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University of Wollongong Thesis Collections
University of Wollongong Thesis Collection
University of Wollongong Year
Combating illegal, unreported and
unregulated fishing in Indonesian waters:
the need for fisheries legislative reform
Dikdik Mohamad SodikUniversity of Wollongong
Sodik, Dikdik Mohamad, Combating illegal, unreported and unregulated fishing in Indonesianwaters: the need for fisheries legislative reform, PhD thesis, Centre for Maritime Policy,University of Wollongong, 2007. http://ro.uow.edu.au/theses/732
This paper is posted at Research Online.
http://ro.uow.edu.au/theses/732
COMBATING ILLEGAL, UNREPORTED AND UNREGULATED FISHING IN INDONESIAN WATERS: THE NEED FOR FISHERIES LEGISLATIVE REFORM
A thesis submitted in fulfilment of the requirements for the award of the degree of DOCTOR OF PHILOSPHY
UNIVERSITY OF WOLLONGONG
By
Dikdik Mohamad Sodik, S.H., M.H.
CENTRE FOR MARITIME POLICY FACULTY OF LAW, UNIVERSITY OF WOLLONGONG
2007
Thesis Certification
Certification I, Dikdik Mohamad Sodik, declare that this thesis, submitted in fulfilment of
the requirements for the award of Doctor of Philosophy, in the Centre for
Maritime Policy, University of Wollongong, is wholly my own work unless
otherwise referenced or acknowledged. The document has not been
submitted for qualification at any other academic institution.
Dikdik Mohamad Sodik
September 2007
ABSTRACT This thesis addresses one of the contemporary problems facing the sustainability of world’s fisheries---illegal, unreported and unregulated (IUU) fishing. As a result of IUU fishing, it is estimated that Indonesia loses revenue in excess of US$4 billion annually. The Indonesian Government has identified IUU fishing as a priority policy issue to be addressed. A number laws, regulations and measures have been adopted by the Indonesian Government to address IUU fishing concerns. The thesis examines how Indonesia addresses the problem of IUU fishing and how it implements international fisheries instruments. The discussion commences by providing a brief overview of the key binding and non-binding international instruments and an examination of the national legal framework to address IUU fishing. Despite the enactment of fisheries laws and regulations, there is still a gap between international fisheries instruments and Indonesia’s domestic implementation of such instruments. One of the critical gaps in the effective implementation of its international fisheries obligations to combat IUU fishing is the failure of Indonesia to participate as a full member in existing regional fisheries management organizations. The continuous IUU fishing activities by Indonesian-flagged vessels in areas under the competence of RFMOs also indicates the failure of Indonesia to regulate the activities of its vessels on the high seas. The thesis also demonstrates the major challenge being faced by Indonesia with respect to its institutional framework to deal with the problems of IUU fishing. Indonesia’s institutional framework is characterized by multiple institutions at the national and provincial levels, lack of coordination in fisheries-related functions, and conflicts in jurisdiction. The thesis concludes that the national legal and institutional framework is inadequate to combat IUU fishing and that such framework needs to be improved and made consistent with international fisheries instruments in order to ensure long-term conservation and management of fisheries resources.
i
ACKNOWLEDGMENTS
In the name of God, Most Gracious, Most Merciful, I would like to thank my wife, Tini Purwantini, and my children for their profound support and encouragement in completing this research. I must also especially express my most sincere gratitude to, my supervisor, Professor Martin Tsamenyi, for coming up with the idea in the first place, securing the funding and his support, criticism and guidance. Many thanks are also due to Professor Dr. Etty R. Agoes (Padjadjaran University Law School, Indonesia) for her role in reading the first draft of the thesis, and Dr. Mary Ann (Centre for Maritime Policy, University of Wollongong, Australia) for her invaluable assistance in proofreading the final draft of my thesis. Inevitably in a study of this type, many institutions and individuals have assisted in providing scholarship, data, information and facilities. I am grateful to the Faculty of Law at Bandung Islamic University, Indonesia for granting me study leave. However, this study could never have been completed without the scholarship provided by the University of Wollongong and the Australian Government, and facilities provided to me by the Centre for Maritime Policy and the University of Wollongong library during my candidature. I am particularly indebted to the Secretary of the Centre for Maritime Policy, Myree Mitchell, for her assistance and encouragement. She has so kindly and politely humoured me in my feeble attempts to learn English. This research would likewise not have been possible without the cooperation and assistance of officials of the Department of Marine Affairs and Fisheries of the Republic of Indonesia and the Indonesian Navy Headquarters who provided data and information and so generously shared their knowledge and experience with me. I would also like to express my sincere appreciation to Dr Heather Jamieson (Learning Development Centre, University of Wollongong) and Margaret Schneider (Latrobe University, Melbourne) for their assistance in editing my thesis. I also would like to thank to the following colleagues at the Centre for Maritime Policy, University of Wollongong: Dr Clive Schofield, Dr Chris Rahman, Dr Ria Charidjah, Dr Vina, Dr Julia, Dr Dirhamsyah, Lara, Shilpa, Dorina, Georgia, Quentin, Wayne, Lowell, Jane, Amelia and Pakjuta who made my time in the Centre so intellectually rewarding and personally enjoyable. There are many other names not mentioned who helped me along the way by giving me ideas and an audience to speak to and I would like to thank them as well. Finally, my appreciation and memories to Nanang Soenarya and Nien Soemarni, my beloved parents, for bringing me up and educating me. I always pray for the peaceful repose of their souls.
ii
TABLE OF CONTENTS
ABSTRACT…………………………………………………………………..... iACKNOWLEDGMENT……………………………………………………….. iiTABLE OF CONTENTS……………………………………………………… iiiLIST OF ACRONYMS………………………………………………………... viiLIST OF FIGURES…………………………………………………………... ixLIST OF TABLES……………………………………………………………... ix CHAPTER 1: INTRODUCTION 11.1 Background……………………………………………………………. 11.2 Objectives of the Thesis and its Rationale…………………………. 61.3 Methodology…………………………………………………………… 101.4 Contribution of the Thesis……………………………………………. 111.5 Thesis Structure……………………………………………………….. 13
CHAPTER 2: THE CONCEPT OF IUU FISHING 182.1 Introduction…………………………………………………………….. 182.2 Concept of IUU Fishing…………………………..…………………... 18 2.2.1 Illegal Fishing ………………………………………………... 18 2.2.2 Unregulated Fishing…………………………………………. 20 2.2.3 Unreported Fishing………………………………………….. 212.3 The Development of the IUU Fishing Concept…………………….. 22 2.3.1 Development Through CCAMLR…………………………... 22 2.3.2 Development Through the FAO……………………………. 23 2.3.3 Development Through Other Organizations……………… 262.4 Causes of IUU Fishing………………………………………………... 29 2.4.1 Increasing Demand for Fishery Products…………………. 29 2.4.2 Subsidies in the Fisheries Sector and Overcapacity…….. 30 2.4.3 Lack of Flag State Control Over Its Fishing Vessels…….. 32 2.4.4 Ineffective Fisheries Monitoring, Control and
Surveillance……………………………….…………………. 362.5 Impacts of IUU Fishing……………………………………………….. 37 2.5.1 Impact of IUU Fishing on the Sustainability of Fisheries
Resources……………………………………………………. 38 2.5.2 Economic Impact of IUU Fishing…………………………... 402.6 Conclusion……………………………………………………………... 41
CHAPTER 3: THE FISHERIES PROVISIONS OF THE 1982 UN CONVENTION ON THE LAW OF THE SEA AND IUU FISHING 433.1 Introduction………………………………………………………......... 433.2 The Exclusive Economic Zone ………………………….................. 43 3.2.1 Coastal State Rights and Duties in the EEZ………………… 47 3.2.1.1 Conservation Obligations……………………...……… 47 3.2.1.2 Optimum Utilization of Fisheries Resources………... 50
iii
3.2.2 Fisheries Law Enforcement in the EEZ………………………. 553.3 Management of Stocks in the EEZ and on the High Seas……….. 62 3.3.1 Shared Stocks……………………………………………….. 62 3.3.2 Straddling Fish Stocks…..………………………………….. 65 3.3.3 Highly Migratory Species…………………………………… 703.4 Freedom of Fishing on the High Seas………………………………. 733.5 Conclusion……………………………………………………………... 76
CHAPTER 4: POST LAW OF THE SEA LEGALLY BINDING INSTRUMENTS AND MEASURES TO ADDRESS IUU FISHING 774.1 Introduction…………………………………………………………….. 774.2 Background to the FAO Compliance and UN Fish Stocks
Agreement……………………………………………………………… 774.3 The FAO Compliance Agreement…………………………………… 81 4.3.1 Definition and Application of the 1993 FAO Compliance
Agreement…………………………………………............... 82 4.3.2 Flag State Responsibilities……………………………….. 84 4.3.3 Exchange of Information Concerning Records of Fishing
Vessels………………………………………………………. 89 4.3.4 International Cooperation to Combat IUU Fishing by
Non-Parties…………………………………………………... 92 4.3.5 Gaps in the FAO Compliance Agreement………………... 934.4 The UN Fish Stocks Agreement ………………………………..…... 94 4.4.1 Compatibility of Conservation Measures………………..… 96 4.4.2 International Cooperation ………………………………….. 98 4.4.3 Deterring IUU Fishing Within the Jurisdiction of RFMOs.. 103 4.4.4 Duties of the Flag State……………………………............ 107 4.4.5 Compliance and Enforcement…………………………….. 110 4.4.6 Fisheries Law Enforcement by Port States……………. 1174.5 Conclusion……………………………………………………………... 118
CHAPTER 5: NON-BINDING GLOBAL INSTRUMENTS TO COMBAT IUU FISHING 1205.1 Introduction…………………………………………………………….. 1205.2 The FAO Code of Conduct for Responsible Fisheries……………. 120 5.2.1 Scope of Application of the FAO Code of Conduct……….… 121 5.2.2 General Principles of the FAO Code of Conduct………….… 122 5.2.3 International Cooperation…………………………………… 125 5.2.4 Fisheries Management……………………………………… 126 5.2.5 Monitoring, Control and Surveillance………………….….. 128 5.2.6 Flag State Responsibilities……………….………………… 130 5.2.7 Port State Measures………………………………………… 1315.3 The IPOA-IUU ……………………………………………….............. 132 5.3.1 Flag State Responsibilities………………………….……… 133 5.3.1.1 Fishing Vessel Registration……………………. 133 5.3.1.2 Record of Fishing Vessels……………………… 135 5.3.1.3 Authorization to Fish……………………………. 1365.3.2 Coastal State Measures……………………………………………… 140
iv
5.3.3 Port State Measures………………………………………………….. 1415.3.4 Internationally Agreed Market-Related Measures…………………. 1445.3.5 Conclusion……………………………………………………………... 148 CHAPTER 6: INDONESIAN FISHERIES AND IUU FISHING 1506.1 Introduction…………………………………………………………….. 1506.2 Indonesia’s Fisheries Jurisdiction…………………………………… 1506.3 Indonesian Fisheries Resources……………………………………. 1526.4
Indonesian Fishing Industry…………………………………………. 6.4.1 The Artisanal Fisheries Sector………………………..……
156156
6.4.2 The Commercial Fisheries Sector………………………… 1586.5 IUU Fishing in Indonesia…………………………………................ 160 6.5.1 Illegal Fishing in Indonesia….……………………………… 160 6.5.2 Unregulated Fishing in Indonesia………………………….. 162 6.5.2 Unreported Fishing in Indonesia….……………………….. 163 6.5.4 IUU Fishing in Waters of Other States and on the High
Seas…………………………………………………………... 1646.6 Causes of IUU Fishing in Indonesia………………………………… 1686.7 Consequences of IUU Fishing………………………………………. 1716.8 Case Studies of IUU Fishing in Three Fishing Areas…………….. 174 6.8.1 IUU Fishing in Babel Waters………………………………. 174 6.8.2 IUU Fishing in Indonesian Waters of the South China
Sea…………………………………………………………… 178 6.8.3 IUU Fishing in the Celebes Sea…………………………… 1816.9 Conclusion…………………………………………………………….. 183 CHAPTER 7: THE INDONESIAN FISHERIES LEGISLATIVE AND INSTITUTIONAL FRAMEWORK TO ADDRESS IUU FISHING 1857.1 Introduction…………………………………………………………….. 1857.2 The Indonesian Domestic Legal Framework………………………. 185 7.2.1 Laws and Regulations Relating to the Limits of National
Jurisdiction…………………………………………………… 187 7.2.2 Indonesian Legislation Concerning Fisheries…………… 190 7.2.2.1 Law No. 5 on the Indonesian Exclusive
Economic Zone………………………………….. 190 7.2.2.2 Presidential Decree No. 39 of 1980 on
Elimination of the Use Trawl……………………. 192 7.2.2.3 The Decision of the Minister of Agriculture No.
392 of 1999 Concerning Fishing Zone…….….. 194 7.2.2.4 Decision of the Minister of Marine Affairs and
Fisheries Concerning the Regulation of Fishing Vessels Operation in the IEEZ….…….. 197
7.2.2.4.1 Joint Ventures……………………….. 198 7.2.2.4.2 Purchase on Instalments…………… 199 7.2.2.4.3 Licensing…………………………….. 202 7.2.2.5 Law of the Republic of Indonesia No. 31 of
2004 Concerning Fisheries ……………………. 2057.3 Challenges in Institutional Framework Combat IUU Fishing…….. 212
v
7.3.1 Problems in Management ………………………………..... 212 7.4
7.3.2 Problems of Enforcement ………………………………..… Conclusion…………………………………………………………..….
214221
CHAPTER 8: THE INDONESIAN REGULATORY FRAMEWORK FOR VESSEL REGISTRATION AND FISHING VESSEL LICENSING 2238.1 Introduction…………………………………………………………….. 2238.2 Legal Framework for Fishing Vessel Registration…………………. 224 8.2.1 Fisheries Law No. 31 of 2004………………………….…... 224 8.2.2 Shipping Law No. 21 of 1992…………………………….… 225 8.2.3 Government Regulation No. 51 of 2002……………….…. 225 8.2.4 Gaps in the Fishing Vessel Registration Framework……. 2288.3 Authorization to Fish………………………………………………….. 232 8.3.1 Types of Fishing Licenses…………………………………. 234 8.3.1.1 Fisheries Business License ……………………
8.3.1.2 Fishing License………………………………….. 8.3.1.3 License for Fish Transporting Vessels……….. 8.3.2 Licensing of Foreign Fishing Vessels……………………..
235 237242247
8.3.3 Defects in the Fishing License Regime…………………... 2508.4 Regulation of Fish Aggregating Devices ....................................... 2558.5 Conclusion……………………………………………………………... 259 CHAPTER 9: ANALYSIS OF THE INDONESIAN LEGAL FRAMEWORK FOR MONITORING AND SURVEILLANCE OF FISHING VESSELS 2619.1 Introduction…………………………………………………………….. 2619.2 The Indonesian Laws and Regulations on Monitoring and
Surveillance of Fishing Vessels…………………………………..…. 261 9.2.1 Satellite-based Vessel Monitoring System……………….. 262 9.2.2 Fishing Logbooks……………………………………………. 271 9.2.3 Observer and Inspection Scheme…………………………. 275 9.2.4 Admissibility of Electronic Evidence in Courts……………. 2849.3 Conclusion……………………………………………………………... 290 CHAPTER 10: CONCLUSION 291 BIBLIOGRAPHY 298
vi
LIST OF ACRONYMS
ACIAR Australian Centre for International Agricultural Research ADB AMFR
Asian Development Bank Agency for Marine and Fisheries Research
CCAMLR Commission for the Conservation of Antarctic Marine Living Resources
CCSBT Commission for the Conservation and Management of Southern Bluefin Tuna
CMP Centre for Maritime Policy COFI FAO Committee on Fisheries. COLP Center for Oceans Law and Policy DWFN Distant Water Fishing Nations DGCF Directorate General of Capture Fisheries DMAF EEZ FAO FCR
Department of Marine Affairs and Fisheries Exclusive Economic Zone Food and Agriculture Organization Fish Code Review
FFA Forum Fisheries Agency FOC Flag of Convenience GRT Gross Tonnage HP horsepower ICCAT International Commission for the Conservation of Atlantic Tunas ICLOS Indonesia Center for the Law of the Sea IEEZ Indonesian Exclusive Economic Zone IMO International Maritime Organization IOTC Indian Ocean Tuna Commission IPOA-IUU International Plan of Action on Illegal, Unreported and
Unregulated Fishing ITLOS International Tribunal for the Law of the Sea IUP Fisheries Business License IUU Illegal, Unreported and Unregulated LBP Logbook on Catch and Fish Transport LLO Logbook on Vessel’s Technical/Operational Worthiness LIPI The Indonesian Institute of Science NM nautical mile MCS Monitoring, Control and Surveillance MSY Maximum Sustainable Yield NAFO Northwest Atlantic Fisheries Organization NPOA-IUU National Plan of Action to Prevent, Deter, and Eliminate Illegal,
Unreported and Unregulated Fishing OECD Organization of Economic Cooperation and Development RCCF Research Centre for Capture Fisheries RFMO Regional Fisheries Management Organization SBT Southern Bluefin Tuna SEAPOL South-East ASIAN Programme in Ocean Law SIKPI Fish Carrier License SIUP Fisheries Business License SPI Fishing License TAC Total Allowable Catch
vii
UN United Nations UNCSD United Nations Commission on Sustainable Development UNCED United Nations Conference on Environment and Development UNCLOS United Nations Convention on the Law of the Sea UNCLOS I United Nations Conference on the Law of the Sea UNCLOS II Second United Nations Conference on the Law of the Sea UNCLOS III Third United Nations Conference on the Law of the Sea UNGA United Nations General Assembly UNICPOLOS United Nations Open-Ended Informal Consultative Process on
Oceans and the Law of the Sea. UOW University of Wollongong. VMS Vessel Monitoring System WCPFC Western and Central Pacific Commission WTO World Trade Organization
viii
LIST OF FIGURES
6.2 Indonesia’s Fisheries Management Areas 151
LIST OF TABLES 6.3.1 Production of Fish Species Group in each Fisheries
Management Area, 2001…………………………………….…… 1546.7 Economic Impacts of IUU Fishing in Indonesia………….…….. 1736.8.1(A) Types of Fishing Gears in Bangka, 2001…………..…………... 1756.8.1(B) Types of Fishing Gears in Belitung, 2001……………………… 1766.8.1(C) Types of Fishing Gears and Targeted Species in the
Bangka Belitung Province…..………………………………... 1766.8.2 Types of Fishing Gears in the South China Sea…....………… 1796.8.3 Types of Fishing Gears in the Celebes Sea…………………… 181
ix
CHAPTER 1
INTRODUCTION
1.1 Background
This thesis addresses one of the contemporary problems facing the
sustainability of global fisheries resources: illegal, unregulated and unreported
(IUU) fishing.1 According to the United Nations Food and Agriculture
Organization (FAO), approximately 47 per cent of the major fish stocks in the
world are now fully exploited, 18 per cent are overexploited, and 10 per cent are
significantly depleted.2 There is no denying that the world’s fisheries are
experiencing a catastrophic crisis.3 This crisis in global fisheries is compounded
by inappropriate and inadequate international regulations governing the
conservation and exploitation of fisheries resources, particularly high seas
fisheries,4 as well as ineffective and poor implementation of national fisheries
management framework.
It is now universally agreed that a major cause of the global fisheries crisis is
what has become popularly known as IUU fishing. According to the United
Nations, IUU fishing is the “main obstacle in achieving sustainable fisheries in
both areas under national jurisdiction and the high seas.”5 IUU fishing is also
1 The definition and scope of IUU fishing is discussed in Chapter 2. 2 Report of the UN Secretary General of Fifty-Ninth Session of the United Nations General Assembly, 24 August 2004, p. 8. 3 Howard L. Brown, “The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: An Analysis of International Environmental Law and the Conference’s Final Agreement”, Vermont Law Review, Vol. 547, 1996-1997, p. 548. 4 Christopher C. Joyner, “Compliance and Enforcement in New International Fisheries Law”, Temple International Law & Comparative Law Journal, Vol. 271, 1998, p. 272. 5 Report of the UN Secretary-General on “Oceans and the Law of the Sea, Sustainable Fisheries, including through the Agreement for the Implementation of the Provisions of the
1
considered as “one of the most severe problems affecting world fisheries”6 and
known to have “far-reaching consequences for the long-term sustainable
management of fishery resources.”7 On 29 November 2005, the UN General
Assembly expressed concern that IUU fishing seriously threatens to deplete
certain fish stocks and significantly damage marine habitats and ecosystems to
the detriment of sustainable fisheries as well as the food security and
economies of many states, particularly developing States.8 IUU fishing can
occur in all marine capture areas, both within and outside national fisheries
waters, especially on the high seas adjacent to the exclusive economic zone
(EEZ).
In an effort to combat IUU fishing, the 1982 United Nations Convention on the
Law of the Sea (LOSC), in Part V on the Exclusive Economic Zone and Part VII,
Section 2 on the Conservation and Management of the Living Resources of the
High Seas contains a number of provisions stipulating the obligations of coastal
and flag States to ensure the conservation and management measures of the
fisheries resources9 in the EEZ and on the high seas.
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, and Related Instruments”, UNGA Doc A/59/298, 26 August 2004, para. 36, p.13. 6 Report of the UN Secretary General on Oceans and the Law of the Sea: Law of the Sea Results of the Review by the Commission on Sustainable Development of the Sectoral Theme of “Oceans and Seas, UNGA Doc A/54/429, 30 September 1999, para. 249, p. 42. 7 United Nations Open-ended Informal Consultative Process on Ocean Affairs First Meeting 30 May-2 June 2000, Discussion Panel A, Responsible Fisheries and Illegal, Unregulated and Unreported Fisheries Moving from Principles to Implementation Illegal, Unreported and Unregulated Fishing, Submission by the Food and Agriculture Organization of the United Nations UNGA Doc A/AC.259/1, para 1, 15 May 2000, p. 1. 8 United Nations General Assembly Resolution A/Res/60/31 on “Sustainable Fisheries, including the 1995 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, and Related Instruments”, 10 March 2006, p. 2. 9 Ellen Hey, “A Healthy North Sea Ecosystem and a Healthy North Sea Fishery: Two Sides of the Same Regulation”, Ocean Development and International Law, Vol. 23, 1992, p.224.
2
As far as the management of the EEZ is concerned, Article 61 provides the duty
of coastal States to determine the total allowable catch (TAC).10 In regulating
fishing activities, Article 62(4) of the LOSC allows coastal States to impose the
terms and conditions on distant water fishing nations which seek to gain access
to surplus resources in its EEZ.
The important provisions in Article 63 of the LOSC on shared and straddling fish
stocks are the obligations of coastal States to seek to agree on the measures
necessary to coordinate and ensure the conservation and development of
shared stocks and cooperate with high seas fishing nations on the conservation
and management of straddling fish stocks. Pursuant to Article 64(1), coastal
States and high seas fishing nations are required to cooperate directly or
through regional fisheries management organisations (RFMOs) to ensure the
conservation and management of highly migratory species.
Closely related to these provisions on transboundary fish stocks is Article 116 of
the LOSC which gives all States the right to provide their nationals to engage in
fishing activities on the high seas subject to the rights and duties as well as the
interests of other States under Articles 63(2) and 64. Articles 117 to 119 of the
LOSC impose an obligation on high seas fishing nations to cooperate in the
conservation and management of fisheries resources in the areas of the high
seas through RFMO.
10 Gordon R.Munro, “Extended Jurisdiction and the Management of Pacific Highly Migratory Species”, Ocean Development and International Law, Vol. 21, 1990, p.292.
3
Two principal obligations arising from these LOSC provisions can be identified.
The first is the obligation of the coastal States to combat IUU fishing in areas
under national jurisdiction and shared waters. The second pertains to the
obligations of interested high seas fishing nations to ensure, by the adoption of
appropriate laws and regulations, that fishing vessels flying their flags act in a
manner consistent with international law and RFMO conservation and
management measures.
The above-mentioned provisions were directed to provide a sound basis for
effective RFMO cooperation in the conservation and management of high seas
fisheries resources, especially transboundary fish stocks. However, the LOSC
has failed to clearly define the scope of cooperation for shared stocks,
straddling stocks and highly migratory species. The LOSC is not adequate as a
legal framework to be used by the international community to reach sustainable
fisheries development goals.
Since the 1990s, the UN, through the FAO, has taken concerted actions to find
a global solution to the IUU fishing problem. Consequently, a number of
international fisheries instruments, both binding and non-binding, have been
negotiated to supplement the LOSC in order to effectively address IUU
fishing.11 The most significant of these instruments include the FAO Code of
Conduct for Responsible Fisheries (FAO Code of Conduct),12 the Agreement to
11 Michael Lodge and Frank Meere, “High Seas Governance”, Meeting of the High Seas Task Force Paris, 9 March 2005, Maritime Studies 141, March/April 2005, p.2. 12 Food and Agriculture Organization, Code of Conduct for Responsible Fisheries, Adopted at the 28th Session of the FAO Conference, Rome, Italy, 31 October 1995. See also New FAO Project to Tackle Illegal Fishing, Africa News Service, April 10, 2002, University of Wollongong Library Expanded Academic ASAP Plus, 25 November 2002, p.1.
4
Promote Compliance with International Conservation and Management
Measures by Fishing Vessels (FAO Compliance Agreement),13 the Agreement
for the Implementation 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 (UN Fish Stocks
Agreement),14 and the International Plan of Action to Deter, Prevent, and
Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).15
The objective of the FAO Code of Conduct is to provide guidance to States to
create or improve the legal and institutional framework for fisheries
management in order to achieve responsible fisheries.16 The FAO Compliance
Agreement addresses issues related to re-flagging and flag of convenience by
focusing in particular on flag state responsibility. Essentially, the FAO
Compliance Agreement obliges State Parties to control the activities of their
vessels on the high seas in order to ensure that such vessels do not undermine
international fishery conservation and management measures.17 The UN Fish
Stocks Agreement attempts to deal with the IUU fishing problem by providing a
13 FAO, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Adopted at the 27th Session of the FAO Conference, 24 November 1993. 14 UN, 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, New York, 24 July-04 August 1995. See also Chris Hedley, Entry Into Force of the United Nations Fish Stocks Agreement: An Initial Assessment, Originally Published as (2001) International Fisheries Bulletin No.24, 2001, http://www.intfish.net/ops/papers/7.htm, p.1. 15 FAO, International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing, Adopted at the Twenty-fourth Session of COFI, Rome, Italy, 02 March 2001, p.iii. 16Western Central Atlantic Fishery Commission “Use of Monitoring Control and Surveillance (MCS) in Fishing As An Integral Part of Fisheries Management in the WECAFC Region”, Western Central Atlantic Fishery Commission, Eleventh Session, St. Georgia’s, Grenada, 21-24 October 2003, p. 3. 17 Duncan E.J. Currie, “Protecting the Deep Sea Under International Law: Legal Options for Addressing High Bottom Trawling”, Legal, Green Peace, October 4, 2004, p.12.
5
framework for international cooperation, non-members of RFMOs, duties of the
flag state and compliance and enforcement.18
In recognition of the fact that not all States are parties to binding fisheries
instruments, the FAO has developed the IPOA-IUU as a non-legally binding
instrument to strengthen the binding agreements. The IPOA-IUU contains wide-
ranging provisions, including responsibilities of all States, coastal States, and
flag States, port State measures, internationally agreed market-related
measures, and special requirements of developing countries.19 It can be said
that the provisions of the IPOA-IUU set the international standard for the
regulation of IUU fishing at the national level. More significantly, the IPOA-IUU
requires all members of the FAO to develop and implement National Plans of
Action to Combat IUU fishing.20 The growing incident of IUU fishing, globally, is
of significance to Indonesia.
1.2 Objectives of the Thesis and its Rationale
Against the international background outlined above, the objective of this
thesis is to analyse the fisheries law and policy framework of Indonesia and to
assess its adequacy in effectively combating IUU fishing. The framework for
analysis will be based on the scope and content of international fisheries
instruments regulating IUU fishing, particularly the LOSC, FAO Code of
18 Moritaka Hayashi, “Global Governance of Deep-Sea Fisheries”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p. 296. 19 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p. 2. 20 Carl-Christian Schmidt, “Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing”, The International Journal of Marine and Coastal Law, Vol. 20, Nos. 3-4, 2005, p.479.
6
Conduct, FAO Compliance Agreement, UN Fish Stocks Agreement, and the
IPOA-IUU.
Aside from the Indonesian waters, IUU fishing also takes place in waters,
shared with neighbouring States, waters under the jurisdiction of other States,
and on the high seas adjacent to the Indonesian exclusive economic zone
(IEEZ). As will be explained in chapter 6 of the thesis, IUU fishing in Indonesia
covers a range of activities, including the falsification of vessel information,
double-flagging of vessels, unregistered and unlicensed fishing activities, and
unreported and unregulated fishing. To illustrate the extent of IUU fishing in
Indonesia, the thesis will present three case studies, on Babel waters, the IEEZ
of the South China Sea, and the Sulawesi Sea. The real threat to the future of
Indonesian fisheries and neighbouring States comes from unregulated fishing
activities. From this perspective, the unregulated fishing of modified illegal
fishing gear and the Fish Aggregating Devices (FADs) in the Indonesian EEZ of
the South China Sea and the Sulawesi Sea, respectively, have an international
dimension as these IUU activities are characterised as threats to sustainable
fisheries development both within and beyond limits of national jurisdiction.
The thesis will examine the scope of international fisheries-related instruments
to address the IUU fishing problem and the extent to which such instruments
are implemented in Indonesia. The thesis will also identify gaps in the present
national legal and institutional frameworks to address IUU fishing. Five specific
research questions are addressed in the thesis. These are:
1. What is IUU fishing and what are its causes?
7
2. What are the international laws applicable to combat IUU fishing?
3. What are the characteristics of IUU fishing in Indonesia?
4. How, and to what extent, have principles of international instruments
influenced fisheries legislative and institutional frameworks in Indonesia to
combat IUU fishing?
5. How adequate is the fisheries legislative framework in Indonesia to combat
IUU fishing?
The thesis will show that the there is a gap between the international fisheries
instruments and Indonesia’s domestic implementation of such instruments.
While a number of laws and regulations have been developed to address IUU
fishing, these are not able to deliver an effective regime for fisheries
management, fishing vessel registration, fishing license and monitoring, control
and surveillance (MCS). The Indonesian legislation on fisheries is inadequate to
deal with unregulated fishing activities that take place in the shared waters of
the IEEZ of the South China Sea and the Sulawesi Sea. It will be argued that
the failure of Indonesia to participate as a full member in existing and relevant
RFMOs is a critical gap in the effective implementation of its international
fisheries obligations to combat IUU fishing. The continuous IUU fishing by
Indonesian flagged vessels within RFMOs areas, especially for patagonian
toothfish and tuna, indicates a failure by Indonesia in regulating the activities of
its vessels on the high seas.
The thesis will also show that a major challenge facing Indonesia is the
inappropriate institutional framework to deal with the problems of IUU fishing.
8
The basic issue is that there is no comprehensive and coordinated national
approach in Indonesia to marine fisheries policy. Indonesia’s current system is
characterised by multiple institutions at the national and provincial levels, lack of
coordination and jurisdictional conflict. For example, the regulation of
ornamental fish continues to be a source of jurisdictional conflict between the
Department of Marine Affairs and Fisheries and the Department of Forestry.
Another issue relates to lack of clarity about enforcement authority within the
EEZ. The competences of the Navy and civilian agencies are not clearly
identified in the Law No. 31 on Fisheries. Indeed, Article 14 (1) of Law No. 5 on
the IEEZ recognizes that the officers qualified to investigate the violation of
fisheries law in the EEZ are the Navy, as designated by the Commander of the
Indonesian Armed Forces. On the other hand, under Article 66 of Law No. 31
on Fisheries, such power may also be exercised by civil servant fisheries
officers acting as principal investigators. This provides a possible source of
jurisdictional conflict relating to the agency that should be empowered to take
legal action against IUU fishing activities in the IEEZ.
Serious efforts must be made to eliminate IUU fishing including improved
enforcement.21 Law No. 31 on Fisheries should be the key legislation that
establishes the legislative framework for maritime enforcement and compliance.
The legal framework and the implementation of measures to combat IUU fishing
beyond the limits of national jurisdiction need to be improved and addressed
urgently by the Indonesian government. To combat IUU fishing, there is an
9
urgent need for Indonesia to reform its national fisheries legislation consistent
with the IPOA-IUU and other international fisheries instruments.
Any effective national legal framework in Indonesia which attempts to deal with
IUU fishing issues has to be consistent with international laws. Indonesia must
comply with its obligation as a coastal State and a distant water fishing nation
under the LOSC. As a State party of the LOSC, Indonesia is expected to ratify
and implement the FAO Compliance Agreement and the UN Fish Stocks
Agreement. The framework of binding international fisheries instruments
provides a basic obligation for Indonesia to cooperate with other States in
handling unregulated fishing in shared waters and participate in RFMOs to
combat IUU fishing. The RFMOs in which Indonesia would need to participate
include the Commission for the Conservation of Southern Bluefin Tuna
(CCSBT), the Indian Ocean Tuna Commission (IOTC) and the Western and
Central Pacific Fisheries Commission (WCPFC).
1.3 Methodology
The methodological approach used in the research is based on desktop
analysis combined with fieldwork to collect relevant data and information. The
desktop study focused on the identification of the current international legal
framework for IUU fishing in order to assess its limitations and strengths and
qualitative analysis of the extant literature on international fisheries law and IUU
fishing. The fieldwork component of the research which was undertaken in
Indonesia over a period of three months involved the collection of primary data
21 Kristina M. Gjerde and David Freestone, “Unfinished Business: Deep-Sea Fisheries and Conservation of Marine Biodiversity Beyond National Jurisdiction,” Editor’s Introduction, The
10
and literature, consultation with key stakeholders to collect and coordinate
departmental positions on IUU fishing issues, and participation in seminars and
internal departmental meetings on fisheries matters in Jakarta.
1.4 Contribution of the Thesis
This thesis is of international and national significance. The international
significance of the thesis arises from the global concerns on IUU fishing
outlined above. At the national level, successive Indonesian governments have
identified IUU fishing as a priority policy issue to be addressed. This is a
recognition of the significance of fisheries in Indonesia from social and
economic perspectives.22 The fisheries sector of Indonesia makes an important
contribution to food security and employment in Indonesia. More than 60 per
cent of animal protein consumed by Indonesians is derived from the fisheries
sector. It was estimated that Indonesians consumed per capita 21.7 kilograms
of fish per year in 2002. The primary fisheries sector also generated
approximately 1,805,470 jobs and contributed over US$1.6 billion in export
earnings in 2000.23 As a result of IUU fishing, it is estimated that Indonesia has
lost revenue in excess of US$4 billion annually.24 It is clear that failure to put in
place appropriate and adequate policy and regulatory frameworks to address
the IUU fishing in Indonesia will seriously affect the country’s economy and
jeopardize food security.
