Law is central to MCS. This chapter discusses the nature and role of international and national (domestic) law, outlines the key features of the international legal framework relevant to MCS developed during the last decade, and provides guidance on reviewing and strengthening national law and regulations to facilitate MCS, particularly the use of satellite-based VMS.
Laws fulfil a number of functions in relation to MCS. For example, laws:
a) define the powers, duties and obligations of States and regional fisheries bodies to manage fisheries resources;
b) establish rules to be observed by those harvesting fishery resources, including prohibiting certain activities, requiring that other activities be undertaken only with the authority of a licence, and prescribing the manner in which fishing and related activities must be conducted;
c) grant enforcement powers to officials (e.g. to arrest, detain and seize);
d) protect the interests of fishers, particularly in relation to confidential information;
e) establish both the judicial process for penalizing those who violate fisheries rules and the procedures that govern the judicial process.
It is critical to understand the distinction between international law and domestic (national) law, as well as the relationship between those two spheres of law. As explained more fully in the following section, international law primarily regulates the relationship among States (and between States and international organizations). Domestic law regulates the relationships between persons (including legal persons such as companies) within a particular State.
Generally speaking, domestic law applies only within the territory of the State concerned and in areas over which the State exercises sovereign rights, such as the EEZ. Domestic law also applies to the activities of nationals and vessels of a State that occur on the high seas and, in some situations, even in waters under the jurisdiction of other States.
No MCS system is likely to be effective unless it is based on clear legal rules that set out the rights and duties of the various parties in a manner which accords with the international law framework for fisheries management, and provides effective and efficient legal procedures and mechanisms for implementing those rules consistently.
International law is the system of rules governing the relationship among States (and between States and international organizations). The rules of international law are reflected primarily in treaties,[11] which generally create obligations only for those States party to the treaty. Other rules of international law arise from general international practice accepted as law (so-called "customary international law"), although it is sometimes difficult to determine whether a particular practice has become accepted as law by States.
The most important rules of international law relating to MCS are those contained in treaties, such as UNCLOS and related agreements.[12] Customary international law plays a relatively minor role in governing MCS activities.
Fisheries administrators should be aware of at least the following three characteristics of international law:
a) International law governs States (and international organizations). The subjects of international law (i.e. the parties who are bound by it) are States and international organizations. Generally speaking, a rule of international law cannot be enforced directly against individuals or companies unless there is some provision in the domestic law that authorizes its application as a matter of domestic law. In many States (notably those which follow the common law tradition originally derived from English law) it is necessary for parliament to pass an Act implementing a rule of international law before it applies at the domestic level. In other States (notably those following the civil law tradition), this is not always necessary.
b) Treaties do not bind non-parties. A treaty only applies to the parties to it. States that are not parties to a treaty are not bound by its provisions unless they have consented to be bound by those provisions through some other means (or if the provisions reflect customary international law).
However, a number of recent international fisheries agreements, including the UN Fish Stocks Agreement and the FAO Compliance Agreement, require parties to ensure that their flag vessels comply with, and do not undermine the effectiveness of, conservation and management measures adopted pursuant to other international agreements (particularly those establishing regional fisheries bodies), even if the State is not a party to those other agreements.[13]
c) Not all international instruments contain binding rules. Some international instruments contain political rather than legally binding commitments. Over time, such political commitments may become binding by "hardening" into customary international law or through inclusion in subsequent treaties. However, one should not underestimate the significance of non-binding instruments, particularly in the field of international fisheries. Some non-binding instruments have radically changed the behaviour of some States and the conduct of some fisheries.[14] Similarly, the CCRF and its subsequent International Plans of Action, though non-binding, reflect wide areas of consensus within the international community on many aspects of fisheries management.
All fisheries administrators should have a good understanding of the basic provisions of UNCLOS[15] relating to the management of living marine resources.
UNCLOS establishes a comprehensive framework for the use of the world's oceans. This treaty sets out the rights and duties of States concerning the oceans, particularly with respect to the different maritime zones (internal waters, territorial sea, EEZ, archipelagic waters and high seas). For most purposes related to fisheries management, the Convention divides the oceans into two basic areas:
a) areas under the jurisdiction of coastal States (in which the coastal State has exclusive authority to manage fisheries); and
b) the high seas, in which all States have the right for their nationals to fish, subject to certain important qualifications.
Since its entry into force in 1994, the Convention has also served as an "umbrella" treaty under which other more specific international instruments have been elaborated, including the FAO Compliance Agreement (discussed in 2.2.3 below), the 1995 UN Fish Stocks Agreement (discussed in 2.2.4 below) and the CCRF(discussed in 2.2.5 below).
