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PART III: NOTES PREPARED BY PARTICIPANTS


COMPLIANCE WITH INTERNATIONAL FISHERIES LAW

by

Annick Van Houtte[120]

Sustainable development:

“...development that meets the needs of the present without compromising the ability of future generations to meet their own needs...”

Summary

We are faced with a rapidly growing wealth of international instruments which govern the utilization and conservation of marine living resources and the management of the marine environment. The core of international fisheries instruments have developed over a period of several hundred years. For the purposes of the Bangkok Workshop,[121] Michael Lodge prepared a paper entitled “Review of Factors of Unsustainability in Fisheries: Relationship to International Fisheries Instruments”. In this document he made an attempt to identify whether the main factors contributing to unsustainability in fisheries[122] are addressed in international fisheries instruments. In line with the paper and with the Workshop discussion, there was a general consensus that the international fishery instruments in existence address directly or indirectly many of the factors contributing to unsustainability in fisheries today. It was also generally acknowledged that the instruments require actions to be taken at global, regional and national level. The issue in question is one of implementation and compliance.[123] This paper attempts to look into the issue by looking briefly into the elements which prompted the development of international fisheries law over the last 50 years, the nature of those rules or forms of commitments and by touching upon a few impacts they had at global and regional level. It is hoped also that this will allow a timely reflection on whether the legal framework for fisheries governance needs to be improved.

1. HISTORY: WHAT ELEMENTS PROMPTED THE DEVELOPMENT OF INTERNATIONAL FISHERIES LAW OVER THE LAST YEARS?

1.1 Towards the 1982 UN Convention

The basis of the legal framework for ocean governance, in particular fisheries governance, lays in the 1982 UN Convention of the Law of the Sea (“the 1982 UN Convention”).[124] It may be asked what elements prompted the development of the rules over the last 50 years.

It goes without saying that the prevailing factor in the law making process was the economic interests of States. In addition the fishing industry is (and has always been) a market driven and increasingly dynamic internationalized sector.

In the early nineties, it became obvious that the old regime of “open seas” (“mare liberum”) developed by Hugo Grotius which dominated the approach to fisheries resources for the last 400 years was no more meeting the needs of the States. It was during and at the close of the Second World War that developments of new technologies began to require a corresponding development of new law. In 1946, the two Proclamations of President Truman of the United States focused attention on two basic problems: the conservation of stocks in the then so-called high seas, and the exploration and exploitation of the resources of the seabed and subsoil of the continental shelf under the high seas. Both Proclamations foreshadowed solutions by extending, out into the area of the high seas the national jurisdiction of the coastal state. The First and Second United Nations Conferences on the Law of the Sea (UNCLOS I and II) constituted the first efforts to codify the international law of the sea and to create a harmonized system of ocean governance. From then on, the rapid development of science and technology, the economic interests, the security concerns and the escalation of claims of extended jurisdiction prompted States to take unilateral actions with regard to limitations of jurisdiction.

It was against this background that the UNCLOS III started in 1973, the outcome of which was in the 1982 UN Convention. That the Conference in itself lasted so long is not surprising and is to be related to the on-going State practices during the negotiations. The 1982 UN Convention was the only way to rationalise the competing claims in a manner that would address the:

While the 1982 UN Convention was still negotiated and until the Rio Conference on Environment and Development in 1992 a number of other instruments, regulatory and technical instruments related to ocean governance, covering/impacting on fisheries resources were established through global and regional organizations.

Regional developments took place driven by the need for conservation of marine living resources and, if possible, for development of fish stocks and for fairer distribution of yields, by good and informed management. To list a few, these include the:

Rules for ocean governance going beyond the 1982 UN Convention developed under many instruments and under the auspices of global and regional organizations. Among these must be included those instruments which deal inter alia with the following issues:

All instruments make an important contribution to the overall system of ocean governance.

Meanwhile catch effort and capacity continued to increase beyond levels of available fish, coastal states tended to protect stocks off their coasts for food security, income generating and employment purposes. Coastal States wanted their special interests in the protection of the resources recognized. Obviously, in contrast, distant-water fishing states were seeking protection of their access rights to high seas resources. The world became conscious that “the problem of the ocean space were closely interrelated and need to be considered as a whole”[130]

The 1992 United Nations Conference on Environment and Development

As was the case with the United Nations Conference on the Human Environment, in 1972 in Stockholm, the first international meeting to address the issue of the environment, the United Nations Conference on Environment and Development held at Rio de Janeiro in 1992[131], through its expression of concern for the need to find a balance between the protection of natural environment, human well being and economic development, constituted a landmark and provided an impetus and a basis for the development of new instruments relating to ocean governance, and in particular more recently to fisheries governance.

The 1992 UN Conference considered a number of complex concepts such as intergenerational equity, sustainability, and precaution. Sustainability of fisheries resources is supported not merely to satisfy future needs of those currently living but for future generations as well. The underlying basic concept of Agenda 21 is that natural systems interact, that human activities are capable of undermining those systems with consequential damage to human well being. Rio’s Declaration of Principles recognizes the Earth as having an “integral and interdependent nature”.[132] Marine fisheries were addressed in the broad context of the wider natural environment.

The 1992 UN Conference adopted a Declaration of Principles[133] and a detailed Plan namely Agenda 21, under which Chapter 17 deals with ocean governance, including fisheries resources.[134] It stresses the need for approaches that are “precautionary and anticipatory in ambit” and emphasises specifically the relevance of precaution in the oceans environment.

The 1992 UN Conference and the adoption of Agenda 21 led to a number of institutional developments within the UN system:

1.2 Developments in international fisheries law since the 1992 UN Conference

A number of new legal instruments that affect international governance of marine fisheries have been developed and adopted since the 1992 UN Conference, incorporating basic principles and concepts expressed in the Rio Declaration and Agenda 21, Chapter 17.

Indeed, international law makes a distinction between “hard law” and “soft law” instruments. Both are products of careful negotiation but while the former are binding among the State parties the latter is not. However the latter is often the reflection of an emerging consensus and an emerging principle which may result in a binding instrument or customary international law. Some think also that soft law may constitute a basis for interpretation of hard law instruments.[135]

Michael Lodge in the paper which he prepared for the Bangkok Workshop 2001,[136] has examined several of those post 1992 UN Conference instruments against the factors of unsustainability.