International Journal of Marine and Coastal Law, Vol. 19, No 3, 2004, p. 222. 22 Department of Marine Affairs and Fisheries of the Republic of Indonesia Combat Illegal Fishing, http://www.dkp.go.id/index.php (accessed on May 8 2006). 23 Dirhamsyah, “Maritime Law Enforcement and Compliance in Indonesia: Problems and Recommendations”, Maritime Studies, September/October 2005, p. 1. 24 Opening Remarks of Rokhim Dahuri, Former Minister of Marine Affairs and Fisheries at Law Enforcement Officer Technical Meeting, the Directorate General of Surveillance for Marine Affairs and Fisheries, the Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, Indonesia, 8-12 June 2003, p. 2.
11
The management of Indonesia’s fisheries is a complex matter, requiring a
balance between national and international interest and conflicting institutions. It
is complex because of the inappropriate laws and policies and lack of
enforcement effort at the national and provincial levels. There are therefore
challenging times ahead of Indonesia to develop a legal and policy framework
to combat IUU fishing, not only in its own waters, but also on the high seas and
in areas under the jurisdiction of neighbouring States. This makes the study
timely.
The thesis will make both academic and policy impact. To date, very little
scholarly attention has been paid to the issue of IUU fishing in Indonesia, with
the result that these issues have lagged well behind the attention given to other
law of the sea issues such as archipelagic sealanes passage through the
Indonesian archipelagic waters.25 Thus, this thesis fills a major vacuum in the
literature.
25 Literature on Law of the Sea Issues includes: Mochtar Kusumaatmadja, “The Problems of the Breadth of Territorial Waters in the Geneva Conventions of 1958-1960”, (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Bina Cipta Publisher, Bandung, Indonesia 1962; Mochtar Kusumaatmadja, “The Legal Regime of Archipelagos: Problems and Issues” and “Supplementary Remarks”, in LM. Alexander (ed), The Law of Sea : Needs and Interest of Developing Countries. Proceedings of the Seventh Annual Conference of the Law of the Sea Institute, 26-29 June 1972. at the University of Rhode Island, Kingston, University of Rhode Island, 1973; Komar Kantaatmadja, “International Compensation for Marine Oil Pollution” (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Alumni Publisher, Bandung, Indonesia, 1981); Daud Silalahi, “The Problems of Marine Environment Management National and Regional”, (A Doctoral Dissertation, School of Law, Padjadjaran University), Bandung, Indonesia, 1988. ; Atje Misbach Muhjiddin” Legal Status of the Indonesian Archipelagic Waters” (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Alumni Publisher, Bandung, Indonesia, 1993; Hasyim Djalal, “Indonesia and the Law of the Sea”, Centre for Strategic and International Studies, Jakarta, Indonesia, 1995; Barbara Kwiatkowska and Etty R.Agoes, “Archipelagic Waters: An Assessment of National Legislation” in R Wolfrum (Ed), Law of the Sea at the Crossroads: The Continuing Search for a University Accepted Regime, Proceedings of an Interdisciplinary Symposium of the Kiel Institute of International Law, 10-14 July 1990, Duncker and Humblot, Berlin, 1990; Etty R. Agoes, “Current Issues of Marine and Coastal Affairs in Indonesia”, The International Journal of Marine and Coastal Law, Vol. 12, No.
12
From a policy perspective, the thesis is timely and highly relevant in the current
context of national awareness of IUU fishing in Indonesia. Indonesia is currently
developing its laws and policies for the management for sustainable fisheries.
From a policy perspective, the research would have considerable benefits for
Indonesia in developing the needed policy and national legislative framework at
all levels of government to address the problem of IUU fishing.
1.5 Thesis Structure
This thesis is divided into ten chapters. Chapter 1 provides a brief
background of the contemporary problems of IUU fishing that cause the
unsustainability in world fisheries, objectives of international instruments to
address IUU fishing, and the key arguments highlighting the inadequacy of the
Indonesian fisheries legislative and institutional frameworks to respond to the
problem based on the requirements set out in the LOSC, FAO Code of
Conduct, FAO Compliance Agreement, and UN Fish Stocks Agreement.
Chapter 2 discusses the historical background to the IUU fishing concept. The
chapter traces the origins of the IUU fishing terminology and analyses the
definition of IUU fishing, the nature and extent of the problem, and factors
contributing to and impacts of IUU fishing. The chapter concludes that IUU
2, 1997; Etty R. Agoes, “Policing Offshore Zones: Indonesia’s Models and Experience”, Wollongong Papers on Maritime Policy No. 9, Centre for Maritime Policy, University of Wolongong, Wollongong, New South Wales, Australia, 1997; Hasjim Djalal, “The Law of the Sea Convention and Navigational Freedom” in Donanld Rothwell & Sam Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea, Martinus Nijhoff Publishers, The Hague, 2000; Dhiana Puspitawati, “The East/West Archipelagic Sea Lanes Passage Through the Indonesian Archipelago”, Maritime Studies, January/February 2005.
13
fishing is a global issue which requires international cooperation in order to
effectively address problem.
Chapter 3 examines the relevant provisions of the LOSC on fisheries and how
the legal framework under the Convention addresses IUU fishing. The chapter
analyzed the strengths and weaknesses of the LOSC provisions on fisheries. It
concludes that while the LOSC provides numerous rights and obligations of
coastal States in conserving and managing resources in the EEZ, it has not
clearly defined the scope of cooperation among States in managing shared,
straddling, and highly migratory fish stocks.
Chapter 4 discusses post-LOSC legally binding instruments and examines the
extent to which they address IUU fishing. The analysis in this chapter focuses
on two key agreements: the FAO Compliance Agreement and the UN Fish
Stocks Agreement. It is argued in this chapter that these two agreements made
significant contribution in supplementing and implementing the fisheries-related
provisions of the LOSC. However, there are still IUU fishing-related issues that
need to be addressed by these agreements such as control of fishing activities
by transport and support vessels and the rights and obligations of third parties
to regional fisheries management organizations.
Chapter 5 examines the non-legally binding instruments that support the
implementation of legally binding instruments discussed in chapters 3 and 4.
The instruments discussed in this chapter are the FAO Code of Conduct for
Responsible Fisheries and the IPOA-IUU. These voluntary instruments further
14
support and strengthen the adoption of the LOSC, FAO Compliance
Agreement, and the UN Fish Stocks Agreement, particularly with respect to
implementing port State measures. The chapter emphasized the need to
effectively implement these non-binding instruments for the long-term
sustainability of straddling and highly migratory fish stocks to be achieved.
Chapter 6 outlines the fisheries management framework in Indonesia and
provides a general background to IUU fishing in Indonesia. The chapter
demonstrates the enormity of the IUU fishing challenges in Indonesia and
raises the need for a holistic approach to addressing such challenges. The
analysis in this chapter provides the backdrop to the specific legislative analysis
in subsequent chapters.
Chapter 7 examines the fisheries legislative and institutional frameworks in
Indonesia. The chapter demonstrates clearly that the legislative and institutional
frameworks in Indonesia are not adequate to combat IUU fishing. Two major
issues that the legislative framework fails to adequately address are IUU fishing
by Indonesian vessels in areas outside national jurisdiction and Indonesia’s
obligations to the conservation and management of straddling and highly
migratory fish stocks. The chapter also highlighted the inadequacy in the
institutional framework to address IUU fishing. There is a lack of clear division
of responsibilities among government agencies and between the central and
local governments on fisheries matters.
15
To elaborate on the inadequacy of the national legislative framework to address
IUU fishing in Indonesia, two specific measures are analyzed: fishing vessel
registration and licensing system and monitoring, control, and surveillance.
Chapter 8 addresses the Indonesian regulatory framework for fishing vessel
registration and licensing. The chapter shows that the fishing vessel registration
and licensing framework in Indonesia are defective in many ways. The
inadequacies in the fishing vessel registration and licensing system involves the
verification of deletion certificates, tracking of history of fisheries compliance of
a fishing vessel, records of fishing vessels, fishing vessel licensing in local
governments, and licensing of Indonesian vessels fishing in RFMO areas and
on the high seas.
Chapter 9 analyses the Indonesian legislative framework for monitoring, control,
and surveillance for fishing vessels. The chapter concludes that the MCS
framework in Indonesia is inadequate to effectively address issues because it
fails to satisfy the requirements of post-LOSC instruments. The fisheries laws
and regulations of Indonesia do not adequately address issues such as the
mandatory use of VMS on the high seas by Indonesian vessels and
implementation of the logbook system and boarding and inspection scheme.
The chapter also posed the challenge for Indonesia to develop a suitable
system that will allow the admissibility of electronic evidence in Indonesian
courts.
Chapter 10, the conclusion, summarizes the key findings of the thesis. Overall,
the thesis has demonstrated that despite efforts to adopt fisheries laws and
16
regulations, the existing national legislative framework in Indonesia still does
not adequately implement the international legal requirements to combat IUU
fishing. The institutional framework for fisheries management in Indonesia is
also inadequate due to overlapping jurisdiction and lack of clearly defined
responsibilities among agencies and between the national and local
governments. The legal and institutional framework would need to be improved
and made consistent with international fisheries instruments in order to
effectively address IUU fishing and ensure the long-term sustainability of
fisheries resources in Indonesia.
17
CHAPTER 2
THE CONCEPT OF IUU FISHING
2.1 Introduction
The Introduction demonstrated that IUU fishing is a global problem which
undermines international fisheries conservation and management measures.
The purpose of this Chapter is to examine the concept of IUU fishing, its
historical origin, the factors contributing to IUU fishing, and its consequences.
The analysis also addresses the constraints being faced by many States in
fulfilling their obligations under international fisheries instruments. The Chapter
demonstrates that IUU fishing poses a threat to the sustainability and economic
viability of many fisheries resources and that global efforts are required to
address the problem.
2.2 Concept of IUU Fishing
There are three components of IUU fishing, namely, (a) illegal fishing, (b)
unregulated fishing, and (c) unreported fishing. The generally accepted
definition of each of the components of IUU fishing is provided by the
International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported
and Unregulated Fishing (IPOA-IUU).
2.2.1 Illegal Fishing
Paragraph 3.1 of the IPOA-IUU defines illegal fishing as fishing activities
3.1.1 conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;
18
3.1.2 conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or 3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.
Illegal fishing occurs in marine capture areas both under the national jurisdiction
of coastal States, in areas under the competence of regional fisheries
management organisations (RFMOs), and on the high seas.1 Illegal fishing in
national waters covers two main activities. The first activity involves fishing
conducted by both domestic and foreign vessels without proper authorization.
The second encompasses fishing activities that contravene the terms and
conditions of a valid license.2 Illegal fishing involves a range of activities such
as incursions (poaching) into the exclusive economic zones (EEZs) and inshore
areas by foreign fishing vessels, non-compliance by fishers with the terms of
their fishing licenses; fishing by unlicensed vessels; and unlicensed fishing in
restricted areas.3 Another type of illegal fishing is the use of destructive fishing
methods such as explosives and poisons, small-meshed fishing nets, and highly
destructive fishing gears.4
1 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, page 1. 2 William Edeson, “Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing”, Australian Yearbook of International Law, Vol.20, 1999, pp. 14-15. 3 David J. Doulman, “ Global Overview of IUU Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for The Conclusions of the 2001 FAO International Plan of Action”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, p. 29. 4 Ousman K.l. Drammeh, “Illegal, Unreported and Unregulated Fishing in Small-Scale Marine and Inland Capture Fisheries”, Expert Consultation on Illegal, Unreported and Unregulated
19
At a regional level, illegal fishing also occurs when member states of RFMOs
fail to comply with the organization’s conservation and management measures.5
In this context, the term illegal fishing is used to refer to activities that
contravene either national or international laws. These practices often go
undeterred either because of the lack of political will or the lack of capacity of
national or regional bodies to enforce existing fisheries laws.6
2.2.2 Unregulated Fishing
Paragraph 3.3 of the IPOA-IUU defines unregulated fishing as fishing
activities
3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or 3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.
From the above definition, it is apparent that unregulated fishing is commonly
undertaken by vessels flying the flag of non-members of RFMOs. As a result,
these vessels do not consider themselves to be bound by the conservation and
Fishing Organized by the Government of Australia in Cooperation with FAO, AUS:IUU/2000/7, Sydney, Australia, 15-19 May 2000, p. 1. 5 Kevin Bray, “Illegal, Unreported and Unregulated Fishing, Current Fisheries Issues and the Food and Agriculture Organizations of the United Nations, Center for Oceans and Policies, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p.122. 6 Lawrence Juda, “Rio Plus the Evolution of International Marine Fisheries Governance”, Ocean Development and International Law, Vol. 33, No. 2, April-June 2002, p.119.
20
management measures adopted by RFMOs.7 These states and their fishing
vessels are often categorized as “free riders.” The term unregulated fishing also
refers to the harvesting of fish in areas where there are no management
measures.8 Unregulated fishing activities are also caused by the ineffective
application of international regulations at the national and regional levels.9
Thus, the concept of unregulated fishing is a narrow one. It mainly applies to
two circumstances, namely, fishing activities in areas covered by RFMOs by
vessels without nationality and by vessels whose flag States are not members
of RFMOs. The term unregulated fishing also applies to fishing on high seas
areas where there are no arrangements established to manage the resources
and activities in such areas. In this case, it can be said that unregulated fishing
results largely from the failure of the international community to establish
RFMOs or from the inability of flag States to discharge their responsibilities over
their vessels.
2.2.3 Unreported fishing
Unreported fishing is defined in paragraph 3.2 of the IPOA-IUU as fishing
activities:
3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or
7 U.R. Sumaila, “The Cost of Being Apprehended Fishing Legally: Evidences and Policy Implications”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agricuture and Fisheries, Fisheries Committee of OECD, p. 3. 8 Lawrence Juda, loc. cit. 9 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 6.
21
3.2.2 undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.
Unreported fishing is thus a subset of the definition of illegal fishing and
unregulated fishing. Failure to report catches to the competent authorities by
fishing vessels or flag states may be illegal if it is done in contravention of
reporting regulations. Alternatively, unreported fishing may also be unregulated
if there are no rules requiring the reporting of catches.
2.3 The Development of the IUU Fishing Concept
The IUU concept developed through the activities of several international
and regional organizations. This section briefly surveys the historical
emergence of the IUU concept through these organizations.
2.3.1 Developments through CCAMLR
The origin of the IUU fishing concept can be traced to discussions within
the Commission for the Conservation of Antarctic Marine Living Resources
(CCAMLR)10 in 1997, in response to concerns related to fishing contrary to the
conservation and management measures of the organization by both members
and non-members. Following this discussion, the issue was included in the
agenda of the Seventh Session of the Standing Committee on Observation and
10 The Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) is an Intergovernmental Organization for the Rational Management of Living Resources on a Sustainable Basis in the Southern Ocean. For a general discussion, see Penelope Ridings, Compliance, Enforcement and the Southern Oceans: The Need for A New Approach in R.A.Herr (ed.), Sovereignty at Sea: From Westphalia to Madrid (Wollongong Papers on Maritime Policy No.11), Centre for Maritime Policy, University of Wollongong, 2000.
22
Inspection.11 The term IUU fishing was formally used at the Sixteenth Session
of CCAMLR in 1997.12 CCAMLR noted that one of the major problems faced by
the Commission was the IUU catches in the Convention Area which
substantially exceed reported catch.13 Additionally, more than half the vessels
presumed to engage in IUU fishing were CCAMLR Member States.14 The key
elements of the CCAMLR definition of IUU, developed at the Sixteenth Session
are as follows:
• Illegal fishing: vessels operating in breach of national regulations that apply within a coastal state EEZ, or CCAMLR party vessels operating in contravention of CCAMLR conservation measures in force, and vessels operating on the high seas in breach of the general obligations under the United Nations Convention on the Law of the Sea;
• Unreported fishing: fishing activities in the CCAMLR Convention Area that are reported, or misreported to the relevant national authority or the CCAMLR Secretariat, as required; and
• Unregulated fishing: vessels of CCAMLR non-Parties or un-flagged vessels operating on the high seas within the CCAMLR Convention Area.15
2.3.2 Developments through the FAO
Increasing global concerns over the prevalence of IUU fishing prompted
a number of calls for the establishment of an International Plan of Action to
11 David J.Doulman, “Global Overview of Illegal, Unreported and Unregulated Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for the Conclusion of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, op. cit, p. 24. 12 Annick Van Houtte, “Flag Responsibility and the Contribution of Recently Concluded International Instruments in Preventing, Deterring and Eliminating Illegal, Unreported and Unregulated Fishing”, Report of the Consultation of Fishing Vessels Operating Under Open Registers and Their Impact on Illegal, Unreported and Unregulated Fishing Vessels, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No.722, Global Partnership for Responsible Fisheries, Food and Agriculture Organization of the United Nations, Rome, p. 47. 13 William Edeson, “the International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument”, International Journal of Marine and Coastal Law 16 (2001), p. 605. 14 William Edeson, ibid. 15 Dean Bialek, “Sink or Swim: Measures under International for the Conservation of the
Patagonian Toothfish in the Southern Ocean”, Ocean Development and International Law, Vol. 34, No 2, April-June 2003, 2003, p.106.
23
address this problem.16 The FAO was given a mandate to develop the IPOA-
IUU at the 23rd Session of the Committee on Fisheries (COFI) in 1999.17 The
report of the Session stated that:
72. The Committee placed a high level of importance on the
implementation of the Code of Conduct for Responsible Fisheries. The Committee was concerned about information presented indicating increases in illegal, unreported and unregulated fishing, including fishing vessels flying “flags of convenience”. It urged, as a priority, those countries that had not yet ratified the Compliance Agreement to consider doing so as soon as possible.
73. The Committee took note that the issues related to re-flagging of fishing vessels and ship registration would be one of the subjects to be discussed by the IMO Sub Committee on Flag State Implementation. It was suggested that FAO inform IMO of the importance the Committee ascribed to the issue in time for the meeting in March 1999.18
Following the 1999 COFI Session, the Rome Declaration on the Code of
Conduct for Responsible Fisheries was adopted by the FAO Ministerial on
Fisheries in March 1999.19 The Declaration expressed concern about the
increasing number of IUU fishing incidents, including vessels flying flags of
convenience.20 In dealing with these problems, the operative paragraph 12(j) of
the Declaration noted that:
16 David A. Harcharik, “Introductory Remarks” at the Center’s Twenty-Fourth Annual Conference held at the Food and Agriculture Organization Headquarters in Rome from March 16-17, 2000 in Myron H. Nordquist and John Norton Moore, Current Fisheries Issues and the Food and Agriculture of the United Nations, Center for Oceans Law and Policy, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p. 3-4. 17 “Report of the Twenty-third of the Committee on Fisheries, 15-19 February 1999, FAO Fisheries Report No.595, FIPL/R595, para. 82. 18 David J. Doulman, “Illegal, Unreported and Unregulated Fishing: Mandate for An International Plan of Action,” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, pp. 5-6. 19 David J. Doulman, “2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing: Background and Progress Towards Implementation” (Appendix G), Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, Penang, Malaysia, 10-14 October 2004, FAO Fisheries Report No.757, Rome: FAO, 2005, p. 37. 20 Annick Van Houtte, loc. cit.
24
Without prejudice to the rights and obligations of states under international law, the FAO would develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying ‘flags of convenience’, as discussed in paragraph 33 of Annex G of the Report of the Consultation on the Management of Fishing Capacity, Shark Fisheries and Incidental Catch on Seabirds in Long-line Fisheries, which met in Rome in October 1998, through coordinated efforts by States, FAO, regional fishery management bodies and other relevant international agencies such as the International Maritime Organisation (IMO), as provided in Article IV of the Code of Conduct for Responsible Fisheries.21
The Rome Declaration proposed the establishment of a global plan of action to
address IUU fishing, and in particular, fishing by vessels flying flags of
convenience. It was also agreed to set up an integrated and inter-agency
mechanism to deal with these fisheries problems by involving other UN
agencies.
A report of COFI on “Illegal, Unauthorised and Unreported fishing” was
endorsed and agreed to by the Hundredth and Sixteenth Session of the FAO
Council in June 1999. The Council also noted that IUU fishing
…undermined conservation and management measures in fisheries. The Council urged that a global approach be taken by FAO to develop a strategy to address the problem of IUU, noting that this initiative should be carried out forward through the development of an International Plan of Action within the framework of the Code of Conduct. The Council also urged countries that had not yet accepted the Compliance Agreement to do as soon as possible.22
Although the FAO Council meeting focused on the establishment of an
International Plan of Action in accordance with the FAO Code of Conduct, the
importance of cooperation among States in the implementation of the 1993 FAO
21 David J. Doulman,” Illegal, Unreported and Unregulated Fishing: Mandate for An International Plan of Action”, op. cit, p. 6.
25
Compliance Agreement was also recognized. It is clear from the above
discussion that the FAO played a vital role in defining the scope of IUU fishing
activities. Indeed, the importance of IUU fishing to the FAO was clearly
demonstrated by the fact that a separate declaration in this regard was issued.
The FAO was motivated by its desire to protect fisheries resources in order to
achieve sustainable development.
In the effort to develop the IPOA-IUU, an Expert Consultation on Illegal,
Unreported and Unregulated Fishing was held in Sydney, Australia, from 15-19
May 2000. This was followed by a Technical Consultation on IUU fishing held in
Rome, Italy, from 2 to 6 October 2000.23 The Technical Consultation used the
preliminary draft IPOA-IUU that had been developed at the Expert Consultation
as a starting point and worked towards a final draft IPOA-IUU. A Second
Technical Consultation was held in Rome, 22-23 February 2001 to refine the
text, with a view to it being submitted to the twenty-fourth Session of the
Committee on Fisheries in February 2001 for “consideration and possible
acceptance”.24
2.3.3 Developments through other Organizations
The IUU terminology has also been used in the meeting reports of other
international organizations, including the UN Commission on Sustainable
Development (CSD), the International Maritime Organization (IMO), the
22 Chapter Two-“The Political Campaign”, http:://www. google.com.au, p. 2. (accessed on 15 October 2004) 23 “Report of the UN Secretary General on Oceans and the Law of the Sea”, United Nations General Assembly Fifty-fifth Session, 20 March 2000, p.25. . 24 http://www.fao.org/docrep/meeting/x8396e.htm (accessed on 15/01/01).
26
International Labour Organization (ILO)25 and various RFMOs.26 The report of
the UN Commission on Sustainable Development provided that:
This Commission supports the Rome Declaration adopted by the FAO Ministerial Meeting on Fisheries (Rome, 10 and 11 March 1999), under which FAO will give priority to its works to develop a global plan of action to deal effectively with any forms of IUU fishing. This should include dealing with the problem of those States which do not fulfil their responsibilities under international law as flag States with respect to their fishing vessels, in particular those which do not exercise effectively their jurisdiction and control over their vessels which may operate in a manner that contravenes or undermines the relevant rules of international law and international conservation and management measures. It will also require coordinated efforts by States, FAO and regional fisheries management bodies and other relevant international agencies, such as the International Maritime Organisation (IMO), as provided in article IV of the Code of Conduct for Responsible Fisheries. The Commission further encourages IMO, in cooperation with FAO and the United Nations Secretariat, to consider the implications in relation to fishing vessels of the work requested in paragraph 35 (a).27
At the same time, the CSD also made a decision to invite the IMO to consider
the development of binding measures to ensure that ships of all flag States
comply with international rules, and therefore give full and complete effect to the
LOSC.28 A report of the UN Secretary General to the General Assembly
session in 1999 identified progress in the discussions of UN agencies. This
report noted:
(1) that, although the primary responsibility for the enforcement of rules and standards rests with the flag State, and port control has been developed as a means of completing the weakness or the unwillingness of the flag State to fulfil its obligations vis-à-vis vessels flying its flag (paragraph 191) and
25 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p. 5. 26 “Report of the Second Meeting of FAO and Non-FAO Regional Fishery Bodies Or Arrangements”, Rome, 20-21 February 2001, FAO Fisheries Report No. 645, Rome: FAO, 2001, p.6. 27 Report on the Seventh Session (1 May and 27 July 1998 and 19-30 April 1999), Commission on Sustainable Development, Law of the Sea Bulletin No. 41, Division for Ocean Affairs and the Law of the Sea Officer of Legal Affairs, United Nations New York, 1999, p. 66. 28 Committee on Fisheries Twenty-fourth Session, Rome, Italy, 26 February-2 March 2001, Illegal, Unreported and Unregulated Fishing: Proposal for Draft International Plan of Action, p.3. http://www.fao.org (accessed on May 17 2006).
27
that port State control has been widely promoted by IMO, particularly through regional memoranda of understanding (paragraph 192).
(2) the emphasis by the CSD on the importance of further development of port State control (paragraph 194), and the goal of extending the coverage of regional port State control “to eventually create a global port State control network which would ban sub-standard and ships posing threats to the safety of navigation and the protection and preservation of the marine environment” (paragraph 199);
(3) the international community’s growing concern at the increasing incidence of fishing operations conducted outside agreed conservation and management as well as data collection schemes, recounts the steps being taken by United Nations (FAO and CSD). 29
In response to the above report, the United Nations General Assembly (UNGA)
Resolution 54/32 was adopted on November 24 1999. In its preambular
paragraph, the UNGA Resolution 54/32 referred to earlier resolutions30
regarding unauthorised fishing in zones of national jurisdiction31 and its impact
on living marine resources of the world’s oceans and seas. A number of
operative paragraphs of the UNGA Resolution 54/32 outlined key points. First, it
called upon States not to permit vessels flying their flags to engage in fishing on
29 Kevin Bray, “A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p. 19. 30 General Assembly Resolution on 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 Species, Law of the Sea Bulletin No.42, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations, New York, 2000, page 20. See also “ Short History of International Actions and Initiatives against IUU Fishing Activities”, http://www.oecd.org/document, page 2 (accessed on May 15, 2006). In this context it is noted that the General Assembly reaffirmed (1) its resolutions 50/25 of 5 December 1995 on Large-scale pelagic drift-net fishing and its impact on the living resources of the world’s oceans and seas; unauthorized fishing in zones of national jurisdiction and its impact on the living marine resources of the world’s oceans and seas; and fisheries by-catch and discards and their impact on the sustainable on the sustainable use of the world’s living marine resources in Law of the Sea Bulletin No. 30, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1996, page 46; (2) its resolutions 52/29 of 26 November 1997 on Large-scale pelagic drift-net fishing: unauthorized fishing in zones of national jurisdiction and on the high seas; fisheries by-catch and discards; and other developments in Law of the Sea Bulletin No. 36, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1998, page 43; (3) its resolution 53/33 of 24 November 1998 on Large-scale pelagic drift-net fishing, unauthorized fishing in zones of national jurisdiction and on the high seas, fisheries by-catch and discards, and other developments in Law of the Sea Bulletin No. 39, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1999.
28
the high seas without having effective control over their activities and to take
specific measures to control fishing operations by vessels flying their flags.
Second, it called on the IMO, in cooperation with FAO, RFMOs, and other
relevant international organisations, and in consultation with States and entities,
to define the concept of genuine link in relation to fishing vessel.32
2.4 Causes of IUU Fishing
Having outlined the concept of IUU fishing and its historical emergence,
this section provides an analysis of the major causes of IUU fishing. A number
of factors account for the emergence and increase in IUU fishing globally.
These factors include the increase in the demand for fisheries products globally,
subsidies in the fisheries sector and overcapacity, of lack of the flag State
control over fishing vessels, and ineffective fisheries monitoring, control and
surveillance. These factors are examined below.
2.4.1 Increasing Demand for Fishery Products
There is an increasing demand for fishery products globally brought
about by an increasing world population. However, commercial fish stocks
within EEZs are generally fully exploited. As a result of these factors, an
increasing number of fishers and fishing vessels are operating on the high
seas.33 In the absence of appropriate management practices, the competition
31 William Edeson, “Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing”, op.cit, p.95. 32 Law of the Sea Bulletin No.42, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations, New York, 2000, op. cit, p.22. 33 Rebecca Metzner, “Fishing Aspirations and Fishing Capacity: Two Key Management Issues”, The International Journal of Marine and Coastal Law, Vol. 20, No. 3-4, 2005, p. 459.
For such discussion see also “Introductory Remarks” of The Honorary Frank E. Loy at the Centre’s Twenty-Fourth Annual Conference held at the Food and Agriculture Organization
29
amongst fishers continues to increase and intensify.34 The increasing demand
for fish, coupled with the decline of fisheries resources has contributed to the
growing incidence of IUU fishing.
2.4.2 Subsidies in the Fisheries Sector and Overcapacity
Subsidies in the fisheries sector have been identified as one of the
issues affecting the sustainability of global fisheries resources.35 The term
subsidies is broadly applied to a wide range of government interventions, or to
the absence of correcting interventions, that reduce costs and/or increase
revenues of producing and marketing fish and fish products in the short,
medium or long-terms. Government interventions include financial transfers or
the provision of goods or services at a cost below market prices. The “absence
of correcting interventions" includes failure by governments to impose measures
that correct external costs associated with fishing.36
Subsidies in the fisheries sector have an impact on IUU fishing, overcapacity
and trade in fish and fish products.37 Under the current legal regime, individual
fishermen or fleets do not receive any benefit from refraining from illegal fishing
because the regime established by the international community is designed to
Headquarters in Rome from March 16-17, 2000 in Myron H. Nordquist and John Norton Moore, op. cit, p. 9. 34 Ousman K.L. Drammeh, op.cit, p. 2. 35 Report and Documentation of the International Workshop on Factors Contributing to Un-sustainability and Overexploitation in Fisheries, Bangkok, Thailand, 4-8 February 2002, FAO/Japan Government Cooperative Programme, FAO Fisheries Report No.672, Rome: FAO, 2002, p. 15. 36 Guide for Identifying, Assessing and Reporting on Subsidies in the Fisheries Sector, FAO Fisheries Technical Paper 438, Rome: FAO, 2004, p. 7.
For a discussion of the effects of these fisheries subsidies on IUU fishing, see also “Report of the UN Secretary General on Oceans and the Law of the Sea at Fifty-Eight Session of the UN General Assembly A/58/65, 3 March 2003, p. 42.
30
protect the economic interests of fishing industries. For instance, according to
the FAO, the world’s fishing fleets incur costs of approximately US$54 billion
annually. A major portion of these costs are paid through government
subsidies.38
According to various non-government organisations and interest groups, the
problem of overcapacity can be directly attributed to the payment of subsidies.
Some subsidies are particularly used to construct and modernize fishing
gears.39 Big fishing nations have fleet capacities that are able to catch a
considerable quantity of fish. Fishing vessels of these States are able to
conduct activities within their own national waters, on the high seas, and under
the jurisdiction of other States in accordance with bilateral fisheries
agreements.40 The use of purse seine and longlines enable the growing number
of international fleets to harvest an ever increasing number of target and non-
target stocks in all oceans.41
37 Report of the Technical Consultation on the Use of Subsidies in Fisheries Sector, FAO Fisheries Report No.752, Rome, 30 June-2 July 2004, Food and Agriculture Organization of the United Nations Rome, 2004, p. 1. 38 Patrick Shavloske, “The Canadian-Spanish Fishing Dispute: A Template For Assessing the Inadequacies of the United Nations Convention on the Law of the Sea and A Clarion Call for Ratification of the New Fish Stock Treaty”, Indiana International and Comparative Law, Indiana University School of Law, Indianapolis, USA, Vol. 7:1, 1996-1997, p. 230. 39 Sali Jayne Bache, Marcus Howard and Stephen Dovers, The Impact of Economic, Environment, and Trade Instruments Upon Fisheries Policy and Management, Report Prepared for Fisheries and Aquaculture Branch, Australian Department of Agriculture, Fisheries and Forestry, Centre for Resource and Environment Studies, School of Government, University of Tasmania, Centre for Maritime Policy, University of Wollongong, Agriculture, Fisheries and Forestry-Australia and Antarctic CRC, September 2000, p. 25. 40 Karen L. Smith, “Highly Migratory Fish Stocks: Can International and Domestic Law Save the North Atlantic Swordfish”, Western New England Law Review, Vol. 21, 1999, p. 22. 41 Elisabeth DeLone, “ Improving the Management of the Atlantic Tuna: The Duty to Strengthen the ICCAT in Light of the 1995 Straddling Stocks Agreement”, New York University Environmental Law Journal, Vol. 6, USA, 1997-1998, p. 659.
31
From a fisheries management perspective, there is a close link between the
number of fishing vessels and IUU fishing. When a coastal State is faced with a
large number of fishing vessels, its fisheries resources are inevitably depleted.
Essentially, the excess fleet capacity encourages more fishing vessels to
engage in IUU fishing in order to maintain adequate return on fishing
activities.42 Much of this overcapacity can be traced to inadequate national
fisheries management, including a lack of incentives to combat IUU fishing and
the inappropriate allocation of fishing rights.43 Similarly, overfishing in the high
seas is caused by a lack of incentives for States to discharge their duties in
tackling the negative impacts of an overcapitalised fishing sector.44 Given the
fact that fisheries subsidies and overcapacity are interlinked, there is a need to
establish a comprehensive fishery management regime. Thus, in assessing the
impacts of fisheries subsidies, States must be aware of their negative impacts
on the sustainability of fisheries resources and how certain types of subsidies
contribute to IUU fishing.
2.4.3 Lack of Flag State Control Over Its Fishing Vessels
Over the past few decades, States whose vessels engage in fishing on
the high seas have established RFMOs to regulate those fishing activities. The
rules adopted by RFMOs are collectively referred to as conservation and
management measures. These include measures on catch quotas, seasonal
42 Dominique Greboval, “The International Plan of Action for the Management of Fishing Capacity and Selected Issues Pertaining to Illegal, Unreported and Unregulated Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p.1 43 Executive Summary of “Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing, OECD, Publishing, 04 October 2005, p. 14. 44 G.T. (Stan) Crothers and Lindie Nelson, “High Seas Fisheries Governance: A Framework for the Future”, Paper Presented at Sharing The Fish Conference 06 Perth Western Australia 26
32
and area closures, and minimum mesh sizes.45 Members of RFMOs not only
include fishing nations, but also port States which have responsibilities to
combat IUU fishing.46
To evade internationally agreed conservation and management rules, the
owners of fishing vessels “re-flag” or register their vessels in, and fly the flags of
States which are not members of RFMOs. The States that offer their flags to
such vessels are generally referred to as “flags of convenience” (FOCs) or
“open registry” States.47 Despite not having genuine links with FOC States,
foreign fishing vessels are allowed to register under the flags of those States.