The FAO Compliance Agreement[16] seeks to strengthen the provisions in UNCLOS relating to high seas fishing. This treaty has two primary objectives. The first is to require all States whose vessels fish on the high seas to take a range of steps to ensure that those vessels do not undermine measures to conserve and manage the living resources of the high seas. The second objective is to increase the transparency of all high seas fishing operations through the collection and dissemination of data.
Article III of the FAO Compliance Agreement contains its most significant provisions for purposes of MCS, including three fundamental responsibilities of flag States:
a) Flag States should ensure that their vessels do not undermine fishery conservation and management measures that apply in any high seas area.
b) Vessels should not fish on the high seas except pursuant to express authorization to do so issued by the flag State.
c) A flag State should not grant such authorization to a vessel unless it can ensure that the vessel will not undermine fishery conservation and management measures that apply in a high seas area in which the vessel will operate.
Article III of the Compliance Agreement also requires each flag State to ensure that its fishing vessels are marked to be readily identifiable in accordance with generally accepted standards (such as the FAO vessel marking scheme), to obtain information on the operations of their vessels, and to impose sanctions for non-compliance that are sufficiently severe to deter further non-compliance.[17]
The UN Fish Stocks Agreement entered into force on 11 December 2001, following the deposit of instruments of ratification or accession by 30 States. This treaty builds on several general provisions of UNCLOS in an effort to strengthen cooperation in the conservation and management of certain fish stocks that occur both within EEZs and on the high seas:
a) "straddling" fish stocks, which are stocks whose natural ranges straddle the line dividing areas under the fisheries jurisdiction of one or more coastal States and the adjacent high seas areas. Examples of such stocks include cod in the Northwest Atlantic Ocean and pollock in the Bering Sea; and
b) "highly migratory" fish stocks, which are stocks that migrate extensively across the high seas and through areas under the fisheries jurisdiction of many coastal States. Examples of such stocks include tuna and swordfish.
The 1995 UN Fish Stocks Agreement contains provisions on flag State responsibility that are very similar to those in the FAO Compliance Agreement. In the area of MCS, the 1995 UN Fish Stocks Agreement also includes rules under which States other than the flag State may board and inspect fishing vessels on the high seas:
a) under certain circumstances, States other than the flag State may board and inspect vessels fishing on the high seas to ensure compliance with conservation and management measures established by regional fishery bodies;
b) further enforcement action, including ordering a fishing vessel to port, may be taken in the case of serious violations by vessels whose flag State either cannot or will not exercise proper control over them;
c) serious violations include fishing without a license; failing to maintain accurate records; fishing in a closed area or for stocks subject to a moratorium; using prohibited gear; falsifying markings or other identification; concealing, hampering with, or disposing of evidence; and multiple violations which together constitute a serious disregard for conservation and management measures; and
d) States should act through regional fishery bodies to establish procedures for boarding and inspection and to implement the other provisions involving cooperative enforcement. If they have not done so by now, or have not established an alternative enforcement mechanism, then boardings and inspections may occur in accordance with procedures found in the Agreement.
The 1995 UN Fish Stocks Agreement also requires a precautionary approach to be taken to fisheries management and encourages States to adopt compatible measures in relation to stocks within areas under the jurisdiction of coastal States and in the high seas. It specifies mechanisms to achieve cooperation between States, requires strict fisheries enforcement and the collection and exchange of fisheries data, and requires parties to settle disputes using the procedures established in UNCLOS.
The FAO Code of Conduct for Responsible Fisheries (CCRF) is a broad and comprehensive but non-binding document.[18] It prescribes principles and standards for the conservation and management of all fisheries, as well as for fish processing, trade in fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management. A fundamental objective of CCRF is "to serve as an instrument of reference to help States to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries and in the formulation and implementation of appropriate measures."
Other pertinent provisions of the CCRF include the following:[19]
a) If world fisheries are to be sustainable in the long term, structural adjustment within the fisheries sector is required. Although policy decisions in this regard must be made by national governments, effective implementation of the Code requires the participation and cooperation of a wide range of stakeholders, including fishers, processors, NGOs and consumers.
b) The Code is intended to be a dynamic or "living" document to be adapted by FAO, working through its governing bodies, to meet new fisheries developments and situations.
c) The Code is intended to function as part of a package of international instruments (including the FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement and the various international plans of action (IPOAs) discussed below), which are designed to work together to address the management and conservation of fisheries throughout the world.
d) Implementation of the Code is primarily the responsibility of States. However, FAO has an important role to play in encouraging and facilitating the implementation of the Code and to provide technical support to national and regional initiatives in this regard.[20]
e) The Code will require regional and sectoral implementation in order to address the particular needs of fisheries in different regions or sub-sectors.
f) FAO has developed several Technical Guidelines in support of the implementation of the Code of Conduct for Responsible Fisheries, including: Fishing Operations, 1. Vessel Monitoring Systems (Rome, FAO, 1998). These are available on the FAO Fisheries Department website (www.fao.org/fi).
