LEGISLATIVE
GUIDELINES
FOR
SUSTAINABLE
FISHERIES: SOME FUTURE DIRECTIONS FOR THE
DEVELOPMENT OF FISHERIES LEGISLATION IN THE
PACIFIC ISLANDS
William Edeson
Professorial Fellow
Centre for Maritime Policy
University of Wollongong
Introduction
The purpose of this paper is to provide a basis for setting up a checklist and a template
that can be used for gauging the best practices when reviewing fisheries legislation. Some
provisions are dealt with in more detail than others, with greater attention being devoted
to those aspects of a fisheries law which will need revision in order to bring the law into
line with modern conservation and management approaches, as well as looking at novel
aspects designed to give effect to UNFSA1 and WCPFC2.
Certain provisions that are often found in a fisheries law, such as those concerning
driftnet fishing, and bilateral fisheries agreements, important though they are in their own
right, are not included in this document, as they do not raise any novel aspects which a
fisheries law needs to address, and which stem from the recent developments in the
international regime of fisheries. However, in a comprehensive fisheries law, such
matters would obviously be included. Likewise, it is assumed that all countries have
already provided for the declaration of their maritime areas (archipelagic waters,
territorial sea, EEZ), which may of course be covered in a more generally applicable
marine spaces law. Certain aspects such as fish processing and importation of fish are
sometimes included in a basic fisheries law, other times not. These aspects are not
considered here: although important, these topics are not included in this paper for the
same reason that they do not raise novel questions concerning the modern law of the sea.
Their importance should not be underestimated, of course, for such topics will have a
bearing on how a country is dealing with its obligations under the WTO regime.
Objectives and principles
The starting point is the statement of objectives and principles in Article 5 of the UN Fish
Stocks Agreement (UNFSA), accompanied by the objective of long term sustainable use
stated in Article 2 and the precautionary approach set out in Article 6. These objectives,
along with those found in Agenda 21, the Code of Conduct for Responsible Fisheries, the
World Summit on Sustainable Development (WSSD) Johannesburg Plan of Action, and
the various international plans of action and ministerial declarations adopted by FAO, are
1 Its full title is: Agreement for the Implementation of the UN Convention of December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. It is referred
to in this paper as UNFSA.
2 Its full title is the Convention on Management of Highly Migratory Fish Stocks in the Western and
Central Pacific. It is referred to here as WCPFC.
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widely accepted as indispensable to modern fisheries conservation and management.
Further, they have been incorporated into the provisions of the WCPFC.
The trend today is, therefore, towards having objectives clauses in fisheries legislation,
which should refer to these objectives one way or another.
There are several different approaches that can be adopted. A few different examples are
set out here. In these, the objectives are spelled out. Another approach, of course, could
be to refer to these objectives and principles by a process of incorporation, for example,
by simply referring in the legislation to the statements as found in Article 5 of UNFSA or
Article 5 of the Convention for the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific.
An important underlying issue, however, is the extent to which such objectives can be
used in judicial and administrative proceedings to measure whether appropriate decisions
have been made. In other words, are they justiciable?
The Republic of South Africa has dealt with objectives and principles in the following
way:
The Minister and any organ of state shall, in exercising any power under this Act, have
regard to the following objectives and principles:
(a) The need to achieve optimum utilization and ecologically sustainable
development of marine living resources;
(b) the need to conserve marine living resources for both present and future
generations;
(c) the need to apply precautionary approaches in respect of the management and
development of marine living resources;
...
(e) the need to protect the ecosystem as a whole, including species which are not
targeted for exploitation;
(f) the need to preserve marine bio-diversity;
(g) the need to minimize marine pollution;
(i) any relevant obligation of the national government or the Republic in terms of
any international agreement or applicable rule of international law; ...
In this approach the principal objectives and principles found in UNFSA are in effect
summarized.
In the case of Australia, these principles and objectives have been quite substantially
recast. The Australian Fisheries Management Act of 1991 states the following in its
section 3 (titled "Objectives"):
(1). The following objectives must be pursued by the Minister in the administration of
this Act and by [Australian Fisheries Management Authority] in the performance of its
functions:
(b) ensuring that the exploitation of fisheries resources and the carrying on of any
related activities are conducted in a manner consistent with the principles of
ecologically sustainable development and the exercise of the precautionary principle, in
particular the need to have regard to the impact of fishing activities on non-target
species and the long term sustainability of the marine environment;
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(2) In addition to the objectives mentioned in subsection (1), or in section 78 of this Act,
the Minister, AFMA, and the Joint Authorities are to have regard to the objectives of:
(a) ensuring though proper conservation and management measures, that the living
resources of the [Australian Fishing Zone, or AFZ] are not endangered by over-
exploitation; and
(b) achieving the optimum utilisation of the living resources of the AFZ...
The following was added to the amendment inserted specifically to give effect to the
1995 UN Fish Stocks Agreement:
(c) ensuring that conservation and management measures in the AFZ and the high seas implement
Australia's obligations under international agreements that deal with fish stocks... (Fisheries
Legislation Amendment Act, 1999)
In the Cook Islands Marine resources Act, the following approach is followed:
3. Objective, Function and Authority - (1) The principal objective of this Act and the Ministry of
Marine Resources is to provide for the sustainable use of the living and non-living marine
resources for the benefit of the people of the Cook Islands.
(2) The Ministry of Marine Resources has the principal function of, and authority for the
conservation, management, development of the living and non-living resources in the fishery
waters in accordance with this Act and the Ministry of Marine Resources Act 1984.
(3) This Act shall be interpreted, and all persons exercising or performing functions, duties, or
powers conferred or imposed by or under this Act and the Ministry of Marine Resources Act 1984
shall act, in a manner consistent with the Cook Islands international and regional obligations
relating to the conservation and management of living and non-living resources in the fishery
waters.
(4) To ensure that the objectives, functions and authority provided under this Act and the Ministry
of Marine Resources Act 1984, and Cook Islands obligations under international and regional law
are effectively discharged, the provisions of this Act shall prevail in the event of inconsistency or
incompatibility with any other Act or instrument having the force of law in the Cook Islands from
time to time, except for the Constitution of the Cook Islands.
However, this needs to be read in conjunction with section 4 on principles and
measures.
4. Principles and Measures - The Minister, or Secretary, as appropriate, when performing
functions or exercising powers under this Act, shall take into account the following
(a) environmental and information principles in relation to achieving the sustainable use of
fisheries and the need to adopt measures to ensure the long term sustainability of the fish stocks -
(i) decisions should be based on the best scientific evidence available and be designed to
maintain or restore target stocks at levels capable of producing maximum sustainable
yield, as qualified by relevant environmental and economic factors;
(ii) the precautionary approach should be applied;
(iii) impacts of fishing on non-target species and the marine environment should be
minimised;
(iv) biological diversity of the aquatic environment and habitat of particular significance
for fisheries management should be protected;
(b) principles and measures for the exploration and exploitation of the non-living resources of the
fishery waters, seabed and subsoil -
(i) the orderly, safe and rational management of the nonliving resources, including the
efficient conduct of activities, and in accordance with the principles of conservation, the
avoidance of unnecessary waste;
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(ii) measures to ensure effective protection for the aquatic environment from harmful
effects which may arise from exploration or exploitation of non-living resources,
including rules, regulations and procedures for, inter alia -
(c) the prevention, reduction and control of pollution and other hazards to the aquatic
environment, and of interference with the ecological balance of the marine environment;
(d) the protection and conservation of the natural resources of the fishery waters and the
prevention of damage to the flora and fauna of the aquatic environment;
(e) measures to ensure effective protection of human life.
(f) principles and measures for the development and management of aquaculture-
(i) aquaculture development should be ecologically sustainable
(ii) the impacts of aquaculture on aquatic ecosystems and other uses of aquatic
resources should be assessed;
(iii) the need to minimise pollution from aquaculture;
(g) social, cultural and equity principles
(i) the maintenance of traditional forms of sustainable fisheries management;
(ii) protection of the interests of artisanal fishers, subsistence fishers and local island
communities, including ensuring their participation in the management of fisheries and of
aquaculture; and;
(iii) broad participation by Cook Islanders in activities related to the sustainable use of
marine resources.
The approach in the Tongan Fisheries Management Act is to spell out the objectives in
full. However, it is of particular interest because of the way it addresses the precautionary
approach in paragraph c.
4. In any exercise of powers under this Act, the Minister shall ensure that
the following are considered:
(a) the need to ensure the long term conservation and sustainable
use of fishery resources, and to this end adopt management
measures which promote the objective of optimum utilisation
and to achieve economic growth, human resource development,
employment creation and sound ecological balance;
(b) the need to ensure that management measures are based on the
best scientific evidence available;
(c) the application of the precautionary approach at no less standard
than set by criteria in the Fish Stocks Agreement or any other
fisheries management agreement;
(d) the need to conserve aquatic living resources and protect
biodiversity in the marine environment for present and future
generations;
(e) the need to protect the ecosystem as a whole and the general
aquatic environment and adopt, where necessary, conservation
and management measures for species belonging to the same
ecosystem or associated with or dependent upon target stocks;
(f) the need to minimise pollution, waste, discards, catch by lost
or abandoned gear, catch of non-target species and impacts on
associated or dependent species, through measures including,
to the extent practicable, the development and use of selective,
environmentally safe and cost effective fishing gear and
techniques;
(g) the need to take measures to prevent or eliminate over-fishing
and access fishing capacity and to ensure that levels of fishing
effort do not exceed those commensurate with sustainable use
of fishery resources;
(h) the interests of artisanal and subsistence fishers;
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(i) the need to collect and share in a timely manner and in
accordance with fisheries management agreements and international
law, complete and accurate data concerning fishing
activities on, inter alia, vessel position, catch of target and non
target species and fishing effort, as well as information from
national and international research programmes;
(j) the need to promote and conduct scientific research and develop
appropriate technologies in support of fishery conservation and
management;
(k) the need to implement and enforce conservation and
management measures through effective monitoring, control and
surveillance;
(l) the need to promote, to the extent practicable, broad and
accountable participation in the management and conservation
of fisheries resources and understanding for the need for
conservation and sustainable development of aquatic living
resources;
(m) any relevant obligations of Tonga under applicable rules of
international law and international agreements.
In the Pacific, given the importance of customary marine tenure and the fact that several
coastal fisheries are subject to some form of customary marine tenure, it is important to
recognise the role that customary marine tenure plays in fisheries and also the need to
protect the source of livelihood of subsistence fishers. An example can be found in
Solomon Islands Fisheries Act.
4.
In exercising his powers under this Act, the Minister shall have regard to--
.....
(g) any customary rights of customary rights holders over or in relation to any area within
Solomon Islands waters;
Likewise, some would wish to see recognition of bio prospecting and an endorsement of
the ecosystem approach to fisheries as an objective.
It will be noted that, in all of the examples quoted above, "shall" has been used, which
would mean in most countries that such provisions would be justiciable. Or, in other
words, administrative action could be challenged in the courts on the basis of an alleged
non compliance with such objectives. Each country should be judged separately to
determine whether that is appropriate, for example, that it could impose too great a strain
on limited judicial resources. If that is the case, it may be necessary to insert weaker
language, and add a clause to the effect that compliance with such provisions is not
subject to judicial review. If it is considered necessary to do this, it would be important to
ensure that the law in other ways provides for transparency and accountability. This will
be considered further under governance below.
Checklist: does the basic fisheries law in question provide for the application of the
objectives and principles found in the UNFSA and the WCPFC?
Broadly speaking, these should include at least:
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the need to achieve optimum utilization and ecologically sustainable
development of marine living resources;
the need to conserve marine living resources for both present and
future generations;
the need to apply precautionary approaches in respect of the
management and development of marine living resources;
the need to protect the ecosystem as a whole, including species which
are not targeted for exploitation;
the need to preserve marine bio-diversity;
the need to minimize marine pollution;
Others could be added: bio prospecting customary fishing rights, the
ecosystem approach to fisheries
Is it appropriate for the particular country in question to make such clauses justiciable
in the courts or tribunals?
Ecosystem considerations
A modern fisheries law will need to provide the basis for the inclusion of ecosystem
considerations in decision making, and this has been done already by referring to it in the
objectives referred to above. It is no longer considered appropriate, for example, to make
decisions on the basis of information concerning one stock or species of fish, instead, it is
necessary to consider effects of associated and dependent species, as well considering the
impact of the activity in question on the marine environment as a whole.
The ecosystem approach is also reflected in the WSSD Plan of Implementation. Thus, in
paragraph 30(d), it is stated: "Encourage the application by 2010 of the ecosystem
approach, noting the Reykjavik Declaration on Responsible Fisheries in the Marine
Ecosystem and decision V/6 of the conference of the Parties to the Convention on
Biological Diversity."
However, while the basic point is clear, it can often be difficult (and expensive) to obtain
the information necessary to make an effective evaluation of the ecosystem
considerations. In an important article by J Caddy and K Cochrane, the difficult task
ahead for fisheries managers in embracing the ecosystem approach is put into context in
their wide ranging review of fisheries management, when they state:
"Even while fisheries management struggles to get to grips with single species
issues, it is increasingly being called on to take a multispecies and ecosystem
perspective. However, there are still few case studies with more than few years
duration which illustrate how these concepts are to be applied, and the difficulties
are already apparent to all."3
The following extracts from an FAO study4 on the ecosystem approach are also helpful:
3 "A Review of Fisheries Management Past and Present, and some Future Perspectives for the Third
Millennium" Ocean and Coastal Management 44 (2001) 653 at 666.
4 See also The Ecosystem Approach to Fisheries: Issues Terminology, Institutional Foundations,
Implementation and Outlook FAO Fisheries technical paper no 443. (2003)
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"EAF is not well covered in binding international law at present, either
explicitly as EAF sensu stricto, or implicitly as sustainable development
principles, but is reflected mainly in voluntary instruments such as the Rio
Declaration, Agenda 21, the Code of Conduct for Responsible Fisheries and the
Reykjavik Declaration. As a result, few regional fisheries organizations and
arrangements make explicit recognition of EAF in their instruments.
