The Hazard Analysis Critical Control Point (HACCP) system identifies specific hazards and preventative control measures to ensure the safety of food. While the application of HACCP to food safety is generally the norm, the system can equally well be applied to other aspects of food quality. HACCP is a tool to assess hazards and establish control systems that focus on preventative measures rather than relying mainly on end-product testing. The HACCP system is capable of accommodating change, such as advances in equipment design, processing procedures or technological developments.
The principles can be applied throughout the food chain from the primary producer to the final consumer. As well as enhanced food safety, benefits include better use of resources and more timely and effective response to problems. In addition, the application of this system can aid inspection by regulatory authorities and promote international trade by increasing confidence in food safety.
The successful application of HACCP requires the full commitment and involvement of management and the workforce. It also requires a team approach, which should include appropriate experts (e.g. agronomists, veterinarians, production personnel, microbiologists, medical experts, public health specialists, food technologists, chemists and engineers).
The application of HACCP is compatible with the implementation of quality management systems, such as the ISO 9000 series. It is the system of choice in the management of food safety.
HACCP or the Hazard Analysis Critical Control Point system, is a process control system that identifies where hazards might occur in the food production process and puts into place stringent actions to prevent these hazards from occurring. By strictly monitoring and controlling each step of the process, there is less chance for hazards to occur.
The original HACCP system was developed at Pillsbury in the 1960's. It was first conceived when the company was asked to design and manufacture the first space foods for Mercury flights. The following Gemini missions with more complex foods and longer flights introduced more complexity into food production and further development of the HACCP process. By the time the Apollo programme successfully achieved a landing on the moon, the HACCP system was fully developed.
Within two years of the first moon landing HACCP was in commercial use in the manufacture of consumer foods at Pillsbury. Pillsbury concluded, after extensive evaluation, that the only way they could succeed in producing safe food would be to have control over the raw materials, the process, the environment and people, beginning as early in the production system as possible.
In 1985, the United States Academy of Sciences rekindled major interest through their report "Microbiological Criteria for Foods and Food Ingredients" which strongly endorsed the use of HACCP as an effective, preventative system for the safe manufacture of food products.
The International Commission for the Microbiological Specifications for Food (ICMSF) followed in1988 with their fourth volume that covers HACCP in food safety and quality. This led to the internationalisation of HACCP.
In 1991, the Codex Committee on Food Hygiene developed "Guidelines for the Application of the Hazard Analysis and Critical Control Point (HACCP) System". This was adopted by the 20th Session of the Joint FAO/WHO Codex Commission in 1993.
HACCP. A system that identifies specific hazards and preventative measures for their control.
Hazard. The potential to cause harm. Hazards can be biological, chemical or physical.
Critical Limit. A value, which separates acceptability from unacceptability.
Critical Control Point (CCP). A point, step or procedure at which control can be applied and a food safety hazard can be prevented, eliminated or reduced to an acceptable level.
Corrective Action. The action to be taken when the results of monitoring a CCP indicate a loss of control.
Monitor. To conduct a planned sequence of observations or measurements to assess whether a CCP is under control.
Verification. To confirm the integrity of the monitoring process.
The HACCP system identifies specific hazards and preventative measures for their control. The system consists of the following seven principles:
- Identify the potential hazards associated with food production at all stages, from growth, processing, manufacture and distribution, until the point of consumption. Assess the likelihood of occurrence of these hazards and identify the preventative measures for their control;
- Determine the points, procedures and operational steps that can be implemented to control and/or eliminate the hazard or minimise its likelihood of occurrence (Critical Control Point (CCP)). A `step' means any stage in food production and/or manufacture including raw materials, their receipt and/or production, harvesting, transport, formulation, processing, storage, etc.;
- Establish critical limits that must be met to ensure the CCP is under control;
- Establish a system to monitor control of the CCP by scheduled testing or observation;
- Establish the corrective action to be taken when monitoring indicates that a particular CCP is not under control;
- Establish procedures for verification, which include supplementary tests and procedures to confirm that the HACCP system is working effectively, and
- Establish documentation concerning all appropriate procedures and records.
This annex is intended only as an outline and not a definitive listing, of some of the potential conservation and management measures, threats and suggested critical action points that may be applied to fisheries management. Measures, threats and action points are defined as follows;
Measure Refers to the broad range of activities that are undertaken in support of conservation or management.