There are, at least, two motivations for foreign fishing vessels to register in FOC
States. First, open register States do not have the desire and capability to
exercise effective jurisdiction over fishing activities.48 This enables fishing
vessels to exploit low fees, tax exemption, lower crew costs and financial
savings by avoiding compliance with international safety standards. The second
motivation behind fishing vessels registering in FOC States is the freedom of
fishing due to the lack of effective control of FOC States. Even where an FOC
February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with the FAO, p. 2. 45 David A. Balton, “The Compliance Agreement“ in Helen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p.34. 46 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No.987, Rome: FAO, 2003, p. 6. 47 David A.Balton, “Dealing With the Bad Actor’s of Ocean Fisheries”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 2. 48 Annick Van Houtte, op.cit, p. 48.
33
State is a party to international treaties or a member of an RFMO, such State
may be reluctant to implement any of its obligations.49
It should be noted that the vast majority of FOC States are not members of
RFMOs nor parties to international fisheries agreements. Consequently, fishing
vessels flying the flags of FOCs are not required to comply with agreed
conservation and management measures adopted by RFMOs.50 These fishing
vessels are essentially free riders who enjoy the benefits of conservation efforts
and scientific research established by member states of an RFMO, without
bearing any of the associated costs. This situation is not only grossly unfair, but
also compromises the integrity of the agreed measures.51 This also makes it
difficult for an RFMO to apply the conservation and management measures
against vessels flying the flags of non-member States.52
Important in this respect is a new approach discussed and agreed upon in the
2002 annual meeting of CCAMLR. CCAMLR endeavored to change the general
perceptions of IUU fishing and FOC States by employing the new term of “Flag
of Non Compliance” (FONC).53 The term also covers vessels fishing illegally
within the EEZs of States which have few resources available to conduct
49 Judith Swan, “Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Responsibilities Information and Options”, FAO Fisheries Circular No. 980, Rome, FAO, 2002, p. 23. 50 Messra David, J. Agnew and Collin T.Barnes, “ Economic Aspects and Drivers of IUU Fishing: Building A Framework”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, 2004, p. 8. 51 David A. Balton, “Making the New Rules Work: Implementation of the Global Fisheries Instruments in Myron H. Nordquist and John Norton Morton, op. cit. p. 110. 52 Judith Swan, “Regional Fishery Bodies and Governance: Issues, Actions and Future Directions”, FAO Fisheries Circular No.959, Rome: FAO, 2000, p. 10. 53 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No.987, Rome: FAO, 2003, p. 8.
34
effective enforcement.54 The term FONC is used to emphasize the choice of an
IUU fishing vessel to be flagged under a certain State is determined by the lack
of regulatory control that a flag State will exercise over the vessel.
It can thus be seen that the effectiveness of RFMOs in controlling the incidence
of IUU fishing is entirely dependent on flag States being prepared to enforce
and monitor the activities of their fishing vessels. The enforcement and
monitoring of the activities of flag States is, in turn, dependant upon the
existence of an adequate legal framework to manage fisheries and the technical
capabilities of such States to implement such framework.
The International Commission for the Conservation of Atlantic Tunas (ICCAT)
provides an example of the need to enforce and monitor activities of fishing
vessels by flag States to control IUU fishing. In 1999, ICCAT listed 61 fishing
vessels flying the flags of its parties, in particular Ghana, Equatorial Guinea,
Guinea, and Trinidad and Tobago as conducting activities contrary to the
conservation and management measures of the Commission.55 In the view of
ICCAT, either these States have failed to realize that their vessels are engaging
in destructive fishing practices, or they are aware of these practices but have
failed to act effectively to end such illegal fishing practices.56 The failure of
these states to ensure that the conservation and management measures of
54 Aaron Hatcher, “Incentives for Investment in IUU Fishing”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture, and Fisheries, Fisheries Committee of OECD, p. 5. 55 Masayuki Komatsu, “The Importance of Taking Cooperative Action Against Specific Fishing Vessels That Are Diminishing Effectiveness of Tuna Conservation and Management Measures”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 2. 56 Komatsu, p. 2.
35
ICCAT are implemented contributed to the continuation of IUU fishing on the
high seas.
2.4.4 Ineffective Fisheries Monitoring, Control and Surveillance
Broadly speaking, monitoring, control and surveillance (MCS) is a vehicle
for implementing fisheries management plans and strategies. The goal of MCS
is the establishment of data collection systems, enactment of supporting
legislative instruments,57 and implementation of management plans through
participatory techniques and strategies.58
The increase in the incidence of IUU fishing can be attributed to ineffective
MCS.59 IUU fishing in developing countries is largely caused by the inability of
these countries to monitor and control fishing activities60 due to inadequacy of
MCS human and technical resources.61 In particular, local fisheries officers
experience difficulties in monitoring and controlling fishing activities due to the
limited number of trained personnel and means of transportation.62 Additionally,
ineffective MCS is exacerbated by insufficient capacities of member States of
57 P.Flewweling and Corman Culliman, David Balton, R.P, Sautter, and J.E, Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper 415, Rome: FAO, 2002, p. 7. 58 Blaise Kuemlengan, “Legal Aspects of Implementing the FFA Vessel Monitoring System” in Myron H. Nordquist and John Norton Moore, op. cit, p. 409. 59 Draft Chapter I – Economics of IUU Fishing Activities, Paper Submitted to the IUU Workshop, Directorate For Food, Agriculture and Fisheries, Fisheries Committee, 12 March 2004, p. 13. 60 John M. Davis, “Monitoring Control Surveillance and Vessels Monitoring Systems to Combat IUU Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 4. 61 Kelly Rigg, Remi Parmention and Duncan Currie, “Halting IUU Fishing: Enforcing International Fisheries Agreements”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.3. 62 Ousman K.L.Drammeh, loc. cit.
36
RFMOs, as well as the lack of international cooperation to promote exchange of
information about IUU fishers63 and MCS activities.
The provisions of the 1982 LOSC relating to fisheries have failed to fulfil the
high expectation for MCS.64 Considering the problems being faced by individual
countries, there is a need for concerted action to develop regional and sub-
regional cooperation against IUU fishing, which may include the harmonisation
of fisheries regulations and collaboration on MCS activities.65 In order to
achieve these objectives, it is crucial to formulate an adequate legal framework
to address IUU fishing and develop sufficient MCS capabilities. Thus, in dealing
with IUU fishing, attention must be given to the needs of developing countries in
terms financial and technical assistance, technology transfer, training and
technical cooperation.66
2.5 Impacts of IUU Fishing
To fully understand IUU fishing, one must look at some of the devastating
impacts of the problem. Taking place in all capture areas, IUU fishing affects the
sustainability of fisheries resources. It also has negative socio-economic and
environment impacts.
63 David J.Doulman, “Global Overview of IUU Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for The Conclusion of the 2001 FAO International Plan of Action”, op. cit, p. 26. 64 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p. 74. 65 Opening of the Workshop, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, op. cit, p. 4. 66 Kevin Bray, “Illegal, Unreported and Unregulated (IUU) Fishing”, International Conference on Fisheries Monitoring, Control and Surveillance, Brussels, Belgium, 24-27 October 2000, p. 4.
37
2.5.1 Impact of IUU fishing on the Sustainability of Fisheries
Resources
IUU fishing has serious consequences on the sustainability of fisheries
resources.67 IUU fishing undermines conservation and management measures
established by national fisheries authorities within their EEZs and those of
RFMOs.68 Unreported fishing activities undermine the ability of coastal States to
determine the status of fish stocks in their EEZs, by making it difficult to compile
accurate data on fish stocks for setting the total allowable catch.69 This in turn
compromises the ability of coastal States to achieve maximum sustainable
yield.70 Moreover, the use of flags of convenience by foreign fishing vessels
undermines the ability of coastal State to conserve and manage fish stocks on
the high seas.71 As noted by the Environmental Justice Foundation:
In addition to negative effects on target stocks, IUU fishing can severely impact the wider marine ecosystem. As IUU fishermen flout rules designed to protect the marine environment, including restrictions on the harvest of juveniles, closed spawning grounds, and gear modifications designed to minimise the by-catch of non-target species, they inflict damage on seabirds, marine mammals, sea turtles, and marine biodiversity as a whole. For example, illegal long-line vessels in the Southern Ocean are estimated to kill 100,000 seabirds, including tens of thousands of endangered albatrosses, each year. Quantifying the ecosystem effects of IUU fishing and distinguishing from those of legitimate fishermen is often extremely difficult, not least because the environmental damage inflicted by legitimate fishing is often so great. However, one clear and striking example of the environmental damage that IUU fishing can inflict on marine ecosystems are driftnets, which despite being banned under both EU and international law continue
67 Similar to violation of RFMOs regime, IUU fishing on the high seas was also widely considered to pose a serious threat to the world marine biodiversity. See Christopher C.Joyner, “The International Ocean Regime at the New Millennium: A Survey of the Contemporary Legal Order”, Ocean and Coastal Management 43 (2000) 163-203, Elsevier, p.170. 68 David J.Doulman, loc. cit. 69 Lawrence Juda, loc. cit. 70 David Evans, “The Consequences of Illegal, Unreported and Unregulated Fishing for Fishery Data and Management”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 1. 71 Masayuki Komatsu, op.cit, p. 3.
38
to be used across the Mediterranean basin by fleets from Italy, France, Morocco, Turkey and Algeria to target swordfish and tuna.72
Excess fleet capacity, which is an issue related to IUU fishing, also has negative
impacts on the sustainability of fisheries resources throughout the world,73 due
to the lack of parity between a vessel’s fishing capacity and its fishing
possibilities. Excess fleet capacity can have various structural impacts, such as
the prevalence of general overcapacity in the domestic fleet or inappropriate
allocation of fishing rights.74 Associated with the increased number of vessels
are the problems of overcapitalization and excessive fishing effort.75 Hence, the
excess fleet capacity as the root cause of many fisheries problems must be
addressed.
RFMOs are confronted with similar IUU fishing problems like those faced by
States in their EEZs.76 However, a far more serious threat to the world’s
management of high seas fisheries is the danger posed by IUU fishing
conducted by vessels flying flags of convenience.77 It estimated by the FAO that
72“Impact of IUU Fishing”, http://www.ejfoundation.org/page163.html.
For discussion of some of the issues involved see, eg, Donald R Rothwell and Tim Stephens, “Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Right and Interests”, International Comparative Law Quarterly Vol. 53, January 2004, p. 180. 73 Dominique Greboval, “The Measurement and Monitoring of Fishing Capacity: Introduction and Major Considerations”, in S. Pascoe and D. Greboval, (eds) “Measuring Capacity in Fisheries”, FAO Fisheries Technical Paper 445, Rome: FAO, 2003, p. 1. 74 Draft Chapter I – Economics of IUU Fishing Activities, op. cit, p.11. 75 Morton M. Miller, Paul J. Hooker and Peter H. Fricke, “Impression of Ocean Fisheries Management Under the Magnuson Act”, Ocean Development and International Law, Vol.21, 1990, p.284. 76 Rachel Baird, “Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence”, Melbourne Journal of International Law, Volume 5, 2004, p. 313. 77 Christopher J. Carr and Harry N. Cheiber, “Dealing with a Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries”, UCIAS Edited Volume 1, The University of California International and Area Studies Digital Collection, 2002, p. 11.
39
nearly 70 per cent of the total world’s fisheries have been depleted.78 The FAO
has also expressed concern on the collapse of, and the difficulties in rebuilding
several high value fish stocks.79 Straddling stocks and highly migratory species
have particularly been exploited throughout the world and are in danger of
further depletion.80 In light of this, urgent conservation and management
measures are needed by the international community.
2.5.2 Economic Impact of IUU Fishing
From an economic perspective, IUU fishing poses a number of
problems.81 For instance, re-flagging of fishing vessels may result in the loss of
national income by coastal States from the higher fees that foreign fishing
vessels should ordinarily be subject to. At the same time, the economic
advantages of local fishing vessels having access to vast marine resources in
the EEZs are lost in case of illegal fishing by foreign fishing vessels.82 These
macroeconomic consequences are particularly problematic for low and middle-
income countries, which rely entirely on EEZ fisheries resources.83 In addition
78 Judith Swan, “Decision-Making in Regional Fishery Bodies or Arrangements: The Evolving Role of RBFS and International Agreement on Decision Making Process”, FAO Fisheries Circular No 995, Food and Agriculture Organization of the United Nations, Rome, 2004, p. 8. 79 Giselle Vigneron, “Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Fish Stocks Agreement”, The Georgetown International Environmental Review, Washington DC, 581, 1997-1998, page 584. An interesting discussion of the impacts of IUU fishing on sustainability can also be found in Vangelis Vitalis, “Casting the Net Trade Measures for Sustainable Fish Stocks”, Observer No.240/241, December 2003, p. 46. 80 Yahn-Huei Song, “The Canada-European Union Turbot Dispute in the Northwest Atlantic: An Application of the Incident Approach” Ocean Development and International Law, Vol. 28, No. 3, July-September 1997, p. 273. 81 David A Balton, “Global Review of Illegal, Unreported and Unregulated Fishing Issues: What’s the Problem ?”, Paper Presented at the IUU Workshop, 19-20 April 2000, Directorate for Food, Agriculture, and Fisheries, Fisheries Committee of OECD, 2000, p.2. 82 Transform Aqorau, “Illegal, Unreported and Unregulated Fishing: Considerations for Developing Countries”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p.3. 83 Messra David, J Agnew and Collin T.Barnes, op. cit, p. 10.
40
to the degradation of fisheries resources,84 the existence of excessive fishing
capacity is also to blame for the dissipation of food production potential.85 This
is further manifested in the form of overfishing of valued fish stocks.86
It can thus be seen that IUU fishing has a number of serious negative effects on
the proper conservation and management of fisheries by coastal States and
RFMOs. The negative effects are more pronounced in the case of developing
coastal States because of their difficulties in accurately determining the total
allowable catch for their fisheries. The problems faced by many coastal States
are further complicated by the reduction of national income and available
resources. Viewed from an environmental perspective, marine environmental
degradation can be a major barrier for sustainable fisheries. The interplay
between management, economics, and environmental factors further
complicates the problem which needs to be addressed by governments through
the implementation of effective surveillance and fisheries law enforcement
strategies.
2.6 Conclusion
From the above discussion, it can be concluded that IUU fishing takes
different forms and occurs in areas under national jurisdiction, areas under the
competence of RFMOs, and on the high seas. The threats of IUU fishing and
the environmental and economic consequences flowing from the problem must
84 Thorir Ibsen, “Iceland’s Proposal About Fisheries Subsidies” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, op. cit, p. 459. 85 Ichiro Nomura, “Opening of the Consultation”, Report of the Technical Consultation on the Use of Subsides in the Fisheries Sector, Rome, 30 June-2 July 2004, FAO Fisheries Report No.752, Rome: FAO, 2004, p. 1.
41
be acknowledged. Among the dominant causes of this problem is the lack of
financial and human capacity by many States to undertake MCS over fishing
activities in vast marine areas. The problem is also exacerbated by inadequate
national legal framework of many states, especially FOC or FONC States, for
effectively addressing IUU fishing. Legal reform is needed to deal with this
problem. Where an appropriate national and international legal framework is
already in place, efforts must be made to effectively deal with IUU fishing. Law
enforcement officers must be equipped with the technical know-how and skills
in MCS, in order to protect fisheries resources and safeguard the economy and
the environment. The succeeding chapters provide an analysis of the
international legal framework to address IUU fishing, which will highlight the
measures that States would need to adopt to effectively address the problem.
86 Gordon R. Munro and Colin W. Clark, “Fishing Capacity and Resource Management Objectives”, in S. Pascoe and Dominique Greboval, op. cit, p.13.
42
CHAPTER 3
THE FISHERIES PROVISIONS OF THE 1982 UN CONVENTION ON THE LAW OF THE SEA AND IUU FISHING
3.1 Introduction
The United Nations Convention on the Law of the Sea (LOSC) is the
principal international legal instrument regulating most marine activities,
including fisheries, at the global level. Consequently, the starting point for any
analysis of the international legal framework to address IUU fishing must
necessarily be the LOSC. The aim of this chapter is to analyse the provisions of
the LOSC that apply to the management of fisheries in the exclusive economic
zone (EEZ) and on the high seas, as embodied in Parts V and VII of the LOSC.
The rationale for this Chapter is twofold. The first is to provide a general
background on the relevant provisions of the LOSC pertaining to the regimes of
the EEZ and the high seas to address IUU fishing while the second is to
illustrate the gaps in the LOSC fisheries regime to deal with the problem. The
Chapter concludes that the provisions of the LOSC with regard to fisheries are
not adequate to address global IUU fishing problems.
3.2 The Exclusive Economic Zone
The most significant transformation in the law of the sea and one of the
most fundamental results of the Third United Nations Conference on the Law of
the Sea (UNCLOS III)1 negotiations was the emergence of the EEZ concept,
found in Part V of the LOSC. Article 57 of the LOSC states that the EEZ shall
1 UNCLOS III was held in various sessions from 1973-1982. Its immediate precursor was the meetings of the United Nations Seabed Committee (1967-1972).
43
not extend beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured.
Under Article 56(1) of the LOSC, a coastal State has sovereign rights in the
EEZ, for the purpose of exploring, exploiting, conserving and managing the
natural resources of the water superjacent to the seabed and subsoil.2 The
sovereign rights under Article 56 may be divided into two categories: (a)
sovereign rights for the purposes of exploring, exploiting, conserving and
managing the natural resources of the seabed, subsoil and superjacent waters;
and (b) sovereign rights with regard to other activities for the economic
exploitation and exploration of the EEZ, such as production of energy from the
water, currents and winds. Within the EEZ, the coastal State is also given
jurisdiction with regard to three matters, namely the establishment and use of
artificial islands, installations and structures; marine scientific research; and the
protection and preservation of the marine environment.3
Sovereign rights in the EEZ should be differentiated from the concept of
sovereignty. From a legal point of view, there are two ways of describing the
concept of “sovereignty at sea”. In terms of maritime zones, a coastal State or
an archipelagic State has sovereignty over the internal waters, archipelagic
waters and the territorial sea. The second manner of describing sovereignty is
2 Gillian Triggs, “Legal and Commercial Risks of Investment in the Timor Gap”, Melbourne Journal of International Law, Vol. 1, Inaugural Issues I, University of Melbourne, 2001, p. 118. 3 United Nations Convention on the Law of the Sea (LOSC), Montego Bay, Jamaica, 10 December 1982, Art. 56.
Jurisdiction is defined as "the power of a State to affect under international law the conduct of other subjects (private or public) as well as the status of their property by measures of regulation, adjudication or (executive) enforcement." K. Hakapaa, Marine Pollution in International Law, Helsinki 1981, p. 151.
44
by linking it with the jurisdictional competence a State. In accordance with
sovereignty and the rights of innocent passage of ships in the territorial sea, a
coastal State has the power to adopt laws and regulations with respect to the
conservation of living resources of the territorial sea, prevention of infringement
of fisheries laws and regulations, and preservation of the environment of the
coastal State.4
In contrast to the sovereignty of coastal States in the internal waters, territorial
sea, and the archipelagic waters, the power of the coastal State over the
fisheries resources in the EEZ is provided instead as sovereign rights. The
concept of sovereign rights is applied in a maritime zone where the coastal
state does not have full sovereignty as a State would in its land territory or in the
territorial sea.5
The sovereign rights that a coastal State has in the EEZ are said to be residual6
because they are only applicable to living resources and do not cover the zone
itself or the airspace above it.7 What this means is that the EEZ has special
legal status. In short, the EEZ is seen as a zone sui generis and sui juris.8 This
4 LOSC, Art. 21(1)(d), (e) and (f); Marie Jacobsen, “Sovereignty at Sea – Illusion or Reality”, in R.A. Herr (ed): From Westphalia to Madrid , Wollongong Papers on Maritime Policy No.11, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia in collaboration with the Australian Institute of International Affairs (Tasmanian Branch), 2000, p.39. 5 Martin Tsamenyi and Transform Aqorau, “Fishing Rights and Responsibilities at Sea: Analysis of the Relevant Provisions of the United Nations Convention on the Law of the Sea”, in Martin Tsamenyi and Max Herriman (ed) “Rights and Responsibilities in the Maritime Environment: National International Dilemmas”, Wollongong Papers on Maritime Policy No 5, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, 1996, p. 68. 6 Ivan Shearer, “Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels”, International Comparative Law Quarterly, Vol. 35, 1986, p.333. 7 M.Damhari, The Fisheries Regime of the Exclusive Economic Zone, Martinus Nijhoff Publishers, 1987, p. 17. 8 Ivan Shearer, “Ocean Management Challenges for the Law of the Sea in the First Decade of the 21st Century” in Alex G. Oude Elferink and Donald Rothwell (eds), Oceans Management in
45
special zone is characterized first by the rights and duties which the LOSC
confers upon the coastal State and second, the rights and duties provided to
other States.9 This means that the EEZ is not part of the territory of the coastal
State and the coastal State does not have sovereignty over the zone. However,
in so far as the specific sovereign rights are concerned, the coastal State is
sovereign. It has the same prescriptive and enforcement powers over the
resources in the EEZ as if they were located within its sovereignty.
Prior to the LOSC, fisheries stocks within the EEZ were regulated by the high
seas fisheries regime. Coastal State claims over the EEZ under the LOSC
resulted in the transfer of the most important and lucrative fisheries resources
to the coastal States.10 Currently about 90 per cent of the world’s fish stocks
are located within the EEZs of coastal States.11
One of the inevitable consequences of the establishment of the EEZ and the
resulting expansion of coastal States’ rights is that the fishing activities of
distant water fishing States have been curtailed significantly.12 Although high
seas fishing activities take place just outside the EEZ, conservation and
management of fisheries resources are not unified. As a result, overexploitation
the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 69. 9 R.R.Churchill and A.V.Lowe, The Law of the Sea (Third Edition)”, Juris Publishing, Manchester University Press, 1999, p. 166. 10 Martin Tsamenyi, “Offshore Resources Development” in Martin Tsamenyi, Sam Batemen and John Delaney (eds) The United Nations Convention on the Law of the Sea: What It Means to Australia and Australia’s Marine Industries, Wollongong Paper on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, 1996, p. 144. 11 Christopher C. Joyner and Alejandro Alvarest von Gurdsted, Ferdinand J. Gallo, “The Turbot War of 1995: Lessons for the Law of the Sea”, The International Journal of Marine and Coastal Law, Vol.11, No.4, 1996, p.430. 12 Roland Rich, “Recent Developments in International Law With Implications for Australian Practitioners: Law, Politics and Politics Disguised Law”, in Ivan Sharer (ed), International Law
46
of high seas fish stocks has become one of the most serious fisheries problems
facing the international community. This is highlighted by increasing incidents of
illegal fishing in the EEZ and the fact that it is difficult for coastal States to
monitor whether fleets are fishing at 195 miles or at 201 miles.13
3.2.1 Coastal State Rights and Duties in the EEZ
Because the EEZ covers areas of the ocean previously regulated under
the freedom of the high seas regime, it is considered as an inheritance by the
coastal State from the rest of the world. According to the United Nations Food
and Agricultural Organization (FAO), "Under the new regime of the seas, the
world community has willed to the coastal States the bulk of living resources in
waters off their shores".14 Consequently, the LOSC outlines not only rights, but
also duties for coastal States with regard to the EEZ. These rights and duties
are couched in terms of conservation and optimum utilization of living
resources. These are briefly described below.
3.2.1.1 Conservation Obligations
The first obligation imposed on the coastal State with regard to the
fisheries resources in its EEZ is the "conservation of the living resources".15
According to Article 61:
and The Australian Practitioner, Martin Place Papers No.3, the International Law Association (Australian Branch), 2001, p. 38. 13 Frida Maria Armas Pfirter, “Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation: New Perspectives in Light of Current International Negotiations”, Ocean Development and International Law, Vol. 26, 1995, p. 133. 14 FAO, "Methodology and Guidelines for Fisheries Development Planning: With Special Reference to the Developing Countries in the African Region", FAO Fisheries Technical Paper No. 297, Extracts in Annual Review of Ocean Affairs Vol. III (1990), p. 1358. 15 LOSC, Art. 61.
47
(1) The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. (2) The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall cooperate to this end. (3) Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic need of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub-regional, regional or global. (4) In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. (5) Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether sub-regional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.
It is clear from the above provisions that a coastal State has the duty to take
conservation measures for the living resources within its EEZ16 by determining
the total allowable catch (TAC) of the fisheries resources. The TAC is "that
catch which when taken in any one year will best enable the objectives of
fisheries management (e.g. optimum long-term yield) to be achieved."17 To do
so, the coastal State is required to take into account the best scientific evidence
16 Greg Rose, “Protection and Conservation of the Marine Environment” in Martin Tsamenyi, Sam Bateman and John Delaney (eds), op. cit, p. 160. 17See UNCLOS III, Geneva Session, Doc. GE 76.64093.
48
available to ensure, through proper conservation and management measures,
that the living resources are not endangered by over-exploitation.18
Article 61(3) of the LOSC requires the coastal State to adopt a wide range of
policies to support the management of the fisheries resources in the EEZ. In
this respect, several factors influence the policy choices of the coastal State,
which include scientific, economic, social and political.19 Other relevant
environmental and economic factors as provided in Article 61(2) are the
economic needs of coastal fishing communities, the species requirements of
developing States and existing fishing patterns.
The most important point that must be understood is that the application of the
rights and duties of coastal States in their EEZs depend on the technical and
economic capabilities of that State. Conservation measures require
technological and financial capabilities to be effective. However, determining the
TAC is often difficult for many coastal States. For instance, coastal states must
balance the needs and interests of small-scale fishers against those of industrial
fishers. The problem that arises is that it is difficult to gain basic data and
information on the effects of industrial fishing on small scale fishers and in turn
establish comprehensive management measures that factor in those effects.
Because of the inadequate provisions of the LOSC to appropriately address the
issues of fisheries conservation and the implementation of management
18 Donat Pharad and Bob Applebaum, “Rights of the Coastal State Over Fisheries in the EEZ: Canadian Perspective” in Donat Pharad and Umberto Leanza (eds), The Continental Shelf/Exclusive Economic Zone Regime, Martinus Nijhoff, Doodrecht, Boston and London, 1993, p. 292.
49
measures, many coastal States have failed to properly manage the fisheries
resources within their EEZs, resulting in overexploitation.20
The conservation obligations of coastal States in the EEZ contain inherent
weaknesses which affect the sustainability of the fisheries resources. The use
of the word “shall” in Article 61 of the LOSC seems to be facilitative in the sense
that the national authority may conserve and manage fisheries without having
adequate data and scientific information. However, the obligation of the coastal
State to acquire fisheries data based on this provision is not mandatory
because of the use of the term “best scientific evidence available.”21
3.2.1.2 Optimum Utilization of Fisheries Resources
The second obligation imposed on coastal States with regard to fisheries
resources in their EEZ is that of the optimum utilization of the living resources.22
To meet this obligation, the coastal State is required to determine its capacity to
harvest the living resources of the EEZ.23 Where the coastal State does not
have the capacity to harvest the entire allowable catch, it is required, through
agreements or other arrangements to give other states access to the surplus of
the allowable catch.24
19 Donna R.Christie, ‘’The Conservation and Management of Stocks Located Solely Within the Exclusive Economic Zone ‘’, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, the Hague/London/Boston, 1999, p. 402. 20 Rosemary Rayfuse, “The Interrelationship between the Global Instruments of International Fisheries Law” in Elllen Hey (ed), op. cit, p.111. 21 Donna R.Christie, “The Conservation and Management of Stocks Located Solely Within the Exclusive Economic Zone” in Ellen Hey (ed), 1999,op.cit, pp. 400-401. 22 LOSC, Art. 62(1). 23 LOSC, Art. 62(2). 24 LOSC, Art. 62(2).
50
Although Article 62 of the LOSC imposes an obligation on the coastal State to
permit foreign fishing vessels access to its EEZ to exploit the surplus of the
TAC, the LOSC also allows the coastal State a substantial flexibility in this
respect. This is illustrated by Article 62(3) which provides as follows:
In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70,25 the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
Article 297(3) of the LOSC provides additional policy flexibility by stating that:
Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations
A costal State that has declared an EEZ is obliged to put in place a
management regime to ensure the sustainable use of the fisheries resources.26
In line with this obligation, the LOSC gives power to the coastal State to
exercise its jurisdiction within its EEZ. Thus, consistent with sovereign rights
under Article 62(4), a coastal State may legislate and enforce fisheries
25Article 69 of the LOSC deals with the rights of Land-Locked States whilst Article 70 LOSC deals with the rights of geographically disadvantaged States. 26 Martin Tsamenyi and Alistar McIlgorm, International Environmental Instrument-Their Effect on the Fishing Industry (Second Edition), The Report of the FRDC (Fisheries Research and Development Corporation), Project 97/149, University of Wollongong and AMC Search LTD, January 1999, p.12
51
jurisdiction regarding those rights in its EEZ.27 Nationals of other States fishing
in the EEZ shall comply with the conservation measures and with the other
terms and conditions of fishing established in laws and regulations of the
coastal State.
According to Article 62(4) of the LOSC, coastal States may adopt laws to
regulate the activities of foreign fishing vessels in the EEZ. Sub-paragraph (a) of
Article 62(4) deals with power of coastal States to provide licenses to fishermen,
fishing vessels, and fishing gears. Sub-paragraph (b) sets out the power of
coastal States to determine the species that may be caught and fix the quota for
the catch. These provisions are supported in sub-paragraph (c) and (d) which
deal with the right of coastal States to regulate seasons, areas of fishing, fishing
gear and types, sizes and number of vessels that may be used, and the age
and size of fish and other species that may be caught by foreign fishing vessels
in the EEZ.
The requirements, as mentioned in these provisions, must be related to sub-
paragraph (e) of Article 62(4) on the obligation of fishing vessels to provide
information, particularly catch and effort statistics and vessel position. Further,
under sub-paragraph (f), the coastal States are empowered to prescribe rules
relating to fisheries research programmes, particularly with respect to the
sampling of catches, disposition of samples and reporting of associated
scientific data.
27 Kalam-Denn Ali, “Legal and Policy Dimensions of Coastal Zone Monitoring and Control: The Case in Ghana”, Ocean Development & International Law, Vol. 35, No.2, April-June 2004, p.
52
An important provision is found in sub-paragraph (g) of Article 62(4) which
provides the authority of the coastal States to place observers or trainees on
board the vessels. The coastal States, under sub-paragraph (h), are also
entitled to regulate the landing of all or any of the catch by such vessels in its
ports. The great emphasis placed on training of personnel and transfer of
technology is stipulated in sub-paragraphs (i) and (j). This is to help in
increasing technical expertise and management know-how of fishermen of the
costal State. The conservation and management laws and regulations become
meaningful when the fishermen have the capability of carrying out fishing
activities in their own EEZ. Coastal States also have the right to formulate
enforcement measures to implement these regulations.
The regulatory powers granted under Article 62(4) can be grouped into five
categories. First, sub-paragraphs (a), (b), (c) and (d) deal with the licensing
requirements for all fishing vessels, such as the method, time and areas of
fishing activities. The second group, dealt under sub-paragraph (e), is
concerned with information on catch and effort statistics and vessel position
reports.28 The provisions require costal States and governments of foreign
fishing vessels in any EEZ to submit to international organizations statistical
data on fishing vessels. By doing so, the international community will be
informed on the level of fisheries overexploitation in advance.29 One problem
associated with overexploitation concerns IUU fishing and overcapitalization,
189. 28 William T. Burke,” Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea”, The Georgetown International Environmental Law Review, Vol.3, 1990, p. 306. 29 Martin H. Belsky, “Management of Large Marine Ecosystems: Developing a New Rule of Customary International Law”, San Diego Law Review, Vol.32, 1985, p.756.
53
which lead to the collapse of fish stocks. Legal instruments must be developed
to control access to fisheries resources in the EEZ and regulate fishing efforts.
Sub-paragraphs (f) and (j) of Article 62(4) cover measures to enhance the
research capability of the coastal State, whilst sub-paragraph (g) is concerned
with the authority of the coastal State to monitor the fishing activities within the
EEZ by placing observers and inspectors on board vessel to confirm the
accuracy of reported fisheries data.30 The fifth subgroup of coastal State
powers according to Article 62(4) is provided in sub-paragraphs (h) and (k).
These are the primary means by which coastal States allow port inspection of
landed and transhipped catch, as well as fisheries law enforcement. The rules
laid down in sub-paragraph (h) are of very general character, and there is
clearly a need for them to be supplemented by more specific rules.
Subparagraph (a) of Article 62(4) is intended to prevent unlicensed fishing
activities while subparagraphs (e), (g) and (h) are of particular importance in
requiring the reporting of fishing activities by foreing fishing vessels. The
inclusion of these provisions in the LOSC is intended to address the concern of
unreported fishing.
Paragraph (e) of Article 62(4) of the LOSC allows the coastal State, as a
condition of permitting foreign fishing vessel in its EEZ, to impose conditions
concerning the submission of catch data. The coastal State can specify the
format, content, frequency of the catch data, and to whom the fish catch should
30 Stuart M.Kaye, International Fisheries Management, International Environmental Law and Policy Series, Kluwer Law International, The Hague/Boston/London, 2001, p. 109.
54
be reported.31 The purpose of requiring licensed fishing vessels to report the
fish catch and vessel position is to ensure that fish catch from the EEZ is
accurately recorded.
It is clear from the provisions of the LOSC that the access conditions for foreign
fishing vessels to fish in the EEZ are considerably limited.32 Licensed foreign
fishing vessels that are granted access to the EEZ must comply with the
conservation and management measures established by the coastal State.33
Even though Article 62(4) of the LOSC allows the coastal State to require
reporting of catch and effort statistics, as well as vessel position, it does not
mandate such obligation.34 It is the responsibility of the coastal State to
establish and maintain mechanisms for the effective implementation and
enforcement of fisheries regulations within its maritime jurisdiction.
3.2.2 Fisheries Law Enforcement in the EEZ
In addition to the right given to a coastal State to declare an EEZ, it also
has the competence to enforce fisheries laws and regulations in the zone.35 The
ability of coastal States to effectively enforce their laws within the EEZ is a
crucial step in the performance of their duties to conserve and manage the
fisheries resources. However, the effectiveness of these measures cannot be
31 William R. Edeson, “Legal Aspects of the Collection of Fisheries Data”, FAO Fisheries Circular No. 953, Rome: FAO, 2003, p. 3. 32 Grant Hewison, “Balancing the Freedom of Fishing and Coastal State Jurisdiction”, in Ellen Hey (ed), op. cit, p. 176. 33 M.G. Jennings, Surveillance, and Control on Marine Resources in OECD Documents on Fisheries Enforcement Issues, OECD, Paris, 1994, p. 217. 34 “The Footprint of Distant Water Fleets on World Fisheries, WWF’ s Endangered Seas Campaign”, Endangered Seas Campaign WWF, United Kingdom, 1999, p.119. 35 Transform Aqorau, “Ocean Governance in the South Pacific: Challenges and Constraints in the Implementation of the Law of the Sea”, Paper Presented at Fiji Attorney General’s Conference, Naviti Resort, 2001, p. 8.