Furthermore, EAF is not frequently an integral part of national fisheries policy
and legislation. This leads to many deficiencies in current fishery management
regimes, such as (i) weak cross-sectoral consultation and cooperation and (ii)
the failure to consider, or a legal inability to act on external influences such as
pollution and habitat deterioration. Such problems need to be addressed and
corrected where required. Especially in the case of national policies and laws,
EAF may require that existing legal instruments and the practices of other
sectors that interact with or impact on fisheries need to be considered, and that
adjustments to those instruments and practices pertaining to other sectors be
made.
EAF is, therefore, likely to require more complex sets of rules or regulations
that recognize the impacts of fisheries on other sectors and the impact of those
sectors on fisheries. It may be desirable to regulate the major and more or less
constant inter-sectoral interactions through the primary legislation. This could
apply, for example, to laws controlling coastline development and coastal
habitat protection, the establishment of permanent MPAs, and the creation of
cross-sectoral institutions. However, many interactions between fisheries and
other sectors will be dynamic, and in these cases, it may be desirable to strive
for a more responsive and flexible mode of interaction than is usually possible
through the primary legislation. In these cases, it would be preferable to rely
instead on agreed rules. This is consistent with the advice in the FM Guidelines,
namely that routine management control measures needing frequent revision
should be included in subordinate legislation, rather than in the primary
legislation (4.3.1. vi).
The FM Guidelines states that the primary legislation should specify the
"functions, powers and responsibilities of government or other institutions
involved in fisheries management" (4.3.1 iv). It also states that the jurisdiction
should include the geographical area, the interested parties and the institutions
involved in fisheries management (4.3.1 v). In addition, EAF requires that (i)
the geographical jurisdiction should, as far as practical, coincide with natural
ecological boundaries and (ii) that the legislation should specify the
appropriate level of consultation and cooperation between the specific fishery
agency and those institutions dealing with other fisheries or with other
interacting sectors."
It will be apparent that giving full effect to EAFM is an enormous task, and one that is
beyond the reach of most governments. However, steps towards achieving it can be
made, for example, by ensuring that EAFM is included in the objectives and principles
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clauses discussed above. Also by providing the opportunity for cross sectoral assessments
and interactions in the governance regime, the EAFM approach can be given at least
some prospects for application.
Marine protected areas. While the ecosystem approach should permeate thinking about
all aspects of decision making, one very practical step is to ensure that the fisheries
legislation, or otherwise the legislation governing the marine environment, at least
provides for setting up marine protected areas. The law should also provide for the
establishment of different types of marine protected areas according to the objective to be
achieved. Thus, there should be scope for establishing the following: marine parks,
marine reserves, and prohibited fishing areas.
By itself, it will not, of course, ensure the application of such an approach. It will
however, constitute an important tool in achieving that objective. In any event, the
inclusion of the power in legislation to establish marine protected areas will form part of
a range of controls available.
Checklist: Does the fisheries law promote consideration of an ecosystem approach to
fisheries?
Is that consideration given a practical effect in decision making? For example, do
conservation, management and exploitation decisions take into account effects on
associated and dependent species, as well as the impact on the ecosystem as a whole?
Does the fisheries law, or another related law such as the environment law, provide for
the establishment of marine protected areas, and for different types of protected areas?
Does it provide for the application (if needed) of strong and effective conservation and
environmental objectives in such areas?
Precautionary approaches to Fisheries Management
Closely linked to the need for an ecosystem approach is the need to adopt precautionary
approaches to fisheries conservation, management and exploitation. This has already
been referred to under the objectives above. However, it may be necessary to include in
the law provisions requiring the decision maker to apply precautionary reference points.
Thus, in the Australian fisheries law, it is stated:
(5C) A plan of management for a fishery affecting straddling fish stocks, highly
migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish
Stocks Agreement) must set out stock-specific reference points (within the meaning of
that Agreement) for the stocks (section 17 5C).
Likewise the Tongan Fisheries Management Act, section 4 (c), quoted above, should be
noted here.
Checklist:
Does the fisheries law provide for the incorporation of precautionary approaches into
conservation, management and exploitation decisions (for example, in the objectives
and purposes already referred to above)?
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Does the fisheries law provide for the setting of precautionary reference points as set
out in the UNFSA and the WCPFC (Article 6)?
Overall governance framework
This will vary from one country to another. By governance in this context, we refer to the
capacity to administer the fisheries legislation, to set policies, to issue authorisations for
fishing (however described), to determine conservation and management measures, to
declare marine protected areas, to make decisions concerning marine scientific research,
to make enforcement decisions, to initiate prosecutions. Many of these matters will be
considered under the specific headings later. The critical questions that need to be
resolved are:
Which government ministries need to be involved in or consulted when formulating
polices or conservation measures? Normally, it would be appropriate to have Fisheries as
the lead body, but with Foreign Affairs, Justice/AttorneyGeneral's and Environment
also closely involved. It will of course depend on the situation in each country as to
which ministries or departments need to be involved. The interaction between the
environmental and fisheries interests has often been a source of dispute between
government departments. Getting the balance right between the two has often proved to
be elusive. To a certain extent, this can be dealt with by indicating in legislation which
law is to prevail over the other.
Getting this balance right will also have an important impact on the ability of a particular
country to introduce ecosystem approaches, for it is the ability to make judgements across
different sectors that is fundamental to the success of an ecosystem approach.
How will the interests of the different stakeholders be taken into account? In particular,
how do you obtain a balance between the representation of the small scale and artisanal
fishers on the one hand and the larger scale fishing interests on the other. Depending on
the country in question, it may be necessary to accommodate the varying interests of the
following:
ˇ artisanal,
ˇ small scale,
ˇ customary fishing,
ˇ recreational,
ˇ commercial fishing,
ˇ (possibly) foreign fleet interests.
One approach is to set up a fisheries advisory board on which could be represented a
wide range of interests, from government departments to representatives of different parts
of the fisheries sector.
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There is also the consideration that some sectors might need their own council or
advisory body distinct from the main body. In Samoa, for example, there is a body
specifically to advise on small scale fisheries.
A further consideration is that there may be a need to separate the role of an advisory
body which represents stakeholders from that of a licensing body. The reason for this is
the potential for conflict of interest here.
Another aspect is to ensure that there is an appeal or review system which can deal with
appeals against decisions of the minister on licensing. Much will depend on the specific
characteristics of the country. For example, how much fishing activity is being regulated,
and what type of fishing activities are there taking place within the country? Does it merit
an appeal or review process? Is there already an effective administrative review process
in place? How effective are the local courts in dealing with fisheries and maritime issues?
Underlying issues of governance is the need to ensure transparency in decision making.
At the international level, this is stated explicitly in Article 12 UNFSA, and in Article 21
WCPFC. At the national level, it is important to ensure that there is a similar
transparency in decision making. One means by which this can be achieved is to require
written reasons to be given for decisions on licensing, cancellation or refusal to grant a
licence, etc. Other mechanisms can be considered: for example, publication of a list of
licence holders will go some way to promoting transparency
Likewise, it is important to ensure that the power to suspend or cancel licences should be
done by the same person or body responsible for issuing licences.
Finally, care is needed here, however, that an unduly burdensome structure is not created.
Each country will have distinctive governance characteristics, and it is unlikely that one
model will fit all.
Underlying this subject is of course a much wider question which is beyond the scope of
this study, which is whether there is a need for a reorganization of government
departments concerned with marine affairs. For example, setting up a Ministry of the
Oceans or something similar, which embraced all the main government departments or
ministries involved in the marine sector. Such a body would almost certainly make it
easier for a cross sectoral approach to be adopted, especially with respect to the adoption
of an ecosystem approach to fisheries management.
Checklist:
Does the law provide for the involvement of relevant government departments (such as
Foreign Affairs, Justice/AttorneyGeneral's and Environment) in addition to fisheries
in the setting of government policies with respect to the fisheries sector?
Does the law, or some other linked administrative structure, provide for the
consideration of a wide range of interests and views in the formulation of policies and
in the setting of conservation and management measures?
Does the law provide for a system of judicial or administrative review for decisions
made, such as licensing, including cancellation and suspension? Is the system too
cumbersome and expensive for most participants in the fisheries sector?
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Is a body such as a Fisheries Advisory Council appropriate for the country in
question?
Does the governance system provide for an adequate level of transparency?
Record of fishing vessels
Under both UNFSA and the FAO Compliance Agreement, it is necessary to maintain a
record of fishing vessels for vessels flying their flag and fishing on the high seas. This is
in addition to any national registry or record that the country might have, and additional
to the regional register maintained by FFA.
Similarly, the WCPFC imposes in Article 24 the following obligation with respect to the
maintenance of a record:
4. Each member of the Commission shall, for the purposes of effective implementation of this
Convention, maintain a record of fishing vessels entitled to fly its flag and authorized to be used
for fishing in the Convention Area beyond its area of national jurisdiction, and shall ensure that
all such fishing vessels are entered in that record.
5. Each member of the Commission shall provide annually to the Commission, in accordance with
such procedures as may be agreed by the Commission, the information set out in Annex IV to this
Convention with respect to each fishing vessel entered in the record required to be maintained
under paragraph 4 and shall promptly notify the Commission of any modifications to such
information.
6. Each member of the Commission shall also promptly inform the Commission of:
(a) any additions to the record;
(b) any deletions from the record by reason of:
(i) the voluntary relinquishment or non-renewal of the fishing authorization by the fishing
vessel owner or operator;
(ii) the withdrawal of the fishing authorization issued in respect of the fishing vessel
under paragraph 2;
(iii) the fact that the fishing vessel concerned is no longer entitled to fly its flag;
(iv) the scrapping, decommissioning or loss of the fishing vessel concerned; and
(v) any other reason, specifying which of the reasons listed above is applicable.
The following provision is taken from the draft OECS Harmonised High Seas Fishing
Law, which is intended to give effect to the UNFSA and the FAO Compliance
Agreement. It has been adapted to include the WCPFC:
(1)
The Managing Director/ Minister shall maintain a record of fishing vessels of [country] in
respect of which high seas fishing permits have been issued, including all information
required to be submitted under Annex IV of the WCPFC.
(2)
The Managing Director/Minister shall:
(a)
make available to FAO and to WCPFC information contained in the record
maintained under sub-section (1);
(b)
promptly notify FAO and WCPFC of changes in such information in respect of high
seas fishing vessels;
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(c)
promptly notify FAO and WCPFC of any additions to or deletions from the record,
and the reasons for any deletion;
(d)
convey to FAO and WCPFC information relating to any high seas fishing permit
granted under section 6(4) of this Act, including the identity of the vessel and its
owner, charterer or operator, and factors relevant to the Minister's decision to
issue the permit;
(e)
report promptly to FAO and WCPFC all relevant information in his possession
regarding any activities of fishing vessels of [country] on the high seas that
undermine the effectiveness of international conservation and management
measures, including the identity of vessels and any sanctions imposed;
(f)
provide FAO and WCPFC with a summary of evidence in his possession regarding
the activities of foreign vessels that undermine the effectiveness of international
conservation and management measures; and
(g)
maintain a record of international conservation and management measures and
subregional or regional fisheries management organisations which are recognised
by [country].
(3)
The Managing Director/Minister may make available on request the information maintained
under sub-section (1) to any directly interested foreign State which is a party to the
Compliance Agreement, the Fish Stocks Agreement, the WCPFC and to any other
subregional or regional fisheries management organisation.
(4)
The Managing Director/Minister may lay an information before the Court in respect of
alleged offences committed under this Act.
However, clause (3) above may be unnecessary depending on the specific solution adopted
for giving effect to conservation and management measures of RFMOs.
There are two other aspects concerning a record, or register. First, a country might wish in
any event to have a much more widely based record or register than merely for high seas
fishing. It might, for example, wish to register all fishing vessels above a certain size.
Second, the role of the FFA regional register needs to be covered in national legislation.
On the establishment of a general register, there are examples found in several of the laws of
FFA members. Two examples are set out here.
First, Vanuatu, section 30, Fisheries Act, 2005.
Register of licences and authorization
The Director is to maintain a register of licences and authorizations issued under this Act.
The register is to contain the following information:
(a)
the nature of the activity licensed or authorized; and
(b)
the particulars of the vessel, person or establishment licensed or authorised; and
(c)
the term of each licence or authorisation; and
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(d)
any action taken in respect of the licence or authorisation under sections 17 and 27;
and
(e)
the result of any appeal affecting the licence or authorisation considered under section
29; and
any other matter that is prescribed.
Second, Cook Islands Marine Resources Act:
44. Register of Licences - The Secretary shall cause to be maintained a register of
all licences issued pursuant to this Act by the Minister and the Secretary, containing
information relating to
(a) the nature of the activity licensed;
(b) the vessel, person or establishment licensed; and
(c) the period of validity of each licence;
and such additional information relating to the licences as the Secretary thinks appropriate.
As to the regional register of the FFA, this is dealt with in the Cook Islands Marine
Resources Act in the following way:
Regional register is defined:
10. "Regional Register" means the Regional Register of Foreign fishing vessels
maintained by the South Pacific Forum Fisheries Agency in Honiara,
This has a direct consequence in the national law, as a licence cannot be issued:
(2) No licence shall be issued and no authorisation shall be given pursuant
to this Act unless -
(d) where the fishing vessel in respect of which the application is
made does not have good standing on the Regional Register; or
(e) the previous offending history (if any), of the vessel's owner,
operator or master;
(f) in accordance with such other grounds as may be prescribed.
(4) The Minister or Secretary as appropriate, shall deny any application for
a licence where the granting of the licence would conflict or would be inconsistent with the
requirements of this Act, an applicable access agreement, fisheries management agreement,
fishery plan, or any international conservation and management measure.
Checklist:
Does the fisheries law provide for a record of fishing vessels undertaking fishing on
the high seas (as well as in the waters under the jurisdiction of foreign States)?
Does the information required to be maintained in that record meet the obligations set
out in the FAO Compliance Agreement and the WCPFC Article 24?
Is provision made in national law for the requirement that only vessels in good
standing under the FFA regional register can be given authorisations to fish?
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Setting of conservation and management measures
The law should provide for the setting of conservation and management measures,
however, it is essential that the means by which this is done allows for considerable
flexibility. Provision should be made for administrations to be able to respond to changes
brought about by environmental factors, the human factor and disputes over fishing
grounds. There is also a need to be able to introduce urgent conservation and
management measures.
