1992 Earth Summit. That conference has in turn been central to subsequent international environmental lawmaking. Developing sustainable policies requires the cooperation of all those parties who are able to access the resource in question. It further requires the courage to confront individuals and groups who benefit most from the status quo and who will fight to perpetuate it. Perhaps most importantly, it requires the courage to accept scientific findings that are sound but politically inconvenient, as the early warnings about Canada’s cod stocks proved to be. Within an international legal climate where the importance of sustainable development has been almost universally recognized, the legal obligations of states must be interpreted in keeping with the principle of sustainability and the obligations of international law. Moreover, the necessity of confronting vested interests increases the need for multilateral cooperation. If states are behaving recklessly—particularly if such recklessness violates treaties and other legal obligations—they must be called to account. Otherwise, those with a short-term interest in unsustainable fishing will dictate policy. It is important to remember that, ecologically, “short-term” can exceed a human lifetime—or even many lifetimes. In order to avoid adverse long-term consequences from present behavior, it is necessary to apply our considered judgments of scientific fact and prudent decision making, and put pressure on those who are not behaving appropriately.

Terms of the Access Agreements

EU policy is not based on such long-term considerations. Associate Professors Vlad Kaczynski and David Fluharty of the School of Marine Affairs at the University of Washington open their universally cited paper by summarizing the general characteristics of EU-negotiated fishery access agreements. Namely, they argue, they are “purely commercial deals that are designed to maximize access to coastal state fishery resources, secure employment for European harvesting and processing industries and supply European seafood consumption markets at the lowest possible cost.” The EU covers a very significant portion of these access costs: both fixed license costs and per-ton fees. Drs. Alder and Sumaila explain that fishermen pay only 6-23% of the total cost of resource access. Such subsidies encourage unsustainable practices while increasing pressure on a resource already at risk of over-exploitation due to the depletion of other fishing areas worldwide. Drs. Kaczynski and Fluharty assert that, unless the subsidy and fishery access policies of the EU are changed, “West African coastal countries will face severe over-exploitation of their resources.” Alder and Sumaila explain that significant benefits could accrue to coastal states “if the real price to fish was paid by foreign fleets.” Those benefits emerge from a different incentive structure that forces individuals to conform their actions more closely to the long-term interests of all.

The EU has concluded agreements on fishery access with 12 West African nations. These agreements include few, if any, provisions designed to maintain the integrity of these nations’ ecosystems. The agreement between the EU and Senegal, for example, involves no catch quotas whatsoever designed to maintain fish stocks. Dr. Ndiaga Gueye, the Senegalese Director of Marine Fisheries, explains that during the 18 months of negotiations on the access agreement, “the EU actively resisted numerous conservation measures and drove a hard bargain on price.” Such an approach neither aids the development of African nations nor maintains the sustainability of fisheries. Where restrictions on fishing practice do exist within the agreements—usually in terms of a zone reserved for local artisanal fishermen—they are routinely violated. Along with restricted mesh sizes, such restrictions help prevent the capture of juvenile fish prior to breeding. Unfortunately, these theoretical concerns have not been widely manifested in practice.

The Importance of West African Fisheries

Drs. Alder and Sumaila highlight the importance of fisheries to West African states, referring to “marine resources [as] their only low-cost source of economic growth.” Also vital is their role in maintaining the health of those who rely on fish as an affordable source of protein. According to a United Nations Environment Program (UNEP) study, the growth of export-based fisheries in Senegal has led to protein deficits by disrupting domestic supplies. Protein deficiency contributes to illness and low productivity, perpetuating poverty cycles. Ousman Drammeh, the Gambian Director of Fisheries, also stresses the value of small-scale artisanal fisheries. In an expert consultation organized by the Australian Government, he lists numerous benefits, beyond basic income for communities:

Small-scale fishing communities tend to be critically dependent on fish resources for their food and livelihood security and are highly vulnerable to external pressures and shocks. Small-scale fishing communities are highly dynamic and provide significant direct and indirect employment. They are labor intensive and generally equitable in the sense that large income disparities tend to be avoided. Small-scale fisheries are usually well integrated with local marketing arrangements, thereby tending to have a positive impact on food security and gender involvement (since women are frequently key players in fish processing and marketing).