To date, four IPOAs have been developed within the framework of the Code of Conduct. FAO adopted three of these instruments in 1999 to deal with the incidental catch of sea birds in longline fisheries, the conservation and management of sharks and the management of fishing capacity.
The fourth IPOA, and the one which is of the greatest relevance to MCS, is designed to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing. A copy of this IPOA, adopted by FAO in 2001, is available on the website of the FAO Fisheries Department. The FAO Fisheries Department has also produced detailed Technical Guidelines to help governments and others implement this IPOA.
The IPOA on IUU fishing offers many tools for States to use to combat IUU fishing, individually and in collaboration with other States. Some of the tools are designed for use by all States. Others tools are tailored for use by flag States, coastal States and port States. The IPOA-IUU also calls for the use of "internationally agreed market-related measures." These are tools designed to keep fish that have been harvested by IUU fishers from being sold or traded.
The IPOA on IUU fishing calls upon all States to develop and adopt, as soon as possible but not later than March 2004, national plans of action to further achieve the objectives of the IPOA. To the extent possible, each State's national plan of action should consider how each of the basic tools in the IPOA could be put to use in the fisheries in which it is involved. States are encouraged to report to FAO on steps they have taken to implement their national plans and the IPOA itself.
Internal waters generally consist of waters landward of the baseline from which the territorial sea is measured (including ports and roadsteads). Under international law, a coastal State has sovereignty over its internal waters, including the power to make and enforce fisheries laws.[21]
The territorial sea may extend up to 12 nautical miles seaward of the baseline. As with internal waters, a coastal State has sovereignty over its territorial sea, which includes the power to make and enforce fisheries laws. Although a coastal State must observe the right of innocent passage of foreign vessels, including foreign fishing vessels, through its territorial sea,[22] a foreign vessel that conducts fishing activities in the territorial sea is not engaged in innocent passage.
Archipelagic waters established in accordance with Article 47 of UNCLOS are similarly under the sovereignty of the archipelagic State, subject to the right of innocent passage.[23] Sovereignty over archipelagic waters includes the power to make and enforce fisheries laws.
The EEZs may extend out to 200 nautical miles seaward of the baseline. Within its EEZ, a coastal State has "sovereign rights for the purpose of exploring and exploiting, conserving and managing" living resources.[24] A coastal State shall grant foreign fishing vessels access to any surplus in the total allowable catch (TAC) in its EEZ, but is entitled to set the terms and conditions of access and may enact laws and regulations to require foreign vessels to provide "vessel position reports."[25]
UNCLOS also contains additional guidance relating to fish that occur in waters under the jurisdiction of more than one State, migrate between areas under national jurisdiction and the high seas and that occur exclusively on the high seas.
Under UNCLOS, a coastal State has exclusive rights with respect to sedentary species of living organisms on its continental shelf.[26] For some coastal States, the continental shelf can extend beyond the seaward limit of its EEZ.
The high seas are those waters beyond the limits of national jurisdiction. All States have the right for their nationals to fish on the high seas. However, this right is subject to a number of significant qualifications, particularly the obligation to conserve high seas living resources, to cooperate with other States and to respect certain rights, duties and interests of coastal States.
Since the high seas lie beyond the limits of national jurisdiction, no State may create fisheries rules applicable to vessels of other States fishing on the high sea. Generally speaking, fishing vessels on the high seas are subject to the exclusive jurisdiction of the flag State. However, a number of recent international agreements have given States other than the flag State certain rights to take action with respect to fishing vessels on the high seas, primarily to help prevent, deter and eliminate IUU fishing.[27] Coastal States may also exercise the right of hot pursuit of foreign fishing vessels on the high seas in certain carefully defined circumstances.[28]
International law does not impose any significant restrictions on the powers of a State to regulate foreign fishing vessels voluntarily in its ports. A State may deny foreign fishing vessels access to its ports outright,[29] or may place conditions on access such as advance notice of arrival, requiring specified information be provided in advance, and boarding and inspection.