55
determined in isolation; they must instead be examined within the wider context
of all activities that are designed to compel obedience to fisheries laws and
regulations of the coastal State.36 The existing international law recognises that
the right to enforce fisheries laws in the EEZ is a sovereign power exercised by
the coastal State. Consequently, coastal States, in seeking to enforce their own
power, will often be exercising such laws against foreign and domestic vessels.
However, in exercising their law enforcement capacity within the EEZ, coastal
States are confronted with a number of constraints. The first constraint is a legal
one, arising from the fact that the EEZ is neither the territorial sea nor the
contiguous zone where special enforcement power has been granted. The
coastal State does not have sovereignty over the EEZ, but only sovereign
rights. The second constraint relates to the jurisdiction of coastal States in the
EEZ. Coastal States cannot prevent navigation by others through the EEZ.37 As
provided under Article 58(1) and (2) of the LOSC:
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and over-flight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
36 Martin Tsamenyi and Kwame Mfodwo, “Enforcing Fisheries Jurisdiction in the EEZ: Some Legal and Policy Considerations”, in Doug MacKinnon and Dick Sherwood (eds), Policing Australia’s Offshore Zones : Problems and Prospects, Wollongong Papers on Maritime Policy No.9, Centre for Maritime University of Wollongong, Wollongong, Australia, 1997, p. 254. 37 Donald Rothwell, “International Legal Regimes for the Regulation and Enforcement of Criminal and Quasi Criminal Laws in Coastal State Maritime Zones”, Law of the Sea Short Course, 11-22 November 2002, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, p. 165.
56
What is significant about the navigational freedoms in the EEZ is that this
freedom is recognized over the whole EEZ. However, notwithstanding the
general freedom allowing other vessels to navigate through the EEZ, a coastal
State does have general powers in relation to such vessels.38 Article 73(1) of
the LOSC provides:
The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
Therefore, where the coastal State has enacted laws and regulations in line with
the LOSC which allow foreign vessels to fish in its EEZ, it may enforce these
laws against foreign fishing vessels. The power to board, inspect, arrest and
institute judicial proceedings39 against foreign vessels in the EEZ is essential to
the coastal State’s ability to conserve and manage the EEZ. As seen under
Article 73(1) quoted above, a coastal State is allowed to conduct hot pursuit
against foreign fishing vessels that seek to escape law enforcement
measures.40
The power in Article 73(1) is complemented by Article 111 of the LOSC which
allows a coastal State to pursue a foreign ship that has violated the laws of the
coastal State within the internal waters, territorial sea or the EEZ of the coastal
38 David Attard, The Exclusive Economic Zone in International Law, Clarendon Press, Oxford 1987, p.179. 39 Transform Aqorau, “Illegal Fishing and Fisheries Law Enforcement in Small Island Developing States: The Pacific Islands Experience”, The International Journal of Marine and Coastal Law, Vo. 15, No1, 2000, p. 40. 40 R.R.Churchill and A.V.Lowe, op. cit, p.292
57
State and arrest it on the high seas.41 According to White and Knight (2003),
the arrest of vessels accused of fishing illegally is an important step designed to
protect coastal States against overfishing.42 Their views are particularly relevant
because the problem of illegal fishing has become more and more difficult for
coastal States to control.43
The LOSC attempts to strike a balance between coastal States and distant
water fishing nations (DWFNs) by imposing some restrictions on the
enforcement powers of coastal States with respect to foreign fishing activities.44
These are provided in Article 73 (2) (3) and (4) as follows:
(2) Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security. (3) Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. (4) In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action takes and of any penalties subsequently imposed.
Although Article 73 gives coastal States the power to detain and arrest illegal
fishing vessels, it also limits this power. The clear intention of the drafters of the
LOSC was to ensure that vessels would be neither detained indefinitely nor
41 Ivan Shearer, “Enforcement of Laws Against Delinquent Vessels in Australia’s Maritime Zones” in by Doug Mac Kinnon and Dick Sherwood, Policing Australia’s Offshore Zones: Problems and Prospects, Wollongong Papers on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, Wollongong, Australia, 1997, p. 247. 42 Michael White & Stephen Knight, “ITLOS and the Volga Case : The Russian Federation v Australia”, The Maritime Law Association of Australia & New Zealand Journal, Vol. 17, The Maritime Law Association of Australia and New Zealand Limited, 2003, p. 39. 43 Andrew Serdy and Michael Bliss, “Prompt Release of Fishing Vessels: State Practice in the Light of the Cases Before the International Tribunal for the Law of the Sea”, in Alex G.Oude Elfereink and Donald Rothwell (eds), op. cit, p.273. 44 Martin Tsamenyi and Transform Aqorau, op. cit, p.74.
58
subjected to unreasonable conditions for their release.45 When a foreign vessel
has been arrested, the flag State must be notified immediately and the vessel
and crew released upon the posting of reasonable bond or security.46 Article
73(2) is further supported by Article 292(1) which gives jurisdiction to the
International Tribunal for the Law of the Sea (ITLOS) over applications for the
prompt release of vessels and their crews in foreign ports unless the parties
otherwise agree.47
Article 73(3) further provides that unless there is an agreement with another
State in place, penalties for illegal fishing may not include imprisonment of the
crew.48 Despite this prohibition, 32 States which are parties to the LOSC allow
for imprisonment even in the absence of agreements with other States.49
However, legislation enacted by a majority of States which are parties to the
LOSC has followed Article 7350 and these provisions have generally been
accepted as being part of international customary law.51
45 Andrew Serdy and Michael Bliss, “Prompt Release of Fishing Vessels: State Practice in the Light of the Cases Before the International Tribunal for the Law of the Sea”, in Alex G.Oude Elfereink and Donald R.Rothwell (eds), op. cit, pp. 275-276. 46 Donald R Rothwell and ,Tim Stephens, “Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests”, International Comparative Law Quarterly, Vol. 53. January 2004, p. 292. 47 Michael White & Stephen Knight, op. cit, p. 41. Article 292 (1) provides: ‘Where the authorities of a State Party have detained a vessel flying the flag of another State and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 48 David H. Anderson, “Investigation, Detention and Release of Foreign Vessels Under the UN Convention on the Law of the Sea of 1982 and Other International Agreements”, The International Journal of Marine and Coastal Law, Vol. 11,1996, p. 170. 49 R.R.Churchill and A.V.Lowe, op. cit, p. 166. 50 Barbara Kwiatkowsa, The 200 Mile Exclusive Economic Zone in the Law of the Sea, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1989, p.87. 51 William T. Burke, “Fisheries Regulations Under Extended Jurisdiction and International Law,” FAO Fisheries Technical Paper No. 223, Rome: FAO, 1992, p.12.
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The implementation of the provision of Article 73 is illustrated by the decisions
of ITLOS. In August and September 1999, the Panamanian-flagged Camouco52
and the Seychelles-flagged Monte Confurco53 were arrested by French
authorities. Both vessels were believed to have engaged in illegal fishing in the
EEZ around French islands of the Kerguelen and Crozet. The arrests brought
about applications to ITLOS for the prompt release of the vessels under Articles
73 and 292 of the LOSC.54 In the December 2002 Volga case55 an Australian
patrol boat arrested a Russian-flagged vessel for fishing illegally in the
Australian EEZ near the Heard and McDonald Islands. This case was also
brought before ITLOS.
The key legal issue which arose in all the three cases and considered by ITLOS
was whether the bond set by the relevant arresting State for the release of
these vessels was a “reasonable bond or other security” under Articles 73 and
297 of the 1982 LOSC.56 In determining whether it was a “reasonable bond or
other security,” the Tribunal noted that it must give regard to the balance struck
in the LOSC between coastal State and flag State interests. Achieving an
appropriate balance has proven to be problematic.
52 Liza D. Fallon and Leorne K. Kriwoken, “International Influence of an Australian Non-Government Organization in the Protection of Patagonian Toothfish”, Ocean Development and International Law, Vol. 35, No.3, July-September 2004, p.241 53 The Monte Confurco Case Sychelles vs France, Application for Prompt Release Judgment International Tribunal for the Law of the Sea Year 18 December 2000, p.7. 54 Dean Bealik, op.cit, p. 116. 55 John Van Dyke, “Giving Teeth to the Environmental Obligations in the LOS Convention”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), p.171. 56 Donald R.Rothwell, “Building on the Strengths and Addressing the Challenges: The Role of Law of the Sea”, Ocean Development and International Law Vol. 35, No.2, April-June 2003, p. 138.
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A practical problem facing many countries, particularly developing countries, is
the prohibitive cost of enforcing their jurisdiction in their EEZs. As the High Seas
Task Force correctly notes:
Governments invest huge sums of money in physical surveillance of EEZs using conventional platforms such as patrol vessels and aircraft. Australia, for example, which has the third largest exclusive economic zone in the world, recently allocated USD 163 million over five years for a full-time armed patrol boat presence – the Oceanic Viking – which is used, amongst other things, to patrol the waters around the remote Sub-Antarctic possessions of Heard Island and McDonald Island. It is estimated that it costs Canada approximately USD 26 million annually to deliver the operational monitoring, control and surveillance programmes associated with the NAFO Regulatory Area. The overall cost of monitoring fishing activities in the EU and its member states amounts to some USD 362 million, which is about 5 per cent of total landings. The cost of monitoring EU vessels in the NAFO Regulatory Area alone amounts to some USD 4.8 million, or 7 per cent of total landings.57
Such huge amounts of money spent on infrastructure to monitor the fishing
activities within areas of national jurisdiction are most often not available to
developing countries.
The final report of the High Seas Task Force identifies a number of key
measures to expose and deter IUU fishing and improve the enforcement
capabilities of developing countries. These measures include those designed to,
first, commit resources to the International Monitoring Control and Surveillance
Network in order to have analytical capacity and be able to provide training to
developing countries; and second, address some of the needs of developing
countries with the intent to improve their capability in MCS and as flag States.58
57 High Seas Task Force, Closing the Net, Final Report of the High Seas Task Force on IUU Fishing, 2006, p.27. 58 High Seas Task Force on Illegal, Unreported and Unregulated Fishing Report, Fisheries and Oceans Canada, March 2006, http://www.dfo.gc.ca/media/backgrou/2006/hq-acO2a_e.htm, accessed on 12 December 2006, p.1.
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The above discussion shows that the enforcement of fisheries law in the EEZs
and RFMO regulatory areas require a huge budget in order to ensure the
effective implementation of international obligations. This is realized through the
implementation of monitoring, control and surveillance as a method of fisheries
enforcement. Limited financial capacity and high cost of enforcing fisheries law
in the EEZ have encouraged developed countries to ensure a priority focus on
developing countries needs by providing assistance in the education and
training associated with implementing MCS systems. This is due to a bigger
problem posed by developing countries which do not have the financial and
human resources to carry out enforcement tasks in the EEZ. It would be helpful
if the governments of developing countries could have a primary budget to
finance main activities for combating IUU fishing.
3.3 Management of Stocks in the EEZ and on the High Seas
The LOSC contains provisions that deal with certain fish stocks in the
EEZ and on the high seas. These stocks fall under three categories, based on
their mobility across maritime zones, namely shared stocks, straddling stocks,
and highly migratory species.
3.3.1 Shared Stocks
Shared stocks are stocks that generally travel between marine areas
under national jurisdiction (internal waters, archipelagic waters, territorial sea
and EEZ). Recognising this fact, the LOSC imposes a specific obligation on
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States who share such stocks to cooperate in managing the resources.59 This
duty to cooperate is enshrined in Article 63(1) which provides:
Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.
It should be noted that under Article 63(1), coastal States are to cooperate
directly or through appropriate sub-regional or regional organizations and adopt
measures to ensure the conservation and sustainable use of such stocks.
These measures are to be agreed upon by the coastal States subject to the
other provisions of Part V of the LOSC.60
In E.D. Brown’s opinion (1994), although a coastal State under Article 56 retains
sovereign rights over the portion of the shared stocks found in its EEZ, it is
obligated to discharge the conservation and management obligations as
stipulated in Articles 61 and 62. As Ellen Hey (1991) has also pointed out, the
coastal State has the right to regulate and the duty to ensure the conservation
of the shared stocks from which it derives benefits.61
Douglas M. Johnston (1992) argues that cooperative fishery management
arrangements of straddling fish stocks cannot be negotiated until EEZ
boundaries have been agreed upon between or among the neighbouring
59 Martin Tsamenyi and Transform Aqorau, op. cit, p. 72. 60 Ellen Hey, “The Provisions of the United Nations Law of the Sea Convention on Fisheries Resources and Current International Fisheries Management Needs”, in Ellen Hey, William T. Burke, Doris Ponzoni and Kazuo Sumi (eds), FAO Legislative Study No. 47, Rome: FAO, 1991, p. 5. 61 Ellen Hey, “The Fisheries Provisions of the LOS Convention”, in Ellen Hey (ed), op. cit, p. 24.
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States. Based on the Southeast Asian Nations experience, linear settlement of
maritime boundaries should not be separated from the problem of cooperative
management in regional waters.62 Examples of this can be seen in the
archipelagic States in Southeast Asia, namely Indonesia and the Philippines,
which are facing considerable difficulties in determining EEZ boundaries.63 The
lack of agreed conservation and management measures has resulted in major
problems for the conservation of these fish species. These problems
encompass overexploitation of the resources, environmental degradation of
coastal zones, continued demographic growth in fishing communities, and
incursion of commercial boats into areas allocated to small-scale fishing
vessels. These problems have led to decreasing yields and lower total
catches.64
In the opinion of Churchill and Lowe (1999), the absence of any treaty will
require each coastal State to manage the shared stocks which live in its EEZ
according to the general rights and duties applied in its own zone.65 In order to
combat IUU fishing, increasing attention is now being paid to the formulation of
joint conservation and management measures. In Michelle Kuruc’s (2003)
62 Douglas M. Johnston, “A Postcript”, in Kathleen I.Matics and Ted L. McDorman (eds), Seapol International Workshop On Challenges To Fishery Policy And Diplomacy In Southeast Asia, Rayong, Thailand, 6-9 December 1992, Southeast Asian Programme in Ocean Law, Policy And Management, Bangkok, Thailand, pp. 149-150. 63 Merrilyn Wasson, Excerpts of the Report of the Symposium on Sustainable Use of National Exclusive Economic Zones in the Seas of the Asia Pacific Regional, Institutional Dimensions of Global Environmental Change (IDGEC), Issue 5, August 2002, p. 2. 64 Andre Tahindro, “Conservation and Management of Trans-boundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species”, Ocean Development and International Law. Vol. 28, No.1, January-March 1997, p.42. 65 R.R. Churchill and A.V. Lowe, op. cit, p. 294.
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opinion, international cooperation in fisheries MCS will provide benefits for the
long-term development of sustainable worldwide marine fisheries resources.66
3.3.2 Straddling Fish Stocks
In contrast to shared stocks discussed above, straddling stocks occur
between the EEZ and the adjacent high seas. According to Article 63(2) of the
LOSC,
Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
The above provision obligates the coastal State and States fishing for straddling
stocks to seek agreement where the stocks being fished on the high seas are
also found within the EEZ.67 Where such stocks exist, States are obligated to
seek agreement on measures necessary for their conservation.68 The
agreement is to be arrived at either directly or through appropriate regional or
sub-regional organizations. However, such obligations exist only if the
measures have been agreed upon as a result of negotiations.69
66 Michelle Kuruc, “International Network for the Cooperation and Coordination of Fisheries-Related Monitoring, Control and Surveillance Activities”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No.722, Rome: FAO, 2004, p.1. 67 William T.Burke, “The Law of the Sea Concerning Coastal State Authority Over Driftnets on the High Seas” in Ellen Hey, William T. Burke, Doris Ponzoni and Kazuo Sumi (eds), 1991, op.cit, p. 25. 68 Moritaka Hayashi, ‘’The 1995 UN Fish Stocks Agreement and the Law of the Sea’’, in Davor Vidas and Willy Strong (eds), Order for the Turn of the Century, Kluwer Law International, the Hague, London and Boston, 1999, p 37.
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Although coastal States have an interest in the conservation of straddling stocks
in the adjacent area, this interest is not equivalent to sovereign rights or special
jurisdiction. Article 116(b) of the LOSC is primarily concerned with the rights,
duties, and interests of coastal States in relation to high seas fisheries. This
specifically refers to Article 63(2) which requires distant water fishing States to
respect the interests of coastal States if negotiations fail to establish the needed
conservation measures.70
In the absence of the agreed conservation measures, the provisions of Article
63(2) become problematic. In fact, the exact nature and extent of the coastal
State’s rights against those of the competing distant water fishing nations
(DWFNs) are not clearly prescribed in the article. Further, the extent of the high
seas fishing nation’s rights subject to the coastal State’s undefined interests
provided for under Article 63(2) is not spelled out in Article 116.71
In the context of the Association of Southeast Asian Nations (ASEAN) region,
there is a growing recognition of the urgent need to ensure sustainable
management of fisheries due to the fact that there are numerous complaints
about illegal fishing by foreign vessels from neighbouring States or DWFNs.
Furthermore, commercial important pelagic and demersal fish stocks are
usually harvested by more than two countries in the region and straddle
69 E.D.Brown, The International Law of the Sea (Vol. I Introductory Manual), Dartmouth Aldershot Brook USA, Singapore, Sydney, 1994, p. 228. 70 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p.63. 71 Michael Sean Sullivan, op.cit, pp.209-210.
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adjacent EEZs.72 At the same time, it should be noted that the majority of
fisheries in Southeast Asia are of small-scale and multi-species/multi-gear
character. As a result of these characteristics, the Southeast Asian region faces
fisheries management issues which are rather different from other regions in the
world.73 However. in promoting fisheries conservation and sustainable fisheries
management, the ASEAN regional cooperation has been limited to the
exchange of information, data gathering, and analysis, consultation, facilitation
and coordination of programmes, and joint planning activities.74 It is apparent
that the ASEAN cooperation does not cover the agreed conservation and
management measures and effective fisheries MCS programmes.
Difficulties in MCS cooperation are caused by the varying interests among
coastal States in the region, particularly with respect to enforcement and
ongoing maritime territorial disputes.75 For this reason, the maritime boundary
agreements in many areas of Southeast Asia are rather difficult to reach as they
are commonly bordered by several countries. There are only a few high seas
pockets within a maze of EEZs in the Southeast Asia subregion. The largest
high seas areas lying on the west is in the Bay of Bengal and to the east in the
Western Pacific Ocean.76 Given the problem, it is not surprising that addressing
72 Annick Van Houtte, “Legal Aspects of Regional Cooperation in Monitoring, Control and Surveillance Matters”, Technical Papers at the Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kuala Terengganu, Malaysia, 29 June – 3 July 1998, FAO/Norway Government Cooperation Programme, p.35. 73 Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, Penang, Malasyia, 10-14 October 2004, FAO Fisheries Report No. 757, Rome: FAO, 205, p.6. 74 Moctar Kusumaatmadja and Tommy H.Purwaka, “Legal and Institutional Aspects of Coastal Zone Management in Indonesia”, Marine Policy Vol. 20, 1996, p.18. 75 Annick Van Houtte, loc.cit. 76 Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, loc.cit.
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IUU fishing in the ASEAN region has not been subjected to any agreement. In
terms of substance, the ASEAN organization has not yet taken any initiative in
tackling IUU fishing problems.
The ASEAN member States are expected to agree on joint arrangement issues
on optimum utilization quotas for shared stocks, determination and allocation of
TAC, and determination of surplus stocks for foreign fishing.77 To reach this
goal, programs of fisheries cooperation among the ASEAN member States
need to concentrate on three priority programs. First, the sustainable fisheries
development must be integrated into national and regional fisheries policies so
that sustainable fisheries development can be carried out. Second, national and
regional institutions must be strengthened to enable ASEAN cooperation in
combating IUU fishing. Third, there is a need for cooperation with other RFMOs
with a view of exchanging experiences on the management of transboundary
fish stocks and deterring IUU fishing.
Annick Van Houtte (2003) argues that Article 63(2) of the LOSC should be read
in conjunction with Article 116(b). She further states that “(T)he right to fish
straddling stocks on the high seas should be viewed in the light of the coastal
State’s sovereign rights over the living resources within its EEZ under Article 56
of the LOSC.”78 States fishing straddling stocks on the high seas are obligated
to conserve these stocks and to cooperate with the adjacent coastal States to
77 Mochtar Kusumaatmadja, loc.cit. 78 Annick Van Houtte, “Legal Aspects in the Management of Shared Fish Stocks- A Review”, Paper Presented at the Norway-FAO Experts Consultation on the Management of Shared Fish Stocks, Bergen, Norway, 7-10 October 2002, FAO Fisheries Report No. 695, Supplement, Rome: FAO, 2003, p. 36.
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this end.”79 This opinion is shared by Alex G. Oude Elferink (1995) who stated
that both Articles 63(2) and 116 do in fact make high seas fishing subject to the
rights, duties, and interests of the coastal States.80
As a result of the growing need to conserve straddling fish stocks and highly
migratory species in the high seas adjacent to their EEZ, coastal States have
acted unilaterally to regulate fishing activities in the adjacent high seas areas.
Based on the freedom of fishing on the high seas, distant water fishing States
have argued that the LOSC does not authorise coastal States to exercise extra-
territorial jurisdiction in protecting those stocks in high seas areas adjacent to
their EEZ.
An illustration of these conflicting positions is the Canada-EU Turbot Dispute.
The Northwest Atlantic Fisheries Organization (NAFO) Agreement contains
provisions for the management of, inter alia, seven fish stocks which straddle
the 200-mile line separating Canada’s EEZ from its adjacent high seas. The
Convention came into force on 1 January 1979. Until 1985, the EEC strongly
supported the application of a conservative conservation policy.81 However,
problems arose after 1986 when Spain and Portugal, two major distant-water
fishing States were about to join the EEC. From 1986 onwards, the European
Economic Community (EEC), now the European Commission, under pressure
79 Wiliam T. Burke, ‘’Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea‘’, Georgetown International Environmental Law Review, Vol. 3, 1990, p. 274. 80 Alex G. Oude Elferink, “Fisheries in the Sea of Okhotsk High Seas Enclave- The Russian Federation’s Attempts at Coastal State Control”, The International Journal of Marine and Coastal Law, Vol. 10, No.1, 1995, p. 12. 81 E.D.Brown, op. cit, p. 228.
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from Spain, objected to the quotas allocated to it by NAFO.82 A greater share of
EU’s NAFO quotas or the quotas the EU set unilaterally had been given to
Spain and Portugal.83 Canada, on the other hand, argued that this unilateral
action, together with the lack of NAFO controls over an increasing number of
flag of convenience fishing vessels registered in non-member States of NAFO
was undermining its own conservation measures established in its EEZ. It was
also reducing the amount of fish available for harvesting by its own vessels and
threatening the long-term sustainability of the stocks concerned. By the early
1990s, these stocks were in a severely depleted state.84 The dispute between
Canada and the EU over quotas and allocation rights in the Northwest Atlantic
Fishing Areas demonstrates the difficulties of structuring a satisfactory
management regime for the high seas.85
3.3.3 Highly Migratory Species
Article 64 of the LOSC deals with highly migratory species. These are
species listed in Annex 1 of the LOSC and include tuna and tuna-like species.
Article 64 provides as follows:
1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.
82 R.R.Churchill, “The European Community and Its Role in Some Issues of International Fisheries Law” in Ellen Hey. (eds), op. cit, p. 551. 83 Yann-Huei Song, ‘’The Canada-European Union Turbot Dsipute in the Northwest Atlantic : An Application of the Incident Approach ‘’, Ocean Development and International Law, Vol. 28, No.3, July-September 1997, p. 277. 84 R.R.Churchill and A.V.Lowe, op. cit, p.306. 85 Martin Tsamenyi and Transform Aqorau, op. cit, p. 76.
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2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.
It is clear from this article that international law requires cooperation between
distant water fishing States and coastal States with regard to highly migratory
species to ensure long-term conservation and management of such species.
Cooperation is to be achieved directly or through appropriate international
organizations to promote the optimum utilization of such species through the
region, both within and outside the EEZ. In regions where there are no
appropriate international organizations, these States are obliged to cooperate in
establishing such organizations and participating in its work.
In contrast to Article 63(2), Article 64 of the LOSC imposes on States the
obligation to promote the objective of optimum utilization.86 Particularly, coastal
States are obliged to cooperate in the determination of TAC for highly migratory
species that are in their EEZs. The objective of Article 64 is to provide for the
consistent and coordinated management of highly migratory species. The article
creates a pactum de contrahendo, which forces coastal States to conclude
agreements with distant water fishing nations for the management of highly
migratory species.87
In interpreting Articles 64 and 116(b), one may argue that distant water fishing
States are prohibited from unilaterally adopting measures on the high seas
fishery without cooperating with coastal States in the region since such
unilateral measures would undermine conservation measures of the highly
86 Ellen Hey, The Regime for the Exploitation of Trans-boundary Marine Fisheries Resources, Martinus Nijhoff Publisher, The Hague, 1989, p. 57.
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migratory species both within and outside the EEZ.88 As a follow up, it could be
argued that if negotiations on conservation and management measures of
highly migratory species fail to reach an agreement, Articles 6489 and 116(b)
can be interpreted as authorizing coastal States to establish such measures.90
In contrast, distant water fishing States argue that the LOSC does not contain
any provisions permitting coastal States to apply management measures over
highly migratory species stocks outside their EEZ.91 They have also argued
that, although fishing activities in certain areas of the high seas require a tighter
control and more effective management, they would resist unilateral
conservation measures imposed by coastal States beyond their EEZ.92
The ITLOS cases shows that most IUU fishing is conducted by large
commercial fisheries companies which capitalise on the inadequacies of
international law, domestic legal loopholes and weak law enforcement
mechanisms to enable them to conduct illegal fishing activities in remote parts
of the world’s oceans.93 There is an urgent need to reconcile conservation and
management measures adopted in the EEZ and those adopted for the same
87 Stuart M.Kaye, op.cit, p. 126. 88 Barbara Kwiatkowska, “Creeping Jurisdiction Beyond 200 Miles in the Light of 1982 Law of the Sea Convention and State Practice” in ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development (Proceedings), Bandung, Indonesia, 24-26 January, 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Vor Jurisdische Samenwerking met Indonesia, 1993, p.178. 89 Barbara Kwiatkowska, “The High Seas Fisheries Regime: at a Point of No Return?”, The International Journal of Marine and Coastal Law, Vol. 8, No 3, 1993, p. 330. 90 Jeremi Faith, ‘’Enforcement of Fishing Regulations in International Waters : Piracy or Protection, Is Gunboat Diplomacy the Only Means Left ?’’, Loyola of Los Angeles International and Comparative Law Journal, Vol. 19, No.199, 1996-1997, p. 212. 91 Gordon Munro, Annick Van Houtte and Rolf William, “The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects, FAO Fisheries Technical Paper No.465, Rome: FAO, 2004, p. 36. 92 Andre Tahindro, op.cit, page 18.
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stocks in the high seas. The objective is to avoid the over-exploitation and
depletion of stocks.94
3.4 Freedom of Fishing on the High Seas
The freedom to fish on the high seas is generally regarded as being part
of customary international law.95 However, international law provides rules to
ensure that the exercise of this freedom does not result in unlimited access and
an abuse of this right. The regulation of high seas fisheries is largely through
the flag States exercising their jurisdiction over their vessels.96 In this regard,
flag State responsibility is an important element of the high seas fisheries
regime.97
Article 87 of the LOSC recognises the freedom of fishing as one of the
freedoms of the high seas. This freedom is, however, subject to specific
conditions laid down in Section 2 of Part VIII of the LOSC. Article 116 of the
LOSC reinforces article 87 by stating that “All States have the right for their
nationals to engage in fishing on the high seas”. This right is subject to three
limitations. These include the treaty obligations of States; the rights and duties
93 Donald R. Rothwell, Oceans Management and the Law of the Sea in the Twenty-First Century in Alex G.Oude Elferink and Donald R.Rothwell (eds), op. cit, p. 334 94 Satya Nandan, “An Introduction to the 1982 United Nations Convention on the Law of the Sea”, in Davor Vidas and Willy Ostrength (eds), op. cit, p.12. 95 Grant James Hewison, “High Seas Driftnet Fishing in the South Pacific and the Law of the Sea”, The Georgetown International Environmental Law Review, Vol. 5, No. 313, 1993, p. 335. 96 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 3. 97 Max Collett, “Achieving Effective International Fishery Management: A Critical Analysis of the UN Conference on Straddling Fish Stocks”, Dalhousie Journal of Legal Studies, Vol. 4, No.8, 1995, p. 20.
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as well as the interests of other States under Article 63(2),98 Article 6499 and
Article 67;100 and the provisions of Section 2 of Part VIII.
Article 117 imposes a duty on all States whose vessels fish on the high seas to
adopt measures for the conservation of the living resources on the high seas.”
The article provides that “(A)ll States have the duty to take, or to cooperate with
other States in taking, such measures for their respective nationals as may be
necessary for the conservation of the living resources of the high seas.” One
problem in implementing Article 117 involves the definition of the term
“nationals”. The question is whether this term covers activities undertaken by
individuals and corporations engaged in IUU fishing that undermines the
98 This Article provides as follows: “Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area”. 99 This Article provides as follows:
“1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.”
100 This Article deals with catadromous species and provides that: “1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species.”
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effectiveness of conservation and management measures.101 A key issue has
arisen in relation to the operation of chartered boats. International law is unclear
as to the question of which State has jurisdiction to control the fishing activities
of chartered vessels.
The substantive provisions of the LOSC on flag State responsibilities are
contained in Articles 91, 92, 94 and 110. Article 91 (1) deals with the nationality
of vessels and provides that:
Every State shall fix the conditions for the grant of its nationality to ships for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to it. There must be a genuine link between the State and the ship.
Although the LOSC does not define what a “genuine link” is, it has been
interpreted as being a strong economic tie between nationals of the flag State
and the ownership, management, and manning of the vessel.102 The need for a
“genuine link” between a State and its vessels means that flag States can only
exercise effective jurisdiction and control over the activities of their own
vessels.103 In the high seas fisheries context, the requirement for a genuine link
under Article 91 means that a flag State must exercise effective control over its
vessels. The flag State must ensure that its vessels do not undermine
international conservation and management measures. Under Article 91(2),
when the flag State gives a ship the right to fly its flag, it must issue documents
101 Dean Bialek, “Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Sothern Ocean”, Ocean Development and International Law, Vol. 34, No.2, 2003, pp. 119-120. 102 Michael Julian, “International Conventions and Agreements Relating to Marine Pollution: Issues Relevant to the Asia-Pacific Region”, Maritime Studies, March/April 2000, The Australian Centre for Maritime Studies, Australia, p. 15.
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to that effect.104 This is because under the Article 92(1) of the LOSC, ships on
the high seas are, in principle, subject to the exclusive jurisdiction of their flag
States.105
3.5 Conclusion
This chapter analysed the key provisions of the LOSC dealing with the
sustainable use of fisheries in the EEZ and on the high seas. It demonstrated
that despite the creation of the EEZ which has given substantial powers to
coastal States with regard to the bulk of fisheries resources in areas within
national jurisdiction, this has not produced a legal regime supporting the
conservation of such resources. The key issues emerging from the analysis
which explain this situation include the failure of many coastal States,
particularly developing States to implement their obligations under the LOSC
and the failure of the LOSC to clearly define the scope of cooperation for shared
stocks, straddling stocks and highly migratory species. More significantly, the
high seas fisheries regime under the LOSC which continues to support freedom
of fishing, although with some qualifications, continues to be a problem. The
next chapter continues the analysis of the international legal framework to
address IUU fishing by discussing relevant post-LOSC binding instruments on
fisheries.
103 Erik Jaap Molenaar, “ The Concept of “Real Interest” and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms”, The International Journal of Marine and Coastal Law, Vol. 15, No 4, 2000, p. 531. 104 Judith Swan, ‘’Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Resppnsibilities, FAO Fisheries Circular No.980, Rome: FAO, 2002, p. 9. 105 Brian Opeskin and Martin Tsamenyi, ‘’ The Law of the Sea’’, in Sam Blay, Ryzard Piotrowicz, and Martin Tsamenyi’’ (eds), Public International Law: An Australian Perspective (Second Edition), Oxford University Press, 2005, p. 324.
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CHAPTER 4
POST LAW OF THE SEA LEGALLY BINDING INSTRUMENTS AND MEASURES TO ADDRESS IUU FlSHING
4.1 Introduction
The purpose of this chapter is to provide an analysis of the post LOSC
international legal framework for fisheries management to address the problems
of IUU fishing. The analysis in the chapter focuses on two key agreements: the
1993 Agreement to Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas (FAO Compliance
Agreement) and the 1995 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 (UN Fish Stocks Agreement). In particular, the
analysis addresses the ways in which these agreements attempt to improve on
the LOSC framework to combat IUU fishing.
4.2 Background to the FAO Compliance and UN Fish Stocks
Agreements
Chapter 17 of Agenda 211 deals with the sustainable use and
conservation of marine living resources of the high seas as well as those under
national jurisdiction.2 From 1982 to 1992, fisheries on the high seas
considerably expanded to represent approximately five per cent of the total
1 Lawrence Yuda, “Changing National Approaches to Ocean Governance: The United States, Canada, and Australia, Ocean Development and International Law, Vol. 34, No.2, April-June 2003, p.163.
77
world landings. This expansion led to the need for more effective fisheries
management. As Brown (1994) aptly notes in relation to the situation in the
early 1990s,
the management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are over-utilized. There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessels re-flagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States.3
To address these problems, Paragraph 17.49 of Agenda 21 calls upon States to
take effective action at both regional and global levels to ensure that high seas
fisheries are managed in accordance with the LOSC and, in particular, to give
full effect to the provisions of the Convention on straddling stocks and highly
migratory species; negotiate international agreements for the effective
management and conservation of fish stocks; and define and identify
appropriate management units.4
Paragraph 17.49(e) of Agenda 21 explicitly calls upon the United Nations to
convene an international conference to address the problems of straddling and
highly migratory stocks and to do so in a manner fully consistent with the
provisions of the LOSC and, in particular, the rights and obligations of coastal
2 Martin Tsamenyi and Felicity Woodhill, “Sustainable Use of Large Migratory Fish in the Southern and Indian Oceans: Gaps in the International Legal Framework”, Centre for Maritime Policy University of Wollongong, Australia for Traffic Oceania and WWF October 1999, p. 17. 3 E. D. Brown, The International Law of the Sea (Vol. I Introductory Manual), Dartmouth Aldershot Brook USA, Singapore, Sydney, 1994, p. 321. 4 Current Legal Development on United Nations Conference on Environment and Development, Agenda 2, Chapter 17 “Protection of the Oceans, all Kinds of Seas, including Enclosed and Semi-Enclosed Areas and the Protection, Rational Use and Development of their Living Resources”, International Journal of Estuarine and Coastal Law, Vol.7, 1992, p.310.
