1. ACCESS REGIMES TO FISHERIES RESOURCES

Since the adoption of the LOSC in 1982,^[4] coastal states are responsible for regulating access to fisheries resources within the waters under their sovereignty or jurisdiction.^[5] Access regimes apply to both individual fishers and to fishing vessels. This study focuses primarily on regimes of access to fisheries resources by vessels, both national and foreign, although Table 1 does contain information on fishing activities that do not require the use of a vessel, particularly fixed gears, shore fishers and professional underwater fishing.

Considering the increasing importance of recreational fishing in the Mediterranean Sea, which is already a significant activity in several countries and likely to develop in others, regimes of access governing this activity have also been included in the study.

1.1 Commercial fishing

Typically, fisheries legislation distinguishes access regimes applicable to vessels from those applicable to individual fishers. In addition, some legislation provides for a concession or leasing agreement whereby exclusive fishing rights are granted to a natural or legal person to exploit specified species of fish or aquatic organisms in a specified area. This latter mechanism is the one generally preferred for the exploitation of fixed gears.

Legal regimes governing access by vessels to national fisheries vary according to the nationality of the vessel. Generally, fisheries legislation establishes two separate legal regimes of access, one applying to national fishing vessels and the other to foreign fishing vessels. In the specific case of the European Union, foreign fishing vessels are vessels flying the flag of a non-Member State, whereas vessels flying the flag of a Member State are referred to as Member State flag vessels or Community vessels.

1.1.1 National vessels

All coastal states^[6] covered by the study require that national vessels^[7] be licensed to fish within waters under their sovereignty or jurisdiction (see Table 1). In most Mediterranean coastal states, the granting of a licence in respect of a fishing vessel confers the licence holder a right to fish by means of the vessel. In Spain, however, the granting of a licence confers solely a general right to fish within Spanish waters. The extent of fishing rights is determined through the issuance of a permit, which, among other things, specifies the area or areas in which the vessel is authorized to fish. In France, the minister responsible for marine fisheries is empowered to determine various categories of fishing licences according to the type of fishing gear used, the targeted species or the area in which fishing is to be conducted. However, it is the responsibility of professional fishers at the local level, through fisheries committees, to establish licensing systems.

1.1.1.1 Prerequisites to licensing

Generally, application for a licence or permit in respect of a vessel is made to the responsible authorities by the owner or charterer of the vessel.

Licensing of a vessel is often subject to prior registration of the vessel either in the register of vessels kept by the shipping authority or in a separate register or record of fishing vessels maintained by the fisheries authority designated in the fisheries legislation. Prior registration is required in Albania, Croatia, Israel, Italy, Libyan Arab Jamahiriya, Malta and Spain. Although no specific language to this effect was found in the fisheries legislation of the other states reviewed for the purpose of this study, it should be noted that EU fisheries law requires that Member States maintain a national register of fishing vessels flying their flag.

The other most commonly required prerequisites to licensing relate to the safety of the vessel and the crew by requiring a certificate of seaworthiness (Albania, Israel, Libyan Arab Jamahiriya, Syrian Arab Republic, Turkey), taking safety and rescue equipment on board (Libyan Arab Jamahiriya, Syrian Arab Republic) and meeting technical standards by the vessel (Slovenia).

1.1.1.2 Issuance

Issuance of a fishing licence or permit in respect of a fishing vessel is made by the competent authorities, either at the central or local level, as designated in fisheries legislation. Provisions that make the issuance of the licence or permit conditional upon prior inspection of the fishing vessel are a common feature of fisheries legislation. They are designed to ensure that the vessel meets the required technical standards (e.g. engine, length), is adequately equipped (safety and communications equipment) and that fishing gears on board comply with technical specifications as defined in fisheries regulations (Croatia, Egypt, Libyan Arab Jamahiriya, Syrian Arab Republic).

Table 1. Access regimes to fisheries resources under national jurisdiction and requirements for national vessels to fish outside waters under national jurisdiction^[8]

* EU Member State

1.1.1.3 Conditions to licences

As a general rule, fishing licences or permits must be kept on board at all times and must be submitted to any authorized officer for inspection.

Use of fishing licences or permits is generally subject to certain conditions inscribed on the licences or permits. Typically, such conditions specify the fishing zone or zones where the vessel is authorized to fish, the type and quantity of gear than can be carried on board and used from the vessel, and finally the targeted species. Additional conditions may be attached to the licence or permit and may relate to information and statistical data reporting (e.g. Albania, Malta), boarding of observers (e.g. Albania) and landing of catch (e.g. Malta).

1.1.1.4 Fees

Issuance of commercial fishing licences or permits is contingent upon the payment of a fee. Criteria to determine the amount of fees to be paid to the licensing authorities vary from one country to another. They may relate to the tonnage of the vessel (e.g. Morocco), the power of the vessel (e.g. Egypt), or a combination of several factors (e.g. engine power and type of gear in Albania, the fishing method used by the vessel and the area in which it is authorized to fish in Israel).