The 1995 UN Fish Stocks Agreement imposes a duty on port States to take measures, on a non-discriminatory basis and in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures.[30]
Other international instruments, including the Code of Conduct, the FAO Compliance Agreement and the IPOA to Prevent, Deter and Eliminate IUU Fishing, also call upon port States to use their powers to promote sustainable fisheries.
A port State enjoys the advantage of being able to inspect a vessel in port and to control its movements with relative ease. A port State can enforce its laws (usually without the need to use the force which may be required at sea) and can obtain and forward to the flag State any information concerning suspected unlawful activities of the vessel.
Port States can also require foreign fishing vessels to obtain advance authorization to enter a port. If a State imposes conditions on entry into its ports, it may take necessary steps to prevent any breach of those conditions.[31]
The flag State has responsibility under international law for controlling the fishing activities of a vessel, no matter where the vessel operates:
a) If the vessel is fishing in waters under the jurisdiction of the flag State, the responsibility of the flag State is exclusive. Generally speaking, no other State has the right or responsibility to control the fishing activities of the vessel.
b) If the vessel is fishing on the high seas, the flag State has traditionally had exclusive responsibility for controlling the fishing activities of the vessel. However, as noted above, a number of recent international agreements have given States other than the flag State certain rights to take action with respect to fishing vessels on the high seas.
c) If the vessel is fishing in waters under the jurisdiction of a State other than the flag State (or is in the port of a State other than the flag State), the coastal (or port) State has rights and responsibilities with respect to the fishing activities of the vessel. In such situations, however, the flag State also continues to have responsibilities with respect to those fishing activities, including the responsibility to ensure that the vessel does not conduct unauthorized fishing in waters under the jurisdiction of another State.
Unfortunately, a number of flag States lack the means (and sometimes the will) to control the fishing activities of their vessels. To compound this problem, a number of States maintain so-called "open registries" in which some fishing vessel owners may register their vessels precisely to avoid such control. Concerns with this loop-hole led to the development of the FAO Compliance Agreement and to the inclusion of provisions in the 1995 UN Fish Stocks Agreement that focus attention on the duty of the flag State to exercise effective control over its fishing vessels.
In particular, the 1995 UN Fish Stocks Agreement requires a flag State to:
a) ensure both that its vessels comply with applicable conservation measures and do not undermine their effectiveness;[32]
b) grant an authorization to fish on the high seas only "where it is able to exercise effectively its responsibilities in respect of such fishing vessels;"[33]
c) develop regulations "to ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States;"[34]
d) enforce compliance by vessels flying its flag with subregional and regional conservation and management measures, wherever the violations occur.[35]
As discussed in Section 2.2, international agreements impose obligations on States that must be translated into specific enforceable legal rules backed up by sanctions in national laws. Thus, an essential part of implementing international agreements is for each State to pass legislation to give effect to the obligations contained in treaties to which it is bound. In practice, MCS is primarily concerned with ensuring compliance with these domestic law rules rather than with the provisions of treaties.[36]
It follows therefore that in strengthening an MCS system it is essential to review the existing domestic legislation to ensure that it prescribes norms that are appropriate to achieve the desired fisheries management objectives and contains provisions that facilitate effective enforcement. In practice, the effectiveness of an MCS system in ensuring compliance with the law will depend very heavily on whether or not domestic laws provide appropriate mechanisms to facilitate this task.
Broadly speaking, strengthening a national MCS regime will involve addressing the following key issues:
a) ensuring that fisheries administrators and enforcement officers can exercise all powers available to coastal, port and flag States under international law (this will usually require reviewing the powers of enforcement officers under domestic law and strengthening procedures under which the States grants authorization to fish);
b) increasing regional and international cooperation in order to reduce the incidence of IUU fishing, including measures to support the enforcement of fisheries conservation and management measures on the high seas and in areas under the jurisdiction of other States;
c) increasing the transparency of fishing efforts by improving monitoring programs (particularly by requiring the use of VMS);
d) facilitating the use of information derived from monitoring and surveillance (particularly from new VMS technologies) to promote compliance; and
e) strengthening existing sanctions and extending the range of compliance mechanisms available to enforcement officers.
A list of some of the issues to be considered in reviewing national legislation to strengthen MCS is set out in Annex C.