In addition, there needs to be provision for
ˇ setting of specific conservation measures, e.g. times, gears, locations
ˇ introducing urgent conservation and management measures
ˇ protection of certain species of fish, including associated and dependent species of
targeted fish stocks
ˇ setting of the TAC
ˇ setting total level of fishing effort as one means of allocating fishing rights.
One strong instance of a law permitting the introduction of urgent conservation
measures is to be found in the PNG Fisheries Management Act 1998.
30. FISHING AND RELATED ACTIVITIES SUBJECT TO PROHIBITION.
(1) For the purposes of this section, "specified" means specified in a notice under
Subsection (3).
(2) Notwithstanding Section 3(2), this section applies to all persons, all vessels and
all fishing and related activities.
(3) Subject to this Act, the Board may by notice in the National Gazette, following a
recommendation by the Managing Director -
(a) notwithstanding anything in any notice under Section 2(3), declare that organisms
of a specified kind are not sedentary organisms in respect of specified part of
fisheries waters; and
(b) prohibit at all times, or during a specified period, the taking, from any specified
area of fisheries waters of -
(i) fish or fish included in a specified class of fish; and
(ii) in the case of a specified class of crustaceans, females having eggs or
spawn attached to them, and the processing of such fish on a vessel in the specified area; and
(c) prohibit the taking, from any fisheries waters, of fish included in a specified class
of fish that -
(i) are less or greater than a specified size; or
(ii) have dimension less or greater than a specified dimension; or
(iii) have a part with dimension less or greater than a specified dimension in
relation to that part; and
(d) prohibit the taking, from any fisheries waters, of fish, or of fish included in a
specified class of fish -
(i) by a specified method or gear; or
(ii) by persons other than a specified class of persons; or
(iii) by vessels other than a specified class of vessels; and
(e) prohibit the buying, selling, landing, sale, receiving, possession or export of fish
or of fish included in a specified class of fish; and
(f) prohibit a person from having in his possession or in his charge in a vessel, in
any area of waters, gear of a specified kind for taking fish unless the gear is
14
stowed and secured; and
(g) prohibit a person from using, or having in his possession or in his charge in a
vessel, in any fisheries waters, a quantity of equipment of a specified kind for
taking fish that is in excess of a quantity specified in, or ascertainable as
provided in, the notice; and
(h) prohibit a person from using or having in his possession or in his charge a vessel
or a class of vessels, in any fisheries waters to which a notice under Paragraph (f)
applies, equipment of a kind to which the notice applies, unless there is a licence
in respect of the equipment; and
(i) prohibit the conduct of a specified type of related activity -
(i) absolutely; or
(ii) by persons other than a specified class of persons; or
(iii) in a specified manner; and
(j) prohibit the taking of protected or endangered species of fish; and
(k) prohibit such other activities as may be prescribed from time to time.
(4) A notice under this section may provide for exemptions from the prohibition in
the notice.
(5) A declaration under Subsection (3)(a) or an exemption under Subsection (4) shall
be made for a period not exceeding three months.
It should be noted that this provision has certain time limits built into it. See para 5
above.
Another consideration is that it can be useful to provide for a number of different
methods of introducing conservation and management measures. Thus, it may be useful
to do it in certain circumstance by generally applicable regulations, or even by notice in
the government gazette; in other contexts, it may be preferable to impose the
conservation measures by means of a condition to a licence.
Checklist: does the law provide for flexibility in the setting and changing of
conservation and management measures, including the ability to introduce changes in
situations requiring urgent action?
Does it provide for the setting of TACs, or, alternatively, total levels of fishing effort, or
both?
How are the diverse interests of the fisheries sector taken into account in the setting of
these measures? (Thus will also relate to governance issues considered above)
Fisheries Management plans
For many countries in the region, fisheries management plans are an important element of
their planning process and for regulating fisheries. However, giving these plans legal
effect has not always been a success.
There is a need to strike a balance between retaining a measure of flexibility in these
plans so that they can be altered from time to time to meet changing conditions but
nonetheless ensuring that they have legal effect without the unintended consequence of
their having arbitrary effects on the fisheries themselves. Also, because they are, or can
be made by legislation to be, a species of subordinate legislation, it is important to ensure
that they are consistent with the Act to avoid problems of ultra vires. Likewise, any
penalty for breach of a management plan needs to be carefully considered.
15
One solution is found in the Cook Islands Marine Resources Act:
6. Designated fisheries (1) The Queen's Representative may by Order in
Executive Council declare a fishery as a designated fishery where, having regard to scientific,
social, economic, environmental and other relevant considerations, it is determined that such
fishery -
(a) is important to the national interest; and
(b) requires management measures for ensuring sustainable use of
the fishery resource.
(2) Except for subsection (4), a fishery plan for the management of each
designated fishery in the fishery waters shall be prepared by the Secretary, and kept under
review.
(3) Each fishery plan shall -
(a) identify the fishery;
(b) describe the status of the fishery;
(c) specify management measures to be applied to the fishery;
(d) specify the process for the allocation of any fishing rights
provided for in the fishery plan;
(e) make provision in relation to any other matter necessary for
sustainable use of fishery resources.
(4) A local authority may prepare a fishery plan for the management of a
designated fishery of local interest within its area of authority. Such a plan shall -
(a) be prepared in consultation with the Ministry of Marine Resources;
(b) be consistent with the principles and measures in section 4 of
this Act; and;
(c) be submitted for approval to the Secretary.
(5) The Secretary shall approve any fishery plan prepared by a local
authority in accordance with subsection (4), but shall not do so if it is inconsistent with the
objectives, functions or authority in section 3 or the principles and measures in Section 4 of this
Act. In the event of inconsistency, the Secretary shall promptly notify the local authority of the
reasons for disapproval, and the fishery plan may be amended and resubmitted to the Secretary
for approval.
(6) A fishery plan for a designated fishery shall enter into force on a date
specified by Order in Executive Council made by the Queen's Representative.
(7) The management measures in such plan shall have the full force and
effect of regulations promulgated under this Act in accordance with section 92;
(8) After such consultation as the Secretary considers appropriate in the
circumstances, the Queen's Representative may by Order in Executive Council, amend or
revoke a fishery plan.
(9) All activities subject to a fishery plan shall remain subject to other
applicable provisions of all Acts and regulations of the Cook Islands.
(10) A fishery plan has no effect to the extent it is inconsistent with the
provisions of this Act.
(11) The terms and phrases defined in this Act shall be given the same
meaning in the fishery plan unless the context otherwise requires.
(12) A fishery plan may contain provisions enabling the Secretary by notice
in writing to give directives providing for such matters as are contemplated by or necessary for
giving full effect to the provisions of that fishery plan.
This provision makes it clear that the plan must be consistent with the Act, even though
that requirement might be presumed. Also, under section 92, the regulation making
power, it is possible to prescribe penalties in respect of breaches of the regulations.
Section 92 (2) z states:
16
(z) prescribing offences against the regulations and penalties for
such offences, not exceeding a fine of $250,000 and, where the
offence is a continuing one, a further fine not exceeding $5000
for every day that the offence has continued;
Implementation of conservation and management measures of regional fisheries
bodies
Under the UNFSA in general, and specifically under WCPFC, it will be necessary for
parties to regional fisheries management organizations to give effect in their national
laws to international conservation and management measures. Art 23.1 of the WCPFC
states:
Each member of the Commission shall promptly implement the provisions of this Convention and
any conservation, management and other measures or matters which may be agreed pursuant to
this Convention from time to time and shall cooperate in furthering the objective of this
Convention.
The means by which a treaty is given effect in national law can vary from one country to
another, hence what follows might not work for all countries. Further, several
environmental treaties either overlap with, or will have the potential to do so, with
fisheries, and this needs to be monitored.
One example of how measures adopted by WCPFC can be incorporated into national law
is found in the Namibian fisheries law:
Giving effect to fisheries and international agreements
37.
(1)
The Minister may, for the purpose of any fisheries agreement entered
into under section 35 or any international agreement to which Namibia is a party, make
such regulations as the Minister may consider necessary or expedient for the carrying
out and for giving effect to the provisions of any such agreement or any amendment of
such agreement.
(2)
The Minister shall publish in the Gazette the texts of all conservation
and management measures adopted under any international agreement to which Namibia
is a party and any measure so published shall be deemed to be a regulation prescribed
under section 61.
(3)
For the purposes of--
(a)
subsection (2), "conservation and management measures" means
measures to conserve and manage one or more species of living marine resources that
are adopted and applied consistent with the relevant rules of international law as
reflected in the United Nations Convention on the Law of the Sea of 10 December 1982,
and the Implementation Agreement [i.e., the 1995 UN Fish Stocks Agreement]
It would be useful to add specifically to this a reference to the WCPFC Convention.
Another approach would be to have such measures laid before the Parliament for a
number of days, and if not objected to, they would then acquire legal effect.
The techniques referred to above require action by the country in question to give effect
to such measures. A more radical approach would be to make conservation and
management measures of an RFMO such as the WCPFC immediately applicable in
17
national law, unless specifically disallowed. Provisions dealing with this need to be
drafted with special care if the violation of one of these measures constitute an offence.
A possible draft provision, which does not go quite so far as to give immediate
application, is set out here:
Giving effect to fisheries and international agreements
(1)
The Minister shall publish in the Gazette the texts of all conservation
and management measures adopted under the [WCPF Convention] and any other such
measures adopted by a regional fisheries management organization to which ..... is a
party.
(2)
The Minister may, for the purpose of giving effect to [WCPF
Convention] as amended from time to time make such regulations or give notice in the
Gazette or attach such conditions to a licence as the Minister may consider necessary or
expedient for this purpose.
(3)
The Minister may, for the purpose of giving effect to any fisheries
agreement entered into under section ??? or any international agreement or
arrangement to which ....... is a party, make such regulations or give notice in the
Gazette or attach such conditions to a licence as the Minister may consider necessary or
expedient for this purpose.
(4)
For the purposes of this section, "conservation and management
measures" means measures to conserve and manage one or more species of living
marine resources that are adopted and applied by global, regional or subregional
fisheries organisations, including in particular those adopted by WCPFC, consistent with
the relevant rules of international law as reflected in the United Nations Convention on
the Law of the Sea of 10 December 1982, and [the 1995 UN Fish Stocks Agreement] 5
The penalty to be imposed needs also to be considered. The provision quoted above in
respect of the fisheries management plans could be adapted as follows:
"The Minister may by regulation prescribe offences in respect of non compliance
with conservation and management measures and penalties for such offences, not
exceeding a fine of $250,000 and, where the offence is a continuing one, a further
fine not exceeding $5000 for every day that the offence has continued."
Consistency in penalty levels across WCPFC members would be desirable.
Checklist: does the law permit the implementation into national law of the
conservation and management measures of WCPFC? Does it permit implementation of
the measures of other RFMOs?
Does the law provide for adequate penalties for non compliance with such measures?
Authorisations to fish
5 This definition may be unnecessary if the term has already been defined in the Act as a whole.
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The type of authorisation adopted by a particular country will almost certainly raise
important policy issues that go well beyond legal drafting considerations. No attempt
here is made to promote one system over another.
1. Licensing (not including foreign fishing)
It will be necessary to distinguish broadly between those countries which need or want a
licensing regime, and those which want additionally a rights based regime. In a
straightforward licensing regime, the duration of a license has become a contentious issue
for certain sectors. Thus, one year for recreational fishing by individuals might be fine;
however, where there are significant investments involved, usually longer periods are
required. It will be necessary to look at the laws in order to assess how effective they are
in terms of granting security to the participants.
It will also be necessary to consider which categories are needed for each country. Local,
locally based, foreign. For some, the middle category might be dispensed with. For
others, the category may have become too deeply entrenched to be easily dispensed with.
The arrangements for subsistence fishers and the role of customary fishing rights will
also need to be considered in many countries. It will be recalled that there may be a need
to refer specifically to such fishing in the objectives clauses considered above.
Checklist: does the law provide for a licensing regime which distinguishes between the
different types of licenses needed?
ˇ Local fishing vessel licence.
ˇ Sport fishing licence
ˇ Locally based foreign vessel licence (if appropriate)
ˇ Foreign fishing permit or licence
ˇ Test fishing operations
How does the law deal with subsistence fishers and customary fishing rights?
Does the law provide for different periods of time depending on the level of investment
involved in order to encourage continuity and security of investment?
2. Rights based fisheries
If a system of rights based transferable quota is introduced, then a more elaborate
authorization regime is required. The legal provisions governing the setting up of a rights
based regime can be very complex. Indeed, the laws of some countries (e.g. New
Zealand) are highly involved. They need to be as in effect property rights are being
established, and issues such as security of title to the right need to carefully spelled out.
Another consideration is that such systems have tended to involve significant burdens for
the administration.
Ideally the law dealing with rights based fishing should provide for at least the following:
19
ˇ the method of applying for a right of access or quota share
ˇ the identification of any criteria governing those eligible to apply (including for
example, the important question whether foreigners are eligible to apply and
compete on equal terms with local applicants)
ˇ the duration of any right
ˇ the method of dealing with fluctuations in the quota from one year or fishing
season to another
ˇ the character of the right granted (is it to be inheritable, leasable, saleable,
divisible or inheritable)
ˇ the amount of quota any person or company may hold at any one time
ˇ the calculation of the quota (usually as part of the TAC or the TAC for a
particular species)
ˇ the circumstances in which a right may lapse, be reduced, be suspended, or
cancelled.
An example could be the Cook Islands Marine Resources Act 2005 which states as
follows:
11.
Nature of a fishing right - (1) For the purposes of section 6 of this Act, any fishery plan
may provide for the allocation by the Secretary of fishing rights within the following class of
rights -
(a) a right to take a particular quantity of fish, or to take a particular quantity of fish of a
particular species or type, or a proportion of fishing capacity, from, or from a particular area
in, a designated fishery;
(b) a right to engage in fishing in a designated fishery at a particular time or times, on a
particular number of days, during a particular number of weeks or months, or in accordance
with any combination of the above, during a particular period or periods;
........
(2) For the purpose of section 6 of this Act, any fishery plan may provide for the Secretary to
reallocate in accordance with this Act and the fishery plan, any fishing right that remains un-
fished by the holder of that right for any specified period.