Hard law developments include the:

Soft law instruments include:

In the area of our concern, the soft law instruments contribute to the evolving regime for world fisheries. The Code must be viewed as fruit of an international consensus and as a tool, a framework for dealing with fisheries problems worldwide. While the contents of the Code were being negotiated, the contents of the 1995 FAO Compliance and the UN Fish Stocks Agreements were being also respectively defined. The discussion around the Code helped in particular in the adoption of the latter agreement.

The Code has affected and will continue to affect the work of regional fisheries bodies, existing ones and newly emerging ones. The Code gains increasing support at national and local level. The response of the international community to concerns of overfishing, depleted stocks, irresponsible fishing practices shows the impact of non binding instruments and some rules it contains.

Implementation of these instruments should have a considerable impact on sustainability of fisheries resources. All depend on how they are being executed. Among these instruments some are more proactive and maybe practical, in other words more likely to influence behaviour of States. International attempts are made to address compliance related issues. Most instruments call primarily for actions by States but also by regional fisheries bodies. It may thus not be forgotten that the final outcome will depend on how provisions and plans are being executed because after all institutions are not ends in themselves but necessary instruments largely in the hands of States to perform specific duties.

The IPOA on IUU fishing and UN Fish Stocks Agreement may very briefly illustrate some of the above aspects.

The UN Fish Stocks Agreement represents an effort in the progressive development of international law on fisheries: it facilitates implementation of certain provisions of the 1982 UN Convention, it strengthens certain provisions. With respect to enforcement and in the light of the focus on the role of regional fisheries bodies, it should be noted that specific enforcement related roles are provided to port States and to States party to a regional agreement in addition to flag States to the extent that the concept of exclusive jurisdiction over vessels flying State’s flag on the high seas is being slowly eroded. The Agreement has entered into force but key high seas fishing States have not ratified or acceded to the Agreement. One may recall that the Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva 1958, which sought to create duties for fishing nations to cooperate with respect to fishing on the then called high seas, also entered into force but obtained only some degree of support and was not widely implemented. Notably it was not ratified by at the time important fishing nations.

The IPOA on IUU fishing contemplates a number of different problem areas, identifying roles for flag States, coastal States and port States and increasing awareness of the need for effective monitoring, control and surveillance of fishing activities from catch to landing and final destination.[148] While the flag State responsibility is emphasized, as well the role of regional fisheries bodies in monitoring control and surveillance through observer schemes, port State responsibilities have been outlined. Port States are viewed as important participants in the collective effort to combat IUU fishing. It appears to have the capacity to collect relevant information and to conduct inspection of foreign fishing vessels entering its ports. Port States may channel information on IUU activities of a foreign fishing vessel to its flag State, eventually a coastal State and a regional fishing body. Port States can provide an alternative source of sanctions in situation where a flag State is unwilling or unable to act. A link is finally made between trade and IUU fishing as a call is made for limiting market opportunities for IUU fish. Several developments are taking place to implement this action plan, at national and regional level. For instance decisions are being adopted by regional fisheries bodies to implement elements of the Plan.

There are for instance some global attempts to address the issue of Flag of Convenience vessels in relation to IUU fishing by strengthening the flag State obligations. New avenues are explored in order to deal with this challenge. CCAMLR (Convention on the Conservation of Antarctic Marine Living Resources) in 2002 has implemented the concept whereby States notorious for having flagged vessels engaged in IUU fishing should be identified, as it is “convenient” to use some specific flags to avoid being bound by conservation and management measures. A new terminology of “Flag of Non-Compliance” (FONC) has been introduced. It implies that Contracting Parties and non-Contracting Parties cooperating with CCAMLR should prohibit landings and transhipments of fish and fish products from FONC-vessels.[149] Some RFOs[150] and States (e.g. Canada) already operate lists of vessels regarded as being IUU-vessels.[151]

It may be asked whether the implementation of the Plan will be more successful than of the UN Fish Stocks Agreement. This shows that implementation and compliance of an international instrument is not always a matter of a binding or not binding instrument, or of accession or ratification. It may be a simple matter of concerns or of different interpretation of concepts. The issue relating to the potential development of preferential rights of coastal States in case of straddling fish stocks or highly migratory fish stocks is of concern for those fishing nations most actively participating in high seas fishing. It is highly likely that this is one of the reasons why many of them have not ratified the UN Fish Stocks Agreement.

The impact of a concern may also be illustrated when looking into the compliance to the General Assembly Ban on Driftnet Fishing[152] which originated following the particular concerns of a few group of States despite uncertainties surrounding the true environmental impact of driftnet fishing and the few areas where driftnet fishing extensively occurred. Some factors have contributed to its success: concerns arose at the time the concept of “sustainable development” was becoming influential, the United Nations monitored continuously the implementation of the ban with the assistance of States, through reports of other international organizations and NGOs; the regional initiatives (the Wellington Convention, 1989)[153] which preceded the adoption of the resolutions, the prominent role played by the United States to enforce the resolutions, the EU responses[154], and finally the various progressively positive driftnet fishing States responses.[155]

Yet the absence of consensus on a concept may also delay effective and harmonized implementation. It is sufficient to observe the evolution of the “acceptance” of the “precautionary principle” or even “precautionary approach”. While the principle seems to be recognized, there is still disagreement on how this principle should be defined and how it should be applied to the wide variety of situations. Some argue that it is hard to establish a universally applicable definition that is more meaningful or useful than “take care” or “better safe than sorry”.[156] Some States seem more comfortable referring to a “precautionary approach” rather than a “precautionary principle” hoping that this term will allow more flexibility.[157] Both the UN Fish Stocks and the Code of Conduct for Responsible Fisheries elaborate on the precautionary approach. The Code invites to a wide application of the approach to conservation, management and exploitation of fishery resources and provides that the absence of adequate scientific information should not be used as a reason for postponing or failing to take conservation and management measures.[158] As a general principle, coastal States and States fishing on the high seas have a duty to apply the precautionary approach in order to conserve and manage straddling fish stocks and highly migratory fish stocks under UN Fish Stocks Agreement. The approach is further explained in Article 6 of the Agreement. Both instruments address target and limit reference points and indicate that the approach of maximum sustainable yield alone is not sufficient to avoid overexploitation. There is a need to consider a wide range of factors which go beyond the fish stock and the fishing activity. In contrast, the Appellate Body of the World Trade Organization has a more cautious interpretation of the precautionary principle and still seems to question whether the principle has crystallized into a general principle of customary international law.[159]

This shows that the repetition of a concept in various instruments or judicial fora can give or not give rise to, and express eventually the “opinion juris” of the international community.