As discussed above, international law recognizes the sovereign rights of coastal States to explore, exploit, conserve and manage living resources in areas under their jurisdiction. With those rights come responsibilities, as set forth in UNCLOS and elaborated in subsequent instruments, to adopt and implement appropriate measures to conserve and manage those resources. For stocks that occur both within and beyond waters under its jurisdiction, coastal States have basic obligations to cooperate with other States to conserve and manage such stocks. Similarly, all States whose nationals fish on the high seas have obligations to conserve the stocks in question and to cooperate with other States in this regard.
The increasingly sophisticated legal framework for international and regional fisheries management requires States to develop more extensive, accurate and verifiable data concerning fisheries activities and their effects. The declining status of many fish stocks (and of the marine environment in general) has also created a strong incentive for States to adopt VMS as a component of an overall MCS strategy. Furthermore, advances in technology, particularly in relation to satellite-based VMS, have the potential to substantially improve the effectiveness of MCS systems by generating a wider range of useful data at a substantially lower cost than exclusive reliance on more traditional MCS measures, such as at-sea enforcement.[37]
A number of international fisheries instruments encourage or require States to use satellite-based VMS.[38] How VMS should be implemented is generally left to the States to decide, since this will depend on the circumstances. In most cases satellite-based VMS is more appropriate for large scale commercial fishing operations than to control nearshore artisanal or subsistence fishing. Different types of satellite-based VMS may be appropriate in different circumstances, depending on vessel size and areas fished.
A State must usually enact specific legislation to enable satellite-based VMS to operate as an integral and effective part of an MCS system. For example, legislation should provide that:
a) fishing is subject to an authorization regime (e.g. a licensing system) that requires the installation of automatic location communicators (ALCs);
b) vessels must be clearly marked for identification purposes, allowing the comparison of visually acquired patrol sightings and the satellite-based VMS data;
c) fishing vessels must report regularly on their position, activities and catches;
d) landings and transshipments must take place in designated ports or areas under specified conditions; and
e) information derived from satellite-based VMS is confidential (e.g. precise locations and times of fishing activities).
The ability of VMS systems to provide detailed real-time or near real-time information increases the sensitivity of all data collected. This may increase resistance to the introduction of such systems. Consequently it is essential for legislation to protect data derived from VMS and to provide appropriate penalties for its misuse.
To protect the confidentiality of such information, a State should:
a) categorise sensitive information derived from VMS as confidential;
b) require that this information be used primarily for MCS and other fisheries management purposes;
c) clearly define the situations in which secondary use of VMS information is permitted (e.g. for search and rescue);
d) restrict access to premises where VMS information is processed or stored, as well as access to the information itself; and
e) make breach of confidentiality an offence punishable by severe penalties.[39]
New legislation (and amendments to existing legislation) should facilitate effective enforcement with due consideration given to the rights of persons accused of contravening the law.
Evidentiary issues
Although different legal systems have different standards and procedures for establishing that an offence has been committed, most legal systems require the prosecution to place before the court evidence that is sufficiently reliable to establish the essential elements of the offence with an appropriate degree of certainty. The defendant will then have an opportunity to cross examine the prosecution's witnesses and evidence, as well as present their own witnesses and evidence, in order to refute or otherwise call into question the prosecution's case, or to establish a defense that would allow the defendant to avoid liability.
Fisheries offences are usually committed at sea, beyond the direct observation of enforcement officers (other than on-board observers). This creates a number of difficulties. For example, it may be difficult to identify the vessel, or to determine its precise position at the time of the alleged violation, or to determine the specific activities of the vessel at any particular time (e.g. whether it was fishing). It may also be difficult to obtain physical evidence of the alleged offence.
Defence lawyers can often exploit these practical difficulties and use technical aspects of the evidentiary rules to secure an acquittal for their clients.[40] Careful drafting of the evidentiary rules and fisheries laws can help the prosecution secure convictions in appropriate cases, while still retaining safeguards to address due process issues and to ensure that innocent parties are not convicted. A number of mechanisms can be used to achieve this, most notably the creation of offences with elements that are relatively easy to investigate and prove (e.g. possession of illegally caught fish in addition to illegal fishing, or failure to stow gear while in a restricted fishing area), and the use of "strict liability" offences where no proof of general or specific mens rea (criminal intent) is required.
In most legal systems, the prosecution bears the initial burden to prove that a violation has occurred. In many situations, if the prosecution succeeds in providing at least preliminary evidence of a violation, the burden may shift to the defendant to prove the elements of its defence. Most legal systems also specify the level of proof which is required (i.e. the "standard of proof"). In common law systems, the standard of proof in criminal cases is normally "beyond a reasonable doubt." In a civil case, the standard of proof is usually the "balance of probabilities" (i.e. the most likely conclusion) or by a "preponderance of the evidence".