(3) Except as otherwise provided in any fishery plan, a fishing right or fishing right option shall
not be transferable or capable of having any charge or other interest registered against that right
or option in any register established in accordance with section
12.
Secretary to establish system for administration of fishing rights - (1) Where a fishery
plan for a designated fishery provides for the management by means of a system of fishing rights,
the Secretary shall establish and administer such a system (including the establishment of a
register of fishing rights and fishing right options), in accordance with the requirements of the
relevant fishery plan.
(2) The Secretary shall give, as soon as is reasonably practicable after a fishery plan comes into
force, but not later than 30 working days thereafter, to a person who is eligible to receive a fishing
right a certificate evidencing the grant by the Secretary of the fishing right in accordance with the
criteria set out in the relevant fishery plan.
(3) A fishing right is granted subject to the following conditions -
20
(a) the holder of the fishing right must comply with any obligations imposed by the fishery plan
or imposed by the Secretary in accordance with that fishery plan;
(b) the fishing right will cease to have effect if the fishery plan for the fishery to which the fishing
right relates is revoked under section 6(8) of this Act;
(c) no compensation is payable because the fishing right ceases to have effect or ceases to apply
to a fishery;
(d) the holder of the fishing right complies with the requirements of this Act that pertain to the
holding of the fishing right itself and the fishing or the possession or sale of any fish taken
under any fishing right;
(e) the fishing right may only be exercised from or in respect of a in respect of a Cook Islands
fishing vessel.
(4) A fishing right -
(a) is subject to such other conditions as are specified in the certificate, including conditions
relating to the suspension of the fishing right, term of the fishing right; concentration of
ownership of fishing rights, transferability or otherwise of the fishing right, and
transferability of share-holding in any body corporate holding the fishing right or holding
any interest in the fishing right; and
(b) comes into force on the day specified for the purpose in the certificate, or, if no day is so
specified, on the day on which it is granted; and
(c) subject to this Act, remains in force until revoked or surrendered in accordance with this Act
or it otherwise ceases to have effect under this Act.
(5) The Secretary may, by written notice given to the holder of a fishing right, whether or not at
the request of the holder, vary or revoke a condition of the fishing right (not being a condition
mentioned in subsection (3)) or specify a condition or a further condition to which the fishing
right is to be subject.
(6) Any condition imposed by the Secretary in respect of any fishing right may be additional to or
more restrictive than the provisions of any relevant fishery plan, but shall not be inconsistent with
any such fishery plan.
(7) A fishing right ceases to be in force if the holder of the fishing right surrenders it by written
notice given to the Secretary.
This provision is that it leaves a lot of detail to be worked out at some future date. This
can be advantageous where the basic decision has been made to introduce a rights based
regime, but the details of the scheme still have to be worked out. It also distinguishes
clearly between the nature of the right in Section 11, and its administration, which is dealt
with in section 12. However, it must always be remembered that a rights based system
can have long term consequences. In particular, it might give rise to claims for
compensation if the property right is withdrawn or is rendered worthless in certain
circumstances.
More elaborate versions can be found in the NZ and Australian provisions. However,
these both assume a considerable administrative backup, as well as the need for an appeal
process. It may not therefore be appropriate in all instances. Much will depend also on
how many participants will be eligible for a rights based system.
Checklist:
Is a rights based fisheries regime considered to be suitable for the country in question?
Does the rights based regime address all or most of the above issues?
3. Authorisation of fishing vessels on the high seas
Both the UNFSA and the Compliance Agreement have imposed certain obligations on
States which have vessels registered with them, in particular to control their activities on
21
the high seas. This requires the establishment of a licensing or authorization system for
such vessels to cover their activities while fishing on the high seas. It also applies to
placing controls on their activities fishing in the EEZs of other States. See Article 18.3
(b) (iv) UNFSA. This is linked to the need for the State to provide for a boarding and
inspection scheme on the high seas both in respect of its vessels as well as its power to
board and inspect vessels pursuant to measures adopted by RFMOs.
The licensing regime will need to provide both for obtaining information on the fishing
vessel and the proposed fishing activity at the application stage, and for the setting of
conditions on high seas fishing.
The New Zealand law provides for a range of conditions that may be imposed in respect
of the issuance of a high seas fishing permit.
113K. Conditions of high seas fishing permit--
(1) A high seas fishing permit may be subject to such conditions as the chief executive
considers appropriate, including conditions relating to the following matters:
(a) The areas in which fishing or transportation is authorised;
(b) The seasons, times, and particular voyages during which fishing or
transportation is authorized;
(c) The species, size, age, and quantities of fish, aquatic life, or seaweed that
may be taken or transported;
(d) The methods by which fish, aquatic life, or seaweed may be taken;
(e) The types, size, and amount of fishing gear or equipment that may be used or
carried, and the modes of storage of that gear or equipment when not in use;
(f) The use, transfer, transshipment, landing, receiving, and processing of fish,
aquatic life, or seaweed taken;
(g) Procedures or requirements, or both, enabling the verification of fish,
aquatic life, or seaweed taken or being taken by the vessel, including procedures
or restrictions relating to the species of, quantities of, or areas from which, fish,
aquatic life, or seaweed are being or have been taken by the vessel;
(h) Entry by the vessel to New Zealand or foreign ports, whether for the
inspection of its catch or for other purposes;
(i) Reports and information required to be given to the chief executive by the
permit holder, and records required to be kept by the permit holder;
(j) Management controls regarding fishing-related mortality of fish, aquatic life,
or seaweed;
(k) The conduct of specified programmes of fisheries research;
(l) The marking of the vessel and other means for its identification;
(m) The placing of observers on the vessel and the payment of any associated
prescribed fees and charges by the permit holder;
(n) The installation and maintenance of equipment to monitor fishing or
transportation under the permit and the payment of any associated prescribed
fees and charges by the permit holder;
(o) The installation on the vessel and the maintenance of any automatic location
communicator or other equipment for the identification and location of the
vessel, and of adequate navigational equipment to enable the vessel to fix its
22
position, and the payment of any associated prescribed fees and charges by the
permit holder;
(p) The carriage on board the vessel of specified charts, publications, and
instruments;
(q) The disposal of fish, aquatic life, and seaweed;
(r) Measures to give effect to international conservation and management
measures.
The Cook Islands Marine Resources Act 2005 provides as follows for high seas
fishing:
21. Requirements for Cook Islands fishing vessels outside the fishery waters (1)
No person may use a Cook Islands fishing vessel for fishing or related activities -
(a) in areas under national jurisdiction of a foreign country except
in accordance with the laws of that country;
(b) in an area subject to a multilateral access agreement or related
agreement except in accordance with that agreement;
(c) on the high seas except in accordance with a licence issued in
accordance with section 35 of this Act;
(d) in an area subject to international conservation and
management measures, as defined in section 2 of this Act,
except in accordance with those measures.
(2) Where any vessel is used in contravention of subsection (1), the
operator and master of such vessel each commits an offence, and shall be liable on conviction
to a fine not less than $100,000 and not exceeding $1,000,000.
23. Compliance with Cook Islands Laws - (1) The operator, master, and each
member of the crew of any fishing vessel or other vessel that may be used for fishing, a
related activity or other activity in the fishery waters provided for in this Act, whether or not it
holds a licence or other authorisation, shall comply with all applicable laws of the Cook
Islands.
(2) The operator and master of any fishing vessel required to hold a licence for fishing outside
the fishery waters under section 21 of this Act or who is subject to the requirements of section
22 of this Act, shall comply with all applicable laws of the Cook Islands.
(3) Where any vessel is used in contravention of subsections (1) or (2), the
operator and master of such vessel, each commits an offence, and shall be liable on
conviction to a fine not less than $100,000 and not exceeding $1,000,000.
These provisions now need to be augmented as there are additional specific
obligations arising under the WCPFC.
In particular Article 24 of WCPFC states:
Flag State duties
1. Each member of the Commission shall take such measures as may be necessary to ensure
that:
(a) fishing vessels flying its flag comply with the provisions of this Convention and the
conservation and management measures adopted pursuant hereto and that such vessels do not
engage in any activity which undermine the effectiveness of such measures; and
(b) fishing vessels flying its flag do not conduct unauthorized fishing within areas under the
national jurisdiction of any Contracting Party.
23
2. No member of the Commission shall allow any fishing vessel entitled to fly its flag to be used
for fishing for highly migratory fish stocks in the Convention Area beyond areas of national
jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of
that member. A member of the Commission shall authorize the use of vessels flying its flag for
fishing in the Convention Area beyond areas of national jurisdiction only where it is able to
exercise effectively its responsibilities in respect of such vessels under the 1982 Convention, the
Agreement and this Convention.
3. It shall be a condition of every authorization issued by a member of the Commission that the
fishing vessel in respect of which the authorization is issued:
(a) conducts fishing within areas under the national jurisdiction of other States only where the
fishing vessel holds any licence, permit or authorization that may be required by such other
State; and
(b) is operated on the high seas in the Convention Area in accordance with the requirements of
Annex III, the requirements of which shall also be established as a general obligation of all
vessels operating pursuant to this Convention.
Thus, in addition to the extensive controls already provided for, it is necessary to ensure
that the requirements of Annex III of WCPFC are complied with by members of the
Commission.
Thus, it is important to add to the fisheries laws a provision along the following lines:
"In addition to any conditions governing the authorisation to fish in the area
covered by the WCPFC, as defined in that Convention, it shall be a condition of
every such authorization that the requirements of Annex III of the WCPFC are
complied with."
A penalty for failure to do so should be added.
Checklist: does the law in question provide for the authorization of fishing on the high
seas?
Does it provide for the setting of a comprehensive range of conditions or regulations
governing such activities, including in particular conservation and management
conditions, and conditions relating to MCS?
Does the Law incorporate the provisions of Annex III WCPFC?
Scientific research
The law should provide for the regulation of marine scientific research in the EEZ, the
territorial sea, the archipelagic waters, and internal waters. However, it is only in the EEZ
that a coastal State has an obligation to permit marine scientific research in certain
circumstances.
Bio prospecting is one aspect of scientific research which is becoming a topic of
increasing concern, and it would be important to ensure that it is covered in the regulation
making power. It could in the alternative be covered in the environment law, or in the
laws governing biodiversity.
24
The law should therefore set out clear procedures to be followed for those who wish to
undertake marine scientific research, and to allow the government to impose certain
controls on such research. These controls might be imposed directly as conditions
governing the permission to undertake such research, or they could be imposed more
generally through regulations.
The following example is from the Tongan Fisheries Management Act, 2002:
32. (1) The Minister may, on the submission of an application accompanied
by a satisfactory research or test fishing operations or survey plan
as the case may be, and subject to such other requirements as may
be prescribed, authorise any vessel or person to undertake;
(a) fishery scientific research; or
(b) test fishing operations or surveys,
in the fisheries waters.
(2) The Minister may impose such conditions as he deems fit to any
authorisation granted under subsection (1).
(3) Any person who undertakes or assists in any fishery scientific
research or test fishing operations or surveys in the fisheries waters:
(a) without authorisation under subsection (1); or
(b) in contravention of any requirements or any conditions or
conditions attached to the authorisation under subsection (2),
shall be guilty of an offence and shall be liable on conviction to
a fine not exceeding $500,000.
(4) Any authorisation granted under this section shall be in writing and
shall state all the terms and conditions of the authorisation.
The Marshall Islands in its Marine resources Act, 1997 provides in section 75 as follows
for scientific research:
scientific research.
(1) No person shall, without a license issued by the Director:
(a) undertake marine scientific research in the Fishery Waters;
(b) take samples from the Fishery Waters for the purposes of marine scientific
research.
(2) A license for purposes described in subsection (1) shall only be issued to a person
or persons engaged in bona fide scientific research as demonstrated by their employment by,
affiliation with or sponsorship by a duly constituted governmental agency, an accredited
educational organization or other recognized scientific research institution.
(3) Any person or entity undertaking marine scientific research in the Fishery Waters
shall:
(a) submit such information to the Director or his designee as may be requested or as
may be prescribed by regulation, including a copy of all records and reports of
activities of the vessel in the Fishery Waters, and a final report including full
conclusions upon completion of the research;
(b) be accompanied by and train such observer, fisheries officer or other person or
persons the Director may assign during the research at no expense to the
Government.
(4) The harvest of any marine life from the Fishery Waters not required for further
research purposes shall be donated to the Authority for distribution to government institutions
or charitable organizations or otherwise disposed of pursuant to the terms of the license.
(5) Any person who contravenes subsections (1), (3) or (4) commits an offense and
upon conviction shall be fined not more than $250,000.
25
This provision is preceded by a reference to the granting of a licence for the purpose of
marine scientific research, as well as collecting a fee for the activity.
Checklist: Does the law provide for a system of regulating marine scientific research?
Does it distinguish between the exclusive economic zone on the one had and the other
zones under national jurisdiction on the other?
Do the regulations specifically refer to bio prospecting?
Collection of data
The law should provide for the collection of fisheries data, which is now recognised as
being of "fundamental" importance in Annex I of UNFSA.
This broad obligation also finds reflection in WCPFC: thus, one of the principles and
measures for conservation and management is stated (in article 5) to be:
(i)
collect and share, in a timely manner, complete and accurate data concerning fishing
activities on, inter alia, vessel position, catch of target and non-target species and fishing
effort, as well as information from national and international research programmes;
This mirrors the provisions of UNFSA Article 5 (j)
Likewise, under the precautionary approach (Article 6 WCPFC) it is stated:
(a)
develop data collection and research programmes to assess the impact of fishing
on non-target and associated or dependent species and their environment, and
adopt plans where necessary to ensure the conservation of such species and to
protect habitats of special concern.
The functions of the Commission also refer (in Article 10) to:
(d) adopt standards for collection, verification and for the timely exchange and reporting of
data on fisheries for highly migratory fish stocks in the Convention Area in accordance with
Annex I of the Agreement, which shall form an integral part of this Convention;
(e) compile and disseminate accurate and complete statistical data to ensure that the best
scientific information is available, while maintaining confidentiality, where appropriate;
(j) obtain and evaluate economic and other fisheries-related data and information relevant to
the work of the Commission;
Data will also be crucial to the work of the Scientific Committee established under
Article 12.