1.3 The World Summit on Sustainable Development: salient features

The World Summit on Sustainable Development in Johannesburg, South Africa from 2-4 September 2002 (WSSD) reflects and strengthens the concepts found 1992 Rio Declaration of Principles and reaffirms the commitment to sustainable development. Johannesburg WSSD gives an additional impetus to the concept of sustainable development by addressing the problem of poverty. While the global environment continues to suffer, poverty eradication is considered an “essential requirement for sustainable development”.[160] A strong link is made between poverty, the environment and the use of natural resources.

It moves further from a reactive mode to a proactive mode to attain sustainable development: governments agreed on a wide range of concrete commitments and targets for action within a timeframe, supported the establishment of a world solidarity fund for the eradication of poverty, paid special attention to the development needs of Africa and in the key role that partnerships initiatives, such as the new Partnership for Africa’s Development (NEPAD) can play in achieving the objectives of sustainable development.

Under the Johannesburg Plan of Implementation,[161] oceans and fisheries are considered primarily under the general chapeau of “Chapter IV on the Management of the Natural Resource Base”. After reaffirming that “oceans, seas, islands and coastal areas form an integrated and essential component of the Earth’s ecosystem and are critical for global food security”, Chapter IV (paragraphs 30 etc.) calls firstly upon effective coordination and cooperation and actions at all levels i.e. national, regional and international, to ensure sustainable development of the oceans. States are invited to ratify or accede to and implement the 1982 UN Convention[162]. Cooperation and coordination should aim at: promoting the implementation of chapter 17 of Agenda 21, establishing an effective, transparent and regular inter-agency coordination mechanism on ocean and coastal issues within the UN system, encouraging the application by 2010 of the ecosystem approach, promoting integrated coastal and ocean management at national level, to strengthening cooperation between regional organization and programmes, assisting developing countries in coordinating policies and programmes at regional and sub-regional level aimed at sustainable fisheries development and implementing coastal area management plans.

In a second instance[163] the Chapter deals with actions required at all levels to achieve sustainable fisheries resources. On an urgent basis and where possible by 2015, depleted fish stocks should be maintained restored to levels that can produce maximum sustainable yield. A general invitation is made to ratify or accede to relevant and, where appropriate, associated regional fisheries agreements or arrangements. While drawing the attention to the special needs of developing countries, an impetus is given towards enhancing the implementation of the FAO Code of Conduct, its Technical Guidelines and its IPOAs. The putting into effect of the IPOA on IUU by 2004 and the IPOA for the Management of Fishing Capacity by 2005 is particularly urged. A number of special issues are addressed, including the need for the development of effective monitoring, reporting and enforcement, for control of fishing vessels, “including by flag states”. Furthermore, regional fisheries management organizations and arrangements should pay particular attention to the duties, rights and interest of coastal states, and the special requirements of developing states when dealing with allocation patterns for straddling and highly migratory fish stocks. A general call is made to eliminate subsidies, especially those contributing to IUU fishing and over-capacity. Finally there is a general recognition of the need for sustainable aquaculture development in the light of its increasing contribution to food security and economic development. It may be asked what the impact will be of this paragraph 31 of the Johannesburg Implementation Plan.

Thirdly the promotion and management of oceans in general are considered dealing with several aspects in a piecemeal manner.[164] There is the general recognition expressed of the need including for:

A fourth paragraph under this Chapter IV is dedicated to the enhancement of maritime safety and protection of the marine environment from pollution by actions at all levels.

The need for improving the scientific understanding and assessment of marine and coastal ecosystems (living and non-living resources) as a fundamental basis for sound decision-making is also emphasized. To address this need, by 2004 of a global reporting and assessment of the state of the marine environment should be established. Emphasis is also put on the need for capacity-building activities including at national and local levels in marine science and the sustainable management of oceans and their resources.

To summarize, the Johannesburg Plan:

2. SOME CONCLUSIONS

Where should/will we be going from here? International and national governance of fisheries is in the middle of a change: it moves from a traditional freedom of seas towards... a more purposeful managed system.

The 1982 UN Convention remains the basic instrument for fisheries governance but may require future elaboration in the light of contemporary events and needs.

The most recent instruments appear to suggest that focus in the near future with respect to fisheries will be set on:

There is no recipe for success that will ensure implementation of international instruments and there is still an important discrepancy between commitments and action, in other words there is a concern about the willingness of States to accept and act upon instruments.

Both soft law and hard law instruments attract compliance by targeted members of the international community at different rates however. It may be asked whether differences between compliance with soft law or hard law instruments are expected by those concerned. While from a strictly legal point of view, although the lack of a binding form may reduce the options for enforcement in the short term (i.e. no litigation), one may not deny that factors that influence compliance seem to overlap: such factors include the environment in which the rules are created and operate, the relationship between the rules and the practices it is to order, the transparency of the rule (e.g. the clarity of the obligation), the degree of support for the rule among affected members (including how free riders problems could be addressed), degree of political and economic support, the legitimacy of the process by which the rule was created, the capability (structural and economic capabilities) of the objects of the rule to conform to it, the foreseeable consequences of non compliance, including sanctions. Not all the factors will be relevant nor will all the rules be equally influenced by all these factors.

Furthermore, it should be noted that to further ensure compliance political, economic and other pressures can be equally exercised on those who tend to ignore the rules whether these are embodied in a hard or soft law instrument. Needless to add that legal remedies (e.g. third party dispute settlement) are rather avoided in favour of “non legal” remedies (e.g. negotiation).