Presumptions
Another widely used technique in fisheries legislation is to provide that if the prosecution is able to prove certain facts (e.g. that a fishing vessel was fishing without the necessary authorization) then certain other facts or consequences will be presumed (e.g. that any fish on board were caught illegally). The defendant then has chance to show otherwise - to "rebut" the presumption.
Presumptions are most appropriate to establish facts that are difficult for the prosecution to prove (e.g. concerning the activities of the vessel while at sea) but can easily be rebutted by an innocent defendant. Examples include presumptions that:
a) a vessel is a foreign vessel if it flies a foreign flag, flies no flag, bears the name of a foreign port or possesses foreign documentation;
b) a fisher apprehended without a license in waters where authorization to fish is required was engaged in unauthorized fishing;
c) all fish aboard a vessel that is arrested for illegal fishing were caught illegally;
d) a fishing vessel apprehended transiting the EEZ without stowing its fishing gear has engaged in illegal fishing.
Some presumptions are inappropriate, however, and may be struck down as unconstitutional or as contrary to applicable conventions on human rights, particularly laws that "presume" someone to be guilty of an offence unless they are able to prove otherwise or that otherwise undermine the right of a defendant to a fair trial. Thus, caution must be taken in using presumptions.[41] For example, it is not appropriate to presume that a violation has occurred in the absence of even prima facie evidence of the violation. This would effectively place a burden on apparently innocent parties to prove that they had not acted unlawfully.
Using data from VMS in court
In common law systems, prosecutors have experienced difficulty in using data derived from satellite-based VMS (e.g. to establish the position of a vessel at a particular time) because of the general rule that "hearsay" evidence is inadmissible. Although States have varying rules on "hearsay" evidence, the general idea is that courts are reluctant to accept evidence from witnesses who do not appear before the court itself, or who are testifying to matters that are not within their personal knowledge. A court may thus refuse to accept evidence from derived satellite-based VMS unless an expert in VMS technology appears before the court to confirm the accuracy and reliability of such systems in general, that the particular system was working properly, and that a qualified person interpreted the data correctly.
Some legal systems may nevertheless allow a court to take "judicial notice" of certain facts and accept them as true even in the absence of specific evidence. Courts generally take judicial notice of facts that are matters of general knowledge or are well-known (notorious) in the local area. As VMS becomes more widely used and understood, more courts may be willing to take judicial notice of the accuracy of data derived from VMS.[42]
Using expert evidence to prove the validity and accuracy of all information derived from a satellite-based VMS would be extremely time-consuming and expensive and would constitute a significant obstacle to prosecutions. In some situations legislative intervention may be required to deal with this problem. For example, the South African Marine Living Resources Act, 18 of 1998, contains a number of provisions designed to facilitate the use of evidence derived from new technologies. This law empowers the Minister to designate certain classes of machines or instruments as "designated machines."[43] Readings taken from such machines are admissible as evidence if the reading is made by a properly trained person and if the machine was checked a reasonable time before and after the reading and appeared to be working correctly. Such machines will also be presumed to give accurate readings within the manufacturers' specified limits. Similarly, the Minister may designate devices or machines such as ALCs as "observation devices."[44] Information or data derived from them shall be prima facie evidence that the information came from the vessel identified, was accurately relayed or transferred, and was given by the master, owner and charterer of the fishing vessel.
These provisions are utilized in conjunction with provisions relating to the tendering of documentary evidence which allow the Minister, a Fisheries Officer or an observer, to issue a certificate testifying to certain facts. The certificate is admissible and may be accepted as prima facie evidence of the facts stated therein. Examples of such certificates include: a certificate specifying the place or area in which a vessel had been at a particular date and time or during a particular period of time;[45] and a certificate from a fisheries control officer or observer certifying the accuracy of a printout or visual display unit relating to information derived from an observation device (such as an ALC) and to the interpretation of that information.[46]
Administrative and civil processes and penalties
Some States have avoided some of the difficulties associated with formal criminal trials (which involve considerable expense and a high standard of proof) by providing for administrative or civil penalties, rather than criminal sanctions, for certain fisheries violations.[47] In such systems, the fisheries administration typically notifies the alleged offender of its belief that a violation of law has occurred, presents a summary of its case with an indication of the penalties (usually fines) that it intends to impose, and invites the alleged offender to make appropriate representations and to attend a hearing. One of the advantages of this approach is that it facilitates the negotiation of settlements in circumstances in which the authorities have sufficient evidence to prove that an unlawful act has been committed, without the necessity of going through a more expensive and protracted criminal trial.