Further, members of the Commission have inter alia the following obligations under
Article 23:
2. Each member of the Commission shall:
26
(a) provide annually to the Commission statistical, biological and other data and information in
accordance with Annex I of the Agreement and, in addition, such data and information as the
Commission may require;
(b) provide to the Commission in the manner and at such intervals as may be required by the
Commission, information concerning its fishing activities in the Convention Area, including
fishing areas and fishing vessels in order to facilitate the compilation of reliable catch and
effort statistics;
It will be apparent that data will need to be collected for a number of reasons, and not
only to meet obligations under international instruments. The following extract will
indicate how varied these reasons could be.
Both the 1982 UN Convention and the UN Fish Stocks Agreement make it clear that the purpose
of collecting fisheries data is to underpin decisions with respect to conservation and
management of the resources, in the case of the 1995 UN Fish Stocks Agreement, with respect
to straddling fish stocks and highly migratory fish stocks. That said, it is unlikely that these
statistics, having been collected, will be used only for that purpose. Thus, the data might be
used, for example, directly or indirectly, to assist in identifying the origin of a catch for the
purposes of trade rules concerning the origin of a particular item in trade (subject to any
applicable confidentiality restrictions). However, it is important to keep in mind the basic
purpose of the data collected, and that same information might only partly serve another
purpose in another context. For example, in the area of fish processing, sales, and trade in the
product, the data will have to be adapted to meet that purpose.
Fisheries data will also play an important role in determining the financial contributions to
certain management organizations, as for example is the case with the Indian Ocean Tuna
Commission. Thus, Article XIII of the Agreement for the Establishment of the Indian Ocean
Tuna Commission, which deals with finances, states, that a scheme for contributions shall be
adopted by the Commission, which shall involve an equal basic fee and a variable fee, which
shall be based "inter alia on the total catch and landing of species covered by the Agreement in
the area," and the per capita income of each Member. However, it will be apparent that simply
answering this question by reference to the flag of the vessel making the catch will not be
sufficient information.
Fisheries data will also of course be useful in negotiations concerning access to exclusive
economic zones where one of the issues is catch history. Indeed, Article 62(3) of the 1982 UN
Convention requires the coastal State to take into account a number of factors, including the
need to "minimise economic dislocation in States whose nationals have habitually fished in the
[EEZ]".
Another area where the data might also play a role is in determining the parties to a negotiation
on the management of a particular straddling fish stock or highly migratory fish stock. Here,
the information would need to be looked at more closely in order to determine if, in fact, the
stock in question was actually found in the EEZ of a particular coastal State. It would not be
enough merely to work from data made by the flag State (unless of course, it was provided in
enough detail to permit such a more detailed analysis). Related to this is the question of using
fisheries data to determine the "catch history" of a particular country in a particular region
(both within and beyond the EEZ), which will often be a major issue in negotiations.
Another instance where the catch data can be used is to cross check the accuracy of the
statistics provided in respect of landings.
27
There are no doubt numerous other instances where such data can (or does) serve another
purpose.6
With the introduction of trade measures as one of the weapons used in combating IUU
fishing, fisheries data will have a part to play there too.
From a legal perspective, the collection of such data can be secured most often in one of
two ways: by the power of the fisheries administration to impose conditions on fishing
activity to collect certain data, including for example, the form and content of fishing log
books, or by enacting regulations applicable in general to the collection of data. An
important consideration, however, is that in some countries, especially for small scale
fishing activities or subsistence fishing, it may be impractical to make the collection of
data unduly onerous in relation to the activity itself, and, depending on particular
circumstances, it is useful to ensure that there is also a power to exempt or vary this
requirement.
The PNG Fisheries Management Act 1998, is one instance of a provision governing data
collection.
29. RECORDS, RETURNS AND OTHER INFORMATION.
(1) In order to assess and recommend appropriate management, development and
conservation measures for any fishery, and to prepare any Fishery Management Plan, and for
carrying out his responsibilities under this Act, the Managing Director may require any of the
persons referred to in Subsection (2) to maintain and furnish in such manner and form as he
may specify -
(a) all relevant data and information, including fishing time and effort, landing,
processing, sales and other related transactions; and
(b) accounts, records, returns, documents and other information additional to that
specified under this Act.
(2) The following persons shall keep such accounts and records, and furnish such
returns and information, as may be required by or under this Act:-
(a) holders of licences, or other authorities or approvals issued or granted under this
Act;
(b) owners, operators, representatives, boat agents, and masters of vessels licensed
under this Act;
(c) owners and persons in charge of any premises where fish are received, purchased,
stored, transported, processed, sold, or otherwise disposed of;
(d) persons engaged in the receiving, purchasing, transporting, processing, storage,
sale, or disposal of fish;
(e) fish farmers;
(f) persons who provide vessels for hire for the purpose of enabling persons to take
fish;
(g) persons who take fish otherwise than for the purpose of sale;
(h) such other persons who may be required to do so by the Board, or as may be
prescribed, from time to time.
6 W Edeson, Legal Aspects of the Collection of Fisheries Data FAO Fisheries Circular 953. Rome 2000
28
Sharing of data with RFMOs is also something which needs to be provided for, though
subject to ensuring that certain confidentiality requirements are met with respect to
unaggregated data, and the above provision addresses this. It will be recalled that, under
WCPFC, confidentiality of data needs to be respected. See, for example, Article 10 (c)
quoted above.
The PNG Fisheries Management Act deals with confidentiality in the following terms:
74. DUTY OF CONFIDENTIALITY.
(1) Any person carrying out duties or responsibilities in the National Fisheries
Authority or otherwise under this Act, including the Minister and members of the Board shall
not, unless authorized in accordance with this Act, reveal information or other data of a
confidential nature acquired by virtue of their said authority, duties and responsibilities to any
person not having such authority or carrying out such duties and responsibilities.
(2) The Managing Director may designate any information as confidential, and in
doing so may also exempt general summaries of aggregated information from confidentiality
requirements.
(3) The Managing Director may authorize in writing any person to -
(a) receive or access confidential information; or
(b) access or restrict access to such premises holding confidential information as he
may designate.
(4) Notwithstanding Subsection (2), the following information shall be confidential:-
(a) any information or data of a commercial nature provided in records, returns, or
other documents required under this Act;
(b) any information or other data supplied by a vessel monitoring system in
accordance with this Act;
(c) such other information or data as may be prescribed from time to time.
(5) Information may be disclosed to the extent -
(a) that disclosure is authorized or required under this Act or any other law; or
(b) that the person providing the information authorized its disclosure; or
(c) necessary to enable the Managing Director to publish statistical information
relating to the fisheries sector; or
(d) necessary to enable advice to be given to the Minister.
(5) The Managing Director may authorize the release of any information supplied by
a vessel monitoring system relating to the position of any vessel, upon request, to the
responsible authority for purposes including surveillance, search and rescue and other
emergency, and may authorize the release of such other confidential information for such
purposes as may be prescribed.
(7) Any person who violates the requirements this section commits an offence and, in
addition to any penalty, his appointment or other authority under this Act may be reviewed and
terminated by the appropriate authority.
It will be useful to state specifically that there is authority to transmit date to WCPFC and
other RFMOs in accordance with the obligations incurred under such agreements.
Thus, a clause could be added to the provisions above (or similar provisions in other
laws) as follows:
"The [Minister/Managing Director] may transmit any data which is necessary to
be transmitted to WCPFC and to any other regional or subregional fisheries
management organization in order to fulfil any obligations of [State] under the
treaties establishing such bodies."
29
There should also be a penalty imposed for failure to collect data as required. It should be
noted that failure to provide data constitutes a "serious violation" under Article 21.8 of
UNFSA (as well as under WCPFC), which in effect adopts the UNFSA definition). It
would be useful to check if the level of penalty imposed is adequately high.
Checklist: does the law provide for the imposition of conditions concerning the
provision of data?
Does the law also provide for giving that data to RFMOs, subject to confidentiality
requirements?
Are confidentiality issues in general adequately addressed?
Are the conditions concerning data provision too onerous for small and artisanal
fishers?
Port State measures.
Both the FAO Compliance Agreement and UNFSA authorize the taking of certain
measures in ports in order to promote the effectiveness of applicable conservation and
management measures, including the prohibition of landing and transhipment. See in
particular, Article 23 UNFSA. In the case of the 1995 UN Fish Stocks Agreement, it
speaks of the right and the "duty" to take measures. These will need to be put into effect
into national legislation to give inspectors the necessary powers to take action. The
WCPFC also mirrors the provisions of UNFSA. In particular, Article 27 of WCPFC
states:
3. Members of the Commission may adopt regulations empowering the relevant national
authorities to prohibit landings and transhipments where it has been established that the catch
has been taken in a manner which undermines the effectiveness of conservation and
management measures adopted by the Commission.
The model scheme on Port Measures to combat IUU Fishing adopted by an FAO
Technical Consultation in 2004 sets out elements that could be adopted by a regional
fisheries body. It therefore gives a good indication of the kind of issues likely to be
adopted by a regional body such as WCPFC, even if it is not followed to the letter. Many
of its elements need to be reflected in national legislation in order to give the port State
an effective basis for taking port state measures. Because this is a new development in the
international regime of fisheries, it is unlikely that many countries will have
comprehensive legislation to deal with this.
There is another reason for addressing port measures with some care. There is evolving a
perception that the older approach, which focuses on the power of a State to exclude
foreign fishing vessels from its ports, needs to be reconsidered in the light of the WTO
framework, and in particular, how it interacts with other global regimes such as the law
of the sea, and international environmental law, especially multilateral environmental
agreements. How much the situation has changed is still not clear, and discussions are
taking place at the global level to work out a solution to these issues. Very simply, this is
not a static area of international law.
The model scheme referred to has detailed provisions on port measures which include:
30
ˇ the designation of ports into which foreign fishing vessels may enter, and have the
capacity to conduct inspections
ˇ requiring those vessels to provide information, withy due regard to confidentiality
requirements, of information about the vessel, authorisations, its VMS, and
quantities of catch
ˇ prohibition on landing, transhipment or processing by vessels whose flag states
are not parties to, or not cooperating non contracting parties with, regional
fisheries management organizations, unless the vessel can establish that the catch
was taken consistent with applicable conservation and management measures
ˇ refusing to allow the vessel to use its ports for refuelling etc where there are clear
grounds for believing that the vessel has engaged in or supported IUU fishing
ˇ obtain certain specified information set out in annex to the model scheme.
The model also has detailed information on inspections, the actions which may be taken,
and requirements for reporting of the results of inspections to the flag State, other
relevant States, and relevant RFMOs.
Further, there are some important savings clauses, for example, that vessels shall
nonetheless be able to enter ports for reasons of force majeure, that nothing in the model
scheme will affect sovereignty over ports in accordance with international law, that all
measures are to be taken in accordance with international law, and that all measures are
to be implemented in a fair, transparent and non discriminatory manner.
Because port state jurisdiction is still very much in a process of evolution, a separate
annex is attached with examples of legislative regimes in several countries.
A draft port measures scheme is set out here for consideration.
DRAFT PORT MEASURES REGIME
(1) For the purpose of promoting the effectiveness of conservation and
management measures including those adopted by sub regional, regional or global
fisheries management organizations or arrangements, including those adopted
pursuant to the WCPF Convention, the [Minister/Secretary] may make regulations
concerning the following matters:
(a) the designation and publicisation of ports to which foreign fishing vessels may
be permitted access;
(b) the designation of port inspectors
(c) requiring, prior to allowing port access to a foreign fishing vessel, that such
vessel provides such notice as may be prescribed prior to entering its port or its
EEZ for the purpose of port access, including vessel identification, any
authorization to fish, information on its fishing trip and vessel monitoring
31
systems, quantities of fish on board and such other documentation as may
prescribed;
(d) regulating or prohibiting the landing, transhipment or processing of fish, or
refuelling or resupplying the vessel, including the prohibition of port access of a
vessel which has been identified as having been engaged in or supporting fishing
activities in contravention with sub regional or regional conservation measures, or
in contravention of the laws of a particular country, or where there are reasonable
grounds for presuming that a vessel has been engaged in such activity;
(e) establishing the procedures, the contents of and the results to be obtained from
an inspection regime, including the adoption of port measures adopted by a
regional or sub regional fisheries organization.
(f) prescribing the powers of inspectors, including the power to inspect any area
of the fishing vessel, the catch (whether processed or not), any fishing gear,
equipment or other gear and document which the inspector deems necessary to
verify compliance with relevant conservation and management measures.
(g) requiring the provision of such assistance and information as may be needed
in order to undertake inspections.
(h) authorising the cooperation and exchange of information with other States and
regional or sub regional fisheries organizations.
2. The [Minister/Secretary] may prohibit from entering a port of country X a
vessel which has been sighted as being engaged in or supporting fishing in
contravention of the conservation and management measures of a regional or sub
regional fisheries organization and it is not a member of nor is it a cooperating
non contracting party to that sub regional or regional fisheries organization, unless
it can establish the catch on board has been taken in a manner consistent with the
relevant conservation and management measures. Such a prohibition may apply to
an individual vessel or to a category of vessels.7
7 This provision is aimed at giving effect to the following paragraph of the IPOA-IUU:
IUU text 63. States should consider developing within relevant regional fisheries management
organizations port State measures building on the presumption that fishing vessels entitled to fly the flag
of States not parties to a regional fisheries management organization and which have not agreed to
cooperate with that regional fisheries management organization, which are identified as being engaged
in fishing activities in the area of that particular organization, may be engaging in IUU fishing. Such
port State measures may prohibit landings and transshipment of catch unless the identified vessel can
establish that the catch was taken in a manner consistent with those conservation and management
measures. The identification of the vessels by the regional fisheries management organization should be
made through agreed procedures in a fair, transparent and non-discriminatory manner.
32
3. Such measures shall not discriminate in form or in fact against the fishing
vessel of any State.
4. References to ports in this part include offshore terminals and other
installations for landing, transhipping, refuelling or resupplying vessels.
Penalties for breach of port state measures should be set reasonably high.
One aspect of port state provisions is that they need to mesh in with a wide range of other
laws. For example, in many countries, ports are the subject of quite precise definitions as
there are different powers to be exercised in ports. This is particularly the case with
customs and excise laws, and the issue of "in bond" shipments. There is also a potential
problem should any FFA member decide to introduce a Freeport, as Mauritius has done.