Both non binding and binding text can suggest the adoption of necessary legislation at national level.

Finally States retain the ultimate control over the level of commitment attached to an international instrument and this may affect the level of compliance to such instrument too.

SOME IDEAS RELATING TO FISHERY SUSTAINABILITY

by

Anthony Charles[166]

Summary

This brief ‘paper’ is not so much a paper per se but rather an annotated collection of eight ideas that this author has found useful in thinking about factors of unsustainability in fisheries, and paths to sustainable solutions. More details on the material here may be found in Charles (2001).

Resilience

Discussions of sustainability are being increasingly linked with the concept of resilience. The idea of resilience was first introduced to describe the capability of ecosystems to absorb unexpected shocks and perturbations (whether due to natural or human actions) and ‘bounce back’, without collapsing, self-destructing or otherwise entering an intrinsically undesirable state. As Holling (1973, p.17) wrote: “Resilience determines the persistence of relationships within a system and is a measure of the ability of these systems to absorb changes of state variables, driving variables and parameters, and still persist.” The concept of resilience applies beyond ecosystems, implying that not only the relevant ecosystem, but also the human and management systems are able to absorb shocks, such that the system as a whole sustains (on average) a reasonable flow of benefits over time. Thus the various components of sustainability have resilience counterparts, which must equally be taken into account. In a fishery, we can envision resilient fishing communities, a resilient economic structure in the fishery, a resilient ecosystem in which the fish live, and resilient management institutions. A key issue, then, is: What policies and management approaches contribute both to sustainability and to resilience in fisheries? For example, Folke and Berkes (1995, p.132) argue that to build resilience into institutions, “The task is to make institutional arrangements more diverse, not less so; to make natural system - social system interactions more responsive to feedbacks; and to make management systems more flexible and accommodating of environmental perturbations”.

Attitudes

Unsustainability in fisheries has been blamed on a wide range of factors, including over-fishing predators, cold water, destructive gear, government management, stock assessments problems, and politics. But underlying much of this, a common thread appears: the prevailing attitudes in the fishery - attitudes about nature, about management, and about how the fishery should function. Attitudes are popularly viewed as something personal (for example, whether or not there is a ‘conservation ethic’ among fishers), but in fact attitudes arise equally importantly at an institutional level (e.g., in fishery science, in the design of management measures, in industry, and in fishery organizations) - where they have the greatest impact on fishery decision making. Such attitudes may have been driving forces in unsustainable fisheries. Charles (1995) discusses some of these attitudes, under the headings: ‘burden of proof’ (application of the Precautionary Approach), ‘conservation can wait’ (use of built-in processes that delay conservation actions), and ‘the system works’ (a belief in the fundamental validity of the fishery management system). Related to these are the Illusion of certainty and the Fallacy of controllability, discussed below.

Illusion of Certainty

While the great uncertainties inherent in fisheries are well documented, some management systems exhibit a tendency to ignore major elements of uncertainty, so that far from recognizing and working within the bounds of this uncertainty, management may create an ‘illusion of certainty’ that leads to the opposite result. Suppose, for example, that in quota management, we set a TAC, sub-divide it among sectors or fishers, and treat the resulting allocations as fixed within the fishing season. This process may suffer from an illusion of certainty, in that an impression is created of the TAC as a well-established ‘pie’ that can be cut into several precisely-determined shares, and that is sacrosanct, with fishers literally ‘banking’ on these shares. This perspective, downplaying inherent uncertainties in the fishery, has led to conservation problems in the past. In contrast, an approach of ‘living with uncertainty’ might involve adaptive management approaches, in which fishing plans, and individual ‘fishery business plans’, are designed to adjust to unexpected changes in the natural world.

Fallacity of Controllability

Fisheries can be only partially, and imperfectly, controlled. Unfortunately, this reality is by no means universally recognized - a ‘fallacy of controllability’ is often in place, reflecting a sense that more can be known, and more controlled, in fisheries than can be realistically expected. For example, successful quota management requires an ability to enforce the quota, and an ability to prevent dumping of fish that may lead to discrepancies between landings and catches, among other things. However it is not uncommon to implement a TAC without having satisfied these preconditions. The resulting lack of control the manager has over the actions of fishers and, by extension, over the quality of fishery data collected, may lead to unsustainability. Overcoming the fallacy of controllability leads us to focus on the challenge of developing management measures to optimize overall sustainability of inherently uncontrollable fisheries.

Robust Management

In a world where the limitations on what is possible through fishery management are beginning to emerge clearly, one ingredient in moving toward sustainability and resilience lies in pursuing robust management - providing ‘reasonable’ success in meeting society’s objectives, even if (a) our current understanding of the fishery (notably the status of the resources), its environment and the processes of change, turns out to be incorrect, and/or (b) the actual capability to control fishing activity is highly imperfect. In other words, a robust management system is one in which obtaining reasonable performance from the fishery (i.e., an acceptable level of success) does not depend on perfect knowledge of the structure and dynamics of the system, nor of all variables. Clearly this is not easy to achieve: moving toward robust management would seem to require more than minor changes - indeed, a re-thinking of the philosophy of management, and a re-assessment of current management approaches.

Management Portfolios

A wide array of management measures is available in fisheries, each with its advantages and disadvantages. An over-emphasis on any single measure is unlikely to lead to sustainability and resilience, as there will always be some situation in which any such method fails - whether dumping and highgrading with quota management, an inability to control enough fishery inputs with effort management, or excessive exploitation on unprotected parts of the stock (or distinct sub-stocks) with closed seasons and closed areas. The point is that any single management measure cannot be considered ‘safe’. A portfolio (set) of mutually-reinforcing management tools is needed, selected on a case-by-case basis, taking into account society’s objectives, biological aspects of the resource, human aspects such as tradition and experience, the level of uncertainty and complexity in the fishery and the predicted consequences of the various instruments.

