Global coalition backs appeal to restore fishing vessel tracking

MANILA, Philippines — An international coalition of fisheries transparency groups has backed separate appeals by the government and fisherfolk to revive a vessel-tracking requirement for commercial fishing boats, warning that losing the system could affect the Philippines’ fight against illegal fishing and access to major seafood export markets.

The Coalition for Fisheries Transparency (CFT) — a global network of civil society organizations working together to improve accountability and openness in marine governance — issued the support after the Bureau of Fisheries and Aquatic Resources (BFAR) and fisherfolk appellants separately filed motions for reconsideration with the Supreme Court over its January ruling declaring Fisheries Administrative Order (FAO) No. 266 unconstitutional.

The Supreme Court decision, promulgated on Jan. 21 and written by Associate Justice Maria Filomena D. Singh, affirmed the Malabon City Regional Trial Court’s 2021 ruling that struck down FAO No. 266.

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READ: SC ruling on boat monitoring may harm fisheries sector

In a 13-2 vote, the high court found that the regulation failed the rational basis test and violated commercial fishing operators’ constitutional protections against unreasonable searches and seizures, as well as their rights to due process and equal protection.

The court nevertheless directed the Department of Agriculture (DA), through BFAR, to “take immediate steps to rectify deficiencies in FAO No. 266 and report to this Court on the action taken.”

Trade, fisheries at stake

In its statement on Aug. 15, the CFT said the absence of a clear legal framework requiring vessel monitoring could weaken the Philippines’ ability to enforce fisheries laws and meet international commitments.

“Without a clear legal framework requiring vessel monitoring, the country’s ability to combat illegal fishing, meet regional fisheries commitments, and provide the assurances increasingly demanded by seafood markets is weakened,” CFT Director Ryan Orgera said.

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The coalition also warned that major seafood-importing markets are increasingly requiring proof of where fish were caught.

“The European Union (EU) requires vessel monitoring system (VMS) data as part of flag State verification under its IUU Regulation and may request raw VMS records for consignments entering the European market,” Orgera said.

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“Without a VMS mandate, Philippine exporters may find themselves unable to satisfy documentation requirements in precisely the markets on which the sector depends,” he added.

The warning comes as the Philippines faces a separate trade restriction involving blue swimming crab. According to international ocean conservation group Oceana, the United States recently closed its market to Philippine blue swimming crab because the country “could not adequately document and monitor the fishery’s operations against possible by-catch of endangered species.”

The Philippines accounts for 10% of global blue swimming crab production and ranks fourth worldwide.

Meanwhile, labor coalition Sentro ng mga Nagkakaisa at Progresibong Manggagawa (SENTRO) also raised concerns over the European Union’s Generalised Scheme of Preferences Plus, or GSP+, which grants duty-free access to more than two-thirds of tariff lines covering exports from beneficiary countries, including the Philippines.

“Weakening VMS is not just about losing our eyes at sea – it could have consequences far beyond fisheries. If it results in serious and systematic non-compliance with our international fisheries obligations, it could put the Philippines’ EU GSP+ trade preferences at risk. VMS compliance is, therefore, not optional. It is an international obligation,” SENTRO Secretary General Josua Mata said.

Oceana campaigner Atty. Nikka Oquias warned that voiding FAO No. 266 could raise questions about the Philippines’ compliance with its commitments to regional fisheries management organizations (RFMOs).

“The Philippines is part of several RFMOs and has committed to implementing monitoring measures like VMS to curb IUU fishing and keep catch traceable,” Oquias said.

She also noted that the EU may temporarily withdraw preferential arrangements for specific products in cases of serious and systematic violations of RFMO objectives, potentially affecting the Philippines’ trade arrangements with the bloc.

What FAO 266 required

FAO No. 266 was issued by the Department of Agriculture through BFAR on Oct. 12, 2020, amending FAO No. 260 of 2018. One of its major changes was to remove the earlier limitation covering vessels targeting “straddling and highly migratory fish stocks,” making the rules applicable to all commercial Philippine-flagged fishing vessels.