Threat Refers to those activities, which can negatively effect the sustainability of the fishery resource or the orderly conduct of the fishery.
Action Point Refers to the place that a specific action can be taken to minimise or eliminate the threat.
The principle objective in the protection of the fishery resource is the consideration of biological conservation measures, which can be used to ensure the sustainability of the resource.
The sustainability of a fish stock requires sufficient spawning escapement and egg production annually. This is the primary conservation requirement of fisheries management.
Juvenile mortality in some fisheries represents a significant reduction in the overall sustainable production from the stock. There are two significant impacts. Firstly, biological considerations, relating to the impact that the loss of juveniles may have on the future spawning biomass. Secondly, the reduced yield per recruit lowers the economic potential of the commercial fishery.
In this context over fishing implies that controls are in place to limit removal from the fish stock to ensure sustainability. There are two distinct types of fishery which use separate hierarchical considerations to set adequate controls. These are typically fisheries that are regulated by TACs and quotas and those fisheries that are regulated through effort controls. It should be noted that the measures used in effort controlled fisheries can also be used in TAC controlled fisheries. However, in TAC fisheries control of the total catch by weight is the primary conservation measure.
Many of the fisheries management measures currently in use relate to the functions required to distribute the potential wealth generated by fisheries resources amongst those who are dependent upon the resource for their livelihood. There are two broad processes used to achieve the social and economic objectives of fisheries management. These are access to the resource and allocation of the resource. The common property nature of the fishery resource is the primary reason that government is required to assume these broad functions.
Access to the resource is carried out via the licensing programme, which authorises individuals to fish for defined species and areas using specified vessels and gear types and quantities.
Allocation of the resource is the process of distributing shares of the allowable harvest to licensed groups or individuals. These shares can take the form of fleet sector quotas or individual/vessel quotas. Management of the allocation process and the resultant complex management regime, places the greatest demand upon departmental resources.
Allocation of the available harvest between the various licensed users is the most complex of all the fishery management processes. Primarily the allocation process is an economic tool used to distribute potential earnings to participants. Allocations, in the form of quotas, are made to either fleet sectors or individuals. Management measures used to distribute the resource are complex in consequence.
i. Port exit and entrance sampling
ii. Daily catch sampling
iii. Dockside inspection and sampling of catches
iv. Logbook maintenance and verification
v. At sea monitoring and surveillance of fishing activity;
This category includes management measures that do not address specific conservation or economic objectives. Rather these measures provide for the rational and safe conduct of the fishery. In many cases these measures also include an administrative requirement.
Action point. Any point or step in the fishing operation at which control can be applied or achieved.
Audit. The processes used to confirm the validity of the monitoring and verification programmes. Auditing can also include directed surveillance and enforcement including sea, air and land patrols and related actions.
Control. To manage a fishing operation so that a desirable performance is achieved.
Conservation threat. Any fishing activity that can threaten the long-term sustainability of the resource. These are normally expressed as biological impacts.
Conservation measure (CM). Any action that can be taken to protect the fishery resource, all or in part, from the potential negative impact of a specific fishing activity (e.g. mesh size or escapement mechanisms for the release of juvenile fish).
Conservation action point (CAP). Any point or step at which control can be applied and a conservation hazard prevented, eliminated or reduced to an acceptable level.
Conservation management plan. A document that sets out the application of conservation and management principles for a fishing activity. It contains the procedures to be followed to ensure conservation measures and other regulatory requirements are met.
Conservation management system. The result of the implementation of the conservation management plan.
Corrective action. The action to be taken when monitoring a CAP or MAP if the monitored value is above the critical limit and is indicative of a potential or actual loss of control.
Corrective action plan. The plan that details the actions to be taken when the monitoring programme identifies that a critical limit has been exceeded.
Critical deficiency. A deviation from a CAP that may result in a conservation or management threat.
Critical limit. The value, of a monitored action, which separates acceptable results from unacceptable results.
Decision tree. A sequence of questions to determine whether a control point is a CAP or MAP.
Deviation. A value that lies outside the established critical limits.
Documentation. Written records that contain the results of the monitoring and verification requirements.
Management threat. Any action or activity that threatens the orderly conduct or management of the fishery. These are normally socio-economic activities that can significantly effect the viability of the fishery and of the fishing enterprises.
Management measure. Measures that are imposed to ensure that the specified socio-economic management objectives are achieved (e.g. Individual quotas, fleet sector allocations and trip limits).
Management action point (MAP). Any point or step at which control can be applied and a negative social or economic outcome is prevented, eliminated or reduced to an acceptable level.
Monitoring. A planned series of observations or measurements of a specified parameter, at an identified CAP or MAP. The values obtained should be compared to the target level and permitted critical limits. The results should be obtained in time to allow for remedial action if the values are outside critical limits.
Preventative measure. Actions or activities that can be used to eliminate threats or reduce their impact to acceptable levels. Also referred to as control measures.
Risk. An estimate of the probability or likely occurrence of a threat.
Risk analysis. A process consisting of three components: risk assessment, risk management and risk communication.
Risk assessment. The scientific process of identifying threats, and estimating risk in quantitative or qualitative terms.
Threat. The potential to compromise fishery conservation or fisheries management objectives. These are specific practices (e.g. the use of undersize mesh or fishing during closed periods) which have an adverse effect on the fishery.
Threat identification. The identification of known or potential threats associated with the fishery and method of fishing. The identification of those activities or actions which can negatively affect the sustainability of the fishery resource or the socio-economic management of the fishery.
Threat characterisation. The quantitative and/or qualitative evaluation of the adverse effects associated with the fishing activity.
Verification. The processes used to confirm the validity of the monitoring programmes. Verification can also include auditing.
This annex outlines the steps involved in the current DFO IFMP process. The purpose of the annex is to present the current process so that a comparison can be made with the proposed ICAMS approach.
- Participants;
- Location of the fishery;
- Time frame of the fishery;
- Landings/value/markets;
- Consultative process, and
- Management styles.
- Biology, environment, habitat;
- Species interactions;
- Assessment;
- Research, and
- Prospects for the period covered by the plan.
- Conservation/sustainability;
- International considerations, and
- Domestic considerations.
- Fishing seasons;
- Control and monitoring of fishing activities;
- Quota allocations;
- Other related elements;
- Licensing, and
- Key legislation.
- Overview;
- Main programme objectives;
- Fishery patrol vessels;
- Air surveillance, and
- Enforcement issues and strategies.
Martin Tsamenyi1 and Kwame Mfodwo2
1 University of Wollongong, Centre for Maritime Policy, Northfields Av., Wollongong NSW 2500, Australia.
Email: [email protected]
2 Environmental Management Programme, Department of Accounting and Finance, University of Waikato Hamilton, Hamilton, New Zealand.
Abstract: This paper discusses the international law framework governing fisheries monitoring in the 1990s. It analyses the rights and duties of States and other actors as set out in the Law of the Sea Convention; the Straddling/Highly Migratory Stocks Agreement; the Food and Agricultural Organisation (FAO) Compliance Agreement; the FAO Code of Conduct for Responsible Fishing and a selected number of regional fisheries instruments. Issues addressed include: (i) the relationship between operational aspects of fisheries monitoring and the legal framework; (ii) the implications of the trend towards precise treaty-based specification of State duties; (iii) quality, usability and verifiability of fisheries monitoring data; (iv) possible misuse of fisheries monitoring data and the need to strengthen protections for commercial actors; (v) clarification of the framework of sanctions for non-performance of fisheries management obligations by States and other actors. The Straddling/Highly Migratory Stocks Agreement is identified as providing the most coherent approach to fisheries monitoring at the present time. The difficulties of extending the Straddling/Highly Migratory Stocks Agreement's approach to other agreements are discussed. Finally, recommendations for further improving the international law dimensions of fisheries monitoring are also made.
This paper discusses the international legal framework relating to at sea fisheries monitoring. The term "fisheries monitoring" requires some definition since a close reading of the different literature concerned with marine fisheries management demonstrates that there is a degree of ambiguity of meaning attached to the term "monitoring". In general legal discourse, but more specifically in the legal writing on fisheries enforcement, the term monitoring is often used to denote the close supervision of licensed agents or actors by a regulatory body, whether public or private. Thus "fisheries monitoring" is understood in legal discourse as referring to the supervision or surveillance of the activity of licensed fishing vessels to assess their compliance with relevant laws. This, however, is not the meaning attached to fisheries monitoring in the discourse of fisheries management. Following the lead of the FAO, fisheries monitoring has come to mean "the continuous requirement for the measurement of fishing effort characteristics and resource yield." This is certainly the interpretation of the term "fisheries monitoring" given by a recent FAO review of monitoring, control and surveillance in capture fisheries. For its part, this 1994 review builds on attempts to specify the content of the term from as far back as 1981. The contrasting, but complementary, definitions provided in the 1994 publication are as follows:
- Monitoring: "The continuous requirement for the measurement of fishing effort characteristics and resource yield";
- Control: "the regulatory conditions under which the exploitation of the resources may be conducted";
- Surveillance: "the degree and types of observations required to maintain compliance with the regulatory controls imposed on fishing activities".
This paper adopts the FAO perspective directing its analytical focus to the framework of international law rules and institutions governing how States and other actors in the fisheries arena seek to achieve the "continuous ... measurement of fishing effort characteristics and resource yield."
As we demonstrate in more detail below, the international law framework governing this aspect of marine fisheries management is still very much in evolution and furthermore has a decidedly uneven character. This uneven character is due to a number of factors, including the high levels of uncertainty associated with marine science; regional differences in marine orientation and the importance of fisheries matters; a generalised world-wide lack of institutional capacity to undertake fisheries monitoring; concerns with sovereignty; the highly technical character of the tasks to be undertaken; the commercial confidentiality associated with much of the information required for effective fisheries monitoring; and the historical origins of the instruments governing fisheries relations amongst States.
These limitations notwithstanding, the last six years seem to have brought some progress in the task of establishing a clear legal framework to support fisheries monitoring. The clearest result of these efforts is to be seen in the text of Annex I to the Straddling/Highly Migratory Stocks Agreement (see discussion further below), whilst the redoubled efforts to improve the fisheries monitoring performance of many regional fisheries organisations is also evidence of forward movement in this arena. Annex I is a thoughtful statement of the international dimensions of the technical, political and legal aspects of fisheries monitoring and contributes significantly to providing a quasi-legal framework for undertaking fisheries monitoring. It should, however, be recalled that in strict legal terms, the Straddling/Highly Migratory Stocks Agreement applies only to the named stocks and moreover the treaty is not yet in force. Despite these limitations, our view is that this Annex may well come to have a significant influence on fisheries monitoring in the years ahead.
A desire to have a high degree of order is evident in the various definitions of monitoring, control and surveillance cited earlier as well as in Annex I of the Straddling/Highly Migratory Stocks Agreement. The reality however, is that the distinctions sought to be drawn between "monitoring", "control" and "surveillance" are often difficult to maintain in practice. In any case, it can also be argued that over-rigid adherence to these distinctions in the planning and implementation work of fisheries management agencies can reduce efficiency and undermine achievement of an integrated approach to fisheries monitoring and fisheries management in general.
A few examples illustrate this point, starting with the situation of an observer system designed to collect and report solely on scientific information. Provided that its primary output is scientific information, such a system would be classified as "monitoring" under the FAO definitions set out above. However, the same observer programme would constitute "surveillance" were it to be aimed at providing information to trigger enforcement action at a later stage. The emerging trend towards real time reporting through satellite vessel monitoring systems (VMS) provides further examples of the integrated relationship between "monitoring" and "surveillance." Reporting of vessel position would seem prima facie to be an act of rule compliance by a licensed vessel to assist with surveillance of its activities. But even in this simple form, and given a well-organised and integrated information management system, it is easy to see that position reporting can provide a valuable contribution to the monitoring function. After all information on vessel position would be useful to the fishery manager in determining the geographical aspects of "fishing effort characteristics and resource yield". Integration both in practice and in design and implementation of legislation would seem therefore to be both inevitable and indispensable.
In the late 1990s fisheries monitoring has come to involve the following actors:
- State actors: the coastal State; the distant-water fishing State; the flag State;
- International organisations: regional coastal State organisations; regional Organisations comprising both Fishing and coastal States;
- Non-State actors: industry associations; environmental non-governmental organisations (NGOs), and
- Fishing vessel masters and owners.
Because the framework of international law gives priority to State actors, the language of obligation in the international instruments under review in this paper refers principally to State actors. Even so, non-State actors are emerging as particularly important players. Environmental NGOs for instance have acquired enhanced participatory roles in a number of regional fisheries conferences and various global negotiations, whilst aspects of the implementation of the FAO Code of Conduct clearly require enhanced co-operation from industry associations and maritime corporations. Environmental NGOs for instance are likely to play an increased role in implementing those aspects of the Straddling/Highly Migratory Stocks Agreement to do with the precautionary approach to fishing. The predominant actors in fisheries monitoring are still however various national governments and institutions charged with fisheries management functions; international organisations at the regional and global levels; and vessel masters/owners. It is the law governing the interaction between these actors, which is the backbone of the international framework for fisheries monitoring.
The questions that fisheries monitoring seek to answer can be characterised as follows:
- Who is fishing?;
- Where?;
- What are they fishing with?;
- How does the who and where of fishing relate to what is authorised?;
- What does the fishing gear catch and how much of the fish does it catch?;
- How much by-catch is taken and how much is discarded? (at sea; on land?);
- What relationship does actual catch has with what is authorised?;
- Where is the catch landed and/or transhipped?;
- What is landed/transhipped and how does this relate to what is authorised ?;
- How much is the fish sold for?;
- To whom is the fish sold and with what final destination?;
- How do the commercial returns affect fishing effort and resource yield?, and
- To what extent are any stages of the fishing process subsidised and/or overcapitalised?
The techniques and institutional arrangements that allow these questions to be answered (the practical side of monitoring) include:
- Catch and activity reporting (observer programmes, log books, VMS etc.);
- Port inspections and sampling;
- Tagging;
- Research surveys;
- Landing records;
- Receiver records, and.
- Vessel registration and registers.
Legal frameworks and concepts inform as well as link the objectives and techniques of fisheries monitoring and impose obligations on the actors in this arena of fisheries monitoring.
Treaties are the principal source of the current relatively scattered rule framework governing fisheries monitoring. The treaty framework comprises the following elements:
- Global multilateral treaties of a law-generating character supported by non-binding instruments with global reach;
- Regional fisheries agreements within the FAO system, and
- Regional fisheries agreements outside the FAO system.
Annex I of the Straddling/Highly Migratory Stocks Agreement is at present the most advanced and coherent statement of treaty norms to guide fisheries monitoring. The treaty is, however, not in force and in any case has application only to straddling and highly migratory stocks. There is, thus, currently no unified and firm set of international legal rules covering fisheries monitoring activity. This means for instance, that there is no international standard governing a range of issues such as the quality of the scientific information generated and no sanctions to be imposed on a State for providing false or inadequate information to international organisations or other States.
However, current international law firmly recognises the centrality of scientific information to the fisheries conservation and harvesting process with the consequence that the obligation to provide scientific information has become a core feature of all fisheries agreements (global, regional, bilateral). This is probably an obligation imposed on all States under the customary international law duty to co-operate in the management of shared resources. This duty applies on the global, regional and bilateral levels and often requires prior information, consultation and negotiation." In the context of monitoring, all the global and regional fisheries instruments require international co-operation in the collection, exchange, analysis and dissemination of fisheries data and statistics.
National implementation of international obligations on fisheries monitoring is so routine that its legal basis - compliance with international commitments based on the principle of pacta sunt servanda and the duty of States to co-operate in good faith, is often forgotten. Part of this "good faith" requirement is that States will take action at the national level to implement their international obligations. National reporting of both scientific information and action taken to implement obligations is another key mechanism employed to ensure compliance which is based on the "good faith" principle. The institutionalisation of adequate environmental reporting processes stressed in Agenda 21 is also advanced by the routine reporting found in fisheries monitoring treaties - the extension of fisheries monitoring to include broader ecological issues will strengthen the obligation framework relating to environmental reporting.
This section of the paper presents a summary of the monitoring-related provisions in global fisheries instruments. An evaluation of trends and various features is provided further below. The global fisheries agreements include the United Nations Law of the Sea Convention; the Straddling/Highly Migratory Stocks Agreement; the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) and the FAO Code of Conduct for Responsible Fishing (Code of Conduct). Although the latter instrument is not legally binding, it is included here because of its customary international norm creating effect.
Coastal State permitted to require the following actions and information from foreign fishing vessels in EEZ under Article 62(4):
- Catch and effort statistics and vessel position reports;
- The sampling of catches, disposition of samples and reporting of associated scientific data;
- The placing of observers or trainees on board such vessels by the coastal State;
- The landing of all or any part of the catch by such vessels in the ports of the coastal State. Coastal State obliged to exchange available information on a regular basis through competent international organisations.
Article 61(5)): All high seas fishing States to regularly contribute and exchange available scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks basis through competent international organisations.
Article 119(2): National institutions and competent international organisations are principal addressees of the obligations and rights
Each party to maintain a record of vessels under its flag, authorised to undertake high seas fishing (Article IV). Each party to provide FAO with essential information regarding fishing vessels on its record. Such information to include type of fishing method; moulded depth; gross registered tonnage and power of main engine or engines (Article?)
National and regional fisheries registers; FAO to facilitate information exchange.
Conservation and management decisions for fisheries to be based on best available scientific evidence with States required to assign priority to research and data collection to ensure improvement of scientific and technical knowledge including fisheries-ecosystem interactions (Article 6.4):
- States to establish effective mechanisms to monitor activities of fishing vessels and fishing support vessels (Article 6.10);
- Flag States to ensure that their vessels fulfil all obligations concerning collection and provision of data on fishing activities (Article 6.11);
- States are to establish effective mechanisms for fisheries monitoring, surveillance, control and enforcement (MCSE)(Article 7.1.7);
- States are to ensure timely collection, proper maintenance, verification and up-dating of complete and reliable statistics on catch and fishing effort, - with such actions to be in accordance with applicable international standards and practices and in sufficient detail to allow sound statistical analysis;
- States (in conformity with their national laws) required to implement effective fisheries monitoring, control, surveillance and law enforcement measures, including observer programmes, inspection schemes and vessel monitoring systems, where appropriate. Such measures to also be promoted and, where appropriate, implemented by sub-regional or regional fisheries management organisations and arrangements in accordance with procedures agreed by such organisations or arrangements" (Article 7.7.3);
- States (in accordance with international law) and within the framework of sub-regional or regional fisheries organisations/arrangements, to co-operate to establish MCSE systems with respect to fishing operations and related activities in waters outside national jurisdiction (Article 8.1.4);
- States required to make every effort to ensure that documentation with regard to fishing operations, retained catch of fish and non-fish species;
- are and, as regards discards, the information required for stock assessment is decided by relevant management bodies, is collected and forwarded _systematically to those bodies, and_
- States as far as possible to establish programmes (e. g. observer and inspection schemes) to promote compliance with applicable measures (Article 8.4.3).
Coastal States and States fishing on the high seas are required to (Article 5):
- Collect and share, in a timely manner, complete and accurate data concerning fishing activities, including vessel position, catch of target and non-target species and fishing effort, as well as information from national and international research programmes;
- Implement and enforce conservation and management measures through effective monitoring, control and surveillance(MCS);
- Obtain and share the best scientific information available and to implement improved techniques for dealing with risk and uncertainty, and
- Develop data collection and research programmes to assess impacts of fishing on non-target and associated or dependent species and their environment, and adopt plans to ensure conservation of such species and to protect habitats of special concern.
Regional/sub-regional fisheries organisations or arrangements are required to (Article10):
- Agree on standards for collection, reporting, verification and exchange of data on fisheries for stocks under their management;
- Compile and disseminate accurate and complete statistical data, and
- Establish appropriate co-operative mechanisms for effective monitoring, control, surveillance and enforcement (MCSE) (Article 10).
Flag States are required to take a range of measures with respect to their vessels (Article. 8):
- Establishment of a national record/register of authorised high seas fishing vessels with access to such information to be made available to directly interested States as and when requested;
- Establishment and implementation of requirements relating to accurate recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with sub-regional, regional and global standards for collection of such data;
- Establishment and implementation of requirements relating to verification of all relevant information reported to the Flag State by means of observer programmes, inspection schemes, unloading reports, supervision of transhipment and monitoring of landed catches and market statistics;
- Monitoring, control and surveillance of their high seas fishing vessels, their fishing operations and related activities through, for instance, the implementation of national inspection schemes and provision of rights of access to duly authorised inspectors from other States;
- Implementation of national, sub-regional and regional observer programmes with rights of access granted to observers from other States;
- Development and implementation of vessel monitoring systems, including, as appropriate, satellite transmitter systems, in accordance with national programmes and/or properly agreed sub-regional, regional or global programmes, and
- Ensure compatibility between Flag State MCSE systems and any sub-regional/regional/global systems that are in effect (Article 8(4).
This section provides a brief overview of fisheries monitoring provisions in (i) key tuna management agreements in the Southern hemisphere; (ii) the Convention for the Conservation of Antarctic Marine Living Resources. The three areas covered by all treaties with variations in language are: (i) establishment of the relative roles, powers and obligations of States/regional organisations; (ii) facilitation of the exchange of scientific data, information and personnel; (iii) establishment of scientific observer programmes and enforcement schemes.
The language of obligation set out in many of these treaties is weak by contrast with for example, the Straddling/Highly Migratory Stocks Agreement and also in relation to the importance of the tasks. Typical provisions are: (i) to furnish, on the request of the Commission, any available information (ICCAT, Article IX); (ii) Members shall on request of the Commission, provide such available and accessible statistical and other data and information as the Commission may require (IOTC, Article XI); (iii) Members shall co-operate in collection and direct exchange, when appropriate (CCSBT, Article, 5). Fisheries monitoring is also covered by subsidiary instruments. These address a range of operational matters in depth. However these subsidiary instruments are still limited by the relatively weak language in the main agreements. Specification of data to be gathered is also by negotiation. The full data set required for high quality stock assessment may not be arrived at in these negotiations.
Under Article IX, the Contracting Parties agree:
- To furnish, on the request of the Commission, any available statistical, biological and other scientific information the Commission may need for the purposes of the Convention.
- To allow the Commission to obtain such information on a voluntary basis direct from companies and individual fishermen when their official agencies are unable to obtain and furnish the information to the Commission.
In Annex II to the Final Act, the Parties:
- Recognised the need to collect adequate statistics on catch and fishing effort and the necessary biological data, and make available for publication the statistical and related economic data with a view to enabling the International Commission for the Conservation of Atlantic Tunas, and
- Urged all countries to take steps without delay to create, where they do not already exist, offices within their fisheries administrations suitably staffed and having appropriate financial and legislative support to undertake the collection and the processing of the data to be used by the Commission.
The Commission is required to collect and accumulate the following information under Article 8:
The Parties undertake under Article 5 to:
The functions of the Commission under Article IX (1) include to:
Under Article XX the Members of the Commission agree:
Article XXIV requires the establishment of a system of observation and inspection on the defined principles - both have been established and are fully operational
On the basis of the instruments analysed thus far, there appear to be two trends in fisheries monitoring as an aspect of international regulation. The first trend, which dominates in many of the instruments currently in force. is for fisheries monitoring to be seen as important but still secondary to the other obligations and rights of States in the area of marine fisheries management. The provisions to do with fisheries monitoring in the bulk of international agreements are thus vague and uncoordinated and are often not well integrated into the treaty framework and related instruments and arrangements.
No quality standards are established and the precise information to be supplied may not be clear. The minimal attention to fisheries monitoring in the text of the Law of the Sea Convention exemplifies this trend.
There is an emerging trend towards the recognition of fisheries monitoring as part of the law of international obligations with respect to responsible fishing. The FAO Code of Conduct and the FAO Compliance Agreement all provide evidence of this new trend. It is, however, in the Straddling/Highly Migratory Stocks Agreement that the new developments are clearest, given the coherence, clarity and precision with which fisheries monitoring issues are handled both in the main body of the treaty and in Annex I.
Detailed evaluation of the fisheries monitoring provisions of the Straddling/Highly Migratory Stocks Agreement is not possible in this paper due to constraints of time and space. The following positive developments, problem areas and omitted issues can still however be noted.
The positive aspects of the Straddling Stocks treaty text are:
- The obligations of all categories of States are clearly set out with appropriate weight given to coastal State, flag State and port State obligations. This more closely matches the complexity of global patterns of vessel movement; fishing operations; transhipment; cross-substitutability of commercial valuable stocks; and trade;
- The framework of principles and duties at Article 1, 2, 3, 7 of Annex I provides a firm underpinning for the improvements in stock assessment and calculations of fishery effort that would make responsible fishing a reality. Of particular importance is the precise specification and identification of the core fisheries data essential to stock assessment and calculation of fishing effort; and the establishment of clear State obligation to collect and exchange data in a timely manner whilst taking care to generate data of high quality;
- There is a clear effort to establish quality standards at Articles 1 and 2 of the Annex and in Article 14 - good examples of this effort are the obligation imposed on States to ensure that data collected and exchanged permit "statistically meaningful analysis" and the linkage of data collected to the precise fishing method or operation used at sea, and
- Commercial confidentiality considerations are clearly identified, a welcome development which may enhance the willingness of commercial operators to generate the levels of high quality data required under the Agreement. There is also scope for subsidiary arrangements at regional levels to address this difficult issue in more detail.
A number of problems can also be anticipated. One such problem is the continuous generation of enormous amounts of information by fisheries monitoring systems. This can only be addressed by a parallel global effort in the area of information management, harmonisation and standardisation at national, regional and global levels. The lack of capacity in the developing nations is also another area of concern. Financial constraints will affect developing nation's participation in the new frameworks given that even for the more advanced economies, funding fisheries research adequately is a problem. Although provisions are now made routinely in international fisheries instruments for the provision of financial assistance to developing State Parties to discharge their obligations, there is, as yet, no mechanism at the international level to achieve this. The lack of technical and institutional capacity is too well understood to require any further discussion here. A related problem is the increasing dependence of fisheries data collection and exchange on complex technologies. In the poorer parts of the world, unless such technology is adequately funded and managed, the incentive to provide real time fisheries data will eventually be lost.
Commercial confidentiality is yet another important and complex problem area. A side effect of the advent of real time monitoring (e.g. through satellite vessel monitoring) is the increased commercial value of some of the data generated through monitoring. As demonstrated above, some of the recent global instruments recognise this problem and make provisions for the confidentiality of data collected. Although in practice, confidentiality issues may be dealt with through for example, the aggregation of data before it is released, tighter security audits and enacting legislation imposing penalties for unauthorised disclosure of data or information, fishing enterprises and some distant water fishing nations have continued to voice their concerns.
It is now increasingly acknowledged that non-governmental organisations have a constructive role to play in informed and transparent decision-making in the international system. Thus, the Report on International Law for Sustainable Development argues that: "non-governmental organisations should be provided with, at least, observer status in institutions and treaties and should be relied upon for expertise, information and for other purposes" In a situation where many NGOs have resources (technical and financial) far in excess of those possessed by many developing countries, it would be appropriate for NGOs to receive more formal recognition of their continuing role in fisheries monitoring.
From a legal point of view integrated fisheries monitoring requires establishing structures, procedures and processes to: (a) link the international/regional levels of activity with national frameworks; (b) closely interweave science with management decision-making and policy, including sanctioning and deterrence; (c) integration of governmental and non-governmental information gathering process and procedures; (d) integrating all feasible aspects of the operational frameworks for monitoring, control and surveillance; (e) establishing a firmer framework of sanctions for breach of obligation with respect to provision of fisheries monitoring data.
On the basis of the international trends highlighted in the paper the following recommendations can be made:
- States need to be further encouraged to bring the Straddling/Highly Migratory Stocks Agreement into force so as to implement the framework established in Annex I.
- The international community needs to fully address the resource implications of the comprehensive approach to fisheries monitoring set out in the Straddling/Highly Migratory Stocks Agreement and whether this requirement is an appropriate approach to fisheries monitoring in various regional arrangements, given the significant resources required to re-shape existing fisheries organisations.
- Regional and national fisheries structures need strengthening to meet the data collection, exchange and analysis requirements of the Straddling/Highly Migratory Stocks Agreement.
- Clearer specification of State responsibility may be required in some of the areas traversed by the Straddling/Highly Migratory Stocks Agreement. A good example is the question of the quality of scientific data, an issue of heightened importance due to: (i) the increasingly precise specification of categories of fisheries data in the Straddling/Highly Migratory Stocks Agreement; (ii) the centrality of accurate data to ecologically driven approaches to fisheries management. The obvious legal question is what happens to entities that do not provide the quality of data required - is there a breach of treaty obligation? if so, what are the consequences?
- There is also a need for improved information management, especially in developing countries so that information gridlock and breach of confidentiality requirements can be avoided.