Fixed penalty systems
Many legal systems have provisions that allow alleged offenders to pay a fixed penalty to avoid prosecution for an offence. These systems provide a useful means of relieving pressures on courts and of dealing with straight-forward offences quickly and efficiently. However, fisheries administrators should not use this technique in inappropriate circumstances, for example where the offences are of a complex nature.
"Long arm" enforcement provisions
The classic example of this type of law is the U.S. Lacey Act, which makes it unlawful for any person subject to U.S. jurisdiction to "import, export, transport, sell, receive, acquire, possess or purchase any fish... taken, possessed or sold in violation of any ... foreign ... law, treaty or regulation.[48] A number of other States have adopted similar laws including, Papua New Guinea, the Solomon Islands and Nauru.
As a result of cooperation between the United States and the members of the South Pacific Forum Fisheries Agency (FFA), the parties exchange fisheries information, including information on violations. The information exchanged in this manner has enabled the United States to use the Lacey Act to prosecute vessels importing fish taken contrary to the laws of FFA member states.[49] One of the advantages of these types of provisions are that they avoid the difficulties inherent in attempting to exercise extra-territorial jurisdiction by criminalising activities that occur within their territories (i.e. importation) but in a manner that supports and enforces management and conservation measures in areas beyond the limits of their jurisdiction.
The 1990s saw very significant developments in international law relating to fisheries, with direct implications for MCS systems. The new international regulatory framework for fisheries, based on UNCLOS, the FAO Code of Conduct for Responsible Fisheries, the 1995 UN Fish Stocks Agreement, the FAO Compliance Agreement and the four FAO International Plans of Action, encourages the rapid strengthening of national, and particularly regional, MCS systems as a key mechanism for improving the conservation and management of marine fisheries.
The following characteristics of this developing regime should be noted.
a) The new regime calls for an "ecosystem" approach in which fisheries management is conducted in a wider context of the conservation and protection of the marine environment, biological diversity, and the integrated management of coastal areas.[50]
b) All the international fisheries instruments adopted in the 1990s emphasise the importance of regional and global cooperation, particularly as a means of counteracting IUU fishing.
c) There is increased emphasis on creating incentives for cooperation, disincentives for those remaining outside regional fisheries management bodies, and the extension of the application of conservation and management measures to all States, even if they are not participants in a regional fisheries management body.
d) Although the international regime continues to recognize the right of all States for their nationals to fish on the high seas, this right must be exercised in accordance with ever more stringent rules adopted at the regional and global levels. Flag States must ensure compliance by their vessels with agreed conservation and management measures. Flag States must enforce these measures, irrespective of where violations occur, investigate alleged violations fully and promptly, and ensure that a vessel involved in the commission of a serious violation does not engage in further fishing operations on the high seas until such time as all outstanding sanctions imposed by the flag State have been complied with.
The combined effect of these developments in the international fisheries regime is to enhance the importance of MCS and to provide added incentives for States to introduce satellite-based VMS. However, if satellite based VMS is to be a fully effective component of an overall MCS system, national laws relevant to MCS must be thoroughly reviewed, and updated where necessary. Guidelines on the issues which should be considered in such a review are listed in Annex C.
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[11] The term "treaty"
generally covers all international agreements containing binding obligations,
despite the fact that such documents carry a variety of different titles, e.g.