78
States and States fishing on the high seas.5 In addition, Agenda 21 urged
States to:
• ensure that fishing activities by vessels flying their flags on the high seas
were conducted so as to minimise incidental catch;6
• take effective action consistent with international law to monitor and control
fishing activities by their vessels to ensure compliance with applicable
conservation and management rules;7
• take effective action consistent with international law to deter re-flagging of
vessels as a means of avoiding compliance with applicable conservation
and management rules for fishing activities on the high seas;8
• cooperate within regional and global fisheries bodies and, where they do not
exist, establish such organisations;9 and
• join regional high seas fisheries management organisations in situations
where the State has an interest in a high seas fishery regulated by that
organisation.10
As in the case of high seas fisheries, a number of threats to the sustainable use
of living resources were identified. These threats include: local over-fishing;
overcapitalization and excessive fleet size; unreliable data; under-valuation of
catch; unauthorised fishing by foreign fleets; and competition between artisanal
and large-scale fishing and between fishing and other types of activities. A final
5 Lawrence Juda, “Rio Plus the Evolution of International Marine Fisheries Governance”, Ocean Development and International Law, Vol. 33, No. 2, April-June 2002, p. 113. 6 Agenda 21, Chapter 17, Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources, Rio de Janeiro, Brazil, 03-14 June 1992, para. 17.50. 7 Agenda 21, para. 17.51. 8 Agenda 21, para. 17.52. 9 Agenda 21, para. 17.58.
79
threat to note is ecosystem degradation and insufficiently selective fishing
gear.11
In relation to fisheries under national jurisdiction, Agenda 21 further urges
States to cooperate through bilateral and multilateral agreements to: develop
technical and financial cooperation to enhance the capacities of developing
countries and develop agreed criteria for the use of selective fishing gear and
practices to minimize waste in the catch of target species and non-target
species.12 States are also urged to enhance capacity building in areas of data
and information, scientific and technological measures, and human resource
development, so as to enable them to participate effectively in the conservation
and sustainable use of marine living resources under national jurisdiction.
The high seas fisheries issues embodied in Agenda 21 were also discussed in
various other international meetings held in conjunction with the UN Conference
on Environment and Development (UNCED) negotiations or immediately
thereafter. The most relevant meeting was the Conference on Responsible
Fishing convened by the FAO, held in Cancun, Mexico on 6-8 May 1992. This
meeting led to the development of the FAO Code of Conduct on Responsible
Fisheries, following the “Cancun Declaration”.13
10 Lawrence Juda, ibid. See Agenda 21, para. 17.59. 11 Jean-Pierre and Gunnar G. Schram (eds), United Nations Confernce on Straddling Fish Stocks and Highly Migratory Species (Selected Documents), Kluwer Law International, Martinus Nijhoff Publishers, The Hague/Boston/London, 1996, p. 4. 12 Agenda 21, para. 17.87. 13 Francisco Orrego Vicuna, The Changing of International Law of High Seas Fisheries, Cambridge University Press, 1999, p.129.
80
In a response to the Cancun Declaration and the concerns expressed in
Agenda 21, the FAO held a Technical Consultation on the High Seas in
September 1992. The meeting produced two international instruments, namely
the FAO Compliance Agreement and the FAO 1995 Code of Conduct for
Responsible Fisheries.14 In another development, based on the UNCED
recommendation, Resolution No.47/1992 was adopted by the UN General
Assembly in December 1992 convening the Conference on Straddling Fish
Stocks and Highly Migratory Species.15
4.3 The FAO Compliance Agreement
The FAO Compliance Agreement came into force on 24 April 2003. This
Agreement was concluded as an integral part of the FAO Code of Conduct for
Responsible Fisheries16 to support the implementation of the LOSC concerning
flag State control over fishing vessels operating on the high seas.17 Although
the original impetus behind the FAO Compliance Agreement was to deal with
the problems of activities by vessels flying flags of convenience, it subsequently
developed into an instrument setting out the responsibilities of all flag States.18
14 David A. Balton and Dorothy C. Zbicz, “Managing Deep- Sea Fisheries: Some Threshold Questions”, The International Journal of Marine and Coastal Law, Vol. 19, No.3, 2004, pp. 248-249. 15 Moritaka Hayashi, “The Straddling and Highly Migratory Fish Stocks Agreement”, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, op, p. 57. 16 David J. Doulman, “Code of Conduct for Responsible Fisheries: Development and Implementation Considerations” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Center for Oceans Law and Policy, Martinus Nijhoff Publishers, 2000, p. 314. 17 CP. Flewwelling, Corman Culliman, David A. Balton, R.P. Sautter, and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p. 17. 18 Deirdre M. Warmer-Kramer and Krista Canty, “Stateless Fishing Vessels: The Current International Regime and A New Approach”, Ocean and Coastal Law Journal Vol. 5, No. 220, 2000, p. 232.
81
There are two primary objectives of the FAO Compliance Agreement. The first
is to encourage States to ensure that the activities of their fishing vessels
operating on the high seas comply with international conservation and
management needs. The second objective is to promote international
cooperation for achieving sustainability of high seas fisheries management,
through the collection and dissemination of data on the activities of high seas
fishing vessels.19
4.3.1 Definition and Application of the 1993 FAO Compliance
Agreement
Article I(b) of the FAO Compliance Agreement defines “international
conservation and management measures” to mean
measures to conserve or manage one or more species of living marine resources that are adopted and applied in accordance with the relevant rules of international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Such measures may be adopted either by global, regional or sub-regional fisheries organizations, subject to the right and obligations of their members, or by treaties or other international agreements.
The above definition covers not only fish, but all living marine resources. In this
regard, agreed measures for whales and other cetaceans, corals and other
marine living organisms all fall within the scope of the FAO Compliance
Agreement. These provisions reinforce the provisions of Articles 63(2)-67 and
116-119 of the LOSC. These provisions require cooperation among States
whose vessels carry out fishing activities on the high seas20 and address the
19 Gerald Moore, “The Food and Agriculture Organization of the United Nations Compliance Agreement”, The International Journal of Marine and Coastal Law , Vol. 10, 1995, pp. 413-414. 20 David A Balton, “The Compliance Agreement”, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p. 47.
82
role of RFMOs in achieving the purposes and objectives of the international
conservation and management measures in relation to high seas fisheries.
Article I(a) of the FAO Compliance Agreement defines a “fishing vessel” as any
vessel used or intended for the purposes of the commercial exploitation of living
resources. This definition includes mother ships and any vessels directly
engaged in such fishing activities.
Article II(1) applies the FAO Compliance Agreement to all fishing vessels that
are used or intended for fishing on the high seas.21 More importantly, Article
II(2) provides that States may exempt fishing vessels of less than 24 metres in
length from complying with the Agreement,22 unless the exemption would
undermine the purposes and objectives of the Agreement. In this regard,
Paragraph 3 of the same article allows riparian coastal States which have not
yet declared EEZs to agree, either directly or through appropriate RFMOs, to
establish a minimum length of fishing vessels below which the Agreement will
not apply.
An example of a region to which Article II(3) may apply is the Mediterranean
Sea. In this region, coastal States are yet to declare EEZs. As a result, the
region includes significant areas of high seas close to shore. It follows that the
coastal States in this region may establish a minimum length for fishing vessels
21 M. Johanne Picard, “International Law of Fisheries and Small Developing States: A Call for the Recognition of Regional Hegemony”, Texas International Law Journal, Vol. 31, 1996, p. 338. 22 William Edeson, “Implementing the 1982 UN Convention, the FAO Compliance Agreement and the UN Fish Stocks Agreement”, in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations,
83
below which the FAO Compliance Agreement will not apply that differs from that
provided in the agreement,23 but they must nevertheless take effective
measures to ensure that they are not undermining international conservation
and management measures.24
4.3.2 Flag State Responsibilities
The FAO Compliance Agreement is primarily concerned with the
responsibility of flag States to authorise vessels to fish on the high seas and
promote increased transparency through exchange of information. The main
provision of the Agreement in this regard is stipulated in Article III, which
enumerates a number of obligations for flag States over their fishing vessels
operating on the high seas.25 This article is seen as the most significant
provision of the FAO Compliance Agreement in terms of achieving monitoring,
control and surveillance (MCS) goals26 and is examined in more detail in the
following paragraphs.
Broadly, Article III(1)(a) imposes a duty on each State to take necessary
measures to ensure that vessels flying its flag do not engage in any activity
undermining the effectiveness of conservation and management measures.
Moreover, Article III(2)(a) provides that a flag State cannot allow fishing vessels
Center for Oceans Law and Policy, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p.162. 23 Gerald Moore, “The Food and Agriculture Organization of the United Nations Compliance Agreement”, The International Journal of Marine and Coastal Law, Vol. 10, 1995, p. 415. 24 Gerald Moore, “The FAO Compliance Agreement”, in Myron H. Nordquist and John Norton Moore (eds), op. cit, p. 82. See also FAO Compliance Agreement, Art. III.1 (b). 25 Robin Churchill, “The Meaning of the Genuine Link Requirement in Relation to the Nationality of Ships”, A Study Prepared for the International Transport Workers’ Federation, October 2000, p. 66.
84
entitled to fly its flag to be used for fishing on the high seas unless the vessel
has been authorised by the appropriate authority or authorities of that flag State.
An important follow-up to these provisions is Article III(3) which requires States
to authorise any fishing vessels entitled to fly its flag to fish on the high seas
only when the State is able to exercise its responsibilities effectively. The FAO
Compliance Agreement further imposes an obligation upon State parties to
implement a licensing system and some other form of authorisation for their
vessels to fish on the high seas. The agreement also establishes exclusive flag
state jurisdiction and the right of freedom of fishing on the high seas.27
The above provisions cover three fundamental rules associated with
implementing flag State responsibilities. First, a flag State has an obligation to
control its vessels which undermine the effectiveness of international
conservation and management measures.28 Second, a flag State is required to
prevent unauthorised fishing on the high seas. Third, and most importantly, a
flag State must ensure that it can effectively control its vessels fishing on the
high seas prior to issuing any licenses to be used for fishing in the area.29
These fundamental rules are a reflection of the basic requirement that a State
may only authorise the use of its flag if it can effectively exercise its
responsibilities under the FAO Compliance Agreement. Significantly, these
26 P. Flewweling, C. Culliman, David A.Balton, R.P.Sauter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p.17. 27 Christopher J Carr and Harry N Scheiber, “Dealing with a Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries”, UCIAS Edited Volume 1, Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies, 2002, p. 20. 28 David J. Bederdman, “CCAMLR in Crisis: A Case Study of Marine Management in the Southern Ocean”, in Harry N. Scheiber (ed), Law of the Sea: The Common Heritage and Emerging Challenges, Martinus Nijhoff Publishers, The Hague/Boston/Boston, 2000, p.190. 29 Christopher J. Carr, “Recent Developments in Compliance and Enforcement for International Fisheries”, Ecology Law Quarterly, Vol. 24, 1997, p. 851.
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requirements constitute a response to problems associated with the re-flagging
of fishing vessels to States which are not willing or are unable to enforce
international conservation and management measures.30
The FAO Compliance Agreement enumerates the responsibilities of flag States
in more detail than those in the LOSC.31 Notably, the FAO Compliance
Agreement requires that there be a “genuine link” between the right to fly the
flag of a State and the right to fish on the high seas. This is an important
development as it provides a means for States to control vessels flying their
flags.32 Over time, the “genuine link” requirement may become a rule of
customary international law, which will make it more difficult for vessel owners
to re-flag to countries that are either unable or unwilling to enforce international
fisheries regulations.33
The FAO Compliance Agreement created a direct linkage between fishing
vessel registration and licensing systems. Specifically, Article III(4) provides that
the authorisation to fish on the high seas will be deemed to have been
cancelled if a vessel ceases to be entitled to fly the flag of that Party.
30 Lawrence Juda, “Rio Plus Ten: The Evolution of International Marine Fisheries Governance”, op. cit, p. 121. 31 SEE LOSC Article 91. See generally Martin Tsamenyi and Lara Manarangi-Trott, “The Implications of the WCPFC for Australia’s Maritime Regulation and Enforcement”, Papers in Australian Maritime Affairs No.11, in Rachael Heath and Barry Snushall, Protecting Marine Resources: Boundary Delimitation, Resource Conflicts and Constabulary Responsibilities., Centre for Maritime Policy, University of Wollongong and Australian Navy, 2003, p.92.
32 Judith Swan, “Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Responsibilities: Information and Options”, FAO Fisheries Circular No. 980, Rome: FAO, 2002, p. 11. 33 Deirde M.Warner-Kramer and Krista Canty, op. cit, p. 233.
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Article III(5) of the FAO Compliance Agreement deals with the problem of non-
compliant vessels. Paragraph (a) of this article prevents a flag State from
authorizing an IUU fishing vessel previously registered in another State Party to
the FAO Compliance Agreement, unless the flag State is satisfied that any
period of suspension by another State Party of an authorisation for such fishing
vessel to fish on the high seas has expired; and that no authorization has been
withdrawn by another State Party within the last three years. This provision is
also applied to fishing vessels previously registered in a non-State Party to the
FAO Compliance Agreement in order to ensure that sufficient information is
available to the Party concerned on the circumstances in which the
authorization to fish was suspended or withdrawn.
According to Judith Swan (2002), the FAO Compliance Agreement is an
effective means of restricting the freedom of vessels with a poor compliance
record from re-flagging to another State. She draws particular attention to the
fact that a State may only authorise the “non-compliant” vessels to fish if it is
satisfied that the vessel will observe agreed conservation and management
measures.34 Balton (1999) notes that while the FAO Compliance Agreement
does not regulate the act of re-flagging directly, the agreement prohibits the new
flag State from authorizing a re-flagged vessel to fish on the high seas in
circumstances where the vessel has a record of non-compliance with
international conservation and management measures.35 The underlying aim of
Article III(5) of the FAO Compliance Agreement is to ensure that vessels
34 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibilities: Information and Options, op. cit, p.12 35 David A Balton, “The Compliance Agreement”, in Ellen Hey (ed), op. cit, p.50.
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operating on the high seas act in a manner consistent with the objective and
purpose of international conservation and management measures.
Article III(6) of the FAO Compliance Agreement obligates flag States to ensure
that their fishing vessels are marked in accordance with internationally
recognised standards, such as the FAO Standard Specifications for the Marking
and Identification of Fishing Vessels. In addition, Article III(7) requires flag
States to ensure that vessels authorised to fish on the high seas provide
relevant information on their activities, including their fishing activities; their
catches; and landings of fish. This provision is intended to ensure that the
fishing activities, areas of fishing and fish catches are properly documented,
monitored and verified.
Article III(8) of the FAO Compliance Agreement requires flag States to take
enforcement action against any of their fishing vessel which violate the
provisions of the FAO Compliance Agreement. This provision contains
sanctions that may be undertaken against fishing vessels committing serious
violations such as the “refusal, suspension or withdrawal of the authorisation to
fish on the high seas.”36 To this end, the flag State has to adopt, enforce and
publicise relevant municipal laws and regulations adopted consistently with the
FAO Compliance Agreement. This will become a basis for each State Party to
impose sanctions against illegal fishers on the high seas.
36 Rosemary Rayfuse, “Countermeasures and High Seas Fisheries Enforcement”, Netherlands International Law Review, 2004, p. 60.
88
4.3.3 Exchange of Information Concerning Records of Fishing
Vessels
One of the significance of the FAO Compliance Agreement is that it
applies to all high seas fishing activities where international and conservation
measures are applicable.37 The FAO Compliance Agreement imposes a
number of obligations upon States in relation to the collection and dissemination
of information from fishing vessels operating on the high seas in order to
combat unreported fishing. These obligations are examined in more detail in
this section.
Article IV of the FAO Compliance Agreement requires States to take measures
as may be necessary to ensure that the activities of vessels flying their flags
and fishing on the high seas are recorded.38 Article IV should be read in
conjunction with Article VI concerning the exchange of information, particularly
on fishing activities, areas of fishing, catches, and landing of fish catch.
Exchange of information also includes records of fishing vessels authorized to
fish on the high seas, any addition to and any deletion from the record, and
activities of fishing vessels that engaged in IUU fishing.
Article VI(1) requires States to make certain information available to the FAO
pertaining to the records of vessels authorised to fish on the high seas. These
include: (a) the name of the fishing vessel, registration number, previous names
(if known), and port of registry; (b) previous flag (if any); (c) International Radio
37 Peter Orebech, Ketil Sigurjohnsson and Ted L. McDorman, “The United Nations Straddling and Highly Migratory Species Agreement: Management, Enforcement and Dispute Settlement”, The International Journal of Marine and Coastal Law, Vol. 13, No. 2, 1998, p.113.
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Call Sign (if any); (d) name and address of owner or owners; (e) where and
when built; (f) type of vessel; and (g) length. Further, Article VI(2) requires
States to make additional information available to the FAO for the purpose of
recording information on the same vessels, including: (a) the name and address
of operator (manager) or operators (managers) (if any); (b) type of fishing
methods; (c) moulded depth; (d) beam; (e) gross register tonnage; and (f)
power of main engine or engines.
Under Article VI(3) of the FAO Compliance Agreement, States are obligated to
promptly notify the FAO of any modifications to the information listed in
paragraphs 1 and 2. Further, Article VI(5) requires States to promptly inform the
FAO of any additions to or any deletions from the record. The reasons for such
additions or deletions may include non-renewal of the fishing authorisation by
the fishing vessel owner or operator, the withdrawal of the fishing authorisation
issued regarding the fishing vessel under paragraph 8 of Article III where the
fishing vessel concerned is no longer flying the flag of a State, and the
scrapping, decommissioning or loss of the fishing vessel concerned.
Article VI(7) provides that a flag State has the duty to inform the FAO if the
State intends to exempt fishing vessels of less than 24 metres in length from
complying with the FAO Compliance Agreement under Article II(2). In this case,
the State is to provide relevant information on the number and type of fishing
vessels covered by the exemption and the geographical areas in which these
fishing vessels operate.
38 Ichiro Nomura, “Distant Water State Perspectives” in Myron H. Nordquist and John Norton Moore (eds), op. cit, p.186.
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Of particular importance is Article VI(8)(a) which requires a flag State to report
promptly to the FAO all relevant information of the activities of its vessels that
undermine international conservation and management measures. The
information is to include the identity of the fishing vessel or vessels involved and
measures imposed by the flag State regarding these activities. Under Article
VI(8), if a Party to the Agreement has a strong belief that any of its vessels are
engaged in activities that undermine international conservation and
management measures, the Party must draw this to the attention of both the
flag State concerned and the FAO. To this end, the Party must provide the flag
State concerned with full supporting evidence and provide the FAO with
summary information. The FAO need not disseminate this information until the
flag State has had an opportunity to comment on the allegation and evidence
submitted.
The obligations of the FAO under Article VI(8) noted above must be read in light
of Articles VI(4) and 10, which impose a duty upon the FAO to disseminate the
above information regarding fishing vessels to all the State Parties, and
particularly to a State Party which requests such information. The FAO must
also provide such information promptly on request to RFMOs. However, this
provision of information is subject to any restrictions that may be imposed by
the State Party concerned on the dissemination of information.
Article VI(11) provides that RFMOs are to play a significant role in the exchange
of information relating to the implementation of the FAO Compliance
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Agreement. As Applebaum and Donohue note (1999), Article VI(II) would
suggest that RFMOs are required to take an active role in monitoring the
implementation of the FAO Compliance Agreement against their members that
are Parties to the FAO Compliance Agreement and other Parties whose vessels
undermining their conservation and management measures.39
4.3.4 International Cooperation to Combat IUU Fishing by Non-
Parties
This section examines the ways in which the FAO Compliance
Agreement provides for international cooperation to combat IUU fishing on the
high seas. The mandate of international cooperation is to help a flag State
identify any of its fishing vessels undertaking activities which undermine
international conservation and management measures.40
Article VI of the FAO Compliance Agreement requires all State Parties to assist
the flag State in identifying vessels that undermine international conservation
and management measures through active cooperation. Under Article V(2), a
port State is required to promptly notify the flag State when a vessel is
voluntarily in its port and there are reasonable grounds to believe that the
vessel has undermined international conservation and management measures.
The flag State and port State may make arrangements regarding the authority
of the latter State to undertake investigation. Such investigative arrangements
would require the States to enter into international agreements. This may be
39 Bob Applebaum and Amos Donohue, “The Role of Regional Fisheries Management Organizations”, in Elen Hey (ed), op. cit, p.240. 40 Christopher C. Joyner, “Compliance and Enforcement in New International Fisheries Law”, Temple International and Comparative Law Journal, Vol.12, No. 2, 1998, p. 284.
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achieved through a mutual assistance agreement on a global, regional, sub-
regional or bilateral basis.
Article VIII(1) pertains to the application of the FAO Compliance Agreement to
vessels of non-State Parties. This provision is revolutionary, given that under
international law, a treaty is not binding on third States.41 Specifically, State
Parties are to encourage non-Parties to accept the FAO Compliance Agreement
and adopt laws and regulations consistent with the agreement. All State Parties
are also bound by paragraph 2 to cooperate in a manner consistent with the
FAO Compliance Agreement and international law. These provisions are
designed to ensure that vessels of non-Party flag States do not engage in
activities that undermine the effectiveness of international conservation and
management measures.42 Paragraph 3 further requires State Parties to
exchange information with each other, either directly or through the FAO,
regarding activities of vessels that undermine the effectiveness of international
conservation and management measures. Non-Parties are also encouraged to
adopt fisheries legislation to deal with IUU fishing on the high seas.
4.3.5 Gaps in the FAO Compliance Agreement
Despite the seemingly comprehensive nature of the FAO Compliance
Agreement, it has only answered one part of UNCED’s call to address the
problems of high seas fishing. As David Balton (1996) notes, the Agreement
fails to resolve the need to establish better conservation rules. The Agreement
also fails to ensure compatibility of measures on the high seas and in their
41 See Article 34 of the Vienna Convention of 1969 on the Law of Treaties.
93
EEZs.43 Rather than regulating port State measures, the Agreement focuses
on actions taken by flag States.
Orrego Vicuna (1999) also notes a number of other shortcomings of the FAO
Compliance Agreement.44 The first is the inadequate definition of fishing
vessels. It is not clear whether Article I(a) of the FAO Compliance Agreement
applies to factory ships or transportation vessels which are often used for
fishing activities on the high seas. Further, it may be questioned whether the
provisions of the FAO Compliance Agreement would apply to support and
charter vessels undermining international conservation and management
measures, as such action would be considered contrary to the objectives and
purpose of the Agreement. There is a clear need to develop a more
comprehensive definition of fishing vessels in Article I(a) in order to provide an
adequate framework for monitoring the activities undertaken by factory ships or
transhipment vessels.
4.4 The UN Fish Stocks Agreement
The 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 (UN Fish Stocks Agreement) was concluded in 1995 in response to
global concerns on the conservation and sustainable use of straddling fish
42 John M. Van Dyke, “Sharing Ocean Resources in A Time of Scarcity and Selfishness”, in Harry N. Scheiber (ed), op cit, p. 15. 43 David A. Balton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Species”, Ocean Development and International Law, Vol. 27, 1996, p. 132.
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stocks and highly migratory fish stocks. The objective of the UN Fish Stocks
Agreement is to ensure the long-term conservation and sustainable use of
straddling fish stocks and highly migratory fish stocks in their entirety through
effective implementation of the relevant provisions of the LOSC.45 Although the
UN Fish Stocks Agreement applies principally to the conservation and
management of straddling fish stocks and highly migratory fish stocks beyond
areas under national jurisdiction (that is on the high seas),46 key conservation
obligations under the Agreement also apply in the EEZ of Parties to ensure that
there is compatibility between high seas and in-zone conservation and
management measures.47
Article 5 of the UN Fish Stocks Agreement sets forth the broad conservation
measures to be taken by coastal States and States fishing on the high seas to
achieve the objectives of the Convention. These general principles of
conservation and management adopted under Article 5 are set out as follows:
• adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization;
• ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield.;
• adopt where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened;
• promote the development and use of selective, environmentally safe and cost effective fishing gears and techniques in order to minimize pollution, waste, discards, catch by lost or abandoned
44 Orrego Vicuna, The Changing of International Law of High Seas Fisheries, Cambridge University Press, 1999, p.133. 45 UN Fish Stocks Agreement, Art. 2. 46 UN Fish Stocks Agreement, Art. 3(1). 47 UN Fish Stocks Agreement, Art. 5, 6 and 7.
95
gear, catch of non-target species (both fish and non-fish species) and impacts on ecologically related species, in particular endangered species;48
• take measures to prevent or eliminate over-fishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources;
• take into account the interests of artisanal and subsistence fishers;
• collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as set in Annex I, as well as information from national and international research programmes; and
• implement and enforce conservation and management measures through effective monitoring, control and surveillance.
The above provisions are intended to implement Articles 63, 64 and 118 of the
LOSC, already discussed in Chapter 3. To this extent, the UN Fish Stocks
Agreement represents a significant step forward in detailing the manner in
which fishing States and coastal States are to give effect to their duty to
cooperate in conservation and management of straddling and highly migratory
fish stocks under the LOSC. The key requirement to achieve the objectives of
the UN Fish Stocks Agreement is cooperation at the bilateral, multilateral or
global levels.49
4.4.1 Compatibility of Conservation Measures
A key aspect of the UN Fish Stocks Agreement to achieve international
cooperation is the requirement for compatibility between management
measures in the EEZ and on the high seas.50 This is in recognition of the
48 Martin Tsamenyi and Alistair McIlgorm, op,cit, p. 16. 49 Davor Vidas, “Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century”, Ocean Development & International Law, Vol. 31, Nos. 1-2, January-June 2000, p.202. 50 For a more extensive analysis, see A.E. Boyle, “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks”, The International Journal of Coastal
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inappropriate artificial boundaries under the LOSC. The compatibility of
conservation and management measures is contained in Article 7(1) which
states that:
(a) with respect to straddling fish stocks, the relevant coastal States and the States whose nationals fish for such stocks in the adjacent high seas area shall seek, either directly or through the appropriate mechanisms for cooperation provided in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area; (b) with respect to highly migratory species, the relevant coastal States and other States whose nationals fish for such stocks in the region shall cooperate, either directly or through the appropriate mechanisms for cooperation provided in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.
Article 7(1) of the UN Fish Stocks Agreement is an elucidation of the rights and
duties of States prescribed in Articles 63(2) and 64 of the LOSC.51 In
determining compatible conservation and management measures, Article 7(2)
provides that States are required to take into account a wide variety of factors,
including: (a) the management measures adopted by coastal States in their
EEZs and in accordance with Article 61 of the LOSC;52 (b) previously agreed
measures for the high seas with respect to the same stocks which are in
accordance with the LOSC or with sub-regional or regional fisheries
management organizations or arrangements; (c) previously agreed measures
established and applied for the high seas in accordance with the LOSC in
respect of the same stocks by a sub-regional or regional fisheries management
Law, Vo. 14, No.1, 1999, p.20; see also Vilonda Botet, “Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean”, Virginia Journal of International Law, Vol. 41, No. 4, 2000-2001, p.800; 51 Peter Rowe and Michael A. Meyer, “The Straddling Stocks Agreement: An Initial Assessment”, International and Comparative Law Quarterly, Vol. 45, 1996, p.468. 52 John M. Van Dyke, “The Straddling and Migratory Stocks Agreement and the Pacific”, The International Journal of Marine and Coastal Law, Vol. 11, No. 3, 1996, p.407.
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organisation or arrangement; (d) the respective dependence of coastal and
other States fishing on the high seas on stocks in question; and (e) the need to
ensure that measures taken do not have a harmful impact on marine living
resources as a whole.53 Under Article 7(7), coastal States must also regularly
inform other States about such measures. Moreover, distant water fishing
States are obligated to regularly inform other States about the conservation and
management measures adopted for the high seas. These obligations are
intended to regulate the activities of fishing vessels on the high seas.54 The
author supports Michael W. Lodge and Satya N. Nandan’s (2005) opinion that
the provisions of the UN Fish Stocks Agreement are adequate to provide a
satisfactory solution to the problem of the compatibility between the
conservation and management measures for the EEZ and the adjacent high
seas areas.55
4.4.2 International Cooperation
The UN Fish Stocks Agreement requires States to give effect to their
duty to co-operate to conserve and manage highly migratory stocks and
straddling stocks as required by the LOSC, by adopting conservation and
management measures, including implementing and enforcing conservation
and management measures through effective monitoring, control and
surveillance.56 Co-operation is also required under Article 7 to ensure that
53 Lawrence Juda, “The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique”, Ocean Development and International Law, Vol. 28, No. 2, April-June 1997, p. 155. 54 Erik Jaap Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries”, The International Journal of Marine and Coastal Law, Vol. 20, Nos. 3-4, 2005, p. 565. 55 Michael W. Lodge and Satya N. Nandan, “Some Suggestions Towards Better Implementation of the United Nations, The International Journal of Marine and Coastal Law, Vol. 20, Nos.3-4, 2005, p. 350. 56 UN Fish Stocks Agreement, Art. 5(1).
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measures adopted for the high seas are compatible with those adopted by
States within the EEZ.57
The mechanisms for cooperation are set out in Article 8 of the UN Fish Stocks
Agreement. Under this Article, States must co-operate, either directly or through
regional or sub-regional fisheries management organizations or arrangements,
to ensure the effective management of straddling and highly migratory fish
stocks. States are to enter into consultations without delay to establish
appropriate conservation and management measures for these stocks. If there
is no existing regional or subregional management organization competent to
establish appropriate measures, States are to form a new organization or to co-
operate to establish arrangements.58 If a competent organization or
arrangement already exists, then States are urged to become members or
participants.59 States are only entitled to have access to a fishery if they are
members of or participants in the relevant organization or arrangement or if they
apply the conservation and management measures developed by the relevant
organization or arrangement for that fishery.60 The main functions of RFMOs as
stipulated in Article 10 are, inter alia, to (a) agree and comply with conservation
and management measures to ensure the long-term sustainability of straddling
fish stocks and highly migratory species; (b) agree on participatory rights such
as allocations of allowable catch or levels of fishing effort; (c) adopt and apply
any generally recommended international minimum standards for the
57 See discussion in William T. Burke, “Compatibility and Precaution in the 1995 Straddling Stock Agreement”, in Harry N. Scheiber (ed), op. cit, pp. 114-117. 58 UN Fish Stocks Agreement, Art. 8(5). 59 UN Fish Stocks Agreement, Art. 8(3). 60 UN Fish Stocks Agreement, Art. 8(4).
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responsible conduct of fishing operations; and (d) establish appropriate
cooperative mechanisms for effective monitoring, control and surveillance and
enforcement.
A State Party to the UN Fish Stocks Agreement that is not a member of an
organization and does not participate in an arrangement is still required to co-
operate in the conservation and management of straddling fish stocks and
highly migratory fish stocks. Such a State cannot authorise vessels flying its flag
to engage in fishing operations for the straddling fish stocks or highly migratory
fish stocks61 which are subject to the conservation and management measures
established by a relevant organization or arrangement.62 States that are
members or participants in the organization are to exchange information on,
and take measures against, vessels that are engaged in fishing activities that
undermine the conservation and management measures.63
Article 8(2) imposes an obligation on States with an interest in conservation and
management measures to consult and cooperate towards a mutually
satisfactory outcome for straddling and highly migratory fish stocks.64 It is
contemplated that such consultation and cooperation will be undertaken where
For discussion of such issue, see Robin R Churchill, “The Barents Sea Loophole
Agreement: A “Coastal State” Solution to Straddling Stock Agreement”, The International Journal of Marine and Coastal Law, Vol.14, 1999, p.475. 61 UN Fish Stocks Agreement, Art. 17.
See also John M. Van Dyke, “Modifying the 1982 Law of the Sea Convention: New Initiatives on Governance of High Seas Fisheries Resources: the Straddling Stocks Negotiations”, The International Journal of Marine and Coastal Law, Vol. 10, 1995, p. 224. 62 UN Fish Stocks Agreement, Art. 17. 63 UN Fish Stocks Agreement, Art. 17.4. 64 Julia Green and David Agnew, “Catch Document Schemes to Combat Illegal, Unreported and Unregulated Fishing: CCAMLR’ s Experience with Southern Ocean Tooth-fish” in Elisabeth Mann Borgese, Aldo Chircop, and Maria McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, p.178.
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there is evidence that straddling and highly migratory fish stocks may be under
threat of over-exploitation or where a new fishery is being developed for such
stocks.
Although Article 8(3) obligates an RFMO to allow a State with “a real interest in
the fisheries concerned” to become a member of that RFMO,65 neither the
LOSC nor the UN Fish Stocks Agreement defines the concept of “real
interest”.66 Some commentators argue that a “real interest” is restricted to flag
States whose vessels are engaged in fishing on the high seas. However, other
commentators argue that there are clear provisions that coastal States are not
allowed to discriminate against interested new entrants.67
Under Article 119(3) of the LOSC, States with an interest in high seas fisheries
must ensure that the implementation of conservation measures do not
discriminate in form or in fact against the fishermen of any State.68
Nevertheless, it is unclear whether or not new entrants are considered as
having a real interest. Essentially, States interested in engaging in such fishing
activity or States interested in joining RFMOs to ensure sustainable
management or safeguard biodiversity may not be regarded as having a “real
65 Erik Jaap Molenaar, “The South Tasman Rise Agreement of 2000 and Other Initiatives on Management and Conservation of Orange Roughy”, The International Journal of Marine and Coastal Law, Vo. 16, No.1, 2001, p.96. 66 Rosemary Rayfuse, “ The Interrelationship Between The Global Instruments of International Fisheries Law” in Ellen Hey (ed) Developments in International Fisheries Law, Kluwer Law International Law, The Hague/London/Boston, 1999, p.138. 67 Olav Schram Stokke, op .cit, p.166. 68 Grant James Hewison, “High Seas Driftnet Fishing in the South Pacific and the Law of the Sea”, The Georgetown International Environmental Law Review, Vol. 5, No. 313, 1992-1993, p. 370.
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interest” in the fisheries concerned.69 There are two key issues which must be
considered by RFMOs in the case of new entrants, especially in relation to fully
exploited fisheries. These issues are resource allocation and freedom of fishing.
In relation to the first issue, the RFMO must determine how resources are to be
allocated amongst the new entrants and existing members. The new entrants
can increase pressure on a fishery and reduce catch allocation to the existing
members. As a consequence of their entry into a fishery, the new entrant may
undermine the effectiveness of existing management efforts.70 If the allocations
provided to new entrants are perceived as unfair distributions, the new entrants
may be tempted to operate outside RFMOs by maintaining or increasing their
catch. From the perspective of the IPOA-IUU, such fishing activity will be
considered as “unregulated fishing”.71 There is also the possibility of vessels re-
flagging in order to avoid agreed management measures by contracting parties
concerned with quota allocations.72
The second issue to consider is the right of freedom of fishing on the high seas
under traditional international law. Article 11 of the UN Fish Stocks Agreement
grants RFMOs the power to determine the “nature and extent of participatory
69 Erik Jaap Molenaar, “Regional Fisheries Management Organizations: Issues of Participation, Allocation and Unregulated”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 73. For the importance of this subject, see Jean- Pierre Ple, “Responding to Non-Member Fishing in the Atlantic: The ICCAT and NAFO Experiences”, in Harry N. Scheiber (ed), op.cit, p.206. 70 Rosemary Rayfuse, “Regional Allocation Issues or Zen and the Art of Pie Cutting”, A Paper Presented at the Sharing the Fish Conference 06:Allocation Issues in Fisheries Management, Perth Western Australia 26 February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation the FAO, p. 6. 71 Erik Jaap Molenaar, “Regional Fisheries Management Organization: Issues of Participation, Allocation and Unregulated Fishing”, op. cit, p. 71.