Efficiency

Misinterpretations of the idea of efficiency can lead to policy decisions that fail to properly balance the various components of sustainability. A proper view of efficient policies are those that ‘do the most with what we have’ - those that best meet society’s objectives given the existing constraints. Hence, the pursuit of efficiency is desirable, by definition. However, pursuit of efficiency is meaningless, and potentially misguided, without clearly defining what objectives we are pursuing. In particular, it is sometimes thought that efficiency means generating the most profits (or rents), but this is not the case unless the fishery has no other goals (e.g., employment, community health, safety, etc.). In other words, it is only when we decide the balance among the many fishery objectives that we can properly refer to what makes an ‘efficient’ fishery. Without this, claims of greater ‘efficiency’ for one policy over another may merely reflect the personal preferences of those advocating the policy.

Economic/Livelihood Diversification

Economist Ian Smith (1981: p.22) pointed out long ago that often fishery management programs “fail to deal adequately with fishermen who are displaced” and that accordingly policies to deal with over-exploitation and over-capacity by reducing the number of fishers may well aggravate the fishery problem. The challenge of livelihood diversification is by no means simple, yet efforts in this direction seem critical to the success of programs for sustainable fisheries. Such efforts will typically be composed of within-fishery and non-fishery actions. First, within the fishery, it can be useful to encourage multi-species fishing, in which each fisher utilizes a range of fish resources, in contrast to policies that lead to specialization in single-species fisheries. By diversifying across sources of fish, the individual fisher reduces risks, and the collective pressure to over-exploit may also be reduced. Second, looking beyond the fishery per se, it can be useful to encourage multiple sources of livelihood for fishers (with fishers holding a range of jobs in addition to fishing). This is common as a traditional practice in many seasonal fisheries, and lets fishers avoid total reliance on fishing for their income, reducing the pressure they would otherwise face to obtain a livelihood entirely from the fishery, and thus reducing pressure on the fish stocks. Third, there is a need to diversify the coastal economy, by creating new, sustainable economic activity outside the fishery sector (e.g., fish farming, coastal tourism). This enhances the range of available livelihood choices and tends to increase income levels outside the fishery, so it is more attractive for fishers to leave the fishery, and incentives for others to enter are reduced.

REFERENCES

Charles, A.T. 1995. The Atlantic Canadian groundfishery: Roots of a collapse. Dalhousie Law Journal, 18, pp. 65-83.

Charles, A.T. 2001. Sustainable Fishery Systems, Blackwell Science, Oxford United Kingdom, 384 pp. 2001.

Folke, C. & Berkes, F. 1995 Mechanisms that link property rights to ecological systems. In: Property Rights and the Environment: Social and Ecological Issues (S. Hanna, M. Munasinghe) pp.121-137. Beijer International Inst. of Ecological Economics, World Bank. Washington, United States.

Smith, I.R. 1981 Improving fishing incomes when resources are overfished. Marine Policy, 5, pp. 17-22.

OVERVIEW OF PRAWN AND NILE PERCH (LATES NILOTICUS) FISHERIES
SUSTAINABILITY IN TANZANIA


by

T.W. Maembe[167]

Summary

The artisanal fishermen dominate the exploitation of fisheries resources in Tanzania. They catch more than 90 percent of fish both in freshwater and marine waters. However the fisheries resources are being threatened by increase of population, environmental degradation and poverty, among others. This paper addresses issues of un-sustainability and over-exploitation on the prawn and Nile perch fisheries resources of Tanzania.

1. BACKGROUND

Tanzania is surrounded by four major water bodies namely the Indian Ocean and the three great lakes of Africa which are Lakes Victoria, Tanganyika and Nyasa. The country has diverse river systems, numerous wetlands and other minor waters. The major and minor water bodies have made the country to have a significant production in both marine and freshwater fisheries resources.

The fisheries sector is a source of employment, income and food/protein, among others to millions of Tanzanians. The sector contributes around 2.8 to the National Gross Domestic Product (GDP) and over 12 per cent to foreign exchange earning. More than 80 000 fishermen are full time employed in the fisheries sector and a few millions derive their economic livelihood from the sector in one way or another in fisheries related activities. It is also a source of recreation, tourism and foreign exchange earnings.

In terms of animal protein availability, fish and fishery products contributes about 30 percent of the total animal protein intake. The said intake is significant because the majority of the consumers are relatively low- income earners who cannot afford other more expensive sources of protein. Currently there is a growing demand for fish created by increase in population growth estimated at 3.5 percent per annum.

The present potential yield is estimated at about 730 000 metric tonnes from both marine and freshwater fisheries. However, the present annual fish catch is estimated at about 350 000 metric tonnes suggesting that there is room for increased fish production.

Current data shows that certain traditional fisheries are either being fully or nearing full exploitation. These include Nile perch fishery from Lake Victoria and Prawn fishery from the coastline of the Indian Ocean. While efforts are being made to develop new fisheries in such areas as the Exclusive Economic Zone (EEZ), the currently exploited fisheries need to be managed wisely to sustain production and improve handling and processing to reduce fish post harvest losses in order to meet the needs of the growing population and future generations and in this way contribute to the national food security. This step is in line with the overall goal of National Fisheries Policy, which is to promote conservation, development and sustainable management of the Fisheries resources for the benefit of present and future generations”.

2. DESCRIPTION OF COASTLINE (MARINE WATER) AND THE PELAGIC LAKE VICTORIA FISHERIES

2.1 Coastline fisheries

Tanzania mainland has a coastline of about 800 km long of the Indian Ocean. The coast has a narrow steeply falling continental shelf. The fishing industry is mainly artisanal and fishing is concentrated close to the shore due to the limited range of the fishing craft at the disposal of the fishermen.

The marine fisheries support about 19 293 artisanal fishermen operating with a total of about 4 522 fishing vessels (mostly canoes) and landing an average of 61 241.17 tonnes of fin fish and about 1 173 tonnes of prawn per year. Both artisanal fishermen with poor fishing craft and industrial trawlers are harvesting the marine fisheries, especially the prawn fishery. The artisanal fishermen can only operate in the shallow waters less than three meters deep while trawlers can fish in areas from three meters or less to more than 20 meters deep.

Tanzania has prawn resources located in Rufiji delta, the Mafia channel, Ruvu, Wami and Pangani areas. Stock assessment conducted in 1990 has indicated that the maximum sustainable yield (MSY) of prawn resources is between 1 000 and 1 500 tonnes per year.

