Routledge Handbook of Maritime Regulation and Enforcement

Robin Warner, Stuart Kaye, Robin Warner, Stuart Kaye

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780415704458
• eBook ISBN: 9781134499540
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

With advances in technology and maritime transport, human use of the ocean now extends beyond the traditional activities of navigation and fishing. Emerging activities such as bioprospecting, deep seabed mineral and hydrocarbon exploration and exploitation, offshore renewable energy developments and marine scientific probes of deep sea areas challenge the applicability of maritime law and policy in new ways.

This handbook examines current regulatory and enforcement instruments and mechanisms for different sectors of maritime activity. Covering various jurisdictions, its specially commissioned chapters are authored by some of the world's foremost authorities on maritime law, and offer unique perspectives on maritime law, policy and practice.

This highly relevant collection is organised into four parts:

• International Law Considerations in Maritime Regulation and Enforcement

• Role of States and other International Actors in Maritime Regulation and Enforcement

• Regulation and Enforcement in Different Maritime Sectors

• Current Issues and Future Challenges

This comprehensive reference work will be of interest to scholars and students of maritime law, practitioners and non-lawyers interested in the regulation of offshore areas, as well as policy-makers.

Part C
Regulation and Enforcement in Different Maritime Sectors

10
Fisheries Enforcement and the Concepts of Compliance and Monitoring, Control and Surveillance

Mary Ann Palma-Robles

Introduction

The trend in the production of global marine fisheries resources presents an alarming concern for sustainability. Fisheries resources which were initially regarded as inexhaustible are now either seriously depleted or overexploited.¹ According to the Food and Agriculture Organization (FAO), 28.8 per cent of global fish stocks are overfished and 61.3 per cent are fully fished.² Most of the ten most productive species in the world are fully fished and have no potential for increase in production.³ Similarly one third of the commercially significant tuna species are already overfished.⁴ Although catches in some regions such as the Western Central Pacific and the Eastern Indian Ocean are increasing and some stocks are showing signs of recovery in response to improved management, a number of fishing regions in the world are still subject to stress leading to a rapid decline in global fisheries.

The depletion of fisheries resources may be attributed to a number of factors, such as industrialisation, overfishing, environmental factors affecting stock productivity, the open access nature of many fisheries, and overcapacity in the world fishing fleet. Illegal, unreported and unregulated (IUU) fishing remains as “one of the greatest threats to fish stocks and marine ecosystems and continues to have serious and major implications for the conservation and management of ocean resources, as well as the food security and economies of many States, particularly developing States.”⁵ It is estimated that about one third of the total catch in some important fisheries is subject to IUU fishing representing an overall cost to developing countries of between USD2 to USD15 billion a year.⁶ IUU fishing is associated with a gamut of issues, including ineffective flag State control and lack of capacity of States to adopt fisheries management plans that set sustainable limits based on scientific advice.⁷

Fish is the most internationally traded food commodity and plays a crucial role in food security. It is predicted that the demand for fish may reach 180 million tonnes in 2030 and neither aquaculture nor any terrestrial food production would be able to supplement the need for protein production provided by marine capture fisheries.⁸ The World Bank also estimates the economic loss of USD51 billion from global fisheries between 1974 to 2007, with 2004 as the base year suggests the need for greater stakeholder awareness and comprehensive fisheries governance reform.⁹

There are a number of measures recommended to respond to the decline of fisheries, such as reduction of catch, restriction of fishing effort, designation of marine protected areas, and certification of sustainable fisheries.¹⁰ Most of these measures have been developed within domestic laws and policies, regional conservation and management measures, and global binding and non-binding fisheries instruments. The FAO recommends that effective fisheries management should be conditioned by resource considerations, environmental constraints, ecological factors, technological development and socio-economic considerations.¹¹ Similarly, the governing legal framework should also address a broad range of issues relating to the conservation and management of fisheries.

The legal regime for fisheries has progressively developed since the 1990s and States have continuously adopted measures to control fishing activities. This has led to the gradual erosion of freedom of fishing supplanted by increased regulation of fishing activities and shared access under the 1982 United Nations Convention on the Law of the Sea (LOSC).¹² While the decades directly following the LOSC may be considered as an era of strengthening fisheries regulation, the succeeding period including the current one can be deemed as an important phase for fisheries enforcement. This is because key global fisheries agreements have now been established for a number of years providing sufficient time for individual States and regional organisations to amend relevant measures in line with international rights and obligations.