African nations cannot develop sustainably in the absence of viable resources and industries. Foreign aid can never cure the need for food and employment, each of which a well-managed fishery provides indefinitely. Without such opportunities, there are few options for those in fishing communities but to move elsewhere. These secondary and tertiary impacts of the industrial exploitation of West African fisheries must be critically weighed, along with the more direct effects of these practices.

In a chapter entitled “Robbing the Poor to Feed the Rich,” Charles Clover angrily expounds the inequity of these access agreements, asserting that “the neo-colonial days live on for Spain, which maintains a fleet of over 200 trawlers off the coast of West Africa, largely at other EU nations’ expense.” With the conclusion of a new agreement with Mauritania, there will be 200 European trawlers off of just that nation’s coast, fishing for shrimp, hake, tuna, and other fish species. He provocatively charges that the current laws of the European Commission (EC) compels African countries to continue unsustainable practices, and allow their waters to be exploited by EU fleets.

If the EU is to retain credibility on environmental and developmental issues, one hopes that he is wrong. Fisheries have an enormous ability to boost human welfare in diverse ways, from basic nutrition to tourism. For the EU to be considered environmentally responsible, it must adopt policies that safeguard such benefits in the long term.

EU Policies as a Breach of International Law

It is sensible to examine the relevant treaties and norms when considering the legal issues that relate to the conduct of the EU and its member states towards West African fisheries. All nations necessarily have an interest in the sea, because it sustains the planet as a whole. Environmentally concerned nations should evaluate the sustainability of their own policies and reconsider their acquiescence to those of the EU in West Africa. The point at which industrial exploitation of West African fisheries will cause irreparable harm is unknown, but cases like that of the North Sea demonstrate that it can occur. The painful lesson has been learned that it is possible to destroy a fishery that was once considered inexhaustible; ignoring this lesson will eventually harm everyone involved.

Numerous articles of the United Nations Convention on the Law of the Sea (UNCLOS) refer to the importance of sustainability and environmental cooperation; indeed, these two concepts can legitimately be seen as guiding principles of the entire agreement as regards renewable marine resources. UNCLOS has been ratified by the states in question, both in Europe and West Africa. UNCLOS places obligations related to sustainability and environmental cooperation on both coastal states and those who cooperate with them in the use of natural resources. Part V, Article 61(3) provides that

[The coastal State] taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the Exclusive Economic Zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall cooperate to this end.

More generally, UNCLOS must be interpreted within the context of an international system that has embraced the concept of sustainable development and increasingly recognizes the wisdom of the precautionary principle: the idea that, when faced with scientific uncertainty about the potential consequences of an action, policy should favor a cautious approach, with the onus on proponents of potentially harmful policies to prove the wisdom of the choice. This principle is endorsed in Article 174 of the 1997 Amsterdam Treaty of the European Union:

Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In many areas, humanity’s ability to alter the environment has exceeded the state of scientific understanding, to the point where the effect that major human activities will have upon the planet and future generations is largely unknown. The precautionary principle helps to manage this uncertainty. While the extent to which the precautionary principle has been adopted by states and international organizations remains disputed, references to the principle by organizations as diverse as the European Union and the World Trade Organization suggest that it should be considered when policy is constructed. The precautionary principle can also be seen as recognizing the extent to which policymakers must sometimes defer to experts who are capable of producing the best theories about the state of the environment, and who are hopefully less subject to political manipulation.

Despite existing regulations and occasionally vigorous attempts at enforcement, tolerance for illegal fishing is widespread in the EU. While this breach does not manifest EU policy, per se, there are numerous documented cases of illegal European fishing in waters including those of Canada and New Zealand. A general lack of enforcement feeds a culture in which illegal fishing is tolerated and indirectly encouraged, rather than punished and stigmatized. As is the case with the Biodiversity Convention and the Kyoto Protocol, the role of science in this case should be to inform law such that it can adhere to the sound demands of ecology. The preamble to the Convention on Biodiversity underscores the importance of science-based policymaking, citing “the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures.”