2.1.1 Factors contributing to un-sustainability and over-exploitation

The presence of prawn trawlers has increased the fishing effort and competition on exploiting the limited prawn resources. The artisanal fishermen have been marginalized to operate in shallow waters due to the fact that they operate with poor fishing vessels, mainly non- motorized canoes. Furthermore due to the increase in population the demand for prawn resources is increasing to meet the demand for domestic and foreign markets. The increase in demand would lead to increase of fishing efforts and fishermen would tend to use small mesh size nets to try to increase catches to meet the market demand but this will lead to over-harvesting of the stocks.

2.2 Nile perch fishery of Lake Victoria

Lake Victoria is a shared water body by the three riparian countries of Kenya, Uganda and Tanzania. The lake covers a surface area of 68 800 km2 and an adjoining catchment of 184 000 km2. The Tanzania sector of the lake covers approximately 51 percent while Uganda covers 43 percent and the rest 6 percent is on the Kenyan portion. The lake is of great value to the people of Tanzania and to their economic and social development. Fishery production from the Tanzanian side is about 170 000 tonnes annually, which is equivalent to 60 percent of the total inland production. The fishery of Lake Victoria provides food to more than four million people living in the Tanzanian catchment. About 55 985 full time fishermen operating a total of 15 434 fishing vessels and an estimated 500 000 people are employed formally and informally in fisheries related activities.

The total export of fish and fishery products from Lake Victoria for the last five years (1997 to 2001) was 172 359.7 metric tonnes valued at USD 343 428,141.5 (F.O.B value) of which the Fisheries Division received a total of Tshs 14.61 billion as Royalty. Biologically, Lake Victoria is of scientific interest as it harbours some endemic fish species. It is also an important source of water for domestic, industrial and agricultural use.

2.3 Factors contributing to unsustainability and overexploitation

The Lake is however, under intense pressure arising from human activities and natural processes. The lake has one of the fastest growing urban and a rural population in Africa. The multiple activities arising from this population has resulted into serious environmental problems. The most obvious one being poverty, declining water quality due to eutrophication, rapid disappearance of indigenous fish species, increase of fishing efforts, frequent fish kills, water hyacinth infestation and algae blooms. Water hyacinth infestation is interfering with fish breeding sites, landing beaches, lake transport and lake ecosystem. All these environmental threats may in the long run lead to a serious loss of income to the artisanal fishermen, loss of food/protein and loss of foreign exchange to the national economy.

The other factors contributing to unsustainability and overexploitation of prawn and nile perch resources include:

3. MEASURES TAKEN BY THE GOVERNMENT

The Government has taken measures aiming at managing the prawn and Nile perch fisheries resources in a sustainable way, these include the following.

4. CONCLUSION AND RECOMMENDATIONS

4.1 Conclusion

The increase of human population and poverty are the major factors contributing to un-sustainability and over exploitation of fisheries resources (natural resources). Unless the international community addresses these major factors the environmental degradation and loss of socio- economic gains would continue with significant negative impact to the people, particularly in third world countries.

4.2 Recommendations

The International community should support the national/regional programs on poverty alleviation; control of population growth; sustainable management of fisheries resources; and the environment.

FAO and the International Community should provide technical and financial support to strengthen national and regional capacity to implement the FAO code of conduct for responsible fisheries, the compliance Agreement, the International Plan of Action for the Management of Fishing Capacity and the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA - IUU).

ECUADORIAN FISHERIES

by

Rafael Trujillo[168]

Summary

This short document summarizes some factors of unsustainability and over-exploitation in coastal artisanal and oceanic purse seine tuna fisheries in Ecuador in recent years, within national and regional frameworks respectively.

1. INTRODUCTION

Fisheries are a very old activity in Ecuador. However, in the last 20 years it became a very important one socially and economically. Marine fisheries and aquaculture together are the second source of private exports in Ecuador. Total average catch in Ecuador is about 500 000 tonnes a year over the last decade, with an approximate value of one thousand million US dollars in exports, comprised of: 34.8 percent shrimp aquaculture; 32 percent canned tuna and small pelagics; 18.3 percent fish oil and flour; and 14.5 percent in fresh and frozen fish. There are an estimated 400 000 workers directly related to aquaculture and fisheries activities. Ecuador’s population is 11.5 million.

Ecuador’s fishery activity growth is due to private sector initiative, rather than to political planning. From my point of view, lack of interest in the last 20 years from the highest government spheres is due mainly to a very special circumstance. Ecuador, despite being a small country, is divided into two very well defined political and geographic zones: the mountains, where the capital Quito is located, and the coastal zone represented mainly by Guayaquil, the largest city and where the centre of industry and commerce is located. The country is politically driven from the capital in a very centralized way. Politicians and bureaucrats are traditionally careless about typical coastal production activities.

Despite the fact that several hundreds of million dollars come from fish and aquaculture exports, less than 0.05 percent is returned for research and fisheries administration. This is why growth of fishery activity is due mostly to the private sector’s initiative rather than government’s. The lack of money from the central government has partially been solved by self-administration fees.

My experience as former Sub-Secretary of Fisheries (an office that happens to be the only national jurisdiction government office out of the Capital), showed me very soon that we had to work alone, away from the central government, but co-managing fisheries with stakeholders.

After having made this introduction, I must say that although there are many other fisheries sub-sectors such as shrimp aquaculture, trawl prawn fleet, and longline oceanic fisheries, I will only focus this brief paper on two fisheries activities: the national coastal artisanal fishery, and the regional oceanic purse seine tuna fishery.

2. COASTAL ARTISANAL FISHERIES

There are in Ecuador about 60 000 artisanal fishermen and 16 000 boats. Approximately 66 percent of the boats are motorized. There are 138 fishing ports.