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rights” for new entrants in accordance with a variety of general criteria.73 There
is thus a clear conflict between traditional international law and the Agreement
in relation to the extent to which an RFMO may restrict the activities of non-
parties to the UN Fish Stocks Agreement.74
4.4.3 Deterring IUU Fishing Within the Jurisdiction of RFMOs
Article 8(4) of the UN Fish Stocks Agreement is primarily designed to
prohibit States from fishing within RFMO regulatory areas unless they become a
member of the RFMO or arrangement.75 Article 8(4) restricts access to certain
fisheries resources to those States which are members of relevant RFMOs or
participants in relevant arrangements, or which agree to apply the conservation
and management measures established by such RFMOs or under such
arrangements. This article is of particular importance for States fishing in areas
72 Opening Statement by the Representative of the Director-General of FAO in Jean-Pierre Levy and Gunnar G. Schram (eds), United Nations Conference on Straddling Fish Stocks and Highly Migratory Species, Martinus Nijhoff Publishers, The Hague/Boston/London, 1996, p. 356. 73 Ted L. Mc. Dorman, “Implementing Existing Tools: Turning Words Into Actions – Decision- Making Processes of Regional Fisheries Management Organizations (RFMOs), “The International Journal of Marine and Coastal Law, Vol. 20, No 3-4, 2005, p. 438.
See also Article 11 of the 1995 UN Fish Stocks Agreement which states that: In determining the nature and extent of participatory rights for new members of a sub-regional or regional fisheries management organization, or for new participants in a sub-regional or regional fisheries management, States shall take into account, inter alia: (a) the status of straddling fish stocks and highly migratory fish stocks and the existing level of fishing effort in the fishery; (b) the respective interests, fishing patters and fishing practices of new and existing members or participants (c) the respective contributions of new and existing members or participants to conservation and management of the stocks, to the collection and provision of accurate data and to the conduct of scientific research on the stocks; (d) the needs of coastal fishing communities which are dependent mainly on fishing for the stocks; (e) the needs of coastal States whose economics are overwhelmingly dependent on the exploitation of the exploitation of living marine resources; (f) the interests of developing States from the sub-region or region in whose areas of national jurisdiction the stocks also occur. 74 Julie R. Mack, “International Fisheries Management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks Changes the Law of the Sea Fishing on the High Seas”, California Western International Law Journal, Vol. 26, No. 313, 1995-1996, p. 326. 75 Erick Jaap Molenaar, “Unregulated Deep- Sea Fisheries: A Need for a Multi-Level Approach”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p.226.
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where there are fish stocks that straddle one or more EEZs, or migrate in and
out EEZs to the high seas, or are highly migratory.76 Rayfuse aptly notes that:
…membership- or at least agreeing to play by the rules- is the sine qua non of access to a fishery. Were this not the case, all the conservatory and managerial efforts of member and participating states would continue to be rendered nugatory by the unregulated fishing activities of non-members and non-participants and one of the major reasons for negotiating the FSA would be defeated.77
Article 17(1) of the UN Fish Stocks Agreement specifically deals with third
parties who are non-members of RFMOs and non-participants in relevant
arrangements. This article provides that a non-party State of a RFMO which
does not agree to apply the conservation and management measures provided
for in the Agreement is not discharged from fulfilling its obligation to cooperate
in accordance with the LOSC and the UN Fish Stocks Agreement, in the
conservation and management of the relevant straddling fish stocks and highly
migratory species. Accordingly, under paragraph 2 of the same provision, a
non-party State cannot authorise vessels flying its flag to engage in fishing
operations for straddling fish stocks and highly migratory species within the area
of competence of an RFMO.
Article 17 of the UN Fish Stocks Agreement essentially provides a legal basis
for cooperation by non-member States of RFMOs and establishes the legal
76 Robert L.Friedheim, “A Proper Order for the Oceans: An Agenda for the New Century” in Davor Vidas and Willy Ostreng (eds), Order for the Turn of the Century, Kluwer Law International, The Hague/London/Boston, 1999, p. 544. 77 Rosemary Gail Rayfuse, Non-Flag State Enforcement in High Seas Fisheries, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 44.
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conditions for non-member States to fish in areas of the high seas.78 This issue
was not addressed by the LOSC.
There are two important points to note about third party State obligations. First,
the provisions in the Agreement transform already existing discretionary powers
under general international law into a mandatory treaty obligation for States
parties to the Agreement. Second, Article 17(4) grants two types of powers to
States parties to the Agreement that are not regulated by general international
law.79 Thus, it is necessary to consider whether the provisions of the UN Fish
Stocks Agreement violate the pacta tertiis rule 80 of international law by seeking
to bind non-members of RFMOs to rules established by RFMOs and to the
Agreement itself.81 A further issue in this regard is whether the RFMO
conservation and management measures are applicable to fishing vessels of
third States Parties.
Although it is common to think of treaties in terms of parties or non-parties, the
present issue is whether the provisions of the UN Fish Stocks Agreement are
legally binding from the perspective of international law. The general rule,
encapsulated in Article 34 of the 1969 Vienna Convention on the Law of
Treaties, is that a treaty can only create rights and obligations for those parties
78 Chris Hedley, “Entry Into Force of the United Nations Fish Stocks Agreement: An Initial Assessment”, Internet Guide to International Fisheries Law, Originally Published as (2001) International Fisheries Bulletin No. 24, p. 6. http://www.intfish.net/ops/papers/7.htm (accessed on May 17, 2006). . 79 Erik Jaap Molenaar, “Regional Fishereis Management Organizations: Issues of Participation, Allocation and Unregulated Fishing”, loc.cit. 80 This rule simply means that a treaty is not binding on third States without their express concern. 81 Erik Franckx, “Pacta Tertiis and the 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
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that have consented to be bound.82 The exception to the general rule is to be
found in Article 35 of the Vienna Convention on the Law of Treaties, which
provides that an obligation arises for a third State from a provision of a treaty if
the parties to the treaty intend to confer obligations on a third State and the third
State expressly accepts that obligation in writing. There is, however, an
important exception to this principle in the case of dispositive treaties.83
Dispositive treaties create law that is legally binding upon all States.84
In commenting on the substance of its Draft Article 63 regarding obligation,
which became Article 35 of the 1969 Vienna Convention, the International Law
Commission (ILC) recognized that the requirements are very strict. When they
are met, in fact, there is a second collateral agreement between the member
States of the treaty, on the one hand, and the third party on the other. The legal
basis of the latter’s obligation is not the treaty itself but the collateral
agreement.85 As to obligations, it has been confirmed by the Permanent Court
of International Justice in the cases of the Free Zones and the River Order
concerning treaty law. The rule acknowledge that there is not any exception in
matter of obligation, despite this is, of course, without prejudice to the principle
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks”, FAO Legal Papers Online 8, June 2000, p. 20. 82 Ian Brownlie, Principles of Public International Law (Sixth Edition), Oxford University Press, 2003, p. 598. 83 Ian Brownlie, op. cit, p. 599. For more on this issue see Erik Jaap Molenaar, “Southern Ocean Fisheries and the CCAMLR Regime”, in Alex G. Oude Elferink and Donald R. Rothwell (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Martinus Nijhoff Publishers, The Hague/New York/London, 2001, p. 309. 84 Martin Dixon, Textbook on International Law (Fifth), Oxford University Press, 2005, p. 70. 85 D.J. Harris, Cases and Materials on International Law (Second Edition), Sweet and Maxwell, London, 1979, p.631.
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that certain obligations stated in a treaty may become binding on non-State
Party as it has become international customary law.86
The juridical basis of this international customary law is to be found in Article 38,
which provides that nothing in Articles 34 to 37 prevent a rule stipulated in a
treaty from binding upon a third State as a customary rule of international law.
In the light of current State practice, it can be argued that certain provisions on
the UN Fish Stocks Agreement such as the precautionary principle, cooperation
duty in conservation and management measures of transboundary fish stocks
and compliance and enforcement, are emerging as a rule of international
customary law. The three most highly developed fisheries regimes are those
established to complement and affirm the LOSC and Chapter 17 of Agenda 21.
Applying these principles and rules to the IUU fishing case, the practice of
states referred to the above instruments may be taken as sufficient of the
existence of any necessary opinio juris. The UN Fish Stocks Agreement falls
within this category. Essentially, this means that a flag State which has
accepted the LOSC is bound by the provisions of the UN Fish Stocks
Agreement.
4.4.4 Duties of the Flag State
The duties of flag States under the UN Fish Stocks Agreement are set
out at Articles 18, 19 and 20 and 22. Article 18 covers general principles as well
as specific measures to be undertaken by the Flag State. Article 19 addresses
compliance and enforcement responsibilities whilst Article 20 deals with
86 I.M. Sinclair, C. M.G, The Vienna Convention on the Law of Treaties, Manchester University Press, U.S.A, Oceania Publications Inc., 1973, pp.76-77.
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international co-operation in enforcement. Article 22 regulates flag State
obligations when vessels flying their flag are subject to boarding and
enforcement by other States. Articles 18(1) and 18(2) establish the following
general obligations for all flag States which are party to the Agreement:
• Flag States must ensure that vessels flying their flags comply with all
applicable conservation and management measures for straddling stocks
and highly migratory species at the regional and sub-regional levels;
• Flag States must ensure that vessels flying their flag do not engage in any
activities which undermine the effectiveness of such measures;
• Flag States must ensure that vessels flying their flags are only authorized to
fish when the flag State is certain that it is able to effectively exercise its
responsibilities in respect of such vessels under the UN Fish Stocks
Agreement and the LOSC.87
Each Flag State also agrees to the following more specific obligations:
• to control its flagged vessels through licences or authorizations, the terms of
which must reflect agreed global, regional or sub-regional measures;
• to promulgate regulations to enforce authorizations or permits on the High
Seas and in the EEZ of other States;
• to establish a national record or register of fishing vessels authorised to fish
on the High Seas;
87 David R. Teece, “Global Fishing and the Spanish-Canadian Turbot War: Can International Law Protect the High – Seas Environment”, Colorado Journal International Environmental Law and Policy, Vol. 8, No.1, 1997, p. 120.
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• to establish arrangements for sharing national register information with
directly affected States at their request, whilst respecting confidentiality
requirements;
• to ensure that flagged vessels undertake the proper marking of fishing
vessels and fishing gear;
• to ensure that flagged vessels undertake timely, accurate and effective
reporting of vessel position, target and non-target catches, catch landed,
catch trans-shipped, fishing effort and other relevant fisheries data;
• to ensure that catch is properly verified through “best practice” procedures
like observer programmes, inspection schemes and cross-matching of
different types of data
• to regulate high seas transhipment so that effectiveness of conservation and
management measures is not undermined; and
• to require the use of VMS on flagged vessels whilst taking into account any
sub-regional, regional and global VMS schemes amongst concerned States.
An important aspect of the flag State responsibility requirements is the control of
nationals fishing on the high seas and in waters under the jurisdiction of other
States. The concept of “control of nationals” is a broad one and extends to
regulating flagged vessels, citizens and business entities. In essence, the UN
Fish Stocks Agreement contains the primary obligations of flag States to
prevent and deter IUU fishing by their fishing vessels on the high seas.
Consequently, the Agreement fills the gaps left by the provisions of the LOSC
on flag State control by setting out detailed and specific provisions regarding
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fishing licenses, monitoring, control and surveillance and other important
aspects.
4.4.5 Compliance and Enforcement
Under Articles 19 to 23 of the UN Fish Stocks Agreement, States are obliged to
enforce conservation and management measures.88 As far as enforcement is
concerned, the Agreement goes much further than the LOSC or customary
international law. There are four different types of enforcement regimes under
the Agreement: (a) enforcement by the flag State; (b) enforcement through
international cooperation; (c) enforcement through regional agreement; and (d)
enforcement by the port State.89
Article 19(1) requires a flag State to ensure that any vessel flying its flag and
fishing on the high seas complies with the conservation and management
measures established by RFMOs. The article also provides the obligation of a
flag State to enforce measures irrespective of where violations occur and
investigate immediately and fully any alleged violation.90 In addition, a flag State
has a duty to require their vessels to provide information to the investigating
authority regarding vessel position, catches, fishing gear, fishing operations,
and related activities in the area of alleged violation. If there is sufficient
evidence relating to the violation, the flag State authorities must institute
88 Martin Tsamenyi and Felicity Woodhill, Sustainable Use of Large Migratory Fish in the Southern and Indian Oceans: Gaps in the International Legal Framework, Centre for Maritime Policy University of Wollongong, Australia, 1999, p.21. 89 Patrick E. Moran, “High Fisheries Management Agreement adopted by UN Conference: the Final Session of the United Nations Conference on Straddling and Highly Migratory Fish Stocks”, New York, 24 July-4 August 1995, Ocean and Coastal Management, Vol.27, No.3, Ellsevier Science Ltd, 1996, p. 223. 90 Ronald Barston, “The Law of the Sea and Regional Fisheries Organizations”, The International Journal of Marine and Coastal Law, Vol.14, 1999, p.340.
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proceedings in accordance with their laws, and where appropriate, detain the
vessel concerned. If the vessel is proven to have committed a serious violation
of RFMO conservation measures, the flag state must prevent the vessel from
engaging in fishing operations on the high seas until all outstanding sanctions
have been complied with.
Under Article 19(2) of the UN Fish Stocks Agreement, any investigations and
judicial proceedings is to be conducted expeditiously. Sanctions are to be
adequately severe so as to effectively secure compliance and discourage
subsequent violations. Additionally, the sanctions are to be imposed so as to
deprive offenders of the benefits accruing from their illegal fishing activities.
Sanctions imposed upon masters and other officers of fishing vessels are to
include provisions which may permit refusal or suspension of authorisations to
serve as master or officer of these vessels.
The provisions of the UN Fish Stocks Agreement examined above thus far
indicate that the flag State is regarded as the main enforcement authority in the
implementation of conservation and management measures under Agreement.
However, history has shown that there are inherent difficulties in requiring flag
States to ensure compliance with international agreements because of
competing national interests. As a result, flag States will need to improve their
compliance records to ensure that their fishing vessels are to comply with
various conservation and management measures wherever the vessels carry
out fishing activities.91
91 Grant Hewison, “Balancing the Freedom of Fishing and Coastal State Jurisdiction”, op. cit, p. 188.
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In enforcing conservation and management measures adopted by RFMOs,
Article 20(1) of the 1995 UN Fish Stocks Agreement requires States to
cooperate with each other92 either directly or through sub-regional or regional
fisheries management organisations or arrangements. For the purpose of
investigating an alleged violation of conservation and management measures,
Article 20(2) provides that flag States are entitled to request any assistance
from non-flag States. Once a request is made, the non-flag States are obligated
to endeavour to meet reasonable requests of the flag States. Information on the
progress and outcome of the investigations should be provided to all States
having an interest in, or States affected by the alleged violation.
Significantly, under Article 20(4) and (5), States are obligated to offer assistance
to each other in identifying rogue fishing vessels and are required to provide
evidence to prosecutors in other States by giving information about alleged
violations by fishing vessels.93 Under Article 20(6), at the request of coastal
States, the flag States are also required to conduct an investigation against their
fishing vessels on the high seas, if the vessels are believed to engage in illegal
fishing in marine areas under national jurisdiction of a coastal State.
Apart from the power of investigation, flag States must cooperate with coastal
States in taking appropriate law enforcement action. Flag States may authorise
coastal States to board and inspect their vessel on the high seas. More
importantly, under Article 20(7) of the UN Fish Stocks Agreement, a non-flag
92 Lawrence Juda, “The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Stocks: A Critique”, op. cit, p. 157.
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State which is not a member of an RFMO could take action against vessels that
undermine the effectiveness of the conservation and management measures
established by that organisation until the flag States take appropriate action.94
A number of comments can be made about the enforcement provisions of the
UN Fish Stocks Agreement. First, in terms of inspection and detention, the
Agreement significantly modifies the international law regime dealing with the
traditional high seas compliance, which gives sole responsibility for enforcement
to the flag States. Second, the Agreement imposes more onerous
responsibilities on flag States to monitor and enforce conservation and
management measures. Third, the Agreement provides procedures for
involvement of non-flag States in fisheries law enforcement activities.95 This
would seem to include coastal States, which may potentially be affected by the
illegal fishing activities occurring in areas under their national jurisdiction.
The UN Fish Stocks Agreement establishes a far-reaching new exception to the
principle of the flag State exclusive jurisdiction.96 The Agreement provides an
elaborate system of regional cooperation for the enforcement of regionally
agreed measures against vessels that are suspected of violating these
93 Grant Hewison, op.cit, p. 189. 94 Rosemary Rayfuse, “Canada and Regional Fisheries Organizations: Implementing the UN Fish Stocks Agreement”, Ocean Development and International Law, Vol. 34, No. 2, April-June 2003, p.217. 95 Olav Schram Stokke, “Managing Fisheries in the Barents Sea Loophole: Interplay with the UN Fish Stocks Agreement”, Ocean Development and International Law, Vol. 32, No 3, July-September 2001, p. 255. 96 Jose A. de Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea, Martinus Nijhoff Publishers, The Hague/Boston/London, 1997, p.213.
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measures.97 According to Article 21(1) of the UN Fish Stocks Agreement, a
State party of the Agreement which is also a member of a RFMO or a
participant in any fisheries arrangement may board and inspect fishing vessels
flying the flag of another State party to the Agreement regardless of whether the
flag State is a member or non-member of that regional organization or
participant in the arrangement.98 This power is to be used to ensure that
vessels comply with conservation and management measures adopted by the
relevant regional organisation or arrangement.
Especially noteworthy is Hayashi’s view (1996) that a State party’s RFMO
official can take certain fisheries law enforcement measures within the
regulatory area covered by RFMO against the vessels of either member or non-
member States. He argues that these enforcement measures are allowed
where a vessel is flying the flag of another State party to the UN Fish Stocks
Agreement. Although the State is not a member of the relevant RFMO, it has to
comply with the conservation and management measures of the RFMO as a
part of its commitment to applicable global international agreements, as
contained in the UN Fish Stocks Agreement.99
The key provision in respect of the duties of member States of a RFMO is the
obligation under Article 21(2) of the UN Fish Stocks Agreement to establish
97 Moritaka Hayashi, “Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks”, Georgetown International Environmental Law Review, Vol. 9, No.1, 1996, p. 27. 98 Olav Schram Stokke, “Managing Straddling Stocks: The Interplay of Global and Regional Regimes”, Ocean and Coastal Management, 43 (2000) 204-234, 2000, p.220. 99 Moritaka Hayashi, “The 1995 UN Fish Stocks Agreement and the Law of the Sea”, in Davor Vidas and Willy Ostrength (eds), Order for the Turn of Century, Kluwer Law International, The Hague/Boston/London, 1999, p.43.
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procedures for boarding and inspection of vessels.100 Boarding and inspection
must be done in accordance with the procedures established in Article 22 and
published by member States which provide for non-discrimination against
fishing vessels of a RFMO and non-members States of a RFMO.
Under Article 21(3) of the UN Fish Stocks Agreement, if within two years of the
adoption of the Agreement any organisation or arrangement has not established
procedures for boarding and inspection, the basic procedures set out in Article
22 apply until such procedures have been established.101 Of particular
importance is the approach taken in Article 21(5) which authorises the
inspecting States to secure evidence and notify the flag States of the vessels
allegedly engaging in IUU fishing. Such notification is allowed where, following a
boarding and inspection, the State has clear grounds for believing that the
vessel has engaged in IUU fishing contrary to regional conservation and
management measures.102
Article 21(6) of the UN Fish Stocks Agreement requires the flag State to
respond within three working days by either taking enforcement actions or
authorizing the inspecting States to initiate an investigation into the matter. In
the latter case, under Article 21(7), the inspecting States are required to
communicate the results of the investigation to the flag States, which then must,
100 Rosemary Rayfuse, “Enforcement of High Seas Fisheries Agreements: Observations and Inspection Under the Convention on the Conservation of Antarctic Marine Living Resources”, The International Journal of Marine and Coastal Law, Vol.13, 1998, p. 580. 101 Rosemary Rayfuse, “The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?”, Australian Year Book of International Law, Vol. 20, 1999, p. 267. 102 Derrick M. Kedziora, “Gunboat Diplomacy in the Northwest Atlantic: The Canada-EU Fishing Dispute and the United Nations Agreement on Straddling and High Migratory Fish Stocks”, Northwestern Journal of International Law and Business, Vol. 17, 1996-1997, p. 1154.
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if evidence so warrants, take enforcement action themselves, or authorise the
inspecting States to take such enforcement action as the flag States may
specify.103
To tackle serious violations of conservation and management measures, Article
21(8) of the UN Fish Stocks Agreement provides that inspectors may remain on
board and secure evidence by requiring the master to bring the vessel to the
nearest port.104 This is allowed where the flag State has not responded or not
taken any action to investigate the case. The inspecting States must notify the
flag States immediately of the name of the port. The inspecting States, the flag
States and the port States are to take all necessary steps to ensure the well-
being of the vessels’ crews regardless of their nationality.
John Van Dyke (2006) has observed that the serious violations to which Article
21(8) applies are detailed in Article 21(11) and include fishing without a valid
authorisation from the flag States; failure to maintain accurate records of the
catch and catch-related data as required by RFMOs; fishing in a closed area,
fishing during a closed season, or without a quota established by RFMOs;
fishing for a stock which is prohibited or subject to a moratorium; using
prohibited fishing gear; falsification or concealment of markings, identity or
registration of a fishing vessel; concealment, tampering or disposal of evidence
relating to an investigation; multiple violations which together constitute a
103 Ellen Hey, “Global Fisheries Regulations in the First Half of the 1990’s”, The International Journal of Marine and Coastal Law, Vol. 11, No. 4, 1996, p. 479. 104 Alison Rieser, “International Fisheries Law, Over-fishing and Marine Biodiversity”, The Georgetown International Environmental Law Review, Vol. 9, 1996-1996, p. 271.
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serious disregard of conservation and management measures; and other
violations specified by the RFMOs.105
From the foregoing discussion, it can be seen that the UN Fish Stocks
Agreement establishes a new precedent for fisheries law enforcement on the
high seas. This new precedent is evidenced by Article 21(8), which allows non-
flag States to board and inspect fishing vessels on the high seas regardless of
whether these vessels belong to member States of RFMOs. This is to ensure
compliance with conservation and management measures established by the
particular organisation.106
4.4.6 Fisheries Law Enforcement by Port States
Article 23(1) of the UN Fish Stocks Agreement gives a port State the
right, and imposes a duty, to take measures, in accordance with international
law, to promote the effectiveness of sub-regional, regional and global
conservation and management measures. In doing so, the State cannot
discriminate either in form or in fact against the vessels of all States. Paragraph
2 of Article 23 further provides that when vessels are voluntarily within its ports,
the port State may, inter alia, inspect documents, fishing gear, and fish catches
on board fishing vessels. Paragraph 3 of the same provision gives the power to
port States to adopt regulations to prohibit landings and transhipments where it
has been established that the catch has been taken in a manner which
105 John M Van Dyke, “Allocation Fish Across Jurisdictions” Paper Presented at the Sharing the Fish Conference 06:Allocation Issues In Fisheries Management, Perth Western Australia 26 February–2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with FAO, p.6. 106 Derde M.Warmer-Kramer and Krista Canty, op .cit, p.234.
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undermines the effectiveness of sub-regional, regional or global conservation
and management measures.107
The application of these provisions is dependent upon the ability of port States
to undertake surveillance of vessels carrying out fishing for straddling and highly
migratory species.108 A difference between the power of port States under the
FAO Compliance Agreement and the UN Fish Stocks Agreement is clearly
evident. Under Article 23 of the UN Fish Stocks Agreement, the inclusion of the
right of port States to take measures to prevent IUU fishing seems to be aimed
at giving the enforcement power to a flag State. In contrast, the similar right
under Article V(2) of the FAO Compliance Agreement requires an international
arrangement.
4.5 Conclusion
It is evident from the discussion in this chapter that the FAO Compliance
Agreement and the UN Fish Stocks Agreement have made significant
contributions to promoting the implementation of fisheries-related provisions of
the LOSC. The main contribution of the FAO Compliance Agreement is the
strengthening of flag State responsibilities to combat IUU fishing, particularly the
re-flagging of fishing vessels to avoid compliance with conservation and
management measures. The UN Fish Stocks Agreement has filled the gaps and
dealt with the ambiguity evident in the LOSC in relation to conservation and
107 Louise de La Fayette, “Access to Ports in International Law”, The International Journal of Marine and Coastal Law, Vol.11, No.1, 1998, p.5 108 Dean Bialek, “Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Southern Ocean”, Ocean Development and International Law, Viol. 34, No. 2, 2003, p. 121.
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management of straddling and highly migratory fish stocks and regional
cooperation.
The issues examined in this chapter demonstrate that the FAO Compliance
Agreement and the UN Fish Stocks Agreement play a critical role in addressing
the problems of IUU fishing. However, the discussion in the chapter has also
highlighted issues related to the implementation of these agreements. First, this
chapter has argued that the substantive scope of Article 1(a) of the FAO
Compliance Agreement on fishing vessels must be clarified so as to include
transport and support vessels. Second, there is a need to clarify whether
international fisheries instruments are binding upon the fishing vessels flying the
flags of non-members of RFMOs. So far as the vessels of third-party States are
concerned, it would appear that these States are bound to follow international
agreements. The succeeding chapter wraps up the analysis of the international
legal framework to address IUU fishing by discussing the measures adopted in
relevant non-binding international fisheries instruments to address the problem.
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CHAPTER 5
NON-BINDING GLOBAL INSTRUMENTS TO COMBAT IUU FISHING
5.1 Introduction
In addition to the legally binding instruments developed at the global level
to combat IUU fishing outlined and analysed in chapters 3 and 4, the
international community, through the Food and Agriculture Organization (FAO),
has also developed non-binding instruments to support the implementation of
the multilateral fisheries-related agreements. Non-binding instruments, often
referred to as “soft law”, provide policy guidance for States to support national
efforts to combat IUU fishing. This chapter is concerned with two instruments,
namely the FAO Code of Conduct for Responsible Fisheries and the FAO
International Plan of Action to Prevent, Deter, and Eliminate IUU Fishing (IPOA-
IUU). This chapter considers the extent to which these non-binding instruments
build on the frameworks under the LOSC, FAO Compliance Agreement, and UN
Fish Stocks Agreement analysed in chapters 3 and 4 to combat IUU fishing at
the global and national levels.
5.2 The FAO Code of Conduct for Responsible Fisheries
The FAO Code of Conduct was developed in response to a number of
international calls for action to halt the growing depletion of global fish stocks. It
was established in chapter 1 that the uncontrolled exploitation of global fisheries
resources and rapid expansion of the fishing industry worldwide became
matters of global attention. The increasing problem of unregulated fishing on the
high seas, including the practice of re-flagging of vessels or registering vessels
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in countries which operate open registries are contributory factors to the
depletion of marine fisheries resources.
5.2.1 Scope of Application of the FAO Code of Conduct
The FAO Code of Conduct was developed in 1993 by FAO and
unanimously adopted on 31 October 1995.1 The FAO Code of Conduct is a
non-mandatory instrument that establishes principles and standards of
behaviour applicable to the conservation, management and development of all
fisheries.2 Article 1(2) of the FAO Code of Conduct states that the Code is
intended to be global in scope.3 This means that it applies to fishing activities
both in zones of national jurisdiction and on the high seas and is therefore well
suited to address the problem of IUU fishing. Further, the FAO Code of Conduct
is intended to apply to both members and non-members of FAO as well as
fishing entities,4 sub-regional, regional and global organisations (whether
governmental or non-governmental), and all persons concerned with the
conservation, management and development of fisheries resources.5
While not legally binding, the FAO Code of Conduct provides a necessary
framework for national and international efforts to ensure sustainable
1 Annick Van Houtte, “Legal Aspects of Regional Cooperation in Monitoring, Control and Surveillance”, FAO/Norway Government Cooperative Programme- GCP/INT/648/NOR Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kuala Terengganu, Malaysia, 29 June – 3 July 1998, p. 35. 2 Lee A. Kimball, “Deep-Sea Fisheries of the High Seas: The Management Impasse”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p. 278. 3 Hasyim Djalal, “The Emergency of the Concept of Fishing Entities”, Ocean Development and International Law, Vol. 37, No. 2, April-June 2006, p. 119. 4 Martin Tsamenyi, “The Legal Substance and Status of Fishing Entities in International Law: A Note”, Ocean Development and International Law, Vo. 37, No. 2, April-June 2006, p. 129. 5 Blaise Kuemlengan, “Legal Considerations for the 1995 FAO Code of Conduct for Responsible Fisheries and Related International Plans of Action,” (Appendix H), Report of the Workshop on the Implementation of the 1995 Code of Conduct for Responsible Fisheries in the Pacific
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exploitation of aquatic living resources in harmony with the environment.6 In
broad terms, the FAO Code of Conduct emphasizes the need for all
stakeholders in marine fisheries to adopt a broader approach to conservation
and management of fisheries. Its provisions are directed not only at States but
also to industry, non-governmental organizations, and other stakeholders.
The FAO Code of Conduct also complements existing international obligations
dealing with the sustainable management of fisheries.7 Although the FAO Code
of Conduct itself is not legally binding, some of its provisions are based on
binding international instruments, such as the LOSC, the UN Fish Stocks
Agreement, and the FAO Compliance Agreement 8 which have been discussed
in previous chapters. Therefore, the FAO Code of Conduct supports the
implementation of the international agreements to effectively address IUU
fishing.
5.2.2 General Principles of the FAO Code of Conduct
The FAO Code of Conduct is an instrument covering a wide range of
issues on fisheries management and operations, aquaculture development,
Islands: A Call to Action, Naidi, Fiji, 27- 30 October 2003, FAO Fisheries Report No. 731, Rome: FAO, 2004, p. 63. 6 David A.Balton and Dorothy C. Zbics, “Managing Deep-Sea Fisheries: Some Threshold Questions”, The International Journal of Marine and Coastal Law, Vol. 19, No. 31, 2004, p. 254. 7 David J. Doulman, “1995 FAO Code of Conduct for Responsible Fisheries: Development Considerations and Implementation Challenges”, Report of the FAO Regional Workshop on Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix F), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October 2004, FAO Fisheries Report No. 757, Rome: FAO, 2005, p. 35. 8 Rudiger Wolfrum, “The Role of the International Tribunal for the Law of the Sea” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Center for Oceans Law and Policy, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p. 377.
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coastal area management, trade, and research.9 Of particular significance in
combating IUU fishing is Article 6(1) which provides that the right to fish carries
with it the obligation to do so in a responsible manner so as to ensure effective
conservation and management.10 Under Article 6(2) of the FAO Code of
Conduct, fisheries management should promote the maintenance of the quality,
diversity and availability of fisheries resources in sufficient quantities for the
benefit of present and future generations in the context of food security,11
poverty and sustainable development. The article further provides that
management measures should not only be adopted ensure the conservation of
target species but also of species associated with or dependent upon the target
species.12
Article 6(3) of the FAO Code of Conduct contains provisions relevant to the
prevention of IUU fishing. The provision requires States to prevent over-fishing
and excess fishing capacity by implementing management measures to ensure
that fishing effort is commensurate with the productive capacity of the fishery
resources and their sustainable utilization. Article 6(3) should be read in
conjunction with Article 6(6) which deals with the development of
environmentally safe fishing gears and practices. Pursuant to these provisions,
States are required to develop and apply selective and environmentally safe
fishing gears and practices so as to maintain biodiversity, as well as to conserve
9 Penelope D.Dalton, “Implementing the International Code of Conduct for Responsible Fisheries” in Myron H.Nordquist and John Norton Moore (eds), op.cit, p. 332. 10 Martin A. Hall, Dayton L. Alverson and Kaija I. Metuzals, “By-Catch: Problems and Solutions”, Marine Pollution Bulletin Vol. 41, Nos. 1-6, 2000, p. 206. 11 Ichiro Nomura, “IIFET 2004 Japan: What are Responsible Fisheries? State of World Fisheries and Future Sustainability Issues”, The Twelfth Biennial Conference of the International Institute of Fisheries and Trade, July 2004, p.7.
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the population structure, aquatic ecosystems and fish quality. States and users
of aquatic ecosystems are to minimise waste, catch of non-target species (both
fish and non-fish), and impacts on associated or dependent species.
Article 6(4) further reinforces Articles 6(3) and 6(6) by providing that
conservation and management decisions for fisheries should be based on best
scientific evidence available and take into account traditional knowledge of the
resources and their habitat, as well as relevant environmental, economic and
social factors. States must give priority to measures which increase their ability
to do research and collect fisheries data so as to improve scientific and
technical knowledge of fisheries including their interaction with the ecosystem.
Article 6(5) of the FAO Code of Conduct requires States and RFMOs to apply a
precautionary approach widely to conservation, management and exploitation of
living aquatic resources. The intention of Article 6(5) is to protect and preserve
the aquatic environment by taking into account best scientific evidence
available. States must adopt a precautionary approach and must not use the
absence of adequate scientific information as a reason to postpone or fail to
take measures to conserve target species and associated or dependent
species.
The precautionary approach emphasises the importance of policies that are
designed to ensure the long-term sustainability of fisheries, rather than policies
12 Transform Aqorau, “Obligations to Protect Marine Ecosystems Under International Conventions and Other Legal Instruments”, Rejkjavik Conference on Responsible Fisheries in the Marine Ecosystems Rejkjavik, Iceland, 1-4 October 2001, p.5.
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which are only a response to short-term considerations.13 In relation to Articles
6(3) and 6(6) of the FAO Code of Conduct, the practical implication of applying
the precautionary approach to fisheries management includes prohibiting or
regulating destructive fishing techniques. Prohibitive regulations on destructive
fishing techniques would need to be adopted to promote selective,
environmentally friendly fishing technologies and methods.14 In applying the
precautionary approach, States and RFMOs are required to evaluate properly
the impacts of the introduction of new fishing gear, methods and operations on
a commercial scale before being used.15
5.2.3 International Cooperation
The FAO Code of Conduct reinforces the provisions of the LOSC
regarding international cooperation through RFMOs.16 This provision requires
States to cooperate with RFMOs to promote conservation and management
measures and to ensure responsible fishing. Article 6(14) requires that
international trade in fish and fishery products to be conducted in accordance
with the principles, rights and obligations established in the World Trade
Organization (WTO) and other relevant international agreements. To this effect,
States are to ensure that their policies, programs and practices concerning
trade in fish and fishery products do not result in obstacles to fisheries trade.