The emerging norm of sustainability is the most complex and important aspect of international law violated by the EU’s policy in West Africa. The world has rejected the idea that fishing fleets can go wherever they wish and take advantage of the marine resources that exist there. Likewise, the world has accepted the fact that maintaining the viability of fisheries requires limits on fishing activity. Treaties like those of UNCLOS and the Biodiversity Convention must be seen as part of a larger legal framework founded on the principle of sustainability. Fed by the currents created by desert winds and a great Atlantic up-welling, West African coastal waters are among the richest marine habitats anywhere, home to more than 1200 species of fish. The Convention on Biological Diversity was created in order to preserve exactly this kind of environment, rightly called “a common concern of mankind.” UNCLOS likewise emphasizes the value of the sea and maritime species. In 1996, the International Court of Justice rendered an “Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,” recognizing that

the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.

The principles of conservation and sustainability are therefore embedded not only in legislation, including foundational EU treaties, but also within the broader context of norms that form the basis of customary international law. For over 30 years, these principles have largely driven the creation of international law pertaining to resources and the environment. Present EU fisheries policy persists in defying the letter and spirit of this extensive combination of legal instruments and ideas.

EU Policies as a Breach of EU Law

The responsibility of the EC for upholding EU laws is assigned in Section 3 of Part 5 of the Treaty of Rome. Foremost among those laws are the foundational documents of the Union, such as the Maastricht Treaty of 1992. Article 130u of Title XVII of that document “commit[s] [the] EU to ensure that relations with developing nations should help to reduce poverty and promote sustainable development.” Under the section entitled “The Union’s Objectives” within “The Treaty Establishing a Constitution for Europe,” Part 4 holds that “In its relations with the wider world, the Union shall uphold and promote its values and interests. It shall contribute to peace, security, the sustainable development of the Earth ... as well as to strict observance and development of international law.” While this passage is not part of an EU Constitution, it exemplifies the primary values to which the EU sees itself as being committed. These values, as well as specific points of law, are clearly violated in the West African fishery access agreements, which neither promote sustainable development nor strictly conform to international law.

In the World Wildlife Fund’s “Manifesto for the Review of the EU Common Fisheries Policy,” Niki Sporrong, WWF Fisheries Policy Officer, underscores the particular responsibility of the EC to develop and uphold sustainable fishery practices. The report highlights the connections between subsidies, overcapacity, technological progress, and over-exploitation of fisheries. While the report focuses on domestic European fisheries, many of its recommendations refer to unsustainable practices being applied even more harmfully in West Africa. Niki Sporrong asserts how, as a party to the Biodiversity Convention and the UN “Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,” “the EU also has an obligation to ensure that its fleet is operating sustainably outside the waters of Member States.” The lack of legal obligations is not the problem. Title XX, Article 177 of the Treaty Establishing the European Community states that “Community policy...shall foster the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them.” The problem is a failure to respect and uphold obligations entrenched in numerous pieces of EU law, both binding and non-binding.

The artificial segregation of fisheries-related institutions is a problematic aspect of the EU fishery policy architecture. The Directorate General for Fisheries regularly refers to the strictly “business character” of access agreements, thus attempting to circumvent obligations such as those in the Maastricht Treaty. Considerations of sustainable development nominally fall within the purview of the Directorate Generalship for International Cooperation. That being said, the organizational separation of these two bodies does nothing to lessen the sustainability commitments that are codified in EU and international law. The perpetuation of agreements that violate the oft-repeated principles of the EU demonstrates the degree to which the watchdog bodies of the EU, particularly the EC, have been at best ineffective and at worst complicit in the violation of principles that the EU espouses.

The Practice of EU Fleets as a Breach of the Access Agreements Themselves

Despite the enviable terms established for European fishermen, the provisions of these access agreements themselves are neither adequately respected nor enforced. Many access agreements restrict the area within ten kilometers of the coast to local, artisanal fishermen. These provisions, Dr. Pauly maintains, are routinely broken—a practice that may have contributed to night-time collisions and fishery depletion. A pattern of non-compliance with the agreements themselves further establishes the EU’s culpability. A report produced in cooperation with the Australian Government and the UN Food and Agriculture Organization cites the existence of “ample evidence of large scale fishing vessels operating illegally in fishing zones, which are exclusively reserved for small-scale fisheries.” These violations are part of a pattern of misbehavior: habitual encroachments also include the use of prohibited gear, including, for example, nets with a finer mesh size than is permitted. Ousman Drammeh describes encroachments into restricted zones as routine in the whole West African sub-region, based on data from aerial surveillance missions that demonstrate extensive illegal fishing in Western Africa. Such malfeasance is not restricted to West African fisheries. In Madagascar, two-thirds of the catch of EU shrimp trawlers in 1998 was taken within the two-mile zone defined by law as exclusively for artisanal fishermen.