In the last two decades, growth in artisanal fisheries was uncontrolled. In early 2000, a regulation banned construction and importation of all kinds of vessels, except to replace another vessel already authorized to fish. Hard work has been done in order to successfully control and make fishermen comply with this resolution in purse seine and long line tuna fleets, as well as in trawl prawn and small pelagic boats. However, compliance in the artisanal fisheries has been much more difficult. Because construction of artisanal boats is done along the entire Ecuadorian coast, and naval authorization is not required for these boats to go out and fish, it has been impossible to secure compliance with this regulation by the artisanal fleet.

Controlling the artisanal fleet is also the most difficult issue in other fisheries management measures adopted by the fishing authorities for several reasons: lack of other sources of work; lack of awareness in stakeholders about the necessity of adopting those decisions; and lack of enough inspectors to control compliance of so many fisheries participants. Because the government has no money to improve fisheries budget, and has never been able to offer alternative activities, especially in the case of closures, the Sub-secretariat of Fisheries decided that the best way to address some of these problems, was to implement a program of conservation and management seminars to artisanal fishermen since 2000. For the first time ever, the government paid attention to this kind of activity in the artisanal fleet. These seminars have included some elements of responsible fisheries contained in the FAO Code of Conduct, as well as training in technical fishery improvements. Hundreds of seminars have been given during 2000 - 2002.

Managing measures like shrimp closures in the last three years, total prohibition of prawn grub catching along the coasts; six month lobster closure; 45 days, twice a year, crab closures and other small pelagic and shell conservation measures were adopted in consensus with artisanal stakeholders and controlled in a relatively successful way. Monitoring, control and surveillance were also done in a co-participated manner with stakeholders.

3. OCEANIC TUNA PURSE SEINE FISHERIES

Tuna fisheries in Ecuador began in the 1940’s, but it has only been since the early 1990’s, when foreign and local tuna canneries were installed in the main fishery port of Manta and in Guayaquil, that spectacular growth occurred. Ecuador entered the Inter-American Tropical Tuna Commission (IATTC) in 1963 and left the organization in the late 60’s because of difficulties in paying its financial contributions. It re-entered the IATTC in 1997, when industry fishermen realized that Ecuador could not stay out of this highly migratory species regional organization any longer. Industry also assumed the country’s annual financial contribution.

The Ecuadorian tuna fleet has 83 vessels with a carrying capacity of more than 18 000 tonnes, excluding some 30 long line and cane vessels of not more than 2 500 tonnes.

IATTC, as the most important Regional Fisheries Organization (RFO) in the Eastern Pacific Ocean (EPO), despite normal problems, has been working quite well. IATTC is also the Secretariat of the International Agreement for the Dolphin Conservation Program (IADCP) signed in Washington in 1998.

In the last years, in IATTC we have taken important management measures to assure sustainability and stop over-exploitation of tuna species. Closures for big-eye and yellowfin tuna have occurred in the last years. Despite non-compliance with the measures by some individual stakeholders, in general there has been a good level of commitment, which should improve in the near future. However, as we will see in number 4, there is a very big concern with other level of none compliance issues.

One of the biggest challenges of IATTC is to try to stop the growing purse seine tuna fleet. It took more than two years to negotiate a definitive fleet moratorium resolution, which was adopted in June 2002 in Manzanillo, Mexico. Implementation of the resolution has begun in recent months. No new purse seine tuna vessel can enter into the tuna fishery in the Eastern Tropical Pacific Ocean, unless another one goes outside the EPO or has sunk. In this case, the replacement vessel’s carrying capacity cannot be any larger that the replaced one. Quotas allocated on the basis of individual countries have been eliminated in favour of a regional register where listed vessels can move from one country to another. The resolution is far from perfect, but it has been a very good start to reducing fleet capacity in a few years to a recommended 135 000 tonnes, from more that 180 000 tonnes.

An example of another important management measure adopted has been prohibiting discards of fish at sea, which has been implemented in Ecuador and other IATTC participant countries.

All vessels more than 400 tonnes carrying capacity have an IATTC Observer on board. As IADCP statutes, member countries can also have their own Observer Programs to monitor up to 50 percent of fishing trips. Until now, four member countries have done so. Ecuador started its own Observer Program in year 2001, and currently successfully monitors 33 percent of Ecuadorian purse seine tuna vessel trips.

4. CHALLENGES IN IATTC

A major challenge that IATTC has in the future is how to deal with the absence of consequences for members and other participants’ countries that do not implement measures adopted by the Commission. In 2000, an IATTC member country interpreted in a very original way the text of the resolution and decided not to implement the closure. In 2001, another member country alleging political reasons also decided not to comply. Finally in 2002, another observer country, with a very important fleet, officially decided, without a good reason, not to comply with the December closure approved in June’s annual meeting. I must add that all these managing measures were adopted without objection by any of these countries.

An absence of sanctions or consequences to non-compliers will weaken this kind of organization, and it may lead to the disappointment of fishermen and governments from other countries to the extent that they would not support further management measures. If all participating countries do not comply with regional fisheries management measures, the rest of the countries will feel that their sacrifice is useless, and will stop supporting them. So this is likely to be the biggest challenge of RFOs such as IATTC in the near future.

The second biggest challenge is implementing the fleet capacity resolution, which is also linked with the concerns expressed above. All governments are under pressure from industry and boat owners, and if some countries comply with a moratorium and others don’t, unless there are concrete sanctions or consequences, this and other conservation measures will be completely useless and could lead RFOs to disappear. There is no need to predict what could happen then with tuna managing.