1.1.1.5 Transfer

Fishing licences may or may not be transferable. It is prohibited to transfer fishing licences in France, Slovenia and Spain. Where allowed, transfer of fishing licences is generally subject to an authorization of the competent authority (e.g. Albania, Egypt, Israel, Morocco). Transfer may be permitted only under certain circumstances. In Albania, for instance, transfer of a fishing licence can be allowed only in the event that: (a) the vessel to which the licence was issued has ceased to operate; and (b) the vessel to which it is to be transferred presents similar technical characteristics. In Egypt, fishing licences are not transferable except with the authorization of the General Organization for the Development of Fishery Resources and provided that they are used for the purpose for which they were initially issued.

1.1.1.6 Suspension/Revocation

It is common practice for legislators in Mediterranean coastal states to make provisions in fisheries legislation allowing the competent authorities to suspend or revoke any fishing licence, in addition to any other sanctions that may be imposed on the convicted person for infringement of fisheries regulations or conditions to the licence (e.g. Cyprus, EU, France, Greece, Israel, Italy, Libyan Arab Jamahiriya, Morocco, Tunisia, Slovenia and Spain). Withdrawal of a fishing licence may also be imposed for reasons other than violation of fisheries regulations or conditions to the licence. For instance, the Albanian fisheries legislation provides for the automatic cancellation of the fishing licence when the vessel for which it has been issued ceases to operate for a period exceeding three months. In Spain, non-utilization of the fishing licence for the period of validity leads to the deletion of the vessel from the fishing vessel record. In Croatia, a fishing licence can be revoked if the licence holder does not employ qualified and skilled personnel or is not qualified him/herself, or if the domestic company owning the vessel is controlled by foreign interests.

1.1.1.7 Licensing of national vessels to fish outside waters under national jurisdiction

In line with most recent international fisheries instruments,^[13] the fisheries legislation of Albania, Algeria, EU, Greece, Malta, Slovenia and Spain establishes a system of authorization to allow vessels flying a national flag to fish outside waters under national jurisdiction, whether on the high seas or in waters under the jurisdiction of another State (see Table 1). While no specific language to this effect could be found in the national legislation of Cyprus, France or Italy, it is clear that vessels flying the flag of these countries are nonetheless required to be licensed to operate outside waters under national jurisdiction as they are subject to EU fisheries law.

Of interest is the Albanian legislation, which requires that prior to granting a special authorization to fish outside Albanian waters to a vessel which was previously registered in a foreign country, the competent authority must give due consideration to the vessel’s past behaviour in order to determine whether it has breached the law of that country and/or undermined international conservation and management measures on the high seas. In the case that the vessel is reported as a frequent violator of fisheries laws and regulations of third countries and/or international and conservation measures on the high seas, it must not be granted a special authorization, except where the owner or master of the vessel has no connection whatsoever with the previous owner or master of the vessel.

1.1.2 Foreign vessels

As shown in Table 1, most Mediterranean coastal states allow (subject to certain conditions) foreign fishing vessels to fish for commercial purposes within waters under national sovereignty or jurisdiction. No information was available for Cyprus, Italy, Spain or Lebanon. The first three are EU Member States and as such are subject to EU law, which provides that fishing activities of vessels flying the flag of a third country and operating in Community waters are subject to a fishing licence supplemented by a special fishing permit in the framework of a fisheries agreement concluded between the Community and the flag State. Both Tunisia and Turkey have opted to bar commercial foreign fishing vessels from operating within their waters. However, foreign fishing vessels may be authorized to fish within waters under their jurisdiction for other purposes, such as scientific research (Tunisia, Turkey) or teaching/extension (Tunisia).

Typically, no foreign commercial fishing vessel must be allowed to operate within the waters of a Mediterranean coastal State unless two conditions are satisfied: (a) a fisheries agreement must have been concluded between the Mediterranean coastal State in which waters the foreign vessel is intended to be used and the flag State or an association representing fishing vessel owners or charterers,^[14] and (b) any commercial foreign fishing vessel covered by the fisheries agreement must be licensed.

EU law differentiates Community fishing vessels from third-country vessels (vessels flying the flag of a non-Member State). While the access regime applying to the latter is described above, the regime applying to Community fishing vessels in the waters of another Member State is that of equal access. This rule, however, does not apply within the 12-mile zone (territorial sea). In this area, Member States are authorized "from January 2003 to 31 December 2012 to restrict fishing to fishing vessels that traditionally fish in those waters from ports on the adjacent coast, without prejudice to the arrangements for Community fishing vessels flying the flag of other Member States under existing neighbourhood relations between Member States and the arrangements contained in Annex I, fixing for each Member State the geographical zones within the coastal bands of other Member States where fishing activities are pursued and the species concerned".^[15]