Charles Clover, Ousman Drammeh, and others cite the tendency of European fishing vessels to catch juveniles of locally important species before they have matured or spawned. These species are generally caught unintentionally and discarded as “trash fish” or “by-catch.” Nevertheless, their removal from the ecosystem contributes to the loss of biodiversity, reduced sustainability, and consequences for human health and welfare. The general absence of by-catch limitations is one of many such policies that are open to abuse. Thus, Drs. Kaczynski and Fluharty discuss how trawlers supposedly targeting shrimp off the coast of Guinea-Bissau were able to use 25 millimeter shrimp fishing nets, rather than the 65 millimeter mesh nets that are meant for finfish. Because the vessels were allowed to keep whatever catch came into their nets, and because compensation payments to the coastal state were based on the shrimp tonnage, fishing vessels could catch non-shrimp with shrimp nets while simultaneously avoiding payment of per-ton fees for them. Drs. Kaczynski and Fluharty claim “the state of Guinea-Bissau fishery resources” was “seriously affected” by this practice. Other vessels, supposedly intending to catch cephalopods, produced a large by-catch of demersal fish, for which no compensation was paid to coastal states.

Given the lack of coastal state enforcement capacity, developed nations must assist in funding and undertaking enforcement. States with limited access to technologies like aerial and satellite surveillance will not be able to maintain environmental standards without aid. Additionally, the failure of states like Spain to prosecute nationals who have been caught engaging in illegal fishing sends a clear signal that environmental laws are not to be respected.

Conclusions and Recommendations

In many cases, the most scientifically advanced and ecologically concerned nations of the world have failed to maintain the health of their own marine ecosystems. How, given that record, can impoverished states in West Africa hope to do so? Dr. Pauly’s response is not encouraging. In his view, wherever sustainable fishing has been practiced in the past, it has occurred accidentally because of physical limitations. Dr. Pauly argues that deliberate sustainability must be invented. Given the multiple violations of domestic and EU laws, as well as of the agreements themselves, described above, it is not impossible that the EU and implicated EU states will eventually be held accountable. Clearly preferable is an immediate shift towards fishery policies that preserve the ecological integrity of West African marine ecosystems while helping to address the social and economic problems that exist therein.

If the EU seeks to be a world leader in environmental issues, it must enforce the commitments listed above. These policies can be made both more equitable and more sustainable. Dr. Justin Brashares, of the University of Cambridge, explains that an “immediate route to increasing production and sustainability of [West African] domestic fisheries...[would be] to limit the access of large and heavily subsidized foreign fleets to fish off West Africa.” Drs. Kaczynski and Fluharty suggest catch quotas, proper accounting of by-catch, and the restriction of destructive fishing practices as mechanisms for achieving sustainability in EU fishing activity in West Africa. Processing more fish in the region would promote coastal states’ economic development, while helping them to extract a larger portion of the total value of their resources. Since cash payments are the major inducement for coastal states to participate in access agreements, fisheries management must be coordinated with overall aid and development policy, not generated from a “business-focused” perspective.

The doctrine of state sovereignty, as applied to the environment, allows states to be held to account for their choices. International law can only be enforced through the voluntary actions of states or the collective enforcement of treaty obligations. If these access agreements are not revamped, and the practices that they encourage not altered, the entire global community will suffer. That will include lost biodiversity, the value of which may never be known, as well as the depletion of additional important fisheries in ways that damage human health and ecological integrity. Finally, those who will suffer disproportionately will turn out to be the poorest natives of West Africa. Such considerations must lead the industrial countries of Europe to take action against an evolving threat and prevent a humanitarian crisis from taking place.