The order established rules for vessel monitoring measures and an Electronic Reporting System (ERS). Among its stated objectives were improving monitoring of fishing operations, strengthening law enforcement, supporting fisheries research and data collection, ensuring seafood traceability and catch documentation, helping authorities investigate fisheries violations, and providing a means to locate fishing vessels during accidents and disasters.

The order required licensed Philippine-flagged commercial fishing vessels to use vessel monitoring systems. The ERS was to record and report catch data, including the species and volume of fish caught, the vessel’s position and the date and time of fishing activity. The order also provided for continuous transmission of vessel information while fishing.

It included provisions governing access to VMS data, confidentiality and authorized disclosure, as well as penalties for noncompliance.

Why the SC struck it down

The Supreme Court did not rule that combating illegal, unreported and unregulated fishing was an illegitimate government objective. Rather, it questioned whether the means used in FAO No. 266 were sufficiently reasonable and supported by law.

The court found that the regulation’s 24/7 monitoring requirement was more intrusive than necessary, noting that FAO No. 260 already provided other ways to transmit a vessel’s position when its monitoring equipment failed, including manual reporting through radio, phone or email. The court said such alternatives were less intrusive and could be more effective for preventing and detecting IUU fishing.

It also found that the amended Fisheries Code required commercial fishing vessels to keep and submit daily records of catches, spoilage, landing points and other catch-related information, but did not require operators to disclose their fishing locations continuously.

The decision said FAO No. 266 went beyond those statutory requirements by compelling disclosure and recording of proprietary information.

On procedural due process, the court considered the government’s claim that consultations had been conducted and that FAO No. 266 was supported by a 2006 international scientific report recognizing VMS as a fisheries management tool.

However, the decision said the government did not meet certain requirements for the scientific study and consultations, including informing stakeholders about the study and allowing their participation in the selection or assessment of experts.

The court further noted testimony from a BFAR witness indicating that no Philippines-specific scientific study with stakeholder participation had been conducted for FAO No. 266.

For the court, the result was a regulation that did not pass the rational basis test and amounted to an unreasonable search and seizure.

Appeals now before the SC

The government has recently sought reconsideration through a motion for reconsideration filed Aug. 14.

Agriculture Secretary Francisco Tiu Laurel Jr. earlier said the department was confident the Supreme Court would reverse the ruling, arguing that commercial fishing licenses are privileges subject to government regulation.

“We are fairly confident the Supreme Court will reconsider the ruling, and allow us to use this internationally recognized vessel monitoring system as the most effective way to deal with illegal, unreported and unregulated fishing as it relies on electronic data and not manual filing of commercial fishing firms,” Tiu Laurel said in a statement.

BFAR also said it respected the decision while seeking reconsideration and would review its implementing mechanisms to comply with constitutional safeguards.

Fisherfolk Pablo Rosales and Ronaldo Reyes filed their own motion for reconsideration. They argued that the ruling could affect municipal fisherfolk whose access to municipal waters is protected by the Constitution and the Fisheries Code.

Their motion said the absence of effective monitoring could worsen the imbalance between small-scale fishers and commercial operators with greater capital, capacity and technology.

The decision “would affect the rights of municipal fisherfolk whom the Constitution and the Fisheries Code expressly protect,” they said in the motion.

International group Global Fishing Watch also weighed in on the issue and added that “continuous, open, and transparent vessel tracking is an essential foundation for sustainable ocean governance — it provides all stakeholders with the objective data needed to protect a country’s exclusive economic zone (EEZ), supporting compliance, and safeguarding marine resources.”

Roberto Ballon, chair of Katipunan ng mga Kilusang Artisanong Mangingisda sa Pilipinas and a Ramon Magsaysay awardee, also questioned the impact of the ruling on small-scale fishers.

“Is the government only listening to big fishing companies? Do we, the small-scale fisherfolk, not have the right to know who we are sharing the ocean with? Who is destroying our waters, who is on our side, and who is against us in this fight?” Ballon said.

“It’s as if we’re not Filipinos, too. Are the big commercial fishers the only ones who are allowed to have a good life, to thrive and contribute to the country through this livelihood?” he added.