1.1.3 Fixed gears and other activities not requiring the use of a vessel

The third column of Table 1 contains information on the legal regimes applicable to various commercial fishing activities that do not require the use of a fishing vessel.^[16] These activities include: fishing by means of fixed gears, such as fixed nets; fishing by means of hooks and lines from the shore; collecting shellfish on the shoreline; and underwater fishing. The legislation in several western Mediterranean coastal states, namely Italy, Libyan Arab Jamahiriya, Morocco and Tunisia, establishes a licensing (Libyan Arab Jamahiriya and Tunisia) or concession/leasing system (Italy and Morocco) for the exploitation of stationary uncovered pound nets (also known as madrague in French-speaking countries), generally used for catching bluefin tuna. In Italy, five stationary uncovered pound nets are still exploited on the basis of historical concession rights. In Libyan Arab Jamahiriya, the installation and exploitation of two stationary uncovered pound nets have been authorized. In Tunisia, the exploitation of fixed gears, including stationary uncovered pound nets, is subject to an authorization specifying the location, the dimensions of the area, the type of gears to be used and the fee to be paid. Such authorizations are issued by the competent authority on the advice of a consultative commission made up of representatives of various ministries, including environment, transport and tourism. In France, the exploitation of fixed gears is subject to an authorization by the local district authority (the Prefect) and is governed by the legislation on marine culture.

Maltese and Spanish legislation do not provide any special regime for the exploitation of fixed gears. However, in Spain, all fishing activity is subject to an authorization; thus it is also required for the exploitation of fixed gears. In addition, if such activity entails the occupation of the public domain, an authorization is also required.

In France, Spain and the Syrian Arab Republic, fishing activities from or on the shore are subject to a licensing system. France has established a licensing system for professional shore fishers. Likewise, Spanish legislation requires a professional permit for the collection of shellfish to be established regionally by Autonomous Communities. In Algeria, the principal fisheries legislation empowers the competent authority to regulate commercial fishing activities undertaken from the shore.^[17] In Malta, shoreline fishing remains unregulated.

Professional underwater fishing activities are regulated in several states in the region. In Italy, no person must engage in professional underwater fishing without an authorization issued by the Head of the Maritime District in the jurisdiction of which such activities are to be undertaken. In Algeria, the principal fisheries law provides a definition of professional underwater fishing^[18] and stipulates that the legal regime governing this activity is to be determined through regulation.^[19] Tunisian fisheries law requires that professional divers be licensed to exploit coral and sponges in waters under national jurisdiction.

1.2 Recreational fishing

For the purpose of this study, the concept of recreational fishing entails all types of fishing activities including sport fishing activities undertaken by any individual, with or without a boat, for leisure purposes, and does not involve the selling of fish or other aquatic organisms.

Recreational fishing is a growing activity in the Mediterranean Sea. With the development of tourism in the region, concerns have been raised about the effect that such activity may have on commercial fish stocks and thus on the fisheries sector. In response to this potential threat, most coastal states have taken action by regulating recreational fishing activities within their waters (see Table 1). No information was available for Egypt, Israel or the Libyan Arab Jamahiriya.^[20] Recreational fishing activities taking place in Community waters are regulated by individual Member States as they generally take place within the 12-mile limit. Measures taken by Member States must be consistent with the objectives of the Common Fisheries Policy (CFP) and existing EU legislation. In Malta, the Minister responsible for fisheries is empowered to regulate recreational fishing activities.^[21]

As a general rule, restrictions applicable to commercial fishing in relation to minimum landing sizes, prohibited species, prohibited fishing areas and closed seasons also apply to recreational fishing. In addition, most legislation contains language restricting the type and amount of gears that can be used by each individual recreational fisher or that can be carried on board each recreational boat.^[22]

In several countries,^[23] daily bag limits have been fixed with respect to certain species and/or globally. Spain, for instance, has established a very comprehensive system in which daily catch limits are set for protected species as listed in the legislation. In France, it is the responsibility of local authorities to establish daily bag limits within their area of jurisdiction.

In Italy, recreational fishers are required to report catch data. Similarly, the Spanish fisheries law enables the Minister responsible for marine fisheries to require the reporting of catch data with respect to certain species.

Typically, fisheries legislation establishes three types of access regime for individual recreational fishers, recreational boats and divers.

As far as could be determined, six countries in the area, namely Albania, Croatia, Greece, Slovenia, Spain and the Syrian Arab Republic, have established a licensing system for individual recreational fishers. In Albania, a licence is required only if the individual recreational fisher intends to use a boat.^[24] Consequently, recreational fishing activities undertaken from the shore are not subject to this requirement. A similar regime has been adopted in Slovenia.

In Algeria, Cyprus and Spain, no boat can be used for recreational fishing purposes unless it has been issued a licence. In Spain, the competent authority may subject the special authorization issued in respect of a recreational boat to an annual total allowable catch (TAC). In addition, licence holders are required to report catch data broken down by area and period.

Because of the nature of the activity, underwater fishing is generally dealt with separately by legislators and is subject to a specific set of rules. The legislation of Lebanon, Morocco, Slovenia and Tunisia requires that any individual wishing to engage in recreational underwater fishing be licensed. In Slovenia, the licensing requirement applies only to individual undertaking sport fishing using an underwater gun.^[25] In France, individuals other than those holding a licence issued by a certified sport federation are required to register their name with the competent local authority prior to engaging in recreational underwater fishing.

In Italy, although recreational fishing is not subject to a licensing system, individual fishers involved in such activities are required to be members of a national recreational fishing federation and to report catch data.