13 Gerald Moore, “The Code of Conduct for Responsible Fisheries” in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p. 97. 14 David Vanderzwaag, “The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative”, Ocean Development & International Law, Vol. 33, No. 2, April-June 2002, p. 168.
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5.2.4 Fisheries Management
Article 7(1)(1) of the FAO Code of Conduct addresses broader fisheries
management issues. States and all those engaged in fisheries management are
to adopt measures for the long-term conservation and sustainable use of
fisheries resources. These measures can be implemented through the adoption
of appropriate policy, legal, and institutional frameworks.17
For the purpose of implementing sustainable management principles, Article
7(1)(7) requires States to establish effective mechanisms for fisheries MCS to
ensure compliance with their conservation and management measures. In
Article 7(1)(8), States are to take measures to prevent or eliminate excess
fishing capacity and to ensure that levels of fishing effort are commensurate
with the sustainable use of fishery resources.18
Article 7(1)(8) of the FAO Code of Conduct provides the means to ensure the
effectiveness of conservation and management measures. Article 8(1)(1)
provides the duty of all States to ensure that only fishing authorised by the State
occurs within their jurisdiction and that this fishing is done in a responsible
manner. Under Article 8(1), States are to maintain a record of all authorizations
to fish and statistical data of fishing operations. This obligation is further
15 Gerald Moore, “The Code of Conduct for Responsible Fisheries”, op.cit, p. 99. 16 See LOSC, Art. 61, 64 and 119. 17 Barbara Hanchrad , “The Implementation of the 1995 FAO Code of Conduct for Responsible Fisheries in the Pacific Islands” (Appendix I), in Report of the Implementation of the 1995 FAO Code of Conduct for Responsible Fisheries in the Pacific Islands: A Call to Action, Nadi, Fiji, 27-31 October 2003, FAO Fisheries Report No. 731, Rome: FAO, 2004, p.76. 18 For discussion of these measures, see Report of the Twenty-sixth Session of Committee on Fisheries on “Progress in the Implementation of the Code of Conduct for Responsible Fisheries and Related International Plans of Action”, Rome, Italy, 7-11 March 2005, p. 7.
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elaborated in paragraph 2.2.7 of the FAO Technical Guidelines for Responsible
Fisheries.
There are two primary objectives of the FAO Technical Guidelines for
Responsible Fisheries. The first is to ensure the long-term sustainability of living
resources that can be harvested by the next generation in order to make a
substantial contribution to world food security and employment opportunities.
The second objective is to provide practical advice for implementing the
provisions of Article 8 of the FAO Code of Conduct that would ensure that all
fishing operations are conducted responsibly.19 The Guidelines are to be
applied by States on a voluntary basis, inter alia to (a) all fishing operations on
all marine areas; (b) fishers, owners, managers, and competent authorities for
the purpose of fisheries management; and (c) all fishing vessels and fishing
vessels engaged in transhipment.20
Paragraph 2.2.7 of the FAO Technical Guidelines for Responsible Fisheries
requires authorizations to fish to contain details of the fishing activities of the
authorised vessel as well as information regarding the names and addresses of
those vessels. The authorization should also contain the relevant technical
information on any fishing vessel involved.21 The authorization to fish must also
contain a condition that the recipient(s) will abide by the provisions of the FAO
Code of Conduct. The authorization may also contain conditions concerning the
area to be fished, species to be fished and quota for the vessel or fisher, type of
19 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, Rome: FAO, 1996, p. 1. 20 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, op.cit, p.2. 21 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, op.cit, p. 5.
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fishing gear or fishing implements so authorized, and time or seasonal
limitations.22
5.2.5 Monitoring, Control and Surveillance
The FAO Code of Conduct deals with monitoring, control and
enforcement (MCS).23 Article 6(10) provides that States are to ensure
compliance with, and the enforcement of, conservation and management
measures. States must also establish effective mechanisms to monitor and
control the activities of fishing vessels and fishing support vessels. Under Article
6(11), States are to exercise an effective control over those vessels flying their
flags. They must also ensure that the fishing activities of their vessels do not
undermine the effectiveness of conservation and management measures.
States must also collect and provide data relating to their fishing activities.
With regard to the issues of implementation and enforcement procedures,
Article 7(7)(1) of the FAO Code of Conduct provides that States are to ensure
that an effective local and national legal and administrative frameworks are
established. In addition, Article 7(7)(2) requires States to ensure that laws and
regulations stipulate the sanctions that will be imposed for violations and that
these sanctions are adequate in severity to be effective. States are also
required to implement sanctions which allow for the refusal, withdrawal or
suspension of an authorisation to fish in the event of non-compliance with
conservation and management measures in force.
22 FAO Technical Guidelines for Responsible Fisheries on Fishing Operations, op.cit, p. 6. 23 See Elisabeth Mann Borgese, “Integrating Sustainable Development and Regional Security”, Paper Prepared for the Seminar (Attachment 6), in Report on Leadership Seminar on
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Furthermore, according to Article 7(6)(2), States must adopt measures to
ensure that no vessel is allowed to fish unless so authorized, in a manner
consistent with international law for the high seas or in conformity with national
legislation within areas of national jurisdiction. States are required under Article
7(7)(3) to implement effective fisheries law enforcement measures including
observer programmes, inspection schemes and vessel monitoring systems.
These measures are to be promoted and implemented by RFMOs in
accordance with agreed regional procedures.24
The requirement for flag State authorization to fish on the high seas is
consistent with the FAO Compliance Agreement and the UN Fish Stocks
Agreement.25 Article 7(8)(1) also indirectly refers to the re-flagging problem,
addressed in legally binding agreements.26 According to Article 7(8)(1), without
prejudice to relevant international agreements, States are to encourage banks
and financial institutions to require, as a condition of a loan or mortgage, fishing
vessels or fishing support vessels not to be flagged in a jurisdiction other than
that of the State of beneficial ownership. This requirement is intended to avoid
the likelihood of non-compliance with international conservation and
management measures.
Mediterranean Basin Wide Co-development and Security, Malta, 21-24 September, International Ocean Institute, Malta, p. 9. 24 For this discussion, see Judith Swan, “Decision-Making in Regional Fishery Bodies or Arrangements: The Evolving Role of RFBS and International Agreement on Decision-Making Processes”, FAO Fisheries Circular No. 995, Rome: FAO, 2004, p.29. 25 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p. 232. 26 Annick Van Houtte, “Flag State Responsibility and the Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, in Report of the Expert Consultation Under Open Registries and Their Impact on Illegal, Unreported and Unregulated
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5.2.6 Flag State Responsibilities
The FAO Code of Conduct also addresses flag State responsibilities
through Article 8(2).27 Flag States are required to maintain records of fishing
vessels entitled to fly their flags and which are authorized to fish. Records of
fishing vessels should contain details of the vessels, their ownership and the
authorizations to fish. Articles 8(2) and 8(2)(1) should be read with Article
8(2)(2) which provides that flag States should ensure that fishing vessels
entitled to fly their flags do not fish on the high seas or in waters under the
jurisdiction of other States unless they have been issued a Certificate of
Registry and have been authorized to fish by the competent authorities.
According to Article 8(2)(3) of the FAO Code of Conduct, authorized fishing
vessels should be marked in accordance with uniform and internationally
recognisable vessel marking systems such as the FAO Standard Specifications
and Guidelines for Marking and Identification of Fishing Vessels.28 Under Article
8(2)(4), fishing gears should be marked in order to identify the owner of the
gear. National gear marking requirements should be consistent with
internationally recognizable gear marking systems. With regards to non-Parties
to the FAO Compliance Agreement, Article 8(2)(6) encourages States to accept
the agreement and to enact implementing laws and regulations.
Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, Rome: FAO, 2004, p. 55. 27 See also William Edeson, “The Code of Conduct for Responsible Fisheries: An Introduction”, The International Journal of Marine and Coastal Law, 1996, p. 237. 28 Andrew R. Smith, “1995 FAO Code of Conduct for Responsible Fisheries: Article 8 – Fishing Operations” (Appendix J), in Report of the Workshop on the Implementation of the 1995 FAO
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Article 8(2)(7) of the FAO Code of Conduct requires flag States to take
enforcement measures against their fishing vessels that have contravened
applicable conservation and management measures. States can make the
contravention of such measures an offence in their national legislation. The
sanctions that are imposed are required to be suitably severe in order to be
effective in securing compliance and to discourage violations. Sanctions should
also deprive offenders of the benefits accruing from their illegal activities. For
serious violations, the sanctions may include the refusal, withdrawal or
suspension of the authorisation to fish.
5.2.7 Port State Measures
In addition to the above provisions, special provisions concerning the
duties of port States are provided in the FAO Code of Conduct. To this end,
Article 8(3)(1) requires port States to take measures that are necessary to
achieve, and to assist other States, in achieving the objectives of the Code. Port
States are required to implement these measures by establishing procedures in
their domestic legislation which are in accordance with international law and any
applicable international agreements. Port States must also provide other States
with details of any regulations and measures that they have established.
In implementing the above measures, a port State cannot discriminate either in
form or in fact between the vessels of any other State. Further, Article 8(3)(2) of
the FAO Code of Conduct states the obligation of port States to provide
appropriate assistance to flag States in accordance with national and
Code of Conduct for Responsible Fisheries in the Pacific Islands: A Call to Action, Nadi, Fiji, 27-31 October 2003, op.cit, p. 96.
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international laws. Where a fishing vessel is voluntarily in a port or at an
offshore terminal of the port State and the flag State of the vessel requests the
assistance of the port State in respect of non-compliance with agreed
conservation and management measures, Article 8(3)(2) requires port States to
provide such assistance to the flag State.
5.3 The IPOA-IUU
As noted in the Introduction, the International Plan of Action to Prevent,
Deter, and Eliminate Illegal, Unreported and Unregulated Fishing was adopted
by the FAO Committee on Fisheries (COFI) on 2 March 2001.29 The IPOA-IUU
provides a more comprehensive framework to combat IUU fishing than the FAO
Code of Conduct. It does so by strengthening the basic provisions of the LOSC,
the FAO Compliance Agreement, the UN Fish Stocks Agreement, and the FAO
Code of Conduct.30
The objective of the IPOA-IUU as set out in Part III is to prevent, deter and
eliminate IUU fishing by providing all States with comprehensive, effective and
transparent measures by which to act, including through appropriate RFMOs
established in accordance with international law. The IPOA-IUU is therefore a
comprehensive instrument or ‘toolbox’ which allows States to accept the
measures contained in the IPOA-IUU and to meet their particular IUU fishing
needs and challenges.31
29 Erik Jaap Molenaar, “CCAMLR and Southern Ocean Fisheries”, The International Journal of Marine and Coastal Law, Vol. 16, No. 3, 2001, p. 482. 30 Annick Van Houtte, “Flag State Responsibility and the Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, op.cit, p. 56. 31 David J. Doulman, “2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing: Background and Progress Towards
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The IPOA-IUU clearly sets out the responsibilities of all States, flag States,
coastal States, port States and market States to effectively address IUU fishing.
The IPOA-IUU Fishing also deals with responsibilities and measures of States
acting32 through RFMOs,33 and non-member States of RFMOs. The measures
should be integrated and applied in accordance with applicable international
law.34 The key aspects of the IPOA-IUU Fishing are outlined below.
5.3.1 Flag State Responsibilities
The basic flag States responsibilities are provided in paragraphs 34-50 of
the IPOA-IUU. These responsibilities pertain to fishing vessels registration,
record of fishing vessels, and authorisation to fish.
5.3.1.1 Fishing Vessel Registration
Paragraph 34 of the IPOA-IUU requires States to ensure that fishing
vessels flying their flags do not engage in or support IUU fishing activities. For
this purpose, prior to registering a fishing vessel, flag States should ensure that
they could exercise their responsibilities over their flag vessels. In line with
Article III(5) of the FAO Compliance Agreement, paragraph 36 of the IPOA-IUU
requires flag States to avoid flagging vessels with a history of IUU fishing.
Implementation”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix G), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October 2004, op.cit, p. 40. 32 Seventeenth Session of Fishery Committee for the Central Atlantic, Dakar, Senegal, 24- 27 May 2004 on “Main Thrust of the Technical Consultations on IUU Fishing and Fishing Capacity and Subsidies in the Fisheries Sector”, Rome, Italy, 24 June- 2 July 2004, p.2. 33 Reports of the Regional Vessel Monitoring Systems Workshops: Southwest Indian Ocean, the Caribbean, Central America and Southeast Asia, FAO/Fish Code Review No.14, Global Partnerships for Responsible Fisheries (Fish Code), Rome: FAO, 2005, p.4.
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The difference between the FAO Compliance Agreement and the IPOA-IUU is
that the latter instrument has a wider scope in application35 in the sense that it
encourages all States involved in a chartering arrangement, including flag
States and other States, to take measures to ensure that chartered vessels do
not engage in IUU fishing.36
The legal exception to this rule relates to circumstances where the ownership of
the vessel has changed, and the flag State can ensure that the change in
ownership would not result in IUU fishing.37 In this regard, it is important to note
paragraphs 38 and 39 of the IPOA-IUU which deal with the matters of
deterrence of re-flagging and flag hopping.38 Under paragraph 38, flag States
are required to deter their vessels from re-flagging for the purpose of avoiding
the application of conservation and management measures that are adopted at
the national, regional or global levels. Paragraph 38 also requires flag States to
take actions and adopt rules that do not provide incentives for vessel owners to
re-flag their vessels to other States.39 At the same time, under paragraph 39,
States are required to take all necessary steps such as the denial to issue an
34 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p.2. 35 Kelly Rigg, “Halting IUU Fishing: Enforcing International Fisheries Agreements”, Paper Presented at the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 6. 36 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibles: Information and Options”, FAO Fisheries Circular No. 980, Rome: FAO, 2000, p.17. 37 See paragraphs 36 (1) and (2) of the IPOA-IUU. 38 Australian National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Agriculture, Fisheries and Forestry, the Australian Government, July 2005, p.28. 39 David A. Balton, “IUU Fishing and State Control Over Nationals”, Paper Presented at the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.5.
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authorization to fish and the entitlement to fly that State’s flag to prevent “flag
hopping”.
The objective of these provisions is to tackle the problem caused by vessels
that change their names and registration, whilst continuing to engage in IUU
fishing.40 Where there are two different agencies handling the functions of
registration and fishing authorisation, problems also arise with respect to the
ability of flag States to monitor the activities of their fishing vessels. The
difficulty faced by States to address such problems is caused by unlicensed but
registered vessels engaging in IUU fishing.41 To overcome this problem,
paragraph 40 of the IPOA-IUU encourages flag States to ensure that
appropriate links exist between the operation of their vessel registries and the
records those vessels keep for their fishing vessels. Where such functions are
undertaken by more than one agency, States should ensure that sufficient
cooperation and information sharing exists between the agencies responsible
for this function.
5.3.1.2 Record of Fishing Vessels
Consistent with other international fisheries instruments such as the FAO
Compliance Agreement42 and the UN Fish Stocks Agreement,43 paragraph 42
of the IPOA-IUU imposes obligations on flag States to maintain a record of
fishing vessels entitled to fly their flags. For vessels authorized to fish on the
40 Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9, Rome: FAO, 2002, p. 23. 41 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibilities”, op.cit, p.18. 42 FAO Compliance Agreement, Art. VI (1) and 2.
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high seas, the record of fishing vessels must include the information set out in
Article VI(1) and (2) of the FAO Compliance Agreement. These include:
• the previous names of the vessels;
• name, address and nationality of the natural or legal person in whose name
the vessel is registered;
• name, street address, mailing address and nationality of the natural or legal
persons responsible for managing the operations of the vessel;
• name, street address, mailing address and nationality of natural or legal
persons with beneficial ownership of the vessel;
• name and ownership history of the vessel; and
• the history of IUU fishing vessel dimensions.
5.3.1.3 Authorization to Fish
Authorization to fish is an important part of fisheries management.44 The
requirement to issue authorizations to fish in order to combat IUU fishing is
stated in paragraphs 44-50 of the IPOA-IUU. An authorization to fish can take
the form of licensing or permission for a vessel to fish in a particular area.45
Paragraph 44 of the IPOA-IUU urges States to adopt measures to ensure that
no vessel is allowed to fish without proper authorization.46 The issuance of
licences to fish must be consistent with international law for the conservation
and management of living resources on the high seas as provided under
43 UN Fish Stocks Agreement, Art. 18 (3C). 44 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 6. 45 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing” Organized by the Government of Australia in Cooperation FAO, Sydney, Australia, 15-19 May 2000, p. 3.
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Articles 116 and 117 of the LOSC, as well as national legislation on the
conservation and management of living resources in the EEZ.
Unlike the LOSC, the IPOA-IUU also regulates fishing in waters under the
jurisdiction of other States. Paragraph 45 of the IPOA-IUU provides that flag
States are to ensure that their vessels fishing in waters beyond national
jurisdiction have valid authorizations to fish. Where a coastal State issues the
same document, it should ensure that the vessels fishing in its waters are
required to obtain an authorization to fish issued by the flag State of the vessel.
Judith Swan (2000) has argued that these provisions provide a system of
checks and balances by obligating coastal and flag States to ensure that their
vessels and vessels fishing under their jurisdiction hold valid authorizations to
fish.47 Paragraph 46 of the IPOA-IUU provides that the authorization, which
include specific information such as the name of the vessel, area of fishing,
species to be fished and gear to be used, need to be carried on board the
vessel.
Additionally, paragraph 47 of the IPOA-IUU allows flag and coastal States to
impose conditions on any authorization to fish. These conditions may include
vessel monitoring system (VMS), catch and transhipment, reporting conditions,
observer coverage, maintenance of fishing and related log books, and
navigational equipment. Such conditions must comply with international and
national laws regarding conservation and management measures and the
marking and identification of fishing vessels and gears. Paragraph 47 also
46 Duncan E.J. Currie, “Protecting the Deep Sea Under International Law: Legal Options for Addressing High Seas Bottom Trawling”, Greenpeace, 2004, p. 22.
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requires that flag and coastal States honour their obligations under international
law to require their fishing vessels to obtain authorizations to fish on the high
seas or national waters. To this end, States must also ensure that their fishing
vessels comply with applicable MCS measures.48 These rules are designed to
improve the abilities of coastal and flag States to closely monitor the activities of
their vessels.49
One of the difficulties that may be faced by States in implementing paragraph
47 of the IPOA-IUU relates to fishing by transport and support vessels. This is a
major problem because many fishing vessels need the assistance of transport
and other support vessels when engaging in IUU fishing. Thus, transhipment at
sea by support vessels is one of the most common and difficult unreported
fishing activities to deal with.50 To address this problem, paragraph 48 of the
IPOA-IUU imposes an obligation on flag States to ensure that their fishing,
transport and support vessels do not support or engage in IUU fishing. They are
to ensure that none of their vessels re-supply fishing vessels engaged in such
activities or tranship fish to or from these vessels. Exception to this rule is only
recognised for humanitarian reasons such as the safety of crew members,
among other things. In this respect, the IPOA-IUU fills the lacuna in the
definition of fishing vessels under the FAO Compliance Agreement.51
47 Judith Swan, op.cit, p. 19 48 Lawrence Yuda, Rio Plus Ten: The Evolution of International Marine Fisheries Governance, op.cit, p.120. 49 Judith Swan, loc.cit. 50 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p. 29. 51 See Article 1(a) of the FAO Compliance Agreement which defines a “fishing vessel” as any vessel used or intended for the purposes of the commercial exploitation of living resources”.
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The IPOA-IUU gives power to flag States to control the fishing activities of
transport and support vessels operating on the high seas. For this purpose,
under paragraph 49, flag States are to ensure that all vessels conducting
transhipment at sea have prior authorization to conduct such activities issued by
their authorities. In addition, flag States must also report to the national fisheries
administration or other designated institutions on transshipment activities.
Transhipment reports are to contain records of the date and location of the
transhipments; the weight by species and catch area of the fish transhipped; the
name, registration, flag and other information of the vessels; and the port of
landing. Paragraph 50 of the IPOA-IUU also requires flag States to make catch
and transhipment reports available to relevant national, regional, and
international organisations, including the FAO, subject to confidentiality
requirements.
From the above discussion, it can be seen that the IPOA-IUU provides detailed
requirements concerning chartering, transhipment, flag hopping, and the
registration of vessels.52 There are a number of additional measures that may
be undertaken to ensure that the activities of all types of fishing vessels are
conducted in accordance with fisheries conservation and management
measures. First, States may establish specific rules and procedures in their
national laws to prevent re-flagging of vessels engaged in IUU fishing. Second,
States may place independent observers onboard vessels who can monitor the
position of the vessels as well as observe fishing operations.53 Third, flag States
52 Rt. Hon Simon Upton and Vangelis Vitalis, “Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing, Paper for the Round Table on Sustainable Development, 6 June 2003, p. 6. 53 FAO Technical Guidelines for Responsible Fisheries No. 9, p. 30.
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are encouraged to develop the capacity to conduct regular patrols at sea in
areas where vessels are known to fish.54
There is a further need for flag State measures in preventing, deterring and
eliminating IUU fishing to be complemented by actions by coastal States and
port States. Coastal and port States are to coordinate their activities and
cooperate directly or through relevant RFMOs in a range of specified areas,
such as in implementing an MCS system and in exchanging information on IUU
fishing activities.55 Cooperation in these areas is needed to achieve the
objective of sustainable fisheries . The relevant RFMO is expected to serve as a
forum in which cooperation to combat IUU fishing would take place, and help
formulate acceptable international standards.
5.3.2 Coastal State Measures
Paragraph 51 of the IPOA-IUU requires coastal States to meet their
obligations under the LOSC and other international agreements, to prevent,
deter and eliminate IUU fishing in their EEZs. For this purpose, coastal States
are required to:
• consider the implementation of effective MCS programmes;
• enter into cooperation and exchange arrangements for data and
information with other States;
54 FAO Technical Guidelines for Responsible Fisheries No. 9, p. 31. 55 Annick Van Houtte, “Flag State Responsibility and The Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, op cit, p. 57.
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• ensure that vessels are authorised to fish and that they maintain catch
logs;56
• ensure that at-sea transhipment and processing of fish are authorized or
conducted in conformity with management regulations; and
• avoid licensing vessel if they have a history of non-compliance and IUU
fishing.57
5.3.3 Port State Measures
IUU fishers must eventually bring their catch to port for landing or
transhipment.58 State control of ports under international fisheries laws and
regional fisheries agreements makes such a control an important part of fishery
conservation and management measures.59 The IPOA-IUU strengthens the
FAO Compliance Agreement, the UN Fish Stocks Agreement and the FAO
Code of Conduct by requiring port States to develop and apply control
measures to combat IUU fishing.60 Port State control measures consist of the
inspection of documents, fishing gears, and fish catches on board fishing
vessels and the establishment of procedures for prior notification by vessels.
56 Chris Hedley, “FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing”, Internet Guide to International Fisheries Law (Originally Published in (2001) International Fisheries Bulletin No.5), http://www.intfish.net/ops/papers/1.htm, p.4 (accessed on 17 May 2006) 57 David J. Doulman, “Global Overview of IUU Fishing and Its Impacts of National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for the Conclusion of the 2001 FAO International Plan of Action”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, Rome: FAO, 2004, p.32. 58 “Stopping Illegal, Unreported and Unregulated Fishing”, Rome: FAO, 2002, p.15. 59 Terje Lobach, “Port State Measures”, Paper Submitted as A Draft Paper to the IUU Worskhop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committe of OECD, p. 4. 60 Canada’s National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Government of Canada, 2005, p.2.
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Port State control is an example of a “new” tool that could be used to address
IUU fishing. In this respect, the obligation of the flag State needs to be
supplemented and strengthened by port State control.61 Thus, the failure of the
flag State to fulfil its duty entitles the port State to take legal action to combat
IUU fishing.
Under paragraph 52 of the IPOA-IUU, port States are required to take
measures, in accordance with international law, to prevent, deter and eliminate
IUU fishing. Port State measures should be implemented in a fair, transparent
and non-discriminatory manner. Parallel to paragraph 52, paragraph 55 of the
IPOA-IUU states the need for port States to require all foreign fishing vessels
engaged in fishing activities or transporting fish and fishery products to provide
notice of an intention to use a port and its landing or transhipment facilities.
As part of their responsibilities, States are also required to establish procedures
for prior notification by vessels so as to ascertain whether the vessel might have
engaged in, or supported IUU fishing. Some of the information that must be
gathered by port authorities includes a copy of the vessels’ authorisation to fish,
details of their fishing trip, and quantities of fish on board.62
Another power conferred upon port States under paragraph 56 of the IPOA-IUU
is the duty to deny access to foreign vessels to land or transship fish in their
61 Christopher Hedley and Louvirjanakul Kengran, “International Fisheries Law and Policy Review”, FAO Expert Consultation on Port State Measures to Combat IUU Fishing, IFLPR (Special Issue), Ocean Law and Contributors, 2003, p. 32. 62 Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome, 31 August – 2 September 2004, Model Scheme on
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ports. Any action taken by a port State to deny the landing of fish under
paragraph 56 must be based on clear evidence that the vessel has engaged in
IUU fishing.63 Under paragraph 57, port States are required to publicize the
ports where foreign flagged vessels may be permitted to enter as well as ensure
that these nominated ports have the capacity to inspect such vessels.
Paragraph 58 of the IPOA-IUU provides that in the exercise of their right to
inspect fishing vessels, port States should collect and remit specified
information to relevant flag States and RFMOs. Information that must be
remitted to flag States and RFMOs include the identification details of the vessel
including name, nationality, and qualifications of the master and the fishing
master; fishing gear, catch on board, including origin, species, form, and
quantity; and other information required by relevant RFMO or international
agreements, particularly on total landings and transhipped catch.
The information collected during a vessel inspection will give port States
stronger legal basis to determine whether the vessel has engaged in or
supported IUU fishing.64 To this effect, paragraph 59 provides that if, in the
course of an inspection, it is found that there are reasonable grounds to believe
that the vessel has engaged in or supported IUU fishing in areas beyond the
jurisdiction of the port State, the port State shall immediately report the matter to
the flag State of the vessel. Port States may take additional action with the
consent of, or at the request of flag States. Furthermore, port States are
Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Appendix E), FAO Fisheries Report No. 759, Rome: FAO, 2004, p.24. 63 M. Lack and G. Sant, “Patagonian Toothfish Are Conservation and Trade Measures Working”, Traffic Bulletin, Vol. 19, No. 1, 2001, p.16.
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required to give the report on IUU fishing to relevant coastal States and
RFMOs. This rule will be applicable if the suspected IUU fishing has occurred in
waters under the jurisdiction of another State or in areas under the jurisdiction
of an RFMO.65
In practice, port State requirements under paragraph 57 of the IPOA-IUU are
difficult to implement for two reasons. First, some States have so many ports
that it would be difficult to inspect them 24 hours a day during the year.66
Second, most developing State ports are faced with constraints due to the lack
of trained and qualified personnel to detect violations of fisheries laws.67
5.3.4 Internationally Agreed Market-Related Measures
Over the recent decade, the international trade in fish and fisheries
products has increased significantly. According to FAO statistics, virtually all
States exported part of their fisheries products, while almost as many States
reported fisheries products. However, globally, there is no reliable data to show
the exact amount of fish and fisheries products traded internationally that are
derived from IUU fishing.68 Although 40 per cent of the total world fish products
are traded internationally, the existing import regulation relating to trade related
measures is not adequate to deal with IUU fishing.69 The inadequacy of import
64 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p. 40. 65 FAO Technical Guidelines for Responsible Fisheries No. 9, loc.cit. 66 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No. 987, Rome: FAO, 2003, p.12. 67 Transform Aqorau, “Illegal Unreported and Unregulated Fishing: Considerations for Developing Countries”. Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia with FAO, Sydney, Australia, 15-19 May 2000, p.2. 68 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p.47. 69 Linda A Chaves, “Illegal, Unreported and Unregulated Fishing: WTO-Consistent Trade Related Measures”, Expert Consultation on Illegal, Unreported and Unregulated Fishing
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regulations with regards to trade in fish and fisheries products is seen as a
contributing factor in the continuation of IUU fishing. Increasingly, it is
recognised that fisheries trade measures would be dealt with more effectively
and with greater consistency if they were harmonized with international law.
Accordingly, paragraph 65 of the IPOA-IUU recognizes the right of States to
trade in fish and fishery products harvested in a sustainable manner. Under
paragraph 66 of the IPOA-IUU, States are urged to take all necessary
measures, consistent with international law, to prevent trade in fish and fishery
products harvested by IUU fishing vessels. Thus, the use of trade-related
measures has become one of the most effective measures to combat IUU
fishing. These measures are to be taken in accordance with the principles,
rights and obligations established under the General Agreement on Tariffs and
Trade (GATT) and other relevant agreements of the World Trade Organization
(WTO) such as the Agreements on Technical Barriers to Trade, Pre-shipment
Inspection, Rules of Origin, Import Licensing Procedures, and Subsidies and
Countervailing Measures. These rules must also be implemented in a fair,
transparent and non-discriminatory manner.
In order to meet their fisheries trade commitments, States are required to collect
adequate data about vessels harvesting a particular fish. RFMOs can assist
States in this regard by developing and adopting catch certification and trade
Organized by the Australian Government in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p.3.
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documentation schemes.70 International trade measures cannot be established
by a single State, but rather through the cooperative efforts of those States
party to existing RFMOs. This is in accordance with the LOSC and the UN Fish
Stocks Agreement.71 Paragraph 68 of the IPOA-IUU also requires that trade-
related measures be used to support cooperative efforts by States to ensure
that trade in fish and fish products does not in any way encourage IUU fishing.
Paragraph 68 emphasises the role of RFMOs in the establishment of such
multilateral trade related measures which do not undermine the effectiveness of
conservation and management measures in accordance with the LOSC.72
Likewise, paragraph 69 of the IPOA-IUU encourages States to adopt
multilateral catch documentation and certification schemes so as to reduce
trade in fish and fish products derived from IUU fishing. Such measures also
include the adoption of appropriate multilaterally agreed measures for
controlling and prohibiting import.
In fact, trade documents have been issued for tuna and swordfish by the
Commission for the Conservation of Southern Bluefin Tuna (CCSBT) and the
70 Anna Willock, “Using Trade and Market Information to Assess IUU Fishing Activities”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate For Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 2. 71 Sali Yayne Bache, Marcus Howard and Stephen Dovers, The Impact of Economic, Environment, and Trade Measures Instruments Upon Fisheries Policy and Management (Report Prepared for Fisheries and Aquaculture Branch, Australian Department of Agriculture, Fisheries and Forestry, Centre for Resource and Environment Studies, School of Government, University of Tasmania, Centre for Maritime Policy, University of Wollongong, Agriculture, Fisheries and Forestry-Australia and Antarctic CRC, September 2000, p. 75.
For more comprehensive descriptions of the role of RFMOs in this subject, see Judith Swan, “The Role of National Fisheries Administrations and Regional Fishery Bodies in Adopting and Implementing Measures to Combat Illegal, Unreported and Unregulated (IUU) Fishing”, in Elisabeth Mann Borgese, Aldo Chircop, and Moira McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, p.237. 72 Marcus Howard, “IUU Fishing: Contemporary Practice”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Lediden/Boston, 2004, p. 94.
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Indian Ocean Tuna Commission (IOTC)73, and for toothfish by the Commission
for the Conservation of Antarctic Marine Living Resources (CCAMLR).74
Member States of these RFMOs agree to deny the landing in their ports of any
fish caught outside their areas of competence or those fish and fishery products
lacking appropriate documentation.75
In the context of trade restrictions, the main issue has been the impact of such
measures on WTO obligations relating to non-discrimination in international
trade. Articles XI and XIII of the WTO Agreements provide that import bans on
fish and fish products may not be allowed unless there is proof that such
imports have detrimental impact on fishery resource conservation and
management.76 Restrictive trade measures impact on members and non-
members of RFMOs and create import restrictions against non-member States
that are also members of the WTO.77 A question therefore may be raised as to
whether these trade measures are consistent with WTO Obligations.78 A similar
For an interesting discussion, see Carl-Christian Schmidt, “Globalization, Industry
Structure, Market Power and Impact on Fish Trade”, Paper Prepared for the FAO Industry and Expert Consultation on International Trade, Rio de Janeiro, Brazil, 3-5 December 2003, p.12. 73 Messra David, J. Agnew and Collin T. Barrents, “Economic Aspects and Drivers of IUU Fishing: Building A Framework”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.15. 74 D.J Agnew, “The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch Documentation Scheme”, Marine Policy, Vol. 24, No. 5, September 2000, p. 368. 75 Rt. Hon Simon Upton and Vangelis, “Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing on the High Seas”, op.cit, p.9. 76 Ruangrai Tokrisna, “WTO-Consistent Trade-Related Measures to Address IUU Fishing, Developing Country Issues”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 4. 77 Julia Green and David Agnew, “Catch Document Schemes to Combat Illegal, Unreported and Unregulated Fishing: CCAMLR’s Experience with Southern Ocean Toothfish”, in Elisabeth Mann Borgese, Aldo Circop, and Moira McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, pp. 189-190. 78 Bertrand Le Gallic, “Using Trade Measures in the Fight Against IUU Fishing: Opportunities and Challenges”, IIFET 2004 Japan Proceedings, p.6, For useful discussion see Christopher C. Joyner and Zacahry Tyler, “Marine Conservation Versus International Free Trade: Reconciling
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question could also be raised in regards to catch documentation schemes
issued by CCSBT and IOTC.
Exchange of information at the global level is essential for any multilateral trade
measure to work. Accordingly, paragraph 76 of the IPOA-IUU recognises that
these measures are only effective if the information can be shared and
understood quickly. To this effect, paragraph 76 encourages the use of
standardized trade documentation and catch certification. These multilateral
measures ensure the effectiveness of the conservation and management
measures by eliminating unscrupulous practices and avoiding unnecessary
burdens on trade. The availability of globally shared databases is therefore a
very important step in the successful implementation of these provisions to
combat IUU fishing.
5.4 Conclusion
This chapter analysed two important non-binding international
instruments to combat IUU fishing, namely the FAO Code of Conduct for
Responsible Fisheries and the IPOA-IUU. These instruments, although not
legally binding, provide adequate policy guidance to States to combat IUU
fishing. Cumulatively, the two instruments fill the gaps in the LOSC framework
discussed in chapter 3. The FAO Code of Conduct has filled the lacuna and
strengthened the LOSC dealing with sustainable fisheries management and
international cooperation. The IPOA-IUU has filled the gap in the LOSC relating
to fishing in EEZ of other countries and the role of RFMOs in the establishment
Dolphins with Tuna and Sea Turtles with Shrimp”, Ocean Development and International Law, Vol. 31, Nos. 1-2, January- June 2000, p. 140.