This will be important if, for example, fish are transhipped though freeports. Thus, the
introduction of a port States regime along the lines proposed above will require a review
of several related laws, such as customs laws and laws governing the operation of ports.
Checklist: does the law provide for a comprehensive port control system which would
enable the State in question to give effect to any regionally agreed port measures (such
as by WCPFC) in respect of fishing vessels?
Does it set out clearly the powers that may be exercised in respect of foreign vessels
that are believed to have engaged in IUU fishing?
Jurisdiction over nationals.
Some States are now including in their basic fisheries laws provisions which enable them
to exercise control over their nationals. As the point is put in the International Plan of
Action for Illegal, Unreported and Unregulated Fishing:
17. In the light of relevant provisions of the 1982 UN Convention, and without prejudice to the
primary responsibility of the flag State on the high seas, each State should, to the greatest extent
possible, take measures or cooperate to ensure that nationals subject to their jurisdiction do not
support or engage in IUU fishing. All States should cooperate to identify those nationals who
are the operators or beneficial owners of vessels involved in IUU fishing.
A strong instance of the exercise of this kind of jurisdiction is found in section 133E of
the New Zealand Fisheries Act giving effect to the 1995 Agreement:
No New Zealand national may use a vessel that is not registered under the Ship
Registration Act 1992, or a tender of that vessel, to take (by any method) on the high
seas any fish, aquatic life, or seaweed for sale, or to transport any fish, aquatic life, or
seaweed taken on the high seas, except in accordance with an authorization issued by a
state specified in subsection (2).
The Cook Islands Marine Resources Act has the following provision:
22. Use of Vessels of other Flags by Cook Islanders on the High Seas (1) No
person, being a Cook Islander, or a body corporate established under the laws of Cook
33
Islands may use a vessel registered in another country for fishing or related activities on the
high seas except in accordance with a qualifying authorisation issued by the flag State.
(2) A qualifying authorisation may be issued -
(a) by a State that is a party to the Fish Stocks Agreement; or
(b) by a State that is a party to the FAO Compliance Agreement; or
(c) by a State that is a party to, or has accepted the obligations of, a
global, regional, or sub-regional fisheries organisation or
arrangement to which the authorisation relates; or
(d) by a State that -
(i) is a signatory to the Fish Stocks Agreement; and
(ii) has legislative and administrative mechanisms to
control its vessels on the high seas in accordance with
that agreement.
(3) For the purpose of subsection (1) any notice given by the Minister in
the Gazette, specifying any State or category of States as States that may issue a qualifying
authorization shall be conclusive of its contents.
(4) Any person who contravenes subsection (1) commits an offence, and
shall be liable on conviction to a fine not less than $50,000 and not exceeding $100,000.
The authorizations referred to may be issued by a party to either the 1995 UN Fish Stocks
Agreement or the 1993 FAO Compliance Agreement, or by a State that is party to or has
accepted the obligations of a global regional or subregional organization or arrangement
to which the authorization relates. However, it would be useful to include a specific
reference to WCPFC in such a provision.
Role of the Attorney General
One important safeguard is written into this Act, namely that the consent of the Attorney
General is required before proceedings can be instituted under these provisions. This is a
device that is intended to ensure that the primacy of the jurisdiction of the flag State is
protected, as well as providing a means of avoiding the risk of double jeopardy,
jurisdictional conflicts, and other legal and policy difficulties that might arise. Although
especially important in the context of proceedings against nationals, this safeguard is of
more general value in fisheries laws where actions against foreign fishing interests are
concerned.
Thus, in Tonga there is the following provision (section 64 (3-7)) which concerns
proceedings against vessels of parties to UNFSA ("participating states")
(3) Where an information or charge against a person under this Part
relates to an offence involving a boat that bears the nationality of
a participating state, such information or charge shall not proceed
to hearing or determination without the written consent of the
Attorney General.
(4) Before granting consent under subsection (3), the Attorney-General
shall seek the views of the government of the participating state.
(5) The consent of the Attorney-General shall not be required for:
(a) the arrest of a suspected offender or proceedings relating to that
arrest;
(b) the laying of a charge against the suspected offender;
(c) proceedings for the extradition to Tonga of the suspected
offender, or
(d) proceedings for remanding the suspected offender in custody
or on bail.
34
(6) If the Attorney-General declines to grant consent, the relevant court
shall stay proceedings on the charge.
(7) A certified copy of the written consent granted by the Attorney-
General, in the absence of proof to the contrary, shall be proof of
such consent.
Here, the definition of participating State should be amended to include members of
WCPFC.
Checklist: does the law provide for control over nationals even when on board foreign
fishing vessels?
Does the law provide for controls on the exercise of that jurisdiction, for example, by
requiring the consent of the Attorney General?
Extra territoriality
In countries with a common law tradition, there is a presumption against the
extraterritorial operation of legislation. Although it can be argued that fisheries laws are
clearly intended to operate extraterritorially, and that it is unnecessary to say so, it is
usually considered advisable to include in legislation a clause giving the law extra
territorial operation to put the point completely beyond doubt. This can be very important
with respect to the definition of offences and the imposition of penalties where courts
tend to construe such provisions narrowly.
In the NZ law, extraterritoriality is addressed at the outset by the inclusion of the
following clause:
198A. To avoid doubt, the powers of a fishery officer conferred by or under this Part
may be exercised in relation to any conduct, whether or not the conduct occurred in
New Zealand fisheries waters.
A similar provision can be found in the Tongan fisheries law.
Checklist: does the law ensure that it has both territorial and extraterritorial
operation?
Evidentiary provisions.
In countries which have inherited the Anglo Saxon or common law system, there are
important issues of proof which need to be addressed. Further, in many countries of the
region there are fundamental human rights provisions which prohibit the reversal of the
burden of proof.
In order to facilitate the task of proving a case before the court, many laws have special
provisions which make the proving of certain facts easier. One method is to allow the
government to put before the court certain certificates which are prima facie evidence of
the matters before the court. These usually relate to whether a fishing vessel was a local
or a foreign fishing vessel, whether a person or vessel had been issued with an
authorization, whether certain areas had been closed off or restricted for fishing purposes,
whether a chart showed certain marine boundaries, and whether a report had been issued
in respect of a person or vessel. Certain limited presumptions can also be used, for
35
example, that the presence on board a vessel of explosives or poisons shall be presumed
to be there unlawfully unless the contrary is proved. These solutions are usually not seen
as reversing the burden of proof.
One example of reliance on certificate evidence is found in the PNG Marine Fisheries
Act:
67. CERTIFICATE EVIDENCE.
The Managing Director or any person designated in writing by him may give a certificate
stating that -
(a) a specified vessel was or was not on a specified date or dates a Papua New Guinea
fishing vessel, a locally based foreign fishing vessel or a foreign fishing vessel; or
(b) a specified vessel or person was or was not in a specified date or dates the holder
of any specified license, authorization or certificate of registration; or
(c) an appended document is a true copy of the license or certificate of registration
for a specified vessel or person and that specified conditions were attached to
such document; or
(d) a particular location or area of water was on a specified date or dates within the
fishery waters, or within a closed, limited, restricted or in any other way
controlled area of the fisheries waters, or an area of the fisheries waters subject to
specified conditions; or
(e) an appended chart shows the boundaries on a specified date or dates of the
fisheries waters, territorial sea, closed or limited areas or other areas or zones
delineated for any specified purpose; or
(f) a particular item or piece of equipment is fishing gear; or
(g) the cause and manner of death of or injury to any fish; or
(h) an appended document is a true copy of an approved charter agreement, an access
agreement of fisheries management agreement; or
(i) a call sign, name or number is that of or allotted under any system of naming or
numbering of vessels to a particular vessel; or
(j) an appended position or catch report was given in respect of a specified vessel; or
(k) a specified fishing vessel does or does not have good standing as declared in an
appended copy of a statement signed by the Director of the South Pacific Forum
Fisheries Agency; or
(l) a certification as to the condition of fish given under this Act was made in
accordance with this Act and was made by the person who is signatory to the
certificate.
68. VALIDITY AND PROCEDURES FOR CERTIFICATES.
(1) A document purporting to be a certificate given under Section 67 shall be deemed
to be such a certificate and to have been duly given.
(2) Where a certificate issued under Section 67 is served upon a defendant seven or
more days before its production in court in any proceedings under this Act, the certificate shall
be prima facie evidence, unless the contrary is proved, of all the facts averred in it.
(3) Where a certificate issued under Section 67 is served upon a defendant 14 or more
days before its production in court and the defendant does not, within seven days of the date of
service, serve notice of objection in writing upon the prosecutor, then the certificate shall, unless
the court finds the defendant is unduly prejudiced by any failure to object, be conclusive proof of
all the facts averred in it.
(4) Where any objection is notified under Subsection (3) the certificate shall be prima
facie evidence, unless the contrary is proved, of all the facts averred in it.
(5) Any certificate issued under Section 67 shall be titled "Certificate Made Under
Section 67, Fisheries Management Act 1998".
(6) Any omission from a mistake made in any certificate issued under Section 67,
shall not render it invalid unless the Court considers such omission or mistake is material to any
36
issue in the proceedings concerned, or the defendant is unduly prejudiced thereby.
(7) Where in any proceedings a certificate made under Section 67 is produced to the
Court, the prosecution shall not be obliged to call the maker of the certificate unless otherwise
ordered and the Court shall, where material, rely on the facts therein unless the contrary is
proved.
69. CERTIFICATE AS TO THE LOCATION OF A VESSEL.
(1) Where in any proceedings under this Act the place or area in which a vessel is
alleged to have been at a particular date and time or during a particular period of time is material
to an offence charged, then a place or area stated in a certificate given by a Fishery Officer or
observer shall be prima facie evidence, unless the contrary is proved, of the place or area in
which the vessel was at the date and time or during the period of time stated.
(2) The Fishery Officer shall in any certificate made under Subsection (1) state -
(a) his name, address, official position, country of appointment and provision under
which he is appointed; and
(b) the name and, if known, call sign of the fishing vessel concerned; and
(c) the date and time or period of time the vessel was in the place or area; and
(d) the place or area in which it is alleged the vessel was located; and
(e) the position fixing instruments used to fix the place or area stated in Paragraph (d)
and their accuracy within specified limits; and
(f) a declaration that he checked the position fixing instruments a reasonable time
before and after they were used to fix the position and they appeared to be
working correctly; and
(g) if a position fixing instrument which is not judicially recognised as notoriously
accurate or a designated machine is used, a declaration that he checked the
instrument as soon as possible after the time concerned against such instrument.
(3) Section 68 shall apply to a certificate given under this section as if it has been a
certificate given under Section 67 and any reference therein to Section 67 shall be read as
reference to this section.
(4) For the purposes of this Part "Fishery Officer" shall include surveillance officers
and those charged with similar responsibilities in other States.
It is important, however, to ascertain in each instance what is the accepted practice in
each country on the use of such certificate evidence, and what attitudes have been
adopted by the judiciary. Both attitudes and practice can vary considerably from one
country to another and oscillate over time.
There is also the need to ensure that evidence by foreign enforcement officials can be
relied on in the local courts. The following example is taken from the Marshall Islands,
and it could adapted to cover the WCPFC context:
(3) Standing in the High Court of the Republic of the Marshall Islands shall be
afforded to any authorized officer or authorized observer designated under a fisheries
management agreement entered into pursuant to subsection (1)(b) or (c) of this section to bring
action against any person or fishing vessel for any act or offense that is actionable under the law
of the Republic of the Marshall Islands is a violation of an access agreement or fisheries
management agreement pursuant to which the officer or observer was authorized which has
occurred in the Fishery Waters or the high seas, notwithstanding the nationality of the authorized
officer or authorized observer.
Photographic, electronic and digital evidence is also an important issue. In some
countries, the basic laws of evidence do not permit the use of so called hearsay evidence,
of which such evidence is a part. With increased reliance on vessel monitoring systems
37
in the fisheries sector, it is important to ensure that such evidence can be relied on in
court. It should be noted here that the IPOA IUU stated in paragraph 17:
National legislation should address, inter alia, evidentiary standards and admissibility
including, as appropriate, the use of electronic evidence and new technologies.
In the Cook Islands Marine Resources Act, the following clause is found:
70. Photograph evidence - (1) Where a photograph is taken of any fishing or
related activity and simultaneously the date and time on which and position from which the
photograph is taken are superimposed upon the photograph then it shall be presumed unless the
contrary is proved that the photograph was taken on the date at the time and in the position so
appearing.
(2) The presumption set out in subsection (1) above shall only arise if -
(a) the camera taking the photograph is connected directly to the
instruments which provide the date, time and position concerned; and
(b) the instruments which provide the date, time and position are judicially recognised as being
notoriously accurate or are designated machines or were checked as soon as possible after the
taking of the photograph against such instruments.
(3) Any authorised officer who takes a photograph of the kind described in
subsection (1) may give a certificate appending the photograph stating -
(a) his or her name, address, official position, country of appointment, and provision under
which he is appointed;
(b) the name and call sign, if known, of any fishing vessel appearing in the photograph;
(c) the names of the camera, watch or clock or other instruments supplying the date and time
and the position fixing instrument and a declaration that he checked those instruments a
reasonable time before and after the taking of the photograph
and, if necessary, in accordance with subsection (2)(b) and that they all appeared to be working
correctly;
(d) the matters set out in subsection (2)(a);
(e) the accuracy of the fixing instrument used within specified limits; and
(f) the maximum possible distance and the direction of the subject of the photograph away from
the camera at the time the photograph was taken.
(4) Section 68 shall apply to a certificate given under this section as if it
had been a certificate given under section 67 and any reference therein to section 67 shall be
read as a reference to this section.
(5) For the purposes of this section "authorised officer" shall include fisheries enforcement
officers, surveillance officers and those charged with similar
responsibilities in other countries, and high seas inspectors duly authorised under a
multilateral legal instrument to which Cook Islands is party.
The same Act also has a provision dealing with Automatic Location Communicators:
62. Automatic Location Communicators Evidence - (1) All information or
data obtained or ascertained by the use of an ALC shall be presumed, unless the contrary is
proved, to -
(a) come from the vessel so identified;
(b) be accurately relayed or transferred;
(c) be given by the master, owner and charterer of the vessel; and
evidence may be given of information and data so obtained or ascertained whether from a
printout or visual display unit.