5. CONCLUSIONS

Two specific actions that could help in a very positive way, fisheries management at national and regional levels would be:


[120] The views expressed in this paper are solely those of the author, Annick Van Houtte, Legal Officer, FAO.
[121] FAO Workshop on Factors of Unsustainability and Overexploitation in Fisheries held in Bangkok in February 2002.
[122] Key factors had been identified in the discussion paper prepared for FAO by Stephen Cunningham and Jean-Jacques Maguire. See publication D. Gréboval, Report and documentation of the International Workshop on Factors Contributing to Unsustainability and Overexploitation in Fisheries, FAO/Japan Government Cooperative Programme GCP/INT/788/JPN, Rome, 2002.
[123] “Compliance” is to be understood in this context the factual matching of State behaviour and the international rule.
[124] Hereinafter the 1982 UN Convention, entered into force on 16 November 1994.
[125] Entry into force: 27 July 1974 and Protocol, 11 November 1982, which entered into force: 10 February 1984, see http://www.ibsfc.org/.
[126] Entered into force: 9 August 1979, see http://www.oceanlaw.net/texts/ffa.htm.
[127] see http://www.iccat.es.
[128] see http://www.fao.org/fi/body.asp#gfcm.
[129] Entered into force on 17 March 1982.
[130] Preamble of the 1982 UN Convention.
[131] UN Conference 1992.
[132] Preamble of the 1992 Rio Declaration.
[133] hereinafter the 1992 Rio Declaration.
[134] The Convention of Biological diversity (CBD) that was opened for signature at UNCED meeting crystallizes three concepts in its objectives summarized in article 3 of the Convention: the three objectives are conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits stemming from the utilization of genetic resources.
[135] W.R. Edeson, “Closing the gap: The Role of “soft” international instruments to control fishing (1999) 20 Aust YBIL, p.83. See also P. Birnie , “New approaches to Ensuring Compliance at Sea: The FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas”, 8 Review of European Community and International Environmental Law 48-55 (1999).
[136] See page 1 above.
[137] The FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993.
[138] Agreement For The Implementation Of The Provisions Of The United Nations Convention On The Law Of The Sea Of 10 December 1982 Relating To The Conservation And Management Of Straddling Fish Stocks And Highly Migratory Fish Stocks, 1995.
[139] the Framework Agreement for the Conservation of Living Marine Resources of the South Pacific, adopted on August 14, 2000. See www.oceanlaw.net/texts/galapagos.htm.
[140] The Convention on the Conservation and Management of the Fishery Resources in the South-East Atlantic Ocean setting up the South East Atlantic Fisheries Organization, adopted in April 2001. See www.oceanlaw.net/texts/seafo.htm.
[141] Adopted in Honolulu in September 2000.
[142] Hereinafter the Code, adopted by the FAO Conference in October 1995.
[143] The Jakarta Mandate includes Recommendation I/8 (UNEP/CBD/COP/2/5 AND UNEP/CBD/JM/EXPERT/I/Inf.2 and Decision II/10 of the Second Meeting of the Conference of Parties to the Convention (UNEP/CBD/COP/2/19 and UNEP/CBD/JM/EXPERT/I/Inf.3).
[144] adopted in 1999, see www.fao.org/fi/ipa/capaci.asp.
[145] adopted in 1999, see www.fao.org/fi/ipa/manage.asp.
[146] adopted in 1999, see www.fao.org/fi/ipa/incide.asp.
[147] adopted in 2001, see www.fao.org/fi/ipa/iuu.asp.
[148] FAO, “New International Plan of Action Targets Illegal, Unregulated and Unreported Fishing" Press Release 01/111 online www.fao.org/waicent/PRESS_NE/PRESSENG/2001/pren0111.htm.
[149] See Resolution 19/XXI.
[150] IOTC (Indian Ocean Tuna Commission) has agreed on a resolution calling upon the parties to refuse port access to “flag of convenience vessels, which are engaged in fishing activities diminishing the effectiveness of measures adopted by IOTC” (IOTC Resolution 99/02 calling for Action Against Fishing Activities by Large-Scale Flag of Convenience Longline Vessels); it also adopted a resolution to establish a list of vessels presumed to have carried out IUU fishing in the IOTC Area (Resolution 02/05 was adopted on ”Establishing a List of Vessels Presumed to Have Carried Out Illegal, Unregulated and Unreported Fishing in the IOTC Area”), ICCAT (International Commission for the Conservation of Atlantic Tunas) has adopted the concept of listing specific IUU States by agreeing on a measure identifying States whose vessels have been fishing for tuna and tuna-like species in a manner which diminishes the effectiveness of ICCAT conservation and management measures.
[151] It should also be mentioned that for example Canada grants access to its waters and ports only to fishing vessels from a State with which Canada has favourable fishery relations. The listed States are those that consistently co-operate with Canada on international fisheries conservation objectives, including sound conservation and management of fish stocks off the coasts of Canada.
[152] UNGA Resolutions 44/225, 1989 and 46/215, 1991.
[153] Entered into force in 1991.
[154] Regulation No 3094/86. However, there was a lot of resistance from the Italian Government.
[155] For further reading, see Donald R. Rothwell, “The General Assembly Ban on Driftnet Fishing”, in Commitment and Compliance, edited by Dinah Shelton, Oxford University press, 2000.
[156] Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. &Lee L. Rev. 851, 1996.
[157] See Ellen Hey, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, 4 Geo. International Environmental Law Revue 303,304 (1992).
[158] Code, paragraph 7.5.1.
[159] In the case of EC Measures Concerning meat and meat Products (Hormones), 1997.
[160] The Johannesburg Declaration on Sustainable Development, principles 11 & 13.
[161] The full text is available on the official website: www.johannesburgsummit.org.
[162] The 1982 UN Convention
[163] Plan of Implementation of the WSSD, Paragraph 31.
[164] Id. Paragraph, 32
[165] In accordance with article 23 of the Convention Biological Diversity, a Conference of parties (COP) was established for periodic meetings to review and implement the convention. At its second meeting in Jakarta in November 1995, the parties adopted a program of action in regard to marine and coastal biodiversity, known as the “Jakarta Mandate”. There were recommendations relating to five thematic areas: integrated marine and coastal area management, mariculture, alien species, living marine resources and marine protected areas. On this Mandate see: “A User Friendly Guide to the Jakarta Mandate on Marine and Coastal Biodiversity”, online at www.igc.apc.org/bionet/jakarta.html.
[166] Pew Fellow in Marine Conservation, Saint Mary's University, Halifax, Nova Scotia, Canada.
[167] The views expressed in this paper are solely those of the author, T.W. Maembe, Director of Fisheries, P .O. Box 2462 Dar-as-Salaam, Tanzania, E-mail: fisheries@twiga.com.
[168] The views expressed in this paper are solely those of the author, Rafael Trujillo, Formerly Sub-Secretary of Fisheries, Guayaquil, Ecuador, rtrujillo@legalecuador.com.

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