convention, agreement, or protocol. [12] Most important international fisheries agreements and a host of related documents, explanatory guidelines and the like are now available on the internet. See for example the Internet Guide to International Fisheries Law (www.oceanlaw.net). [13] See UN Fish Stocks Agreement, Articles 18-19; FAO Compliance Agreement Article III. [14] For example, UN General Assembly Resolution 46/215, though non-binding, created an effective moratorium on large-scale driftnet fishing on the high seas. [15] 21 International Legal Materials 1261 (1982). The Convention entered into force on 16 November 1994. [16] 33 International Legal Materials 969 (1994). The FAO Compliance Agreement, which was elaborated as an integral part of the FAO Code of Conduct, will enter into force following the deposit of 25 instruments of acceptance with FAO. As of 1 February 2002, 22 instruments had been received. [17] Although the FAO Compliance Agreement allows parties to exempt vessels under 24 metres in length from some of the administrative requirements of the treaty, flag States must take effective measures to ensure that any exempted vessels that undermine the effectiveness of international conservation and management measures cease to engage in such activities. Article II (2) as read with Article III (1)(b). [18] Some of its provisions are binding by virtue of the fact that they are included in other international treaties or reflect customary international law. [19] See Doulman (2000), p. 2. [20] The work done by FAO in this regard includes establishing an internet website to facilitate public access to the CCRF and the Compliance Agreement, which is linked to national sites (www.fao.org/fi), and establishing an Interregional Programme of Assistance to Developing Countries for the Implementation of the Code of Conduct for Responsible Fisheries (the FishCode Programme). [21] The sovereignty of the coastal State over its internal waters is subject only to a minor exception relating to the continuation of an existing right of innocent passage in waters enclosed by straight baselines. See UNCLOS Articles 8. [22] UNCLOS Articles 17 and 52(1). Vessels engaged in transhipment (including processing vessels such as so-called "klondykers") are not considered to be engaged in innocent passage because their passage is not "continuous and expeditious" as required by UNCLOS Article 18(2). [23] UNCLOS Articles 2(1), 49(1) and 52(1). However, Article 51(1) provides that "an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. ..." [24] UNCLOS Article 56(1)(a). [25] UNCLOS Article 62(4) and 62(4)(e). [26] UNCLOS Articles 56(3) and 77. [27] See, e.g. the 1995 UN Fish Stocks Agreement, articles 21-22; the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, article V; the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, article XI; the 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, article 26 (not yet in force). [28] UNCLOS Article 111. [29] A State should nevertheless allow a vessel to enter its port for reasons of force majeure or distress or for rendering assistance to those in danger or distress. [30] 1995 UN Fish Stocks Agreement Article 23. [31] UNCLOS Article 25(2). These powers have been used to enforce conservation measures taken under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). For example, South African regulations require fishing vessels with certain species such as Orange Roughy and Patagonian Toothfish on board to have or apply for a permit to enter a South African port. The permit will not be granted unless the authorities are satisfied that the fish have not been taken illegally in the maritime zones of South Africa or another country. This can be established by means of a declaration of catch from the coastal State within whose waters the fish were caught, or if the vessel uses an ALC or an observer under South African control. See Molenaar and Tsamenyi (2000). [32] Article 18(1) states that: "A State whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with sub-regional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures." [33] Article 18(2). [34] Article 18(3)(b)(iv). [35] Article 19(1). [36] Even where a State is a member of a regional fisheries body, national legislation usually requires that the State take steps under its domestic law to give effect to rules adopted by such bodies. In order words, enforcing the rule is still a matter of national law, even through the source of the rule may be a regional or international agreement. [37] For a comprehensive discussion of legal aspects of satellite based vessel monitoring systems see Molenaar, E.J. and Tsamenyi, N (2000). [38] For example, 1995 UN Fish Stocks Agreement, Article 5(j), 18(3)(e) and (g)(iii) and Annex 1, Articles 5 and 6; FAO CCRF 7.7.3; IPOA on IUU Fishing paragraph 24.3. [39] See Keumlangan (2000). [40] Fisheries officers should be particularly conscious of rules that render certain evidence inadmissible (i.e. unusable in court). For example, the laws of many countries require an arresting officer to inform the person being arrested of his or her rights. If this is not done, later admissions or statements by the person arrested may be inadmissible. [41] See Freestone (1998). [42] For example in New Zealand in an unreported district court case of Deirdre April Lane (Fisheries inspector) v Michael Patrick Wallace of 11 September 1998, judicial notice was taken of the accuracy of a global positioning system (GPS). However, in a 1994 case (Ministry of Agriculture & Fisheries v Thomas [1994] DCR 486) the court ruled that GPS was not a notoriously scientific instrument. See Kuemlangan (2000). [43] Section 74. [44] Section 76. [45] Section 73(1). [46] Section 76. [47] For example, the U.S. Fisheries Conservation and Management Act makes it unlawful for any person to violate certain provisions of the Act; any person who does so is liable to the United States for a civil penalty. See section 1857 and 1858. This formulation replaces more typical language that a person is "guilty of an offence" which creates criminal liability. In New Zealand, administrative penalties may be imposed for minor offences where the fine does not exceed NZ$250,000 and the maximum penalty that can be imposed is one third of the maximum penalty to which the person would be liable if convicted in court. New Zealand, Fisheries Act 196 sections 113ZA-113ZC. [48] USC title 16, chapter 53. The Lacey Act was passed in 1900 and was named after its sponsor, Iowa congressman Lacey. [49] See Kuemlangan (2000). [50] See for example Agenda 21, Chapter 17, and the 1995 UN Fish Stocks Agreement, article 5(d)(e)(f) and (g). |