(2) The presumption in subsection (1) shall apply whether or not the
information was stored before or after any transmission or transfer.
(3) An ALC installed and operated in accordance with this Act shall be
judicially recognised as notoriously accurate.
(4) The presumption set out in subsection (3) shall apply whether or not
38
the information was stored before or after any transmission or transfer.
(5) Any person may give a certificate stating
(a) his or her name, address and official position;
(b) he or she is competent to read the printout or visual display unit
of any machine capable of obtaining or ascertaining
information from an ALC;
(c) the date and time the information was obtained or ascertained
from the ALC and the details thereof;
(d) the name and call sign of the vessel on which the ALC is or
was located as known to him or her, or as ascertained from any
official register, record or other document; and
(e) a declaration that there appeared to be no malfunction in the
ALC, its transmissions, or other machines used in obtaining or
ascertaining the information.
(6) Section 68 of this Act shall apply to a certificate given under this
section as if it had been a certificate given under section 67 of this Act and any reference
therein to section 67 of this Act shall be read as a reference to this section.
Another example can be found in the following provision which deals with observation
devices. It is from the Republic of South Africa Marine Living Resources Act:
Definition: section 1 (xl) ``observation device'' means any device or machine placed on a fishing
vessel in terms of this Act as a condition of its licence which transmits, whether in
conjunction with other machines elsewhere or not, information or data
concerning the position and fishing activities of the vessel; (lxiii)
Observation devices
76. (1) The Minister may, by notice published in the Gazette, designate any device or
machine or class of device or machine as an observation device.
(2) The information or data concerning the vessel's position and fishing activities
referred to in subsection (3) may be fed or captured manually into the observation device
or automatically from machines aboard the vessel or ascertained by the use of the
observation device's transmissions in conjunction with other machines.
(3) All information or data obtained or ascertained by the use of an observation
device, shall be prima facie evidence that such information--
(a) came from the vessel so identified;
(b) was accurately relayed or transferred; and
(c) was given by the master, owner and charterer of the fishing vessel,
and evidence may be given of information and data so obtained or ascertained whether
from a printout or visual display unit.
(4) Subsection (3) applies irrespective of whether or not the information was stored
before or after any transmission or transfer.
(5) Any fishery control officer or observer may issue a certificate stating the
following:
(a) His or her name, address, official position, place of appointment and provision
in terms of which he or she is appointed;
(b) that he or she is competent to read the printout or visual display unit of any
machine capable of obtaining or ascertaining information from an observation
device;
(c) the date and time the information was obtained or ascertained from the
observation device and the details thereof;
(d) the name and call sign of the vessel on which the observation device is or was
located as known to him or her or as ascertained from any official register,
record or other document; and
(e) that there appeared to be no malfunction in the observation device, its
39
transmissions or other machines used in obtaining or ascertaining the
information.
(6) Section 71 shall, with the necessary changes, apply to a certificate issued in terms
of this section.
(7) No person shall destroy, damage, render inoperative or otherwise interfere with an
observation device or machine aboard a vessel, vehicle or aircraft which automatically
feeds or inputs information or data into an observation device.
(8) No person shall intentionally feed or capture information or data into an
observation device which is not officially required in terms of this Act, or is false or
inaccurate.
Checklist: Does the law contain effective evidentiary provisions to facilitate proving
certain aspects incidental to the principal charge? For example, does it permit the use
of evidentiary certificates, or the limited use of presumptions?
Does the law permit the use of photographic digital and electronic evidence to
overcome the problems associated with the hearsay rule of the common law world?
Offences
Virtually all of the recently drafted fisheries laws will already have comprehensive
provisions setting out offences, and imposing heavy penalties, and it is probably
unnecessary to address that subject fully here. It will however be necessary to check
whether the laws provide for offences on the high seas, and that adequate penalties are set
in order to be an effective deterrent.
Definition of serious violations
One aspect of the subject of offences does need attention, however. Article 21.8 UNFSA
(Subregional and regional cooperation in enforcement) which provides:
8. Where, following boarding and inspection, there are clear grounds for believing that a vessel
has committed a serious violation, and the flag State has either failed to respond or failed to take
action as required under paragraphs 6 or 7, the inspectors may remain on board and secure
evidence and may require the master to assist in further investigation including, where
appropriate, by bringing the vessel without delay to the nearest appropriate port, or to such other
port as may be specified in procedures established in accordance with paragraph 2. The
inspecting State shall immediately inform the flag State of the name of the port to which the vessel
is to proceed. The inspecting State and the flag State and, as appropriate, the port State shall take
all necessary steps to ensure the well-being of the crew regardless of their nationality.
11. For the purposes of this article, a serious violation means:
(a) fishing without a valid licence, authorization or permit issued by the flag State in
accordance with article 18, paragraph 3 (a);
(b) failing to maintain accurate records of catch and catch-related data, as required by the
relevant subregional or regional fisheries management organization or arrangement, or serious
misreporting of catch, contrary to the catch reporting requirements of such organization or
arrangement;
(c) fishing in a closed area, fishing during a closed season or fishing without, or after
attainment of, a quota established by the relevant subregional or regional fisheries management
organization or arrangement;
40
(d) directed fishing for a stock which is subject to a moratorium or for which fishing is
prohibited;
(e) using prohibited fishing gear;
(f) falsifying or concealing the markings, identity or registration of a fishing vessel;
(g) concealing, tampering with or disposing of evidence relating to an investigation;
(h) multiple violations which together constitute a serious disregard of conservation and
management measures; or
(i) such other violations as may be specified in procedures established by the relevant
subregional or regional fisheries management organization or arrangement.
Article 25.4 of WCPFC has also essentially adopted the definition of serious violation
found in Article 21.8 UNFSA.
The New Zealand and Australian laws also provide contrasting approaches to
defining the term "serious violation" as that term is used in article 21 of the 1995
UN Fish Stocks Agreement.
The New Zealand Amendment of 1999 states simply that "`Serious violation'
has the meaning given to it by Article 21.11 of the Fish Stocks Agreement." The
Australian law, on the other hand, transforms the definition of serious violation
into its own version of what the term means.
On the other hand, the Cook Islands Marine Resources Act defines serious
violation:
"Serious violation" means -
(a) fishing without a valid licence, authorisation, fishing right or
permit as required under this Act;
(b) failing to maintain accurate records of catch and catch-related
data, as required by this Act or a licence issued pursuant to this
Act, or serious misreporting of catch contrary to this Act or a
licence issued pursuant to this Act;
(c) fishing in a closed area, fishing during a closed season or fishing
without, or after attainment of, a quota established in the fishery
waters or by an applicable subregional or regional fisheries
management organization or arrangement;
(d) directed fishing for a stock which is subject to a moratorium or
for which fishing is prohibited;
(e) using prohibited fishing gear;
(f) falsifying or concealing the markings, identity or registration of a
fishing vessel;
(g) concealing, tampering with or disposing of evidence relating to
an investigation or anticipated investigation;
(h) multiple violations which together constitute a serious disregard
of conservation and management measures; or
(i) such other violations as may be specified in this Act;
The Cook Islands approach is preferred inasmuch as it spells out what amounts
to a serious violation while the NZ law merely refers to UNFSA.
Where a serious violation is established, certain consequences follow: first,
under Article 19.1(e) of UNFSA, if it is established that a vessel has been
involved in the commission of a serious violation, the vessel does not engage in
41
fishing on the high seas until such time as all outstanding sanctions imposed by
the flag State in respect of the violation have been complied with. Second, under
Article 21.6, where there are clear grounds for believing that a vessel has
committed a serious violation, and the flag State has failed to take action or to
respond, the inspectors can remain on board and secure evidence, and bring the
vessel without delay to the nearest appropriate port.
Checklist: Does the law provide for a definition of "serious violations" to
accord with the provisions of UNFSA? Is it given effective application in the
compliance and enforcement provisions?
Penalties
There is also a need to review the level of penalties imposed to ensure that they
continue to be effective.
Cancellation, suspension and seizure
There already exist several good models in the region for these provisions which, with
only minor adaptation, can be used as effective templates for such provisions. This
subject, though important, is not considered here.
Compliance and Enforcement provisions.
The provisions of both UNFSA and WCPFC will present a significant challenge, as it
requires the legislator to envisage situations in which its flag vessels are the offenders
subject to inspection and others in which it is the inspecting State. These provisions need
to be drafted with care as courts have traditionally interpreted and applied these
provisions narrowly in order to provide basic protections to individuals.
Fortunately, there is already some experience in the drafting of legislation on such
matters in the South Pacific. The most recent laws include provisions which address the
following:
For the high seas
ˇ Powers of inspectors on (a) foreign (b) local vessels
ˇ Boarding and inspection procedures for foreign vessels
ˇ Investigation of "serious violations" (as defined in Article 21 of UNFSA)
ˇ Cooperation of persons on local fishing vessels with high seas inspectors
ˇ Powers of high seas inspectors
General provisions
ˇ Appointment and designation of authorised officers
ˇ Powers of authorised officers
42
ˇ Identification of authorised officers
ˇ Obligation to comply with instructions of authorised officers
ˇ Powers of authorised officers beyond the EEZ
ˇ Offences committed against an authorised officer
ˇ Destruction of evidence and avoidance of seizure
ˇ Release, sale and forfeiture of detained property
ˇ Inspection and enforcement measures regarding (a) national vessels (b) foreign
vessels
ˇ Inspection and enforcement measures for vessels voluntarily in port
ˇ Immunity of authorised officers in good faith execution of their duties
The most important need, therefore, is first, to check that all of the above aspects
are covered, and second to ensure that there are references to the power of
authorised officers to enforce measures of the WCPFC. This latter point could be
achieved by the inclusion of a general clause along the following lines:
"The powers of an authorised officer under this Act shall extend to actions taken
by an authorised officer with respect to measures adopted by WCPFC or other
regional or subregional fisheries bodies, and to actions taken by such officers in
support of compliance with or enforcement of such measures"
Checklist: Does the law contain the above listed provisions?
Alternative mechanisms.
The judicial process has often been criticized as being unduly lengthy, and that its strict
insistence of high standards of proof can lead to too few successful prosecutions for
illegal fishing. In many instances, the situation has been ameliorated to a limited extent
by providing that fisheries offences are triable summarily, i.e. before a magistrate and
without a jury.
One solution has been the introduction of a system of administrative penalties for dealing
with fisheries offences. This was specifically referred to in the IPOA-IUU as one
possible approach that could be adopted. See paragraph 21, quoted above.
The main advantage of this approach is that it enables the tribunal to apply a lower
standard of proof than is possible in a full criminal trial (usually accepting proof on the
civil standard of balance of possibilities rather than on the criminal standard of beyond
reasonable doubt), it makes possible expedited hearings, and it can also include the
possibility of a negotiated settlement of the case.
This method has been adopted in the United States and in a number of the island States of
the South Pacific. Despite the fact that it involves a possible diminution of their legal
rights, it is often popular with fishers as it enables a speedy resolution of their case.
43
This approach may not work in all countries as there may be constitutional or legal
reasons why such a system cannot be introduced.
In some countries, a system of "compounding" of offences is used. This is also an
alternative to the use of administrative or civil penalties, but compounding usually lacks
the safeguards built into the more formally structured administrative or civil penalty
system.
"Long Arm" (Lacey Act) Jurisdiction
One method to promote compliance that has been adopted in a number of laws is the so
called long arm or Lacey Act laws. Such laws typically makes it unlawful to import fish
that has been taken contrary to the laws of another country.
In a study of national legislative options to combat IUU fishing, B Kuemlangan gave as a
model of such a provision the following:
(a)
on his own account, or as partner, agent or employee of another person,
lands, imports, exports, transports, sells, receives, acquires or purchases; or
(b)
causes or permits a person acting on his behalf, or uses a fishing vessel, to
land, import, export, transport, sell, receive, acquire or purchase,
any fish taken, possessed, transported or sold contrary to the law of another State
shall be guilty of an offence and shall be liable to a fine not exceeding (insert
monetary value).
(2)
This section does not apply to fish taken on the high seas contrary to the
laws of another State where (insert name of country) does not recognise the right
of that State to make laws in respect of those fish.
(3) Where there is an agreement with another State relating to an offence referred
to in subsection (1) (b), the penalty provided by subsection (1), or any portion
of it according to the terms of the agreement, shall, after all the costs and
expenses have been deducted, be remitted to that State according to the terms
of the agreement.8
Bail and bond issues
8 See generally Blaise Kuemlangan National Legislative Options to Combat IUU Fishing AUS:IUU/2000/9
http://www.affa.gov.au/ecoiuuf/papers.html This scheme is discussed in detail at p 13.
44
One matter which is worth reconsidering in most possibly all of the laws of the members
states is the provision of bond and bail issues. Art 73 LOSC states: "Arrested vessels and
their crews shall be promptly released upon the posting of a reasonable bond or other
security"
The meaning of this provision has been subject to interpretation in cases before ITLOS.
The most important to date is the Volga Case9. In this case, Australia sought, inter alia, to
impose as a condition for the release of the vessel obligation to carry certain VMS
equipment.
The Tribunal commented generally about Article 73.2 in the following terms:
73. In interpreting the expression "bond or other security" set out in article 73, paragraph 2, of
the Convention, the Tribunal considers that this expression must be seen in its context and in
light of its object and purpose. The relevant context includes the provisions of the Convention
concerning the prompt release of vessels and crews upon the posting of a bond or security.
These provisions are: article 292; article 220, paragraph 7; and article 226, paragraph 1(b).
They use the expressions "bond or other financial security" and "bonding or other appropriate
financial security". Seen in this context, the expression "bond or other security" in article 73,
paragraph 2, should, in the view of the Tribunal, be interpreted as referring to a bond or
security of a financial nature. The Tribunal also observes, in this context, that where the
Convention envisages the imposition of conditions additional to a bond or other financial
security, it expressly states so. Thus article 226, paragraph 1(c), of the Convention provides
that "the release of a vessel may, whenever it would present an unreasonable threat of damage
to the marine environment, be refused or made conditional upon proceeding to the nearest
appropriate repair yard". It follows from the above that the non-financial conditions cannot be
considered components of a bond or other financial security for the purpose of applying article
292 of the Convention in respect of an alleged violation of article 73, paragraph 2, of the
Convention. The object and purpose of article 73, paragraph 2, read in conjunction with
article 292 of the Convention, is to provide the flag State with a mechanism for obtaining the
prompt release of a vessel and crew arrested for alleged fisheries violations by posting a
security of a financial nature whose reasonableness can be assessed in financial terms. The
inclusion of additional non-financial conditions in such a security would defeat this object and
purpose.