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of multilateral trade related measures. These policy instruments also
supplement post-LOSC legally binding instruments discussed in chapter 4. The
IPOA-IUU has filled the gap and complemented the FAO Compliance
Agreement in relation to the definition of fishing vessel and chartered vessels. It
has also strengthened and complemented the FAO Compliance Agreement, UN
Fish Stocks Agreement and the FAO Code of Conduct with regard to port State
control measures. Accordingly, if these international instruments are effectively
implemented, they would significantly enhance the long-term sustainability of
straddling fish stocks and highly migratory species.79
79 See David. J. Doulman, “1995 FAO Code of Conduct for Responsible Fisheries: Development Considerations and Implementation Challenges”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix F), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October, op.cit, p.30.
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CHAPTER 6
INDONESIAN FISHERIES AND IUU FISHING
6.1 Introduction
The previous chapters addressed the international legal framework to
combat IUU fishing. The main objectives of this chapter are to examine the IUU
fishing issues in Indonesia and illustrate the need for adequate legislative and
policy measures to address the problem. The chapter begins this process by
providing a background to Indonesia’s fisheries management. It also describes
and analyzes how Indonesia manages its fisheries jurisdiction and examines
the problems and impacts of IUU fishing in Indonesian fisheries using three
case studies.
6.2 Indonesia’s Fisheries Jurisdiction
Indonesia is an archipelagic State, consisting of 17,508 islands
occupying a total land area of 1,826,440 square kilometers.1 A country of
216,198,345 inhabitants, Indonesia has 5.8 million square kilometers of marine
area.2 Of this area, about 300,000 square kilometers comprise the territorial sea
while the total area of its exclusive economic zone (EEZ) is about 2,707,092
square kilometers. The archipelagic waters of Indonesia is composed of about
1 Etty R. Agoes, “Policing Offshore Zones: Indonesia’s Model and Experiences “, in Doug Mac Kinnon and Dick Sherwoods (eds), Policing Australia’s Offshore Zones: Problems and Prospects ,Wollongong Papers on Maritime Policy No. 9, Centre for Maritime Policy, University of Wollongong, Wollongong, New South Wales, Australia, 1997, p.176. 2 Martin Tsamenyi, (Proponent), “Management and Policy Frameworks for Illegal, Unreported and Unregulated Fishing in Indonesian and Philippine Waters”, Project Pro-Forma, Australian Centre for International Agricultural Research, FIS/2002/019, University of Wollongong, New South Wales, Australia, 2002, p. 6.
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2,905,43 square kilometers.3 With a huge expanse of marine waters, Indonesia
is believed to have the richest and diverse biodiversity in the world.4
For fishing management purposes, the Indonesian waters is divided into nine
fishing management areas: (1) Strait of Malacca; (2) South China Sea; (3) Java
Sea; (4) the Strait of Makassar and the Flores Sea; (5) the Banda Sea; (6) the
Seram Sea and the Tomini Bay; (7) the Sulawesi Sea and the Pacific Ocean;
(8) Arafura Sea; and (9) the Indian Ocean.
N
E W
S
IX
II I
III IV V
VI
VII
VIII
I. Mallacca strait II. South China Sea III. Java Sea IV. Makasar Strait & Flores Sea V. Banda Sea VI. Tomini & Ceram Sea VII. Sulawesi & Pacific Ocean VIII. Arafura Sea IX. Indian Ocean
Figure 6.2 Indonesia’s Fisheries Management Areas
3 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: The Indonesian Case”, Proceeding in ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Voor Jurisdische Samenwerking met Indonesia, 1993, p.3. 4 Etty R. Agoes, “Indonesia’s Approach to Coastal and Ocean Management within the Department of Marine Affairs”, Indonesia Center for the Law of the Sea (ICLOS), Padjadjaran University, Bandung, Indonesia, December 2000, p. 5.
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6.3 Indonesian Fisheries Resources
The Indonesian jurisdiction, comprising the archipelagic waters, the
territorial sea, and the Indonesian EEZ, has two distinct characteristics from a
fisheries management perspective. The Weber Line5 which goes down from the
Makassar Strait in the north through the Lombok Strait in the south, marks two
arbitrary zones. The western part of the Indonesian waters may be
characterized as having a multi-species fishery and a shallow fishery
ecosystem. On the other hand, the eastern part of the Weber Line has larger
deep-water fisheries.6 The shallow waters of the Indonesian jurisdiction are very
productive in pelagic and demersal species due to favorable oceanographic
conditions and the exposure of the upper layers of the water column to sunlight
for most of the year.7
The fisheries resources in the Indonesian waters consist of inshore and offshore
fisheries. Pelagic and demersal species are the predominant coastal fisheries in
certain parts of western Indonesian fisheries waters. Most commercial fisheries
are found in the eastern part of Indonesian fisheries waters. Among the most
important species from an economic perspective are large pelagic species.
Whereas most of the western part of Indonesian fisheries waters supports the
5 The Weber Line is hypothetical line lying approximately along the Australia-Papuan Shelf which separates the islands that have a majority of Oriental animals from those which have a majority of Australian ones, a line of faunal balance sometimes preferred to Wallace’s line as the boundary between the Oriental and Australian realms, Glossary Search Term, p.1, http//www.filaman.ifm-geomar.de/Glossary/Glossary.cfm?TermEnglish=Weber”s%… (accessed on 4 July 2006). 6 Suparman A.Diraputra, “Indonesian Fisheries Legislation: An Overview”, in Proceedings ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s: Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic Indonesia and Nederlandse Raad Voor Juridische Samenwerking met Indonesia, 1993, p. 209. 7 Mochtar Kusumaatmadja, “Rights Over Natural Resources in the Southeast Asia: The Indonesian Case”, op. cit, p. 5.
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livelihood of small-scale fishermen, the eastern part supports offshore
commercial fisheries.8 In accordance with the LOSC, Indonesia has sovereignty
and sovereign rights to explore and exploit, conserve and manage the marine
living resources, including fishery resources within its territorial sea, archipelagic
waters and EEZ.9
It is estimated that Indonesia’s EEZ has a potential yield of 1.9 million tons of
fish per year, whereas the rest of the national waters (comprising the internal
waters, archipelagic waters and territorial sea) has a potential yield of 4.5 million
tons of fish per year.10 The estimated production of fish species group in each
fisheries management area in 2001 is provided in Table 6.3.111
8 Suparman A.Diraputra, “Indonesian Fisheries Legislation: An Overview”, op. cit, 209. 9 See discussions in chapter 3. 10 Department of Marine Affairs and Fisheries, Directorate General of Capture Fisheries, Bali, Indonesia, August 2002, p. 2. 11 “Fish Stock Assessment in Indonesian Waters”, Research Centre for Capture Fisheries, Research Agency for Marine and Fisheries Research, Department of Marine Affairs and
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Table 6.3.1 Estimated potential production and actual exploitation of fish species group in each fisheries management area in Indonesia, 2001
Source: “Fish Stock Assessment in Indonesian Waters”, Research Centre for Capture Fisheries Agency for Marine Fisheries and Fisheries Research and Indonesian Institute for Science, Jakarta, Indonesia, 2001. Note; (1) Strait of Malacca; (2) South China Sea; (3) Java Sea; (4) Strait of Makassar and Flores Sea; (5) Banda Sea; (6) Seram Sea and Tomini Bay; (7) Celebes Sea and Pacific Ocean; (8) Arafura Sea; and (9) Indian Ocean.
Fisheries of the Republic of Indonesia and Oceanology Development and Research Centre, Indonesian Institute For Science, Jakarta, Indonesia, 2001, p.102.
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Indonesia is facing a problem of over-exploitation of its principal fish species in
most of the major fishing areas. One of the causes of over-exploitation is the
large number of traditional fishing boats, especially non-powered boats
operating in coastal areas.12 In contrast to the concentration of fishing vessels
in the archipelagic waters and the territorial sea, Indonesian fishery resources in
the EEZ are not fully utilized by national fishing fleets, but by licensed and
unlicensed foreign vessels.13 This is largely because the national fleet lacks the
necessary gear and resources to compete with foreign fishing vessels operating
in the Indonesian EEZ.14
Hence, fisheries management must be seen in two related perspectives. One is
the utilization of marine resources within the framework of national economic
development. The other significant aspect of national fisheries management is
the protection of the fishery resources based on the principles of sustainability.
With increasing incidents of IUU fishing in all marine areas, coupled with
overexploitation of fisheries resources, sustainable fisheries management has
become more and more important for Indonesia.
12 Rokhmin Dahuri, “Potential and Utilization Level of Marine Resources and Fisheries”, in Rohmin Dahuri, Utilization of Marine Natural Resources for the People Prosperity (A Compilation of Rokhmin Dahuri’ View), Indonesian Development and Study Information Institute, and Directorate General for Coastal, Beaches and Small Islands Affairs, Department of Sea Exploration and Fisheries of the Republic of Indonesia, December 2000, p.67. For discussion of this issue, see also Etty R.Agoes, “Policy on Sustainability Marine Resources Management: A Juridical View”, in Hendarmin Djarab, Rudi M. Rizki and Lili Irahi (eds), Some Legal Thought Toward 21 Century, Angkasa Publisher Bandung Indonesia, 1998, p.374. 13 Rokhmin Dahuri, “Economy Rebuilding Through Fisheries Reform”, in Rokhmin Dahuri, Potential, Utilization of Marine Natural Resources for the People Prosperity, op. cit, pp.84-85. 14 Daniel R. Monintja, “Utilization of Indonesian Exclusive Economic Zone and its Problem”, Paper Presented at Short Course on Advanced International Law of the Sea, Faculty of Law, Padjadjaran University, Bandung, Indonesia, 19-31 August 1996, p. 14.
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The prevailing policy direction for Indonesian fisheries seems to focus more on
the exploitation rather than conservation of fisheries resources. In order to
achieve sustainability, it is important that management objectives meet the
following requirements: first, Indonesia must be capable of promoting the
development of fisheries, both artisanal and commercial; second, Indonesia
must be able to regulate the activities of its fishermen and fishing vessels,
including those of foreign fishing vessels; and third, Indonesia must be capable
of preventing overcapitalization in the fishing sector.15
6.4 Indonesian Fishing Industry
The two important and distinct fisheries sectors in Indonesia are the
artisanal and commercial fisheries sectors. These sectors of the fishing industry
are described briefly below.
6.4.1 Artisanal Fisheries Sector
Artisanal fishing is practiced along the entire eastern coast of Sumatra,
including the Riau archipelago and the entire north coast of Java and Madura
island. Artisanal fisheries is also undertaken in the whole coastal area of
western, southern and eastern Kalimantan, the whole coastal area of western
and southern Sulawesi, parts of northern Sulawesi, the Moluccas and west
Papua.16
15 Suparman A. Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I and Ted L. Mc Dorman (eds), Seapol International Workshop on Challenges to Fishery Policy and Diplomacy in South-East Asia, Rayong, Thailand, South-East Asian Programme in Ocean Law Policy and Management, Bangkok, Thailand, 6-9 December 2002, p.22.
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There is a considerable degree of homogeneity in the artisanal fisheries sector
of Indonesia in terms of fishing gears. Most of the fishermen use a combination
of traditional hook and line and gill net techniques17 and the vessels range from
coastal sailing craft to small motorized vessels of limited capacity.18 Most of the
vessels are not more than 10 gross registered tons (GRT).19 Non-powered or
outboard powered vessels have the capacity for short fishing trips of one to two
days. These vessels operate in coastal waters in close proximity to fish landing
areas. There are also a number of landing places for larger inboard powered
vessels up to 25 GRT. The fishing trips for larger vessels are generally between
one to three weeks.20
A substantial component of the artisanal sector consists of subsistence fishers
who fish largely to sustain the needs of their families. Like in many developing
countries, the subsistence fisheries sector is very important for the food security
of the majority of the Indonesian population.21 The artisanal fisheries sector
provides a source of income for about one to two million fishing families in the
coastal areas of the Indonesian archipelago.22
16 Mochtar Kusumaatmadja and Tommy H.Purwaka, “Legal and Institutional Aspects of Coastal Zone Management in Indonesia”, Marine Policy, Vol.20, No.1, Pergamon, 1996, p. 67. 17 Julian Clifton, “Prospects for Co-management in Indonesia’s Marine Protected Areas”, Marine Policy, Vol. 27, No 5, September 2003, p. 394. 18 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management” (Occasional Papers Series No.2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.5. 19 Craig H. Proctor, I.Gede S. Merta, M. Fedi A. Sondita, Ronny I. Wahyu, Tim L.O. Davis, John S. Gunn and Andamari Retno, “A Review of Indonesia’s Indian Ocean Tuna Fisheries”, CSIRO Marine Research, Research Institute of Marine Fisheries and Bogor Agricultural University, Bogor, Indonesia, ACIAR Project FIS/2001/079, December 2003, p. 43 20 Craig H. Proctor, I Gede S.Merta, M.Fedi A.Sondita, Ronny I.Wahyu, Tim L.O.Davis, John S.Gunn and Retno, Andamari, op. cit, p. 2. 21 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesia Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op. cit, p. 15. 22 Mochtar Kusumaatmadja, “Sovereign Rights Over Natural Resources in Southeast Asia: The Indonesian Case”, op. cit, p. 15.
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6.4.2 Commercial Fisheries Sector
The Indonesian commercial fisheries sector has increased significantly
since the Five Year Development II Programme commenced at the beginning of
the 1970s. The Indonesian marine capture fisheries production increased from
700,000 tons in 197023 to 3,966,480 tons in 2001.24 However, most of the
marine fisheries production of Indonesia comes from small-scale commercial
fishing activities. In general, the capture fisheries industry is faced with the lack
of commercial fishing vessels using modern technology.25
Since the 1980s, the major commercial fisheries in Indonesian waters have
been mainly managed through legislation and policies based on the LOSC
framework.26 The enactment of the Indonesian EEZ Law No. 5 of 1983 provided
a new framework for the government to develop a modern fishing industry.27
Indonesia’s practice since 2001 to conclude fisheries cooperation agreements
with foreign countries should be seen in this light. These agreements are
intended to enhance cooperation between Indonesia and distant water fishing
nations in the development of fishery resources in some parts of the Indonesian
EEZ. These include the Indonesian EEZ of the Arafura Sea, the Celebes Sea,
23 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries Republic of Indonesia, 2004, p. 3. 24 Statistics of Capture Fisheries of Indonesia, 2001, Directorate General of Capture Fisheries Department of Marine and Fisheries of the Republic of Indonesia, p.2. 25 Aji Sularso, “Problems of Illegal, Unreported and Unregulated (IUU) Fishing”, Science Philosophy Paper, Postgraduate Program/S3, Bogor Agricultural Institute, Indonesia, November 2002,p.2,http://216.239.57.104/custom?q=cache:A8LtUYNw6oJ:rudyct.com/sem1_23/aji_sularso.htm+peraturan+daerah+tentang+++illegal+fishing&hl=en&=UTF-8 (accessed on 15 July 2003). 26 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: Managing Fisheries in Indonesia”, Short-Course on Advanced International Law of the Sea, Faculty of Law, Padjadjaran University, Bandung, Indonesia, 19-31 August 1996, p.115.
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the South China Sea, the Indian Ocean and the Pacific Ocean. In recent times,
three international agreements have been concluded with China, Philippines
and Thailand. Pursuant to these arrangements, foreign fishing vessels are
currently allowed to fish in the Indonesian EEZ.
There are at least two things that should be taken into account in assessing the
granting of access to foreign fishing fleets in the Indonesian EEZ. The first
consideration is the level of fisheries resource exploitation and the second is the
development of domestic fishing fleets. The Indonesian policy on foreign fishing
access is that fisheries within Indonesian jurisdiction cannot be granted if a fish
stock is fully or over-exploited or if there is a need to support the development
of the domestic fishing fleet.28 In the case of national vessels, priority access is
provided to small-scale fishers with appropriate gears to prevent the danger
over-exploitation of fisheries resources.29
In terms of its contribution to employment, the total number of marine capture
fishermen in Indonesia was 2,562,945 in 2001. Approximately 1,250,200 were
full-time fishermen, 945,081 worked as major part-time fishermen, and another
358,664 worked as minor part-time fishermen.30 In 2003, the number of
fishermen increased to 3,265,569. From this number, 1,391,489 were full-time
fishermen, 1,374,649 were employed as major part-time fishermen, and another
27 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: Managing Fisheries in Indonesia”, ibid. 28 Rizal Max Rompas (Special Advisor to the Minister for Marine Resources Management) “Opening Marks in The First Joint Committee on Fisheries Meeting Between Indonesia and Philippines”, Manado, Indonesia, 14 October 2003, p. 2. 29 Mochtar Kusumaatmadja and Tommy H.Purwaka, op. cit, p.68. 30 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p.3.
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499,413 were employed as part-time fishermen. About 83,402 were employed
in the commercial fishing industry.31
6.5 IUU Fishing in Indonesia
The following section elaborates on the IUU fishing problems in
Indonesia, including the problems related to fishing by Indonesian-flagged
vessels in waters under the jurisdiction of other States and on the high seas.
6.5.1 Illegal Fishing in Indonesia
As indicated in chapter 2, IUU fishing covers different unacceptable
fishing activities and practices. Within the Indonesian context, the term illegal
fishing is described as fishing activities without a valid authorization and non-
compliance with the terms and conditions stipulated in a valid authorization.
Although it is difficult to identify and assess the degree of illegal fishing in
Indonesian waters, most of these activities are believed to take place in the
EEZ,32 and are carried out largely by foreign fishing vessels.33
In general, there are two different types of illegal foreign fishing activities that
coastal States face. The first is the operation of foreign fishing vessels in
coastal waters rather than in the EEZ as stipulated by the conditions of
31 Evaluation of Allocation and Realization for Fish Catching Service License (up to 23 October 2003), op. cit, p.2. 32 Philippe Cacaud, “Indonesia Review of Legal Issues and Revised Draft Fisheries Law”, Food and Agriculture Organization of the United Nations Rome, October 2001, p.20. 33 Tommi H. Purwaka and Badia Sibeau, “Foreign Access to Indonesian 200-Mile EEZ”, Proceedings ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s:Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Voor Juridische Samenwerking met Indonesia, 1993, p. 231.
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access.34 In the case of Indonesia, there have been many situations where
licensed foreign fishing vessels fish in the archipelagic waters that are reserved
for traditional fishermen.35 The second type of illegal fishing by foreign fishing
vessels is where the foreign vessels fish in the waters of the coastal State in the
absence of a bilateral agreement allowing them to fish there.36 This situation
also happens in Indonesia.
Illegal fishing in Indonesian waters is also caused by domestic fishing vessels
that fish without authorization or in breach of conditions of their licenses. There
have been many situations where domestic fishing vessels have been arrested
for illegal fishing.37 There is also a concern in Indonesia about domestic vessels
which provide false information, such as tonnage, dimensions, previous owners
and registered name in contravention of national legislation.38
There are two typical forms of non-compliance with license conditions by
Indonesian fishing vessels. The first form is fishing using gears or methods
prohibited by the existing regulation39 such as small mesh sized nets.40 The
34 Ted. L. McDorman, “Foreign Fishing and Compliance with Coastal State Laws”, in Kathleen I. Maticts and Ted L.McDorman (eds), op. cit, p.56. 35 Didin S. Damanhuri, “Highlight Foreign Fishing Vessels”, Republican Newspaper, October 16, 2001, Jakarta, p.4 36 Ted L. McDorman, ibid. 37 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op.cit, p. 7. See also Purwanto, “Monitoring, Control and Surveillance”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, RI-Philippines Meeting on IUU Fishing, Manila, Philippines June 14 2006, p. 17. 38“Actual Information on Civil Servant Investigation Officer is Ready to be Armed with Fire Arms”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 3 August 2005, http://www.dkp.go.id/content.php?c=2081 (accessed on 7 November 2005). 39 “Vessel Monitoring System (VMS) As Controlling Mean for the Surveillance in the Utilization of Marine and Fisheries Resources”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 4 January 2005, http://www.dkp.go.id/content.php”c=1687 (accessed on January 5 2005).
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second form is employing destructive fishing methods such as dynamite and
poison.41 Despite the fact that Indonesian fishing regulations prohibit the use of
these illegal fishing practices, many fishermen utilize these destructive fishing
methods throughout the Indonesian waters.42
6.5.2 Unregulated Fishing in Indonesia
As noted in chapter 2, unregulated fishing is a broad term which
describes (a) fishing activities in the area of application of a relevant regional
fisheries management organization that are conducted by vessels without
nationality, or by those flying the flag of a State not party to that organization, or
by a fishing entity, in a manner that is not consistent with or contravenes the
conservation and management measures of that organization; or (b) fishing in
areas or for fish stocks in relation to which there are no applicable conservation
or management measures and where such fishing activities are conducted in a
manner inconsistent with State responsibilities for the conservation of living
marine resources under international law. Unregulated fishing in Indonesia
takes several forms and include the lack of regulation of the subsistence
fisheries sector; absence of legislation on fisheries data reporting; and absence
of regulation of particular species.43 Chapter 7 will demonstrate the
40 Regional Statistical Analysis of Responses by FAO Members to the 2003 Questionnaire on Action Taken by FAO Members to Implement the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), loc.cit. 41 Admiral Indroko Sastrowiryono (Indonesian Navy Chief of Staff), Seminar and Workshop on Maritime Affairs in Regional Autonomy Era, Organized by Indonesian Journalist Association, East Java, Surabaya, Indonesia, 14 November 2000, p.5. For more discussion of these issues see Suparman A. Diraputra, “Institutional and Legal System in the Framework of Coastal Area Empowerment”, Paper Presented at Dissemination of Ocean and Coastal Area Management, Study Centre for Ocean and Coastal Management, Bogor Agricultural Institute, Agency for Regional Development of West Jawa, Bandung, 3 April 2000, p.3. 42 Philippe Cacaud, ibid. 43 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 4.
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inadequacies of the Indonesian legislative framework to address unregulated
fishing.
6.5.3 Unreported Fishing in Indonesia
We have seen in chapter 2 that unreported fishing is used to describe
two situations, namely, fishing activities that have not been reported, or have
been misreported to the relevant national authority, in contravention of national
laws and regulations; or fishing activities undertaken in the area of competence
of a relevant regional fisheries management organization which have not been
reported or have been misreported, in contravention of the reporting procedures
of that organization.44
Unreported fishing is a significant problem in Indonesia. Much of the fisheries
data from Indonesian waters is not correctly reported and recorded, 45 resulting
in unreliable data on which management decisions are based.46 There are two
types of unreported fishing in Indonesia. First, there is failure on the part of
commercial fishermen to report fish catch. Fishing vessels arriving in port often
fail to land their catches at designated fish auction places. These catches are
often sold to commercial fish operators or exported, without proper
44 See paragraph 3.2 of the IPOA-IUU. 45 Daniel R. Monintja, op.cit, p. 7. 46 Tridoyo Kusumastanto, Ocean Policy in Developing Maritime State in Regional Autonomy Era, PT Gramedia Pustaka Utama Publisher, Jakarta, Indonesia, 2003, p. 40.
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documentation.47 The motive for this practice is to avoid the payment of tax and
resource rent.48
The second major form of unreported fishing is transhipment of fish at sea and
illegal fishery export.49 In many cases, foreign fishing vessels do not report
their catches in designated fishing ports. There is a large number of licensed
foreign vessels landing their catch at sea through illegal transhipment.50
Consequently, the Directorate General of Capture Fisheries lacks adequate
data to make sound management decisions.51 It will be shown in the next
chapter that in both cases, the legislative framework in Indonesia is inadequate
to address unreported fishing. It will be argued that there is urgent need for
legislative reform in this respect.
6.5.4 IUU Fishing by Indonesian Flagged Vessels in Waters Under
the Jurisdiction of Other States and on the High Seas
IUU fishing by Indonesian vessels is not only limited within Indonesian
waters, but also in waters within the jurisdiction of other countries, especially
neighboring countries such as Australia, the Philippines and Malaysia and also
47 Subhat Nurhakim and Martin Tsamenyi, “A Policy Management Framework to Combat IUU Fishing Activities’’, Australia and Indonesia, Twenty Years of Collaborative Fisheries Research, Australian Centre for International Agricultural Research of the Australian Government and Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.17. 48 National Plan of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op cit, p. 8. 49 “An Overview of Fishery Sea Inspection System”, Research Centre for Marine Technology Agency for Marine and Fisheries Research, Department of Marine Affairs and Research of the Republic of Indonesia, 2003, p.5. 50 Final Research Report on “Development and Management of Marine Natural Resources Under Archipelago Principles”, Project for Research and Foreign Policy Development Agency for Foreign Affairs Research, Department of Foreign Affairs of the Republic of Indonesia in Cooperation with Center for Archipelago, Law and Development Studies, 1993-1994, p.14. 51 Subhat Nurhakim and Martin Tsamenyi, loc.cit.
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on the high seas adjacent to the Indonesian EEZ.52 In recent years, a growing
number of Indonesian nationals have engaged in IUU fishing in the waters of
other States. For example, in February 2000, one Indonesian fishing vessel was
arrested by the Malaysian Navy for illegal fishing within Malaysia’s territorial
sea. 53 In 2001, another Indonesian fishing vessel was arrested and prosecuted
for operating illegally within the Malaysian territorial sea. Another significant
case was the arrest of two Indonesian fishermen in Myanmar and Port Blair,
India for fishing illegally in their waters.54 In subsequent developments, 22
illegal Indonesian fishermen were arrested by the Malaysian Marine Police.55
The underlying issue in all these cases is the absence of Indonesian regulations
prohibiting Indonesian nationals from engaging in IUU fishing in waters under
the jurisdiction of other States, despite the requirements of the IPOA-IUU.
52 See “The Strategic Importance of Sea Borne Trade and Stopping Conference” 3-4 April 2001, “Unlawful Activities – An Australian Perspective”, 13 April 2001, p. 3 ; Derek Woolner, “Australia’s Maritime Border Protection Regime”, in Martin Tsamenyi and Chris Rahman (eds), Protecting Australia;s Maritime Borders: The MV TAMPA and Beyond, Wollongong Papers on Maritime Policy No 13, Centre for Maritime Policy University of Wollongong Wollongong Australia, 2002, p.20. ; Cameroon Moore, “ADF on the Beat: A Legal Analysis of Offshore Enforcement by the Australian Defence Force”, Ocean Publications Centre for Maritime Policy University of Wollongong, New South Wales Australia, 2004, p. 3 ; Dato Junaidi bin Che Ayubd, “Opening Statement”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, Penang, Malasyia, 10-14 October 2004, Food and Agriculture Organization of the United Nations Rome, 2004 ; Quentin Hanich and Martin Tsamenyi, “Exclusive Economic Zones, Distant Water Fishing Nations and Pacific Small Island Developing States: Who Really Gets All the Fish ?” A Paper Presented at Sharing The Fish Conference 06, Perth, Western Australia 26 February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with FAO, p.4. 53 “Information Data on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters 2000-2001”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.1. 54 “Recapitulation on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters 2001”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.1. 55 “Recapitulation on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters (from January to December 2002)”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2002, p.1.
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In addition to IUU fishing in waters under the jurisdiction of other States, a
significant form of IUU fishing by Indonesian fishing vessels takes place on the
high seas adjacent to the Indonesian EEZ. At present a number of Indonesian
fishing vessels are operating on the high seas areas under the competence of
RFMOs, including the Indian Ocean Tuna Commission (IOTC), Commission for
the Conservation of Southern Bluefin Tuna (CCSBT) and the Western and
Central Pacific Fisheries Commission (WCPFC).56
Much of the cause of this high seas IUU fishing by Indonesian vessels is the
failure by Indonesia to participate in these RFMOs. Indonesia only has an
observer status in the CCSBT, IOTC and WCPFC.57 Approximately 355
Indonesian fishing vessels have been identified through the CCSBT’s trade
information scheme to be catching southern bluefin tuna since 2000. Similarly,
there has been a concern that IUU fishing by 75 Indonesian large-scale long
line vessels took place in the Convention Area of the International Commission
for the Conservation of Atlantic Tunas (ICCAT). 58 Illegal fishing in the Southern
Ocean is also conducted by Indonesian flagged vessels, in collaboration with
well-organized foreign syndicates based in Indonesia and using “dummy
companies.’’59
56 National Plan of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 25. 57 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 26. 58 List of Large-Scale Longline Vessels Believed to be Engaged in Illegal, Unreported and Unregulated Fishing Activies in the ICCAT Convention Area and Other Areas (for Approval by the Commission in 2003), PWG-021C, 23 November 2003, p. 1. 59 Jessica K. Farrel, “Controlling Flags of Convenience: One Measures to stop Over-fishing of Collapsing Fish Stocks”, Lewis and Clerk Law Environmental School, USA, Spring, 2005, p. 101.
166
In dealing with these IUU fishing problems, the Indonesian Government has
drafted a National Plan of Action to Prevent, Deter, and Eliminate IUU Fishing
(NPOA-IUU). The draft NPOA-IUU is Indonesia’s initial response to this serious
fisheries problem. The main parts of this draft closely follow the structure of the
IPOA-IUU. Parts I and II briefly describe Indonesia’s fisheries profile while Parts
III and IV deal with the main concerns of Indonesia on IUU fishing and the
ongoing activities to combat the problem. Part V of the draft NPOA-IUU details
Indonesia’s obligations as a flag, coastal, and port State.
The draft NPOA-IUU reflects Indonesia’s determination to address this serious
problem using all available means. Many of the measures provided in the draft
NPOA-IUU seek to identify and take effective action against IUU fishers who
currently take advantage of the loopholes in the current fisheries legislative
framework.60 The need to implement international fisheries instruments,
cooperate with other States, and become member of relevant RFMOs has been
emphasized in the draft NPOA-IUU. Priorities set by the draft NPOA-IUU are:
(1) Indonesia’s plan to accede to the FAO Compliance Agreement and the UN
Fish Stocks Agreement; (2) Indonesia’s plan to adopt laws and regulations on
fishing on the high seas by Indonesian flagged vessels; and (3) the
establishment of evidentiary standards and admissibility of electronic evidence
and new technologies in courts.
The draft NPOA-IUU is a compilation of measures that have already been
undertaken by Indonesia; however, such measures may be criticized as not
60 These loopholes are discussed in the succeeding chapters.
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going far enough to effectively address all unregulated fishing concerns and
IUU fishing in shared waters. Another weakness is that law enforcement is
restricted within the Indonesian EEZ. The draft national plan does not cover
relevant internationally agreed boarding and inspection schemes on the high
seas consistent with international law.
6.6 Causes of IUU Fishing in Indonesia
A number of studies have been carried out on various aspects of
Indonesia’s fisheries over the last decade.61 The studies concur on the factors
contributing to the failure of national the fisheries management system. These
include:
• Fishing practices with respect to reef fish and inshore fish (dynamite and
cyanide in particular) carried out by both licensed and unlicensed vessels;
61 See e.g Agrodev (1994). Fisheries Management. Working Paper No.1, Fisheries Sector Project Indonesia, Asian Development Bank , T.A. No.1791-INO; Badrudin, M. and R. Gillett (1996). Translations of Indonesia Fisheries Laws Relevant to Fisheries Management in the Extended Economic Zone. Technical Paper Number 9, FAO Project TCP/INS/4553, “Strengthening Marine Fisheries Development in Indonesia”, 26 pages; Bettencourt, S. and C. Lundin (1994). Indonesia: Eastern Islands Rural Strategy Study – Fisheries and Coastal Resources Background Paper. World Bank, 99 pages; COREMAP ACIL (1999). Constitutional Law and Derivatives Related to Coral Reef Fisheries. COREMAP Secretariat, 34 pages.; CRIFI (1999). Potential Estimation and Utilization Level of Indonesian Marine Fisheries Resources, 1967. Central Research Institute for Fisheries, Jakarta, 7 pages. Gillett, R. (1996). Marine Fisheries Resources and Management In Indonesia With Emphasis on the Extended Economic Zone. Workshop Presentation Paper Number 1, FAO Project TCP/INS/4553, “Strengthening Marine Fisheries Development in Indonesia”, 35 pages; Greenwald, C. (2000). Indonesian Fisheries Licensing Practices – National and Provincial Levels. ADB Co-Fish Project; Lang, S. (1992). Rules and Regulations in the Republic of Indonesia Regarding the Impact of Tourism, Fisheries, and Marine Pollution on the Marine Environment. Project ID-0095, World Wide Fund for Nature, 65 pages; Martosubroto (1995). Notes on Resources Management in Indonesia. In: S.Venema (1996). Report on Indonesia/FAO/DANIDA Workshop on the Assessment of the Potential of the Marine Fishery Resources in Indonesia. Report of Activity No.15, GCP/INT/575/DEN, Food and Agriculture Organization of the United Nations, Rome; enema, S. (Ed.) (1996). Report on Indonesia/FAO/DANIDA Workshop on the Assessment of the Potential of the Marine Fishery Resources in Indonesia. Report of Activity No.15, GCP/INT/575/DEN, Food and Agriculture Organization of the United Nations, Rome.
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• Illegal fishing by foreign vessels using normal but high impact fishing
methods, such as drift-netting, small mesh sized nets, scare nets, and fish
aggregating devices (FADs);
• Lack of adequate fisheries data and statistics;
• Fishing by Philippine- and Indonesian-flagged fishing vessels in distant
waters; and
• Lack of adequate legislative, administrative and enforcement frameworks.
The prevalence of IUU fishing in Indonesia arises directly from four main
factors. The first is the absence of clearly defined maritime boundaries between
Indonesia and its neighbors, including Thailand, Philippine, Timor-Leste and
Papua New Guinea. The lack of defined maritime boundaries results in illegal
foreign fishing in marine areas adjacent to Indonesian waters.62 This is
particularly the case between Indonesia and the Philippines in the Celebes Sea
where the competing claims by both countries has been a major cause of the
IUU fishing problem.
The second factor is the large maritime zone under the jurisdiction of
Indonesia.63 As an archipelagic state, Indonesia is not only located between the
Asian and Australian continents, but also between the Indian and Pacific
62 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op.cit, p. 7. See also Abdul Malik (Bureau Head of Marine, Environment, Science and Technology, Agency for Planning and Development of the Republic of Indonesia), “Management Strategy for Marine Living Resources”, Paper Presented at National Working Meeting of Agency for Marine Research, 19-20 April 1999, p.5. 63 “Actual Information on Strategic Measures to Combat Illegal Fishing”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 31 May 2005, p.1. http//www.dkp.go.id/content.php?c=1985 (accessed 7 November 2005).
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Oceans.64 Clearly, Indonesia occupies a strategic position, connecting the
Pacific and the Indian oceans. However, the large ocean area under its
jurisdiction and the fact that most of Indonesia’s EEZ is opened to the high
seas, attracts a large number of IUU fishing activities