INTRODUCTION

It is the duty of coastal States to ensure compliance with their fisheries laws and regulations by any persons or vessels operating within the waters under their sovereignty or jurisdiction and that of flag States to ensure that their flag vessels abide by applicable international conservation and management measures on the high seas. Effective law enforcement is critical if fisheries management objectives are to be achieved. To this end, States are required to establish appropriate measures and procedures to sanction any infringement of their fisheries laws and regulations. Experience shows that laws and regulations are poorly enforced in many parts of the world, thereby undermining the effectiveness of fisheries management. Thus, one may question the efficiency of criminal enforcement systems and wonder if the use of administrative sanctions in fisheries law might constitute a viable enforcement alternative. While the debate on this issue has so far been mainly confined to a few common law States, particularly in the United States of America, it seems that there is a growing interest in the issue. Section 21 of the International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA-IUU)^[1] provides that States have the responsibilities, inter alia, to: “ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. This may include the adoption of a civil sanction regime based on an administrative penalty scheme^[2].” In a recent report on the monitoring of the implementation of the common fishery policy^[3], the Commission of the European Union observed that “Member States with an administrative sanctioning system in place seem to have reached, on average, results more proportionate to the offences committed.”

Furthermore, the preparatory document for the revision of the Common Fisheries Policy^[4] emphasizes the need to “explore ways of improving the dissuasiveness of penalties for infringement, including “administrative” penalties such as loss of fishing quota, withdrawal of licences or repayment of financial aid for vessels which infringe fisheries regulations”^[5].

What is understood by administrative penalties or sanctions is likely to differ, to some extent, according to whether the legal system in which it is to be applied is of common or civil law tradition^[6]. However, in both legal systems, administrative sanctions are characterized by two major features. First, the power to impose such sanctions is vested in an administrative agency (not a judicial body) being part of the executive branch of government or an independent institution. Second, sanctions are imposed outside the judicial process. Hence, for the purpose of this paper, the concept of administrative sanctions refers to sanctions imposed by an administrative agency or an independent institution for breach of a regulation or rule established by that agency or institution or enacted by parliament without intervention by a court. As a consequence, the regulator is not required to prove a matter to the criminal standard^[7] and is not constrained by criminal court procedures. It thus provides for an alternative enforcement mechanism that can be more cost-effective, timely and practical.

Administrative sanctions may take different forms. They can be a warning, a suspension or revocation of an authorization, the loss of a fishing quota, a temporary ineligibility to apply for an authorization, the confiscation of gear, equipment, vessel, or catches, a monetary penalty, the closure of fishing facilities, the exercise of summary powers, or the repayment of financial aid for vessels which infringe fisheries regulations.

Use of administrative sanctions as an alternative enforcement mechanism is not a novel idea as it has long been used in other areas of the law, notably in customs, immigration, finance, trade and traffic violations. In Papua New Guinea, for instance, the Civil Administration Department and the Migration Office of the Department of Foreign Affairs and Trade are entitled to use administrative sanctions under the Aviation Act and the Migration Act respectively. It is also widely used in environmental and natural resources laws (e.g. forestry, water). In France and in most francophone African countries, compounding of offences by the administrative authority responsible for forestry is a standard provision in forestry law. The United States Federal Government makes extensive use of administrative enforcement systems conferring upon administrative agencies the authority to enforce statutes and regulations imposing administrative sanctions for violations. Fisheries as well as other economic sectors subject to federal management follow this model. For example, the Federal Drug Administration is authorized to impose administrative sanctions under the Food, Drug and Cosmetic Act.

The objective of this paper is to review fisheries legislation of countries of both the civil and common law tradition to determine the extent to which administrative enforcement systems are currently used in fisheries law and to assess whether such systems may be regarded as a viable alternative or necessary complement to criminal law enforcement. To this end, this document identifies and discusses the legal implications that use of administration sanctions may have. Further, it describes the various types of administrative sanctions, presents the advantage of using such a system and identifies the common features of existing systems. Finally, it attempts to provide some guidelines for the introduction of an administrative enforcement system in fisheries law.