73.
The Respondent has required, as part of the security for obtaining the release of the
Volga and its crew, payment by the owner of one million Australian dollars. According to the
Respondent, the purpose of this amount is to guarantee the carriage of a fully operational
monitoring system and observance of Commission for the Conservation of Antarctic Marine
Living Resources conservation measures until the conclusion of legal proceedings. The
Respondent explained that this component of the bond was to ensure "that the Volga complies
with Australian law and relevant treaties to which Australia is a party until the completion of
the domestic legal proceedings"; that the ship does not "enter Australian territorial waters
other than with permission or for the purpose of innocent passage prior to the conclusion of the
forfeiture proceedings"; and further to ensure that the vessel "will not be used to commit
further criminal offences".
74.
The Tribunal cannot, in the framework of proceedings under article 292 of the
Convention, take a position as to whether the imposition of a condition such as what the
Respondent referred to as a "good behaviour bond" is a legitimate exercise of the coastal
State's sovereign rights in its exclusive economic zone. The point to be determined is whether a
"good behaviour bond" is a bond or security within the meaning of these terms in articles 73,
paragraph 2, and 292 of the Convention.
9 Case No 11 Russian Federation v. Australia 2002.
45
75.
The Tribunal notes that article 73, paragraph 2, of the Convention concerns a bond or a
security for the release of an "arrested" vessel which is alleged to have violated the laws of the
detaining State. A perusal of article 73 as a whole indicates that it envisages enforcement
measures in respect of violations of the coastal State's laws and regulations alleged to have
been committed. In the view of the Tribunal, a "good behaviour bond" to prevent future
violations of the laws of a coastal State cannot be considered as a bond or security within the
meaning of article 73, paragraph 2, of the Convention read in conjunction with article 292 of
the Convention.
Australia had argued in support of a very wide interpretation of the provisions of Article
73.2, which, it can be seen above, was not accepted by the Tribunal. It should also be
noted that Australia in its submissions had also explained Australian law in the following
terms (which are probably also broadly relevant to the legal systems of many FFA
members):
16.
.... Article 73(2) provides: "Arrested vessels and their crews shall be promptly released
upon the positing of a reasonable bond or other security." That is, the right to prompt release
exists in relation to both vessels and their crews. However, in relation to an action alleging
non-compliance with Article 73(2), Article 292(1) provides:
Where the Authorities of a State Party have detained a vessel flying the flag of another State Party
and it is alleged that the detaining State has not complied with the provisions of this Convention
for the prompt release of the vessel or its crew upon the positing of a reasonable bond...(emphasis
added).
17.
When used in this context, the word "or" is: a "particle co-ordinating two or more words
..., between which there is an alternative."10
18.
This indicates that the prompt release of each of the vessel and the crew are separate
issues. An assessment of what is "reasonable" will depend upon the circumstances of the case.
However, the facts that are relevant to an assessment of what is reasonable in relation to the
release of the vessel will be different from the facts that are relevant to an assessment of what is
reasonable in relation to the release of the crew. This difference is reflected in domestic law.
Under Australian law, the setting of a bond for the vessel is an administrative matter and the
setting of bail or sureties for the crew is a matter of criminal law. Australian law is not unusual in
this respect.
It would be useful to review the bail and bond processes in each country to ascertain if
the problems encountered in the Volga case could arise. It may be necessary to put into
fisheries laws a specific provision addressing bail and bond issues (alongside forfeiture of
vessel, gear and catch) in order to achieve compliance with the provisions of Article 73.
An alternative approach, though a more risky one, is to leave the matter as it is, namely
with the courts having very wide powers on bail in criminal cases concerning the master
and crew and bond issues with respect to the vessel gear, and catch, but arguing in each
case for the exercise of judicial or administrative discretion in favour of conforming with
the provisions of Article 73 as interpreted by ITLOS.
10
The Oxford English Dictionary, Second Edition, Clarendon Press, Oxford, 1989, Volume X, p. 882.
46
Because this raises issues wider than the fisheries law, it would be useful in the first
instance to study this matter separately, for example, by reviewing the laws of individual
countries on the subject of bond ,bail, forfeiture (of vessel gear and catch). Against that
background, it might be possible to formulate a common regional approach to these
matters.
47
Annex
Some legislative models relating to port state measures.
Legislative models in other countries provide only limited guidance. What follows is a
brief introduction to this matter. Because some of the legislative provisions are lengthy, I
have covered only the essential features.
New Zealand chose to adopt an open port access regime as part of its economic
liberalization regime. Thus, it has no general prohibition on entry to its ports for foreign
fishing vessels. It does, under section 113 of the Fisheries Act require foreign vessels to
obtain the consent of the Ministry of Fisheries before any fish caught on the high seas can
be landed in NZ.
Where a fishing vessel has been issued with a high seas fishing licence, its entry into port
may be regulated in accordance with conditions attached to that permit.
113K. Conditions of high seas fishing permit---(1) A high seas fishing permit may be subject to
such conditions as the chief executive considers appropriate, including conditions relating to the
following matters:
(a) The areas in which fishing or transportation is authorised:
(b) The seasons, times, and particular voyages during which fishing or transportation is
authorised:
(f) The use, transfer, transhipment, landing, receiving, and processing of fish, aquatic life, or
seaweed taken:
(g) Procedures or requirements, or both, enabling the verification of fish, aquatic life, or seaweed
taken or being taken by the vessel, including procedures or restrictions relating to the species of,
quantities of, or areas from which, fish, aquatic life, or seaweed are being or have been taken by
the vessel:
(h) Entry by the vessel to New Zealand or foreign ports, whether for the inspection of its catch or
for other purposes:
Section 113 of the Fisheries Act does,
More recently, New Zealand has enacted section 113ZD, which provides an important
tool in combating IUU fishing.
48
113ZD. Visits by foreign ships---(1) The master of a fishing vessel or fish carrier that is not a New
Zealand ship, a New Zealand fishing vessel, or a registered fish carrier, who intends to bring the
vessel into the internal waters of New Zealand, must give the chief executive at least 72 hours'
notice, in the approved manner, of his or her intention to do so.
(2) If the chief executive is satisfied that a vessel has undermined international conservation and
management measures, the chief executive may, by notice to the master of a vessel to which
subsection (1) applies, direct the vessel---
(a) Not to enter the internal waters of New Zealand; or (b) If it has entered the internal waters of
New Zealand, to leave those waters.
(3) If the Minister is satisfied on reasonable grounds that it is necessary for the purpose of the
conservation and management of fish, aquatic life, or seaweed, the Minister may, by notice in the
Gazette, direct any class or classes of fishing vessel or fish carrier not to enter the internal waters
of New Zealand.
(4) The master of a vessel to which a notice under subsection (2) or subsection (3) applies, who
brings the vessel into the internal waters of New Zealand knowing that the notice applies to the
vessel, commits an offence and is liable to the penalty set out in section 252 (5).
(5) This section does not prevent a vessel from entering or remaining in the internal waters of New
Zealand for such period as is necessary for the purposes of obtaining the food, fuel, and other
goods and services necessary to enable the vessel to proceed safely and directly to a port outside
New Zealand.
Canada has provided for a regime which requires permission to land or tranship catch in
Canada. This is set out in section 4 of the Coastal Fisheries Protection Act.
4. (1) No person, being aboard a foreign fishing vessel or being a member of the crew of or
attached to or employed on a foreign fishing vessel, shall in Canada or in Canadian fisheries
waters
(a) fish or prepare to fish,
(b) unload, land or tranship any fish, outfit or supplies,
(c) ship or discharge any crew member or other person,
(d) purchase or obtain bait or any supplies or outfits, or
(e) take or prepare to take marine plants,
unless authorized by this Act or the regulations, any other law of Canada or a treaty.
Further, section 6 of the Canadian Coastal Fisheries Protection Act reads as follows:
The Governor in council may make regulations for carrying out the purposes and
provisions of this Act including, but not limited to, regulations...
49
(e) for the implementation of the [Fish Stocks] Agreement, including regulations
(i) incorporating by reference any conservation or management measures of a
regional fisheries management organization or arrangement established by two or more
States, or by one or more States and an organization of States, for the purpose of the
conservation or management of a straddling fish stock or highly migratory fish stock...
Norway: Norway has also the power to deny the use of port facilities in certain
circumstances. In the "Regulations relating to a Prohibition on Landing Fish caught in
waters Outside Norwegian jurisdiction", there are prohibitions placed on the landing of
certain catches. Thus in section 1 of the regulation,
"It is prohibited to land catches of fish from fish stocks of mutual interest to Norway and other
states which are not subject to agreed stock regulation measures or which are subject to
Norwegian regulatory measures.
Likewise in section 2,
"it is prohibited to land catches taken in contravention of a desired harvesting pattern or which
may result in reasonable total quotas of the fish species in question being exceeded."
This is explained in the regulation as referring to catch from fish stocks that are subject to
Norwegian regulatory measures and have not been taken pursuant to a fisheries
agreement between Norway and the flag State, or by a vessel registered in a country with
which Norway does not have a fisheries agreement.
Section 3 prohibits the landing of
"catches consisting of fish caught in contravention of provisions laid down by regional or sub-
regional fishery management organizations or arrangements, including catches taken by citizens
of States that are not members of or parties to such organizations or arrangements."
These provisions are stated to apply irrespective of whether the fish has been caught in an
area under the jurisdiction of a particular state or in international waters.11
In addition, there exists a more drastic power to deny access to vessels that have engaged
in unregulated fishing on the high seas. This is described by Loebach in the following
terms:
11 section 4
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"Norwegian authorities have denied access to port by foreign fishing vessels that have taken part
in an unregulated fishery on the high seas. A regulation concerning the entry into and passage
through Norwegian territorial waters in peacetime of foreign non-military vessels stipulates that
such vessels may be refused admission to Norwegian internal waters when special grounds make
that necessary. [Amendment of 25 March 1994 of the regulation of 13 May 1977 relating to
fishing and hunting operations by foreign nationals in the Exclusive Economic Zone of Norway.]
Such special grounds exist, inter alia, when fishing vessels plan to enter these waters in
connection with fishing, or bringing ashore a catch that implies that appropriate total quotas for
the fish are being exceeded."12
Namibia has a direct control over transhipment and landings. This is set out in
section 50:
50.
(1)
No vessel in the territorial sea or internal waters of Namibia, no vessel
licensed under section 40 and no Namibian flag vessel shall tranship, land, attempt to
tranship or land, or assist any other vessel to tranship or land any marine resources, unless
such transhipment or landing -
(a)
is authorized by a licence or other authorization obtained from the Minister; and
(b)
is executed in accordance with any conditions contained in the licence or
authorization in question.
(2)
Notwithstanding subsection (1), marine resources may be
transhipped between and landed in the territorial sea or internal waters of Namibia by vessels
that are not fishing vessels.
The European Community: the European Community set out in Council Regulation No
2847/93 has a comprehensive policy which has been revised from time to time. The
preamble is unusually informative and it refers inter alia to:
Whereas, to ensure that all catches and landings are kept Under surveillance, Member States must
monitor in all Maritime waters the activities of Community vessels and all related activities
allowing verification of the implementation of the rules concerning the common fisheries policy;
Whereas it is necessary for the Member State of landing to be able to monitor landings on its
territory, and to this end it is appropriate for fishing vessels registered in other Member States to
notify the Member State of landing of their intention to land on its territory;
Whereas it is essential to clarify and confirm at the time of landing the information contained in
the logbooks; whereas, to this end, it is necessary that those involved in the landing and marketing
of catches should declare the quantities landed, transshipped, offered for sale of purchased;
Whereas limitations on catches must be managed at both Member State and Community level;
whereas Member States should register landings and notify them to the Commission by computer
transmission; whereas therefore it is necessary to provide for exceptions from this obligation for
small quantities landed, the computer transmission of which would constitute a disproportionate
administrative and financial burden for the authorities of the Member States;
12 Loebach, Fisheries Directorate, Bergen. Section 3 of the Regulations relating to a prohibition on landing
fish caught in Waters outside Norwegian jurisdiction states:
51
Whereas, in order to ensure the conservation and management of all the resources used, the
provisions relating to the logbook, the landing and sales declarations and the information
concerning transshipments and registration of catches may be extended to stocks which are not
subject to a TAC or quota;
TITLE I
Inspection and monitoring of fishing vessels and their
activities
Article 2
1. In order to ensure compliance with all the rules in force concerning conservation and control
measures, each Member State shall, within its territory and within maritime waters subject to its
sovereignty or jurisdiction, monitor fishing activity and related activities. It shall inspect fishing
vessels and investigate all activities thus enabling verification of the implementation of this
Regulation, including the activities of landing, selling, transporting and storing fish and recording
landings and sales.
(b) Each Member State shall ensure that the master of a fishing vessel flying the flag of, or
registered in, a third country, or his representative, shall on landing submit to the authorities of the
Member State whose landing facilities he wishes to use at least 72 hours in advance of his time of
arrival at the port of landing.
2847/93
2847/93 --- I
9
(c) The master of a fishing vessel flying the flag of, or registered in, a third country must notify the
competent authorities of the Member State whose landing facilities he wishes to use at least 72
hours in advance of his time of arrival at the port of landing. The master may not carry out any
landing operation if the competent authorities of the Member State have not confirmed the receipt
of the advance notification. Member States shall establish detailed rules of implementation of this
subparagraph to be notified to the Commission.
Article 17
1. Member States shall take the necessary measures to ensure monitoring of the catches of species
made by their vessels operating in waters subject to the sovereignty or jurisdiction of third
countries and on the high seas, and to ensure verification and recording of transshipments and
landings of such catches.
3. The provisions of paragraphs 1 and 2 shall apply without prejudice to the provisions of the
fisheries agreements concluded between the Community and third countries and International
Conventions to which the Community is a party.
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