This chapter focuses on the enforcement of fisheries regulations, particularly the rights and obligations of States under international law and provides examples of State practice for analysis. It examines the fisheries enforcement framework under the LOSC and other global fisheries agreements in zones of sovereignty, zones under sovereign rights, and on the high seas. It also discusses port State enforcement as a supplement to flag State enforcement and an effective means to prevent the landing or transshipment of illegally caught fish. The chapter analyses the concept of monitoring, control and surveillance as an overarching concept of fisheries enforcement and contrasts it with the element of fisheries compliance. It concludes with a discussion of some of the emerging issues in fisheries that continuously challenge the fisheries enforcement capabilities of States.

International legal framework for fisheries enforcement

The international legal framework for fisheries enforcement comprises legally binding agreements, in particular the LOSC,¹³ the 1993 FAO Compliance Agreement,¹⁴ 1995 UN Fish Stocks Agreement,¹⁵ and the 2009 FAO Port State Measures Agreement.¹⁶ These agreements adopt the key principle of promoting equitable, efficient utilisation and conservation of living resources both in areas under national jurisdiction and on the high seas.¹⁷ The LOSC provides the basic framework that outlines the general prescriptive rights and obligations of States in each maritime zone which in turn form the basis for exercising the enforcement powers of States. The limited provisions of the LOSC particularly with respect to fishing on the high seas and fishing for straddling and highly migratory stocks are strengthened by the FAO Compliance Agreement and the UN Fish Stocks Agreement.

The 1993 FAO Compliance Agreement was an effort to solve the problem of “reflagging of fishing vessels into flags of convenience to avoid compliance with agreed conservation and management measures”.¹⁸ It applies to all fishing vessels, including support vessels used or intended for fishing on the high seas, except for vessels of 24 metres or less in length¹⁹ subject to certain conditions.²⁰ The application of this agreement is not restricted to specific species of fish. The FAO Compliance Agreement reiterates the provisions of the LOSC with respect to the effective control of fishing vessels and promotes the concept of compliance and enforcement. It focuses on the role of flag States to ensure the compliance of their vessels with international conservation and management measures on the high seas.

The UN Fish Stocks Agreement provides for the conservation and management of straddling and highly migratory fish stocks. Similar to the FAO Compliance Agreement, it emphasises the need for States to adopt effective mechanisms for compliance and enforcement of conservation measures on the high seas and due to the migratory nature of species subject to the agreement promotes the need to apply compatible measures in the exclusive economic zone (EEZ) and on the high seas.²¹ In addition to flag State duties, the UN Fish Stocks Agreement emphasises the role of port States in promoting fisheries conservation measures.²² The agreement also provides for international cooperation, through the creation of subregional and regional fisheries management organisations (RFMOs) and arrangements²³ and implementation of enforcement mechanisms such as high seas boarding and inspection.²⁴

The FAO Port State Measures Agreement was negotiated and agreed by States more than ten years after key global fisheries instruments had been adopted post the LOSC. It outlines in greater detail the role of States in exercising their sovereignty over ports located in their territory as a means to ensure the long term conservation and sustainable use of living marine resources and ecosystems.²⁵ The FAO Port State Measures Agreement applies to foreign vessels seeking entry into port, with the exception of vessels of a neighbouring State that are engaged in artisanal fishing for subsistence and container vessels that are not carrying fish or, if carrying fish, only those with fish that have not been previously landed.²⁶ It elaborates on specific measures that may be applied by port States to combat IUU fishing, such as designation of ports, advance request of port entry, use of ports, inspections, and enforcement actions such as denial of port entry and prohibition of catch landing. Similar to the UN Fish Stocks Agreement, the FAO Port State Measures Agreement underscores the need for cooperation between flag and port States, as well as exchange of information with relevant States, RFMOs, the FAO and other international bodies.²⁷

As examined in the succeeding sections, the LOSC has limited provisions on fisheries enforcement actions that may be undertaken by States. Apart from the enforcement powers of States under Article 73 of the LOSC in relation to the exercise of sovereign rights for the purpose of exploring, exploiting, conserving and managing living resources, much of the guidance on fisheries enforcement in other maritime zones may only be drawn from other global fisheries agreements. Non-binding fisheries instruments such as the FAO Code of Conduct for Responsible Fisheries²⁸ and the four International Plans of Action (IPOAs)²⁹ reiterate some of the enforcement re...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Contributors
• Abbreviations
• Foreword
• Introduction
• PART A International Law Considerations in Maritime Regulation and Enforcement
• PART B Role of States and Other International Actors in Maritime Regulation and Enforcement
• PART C Regulation and Enforcement in Different Maritime Sectors
• PART D Current Issues and Future Challenges
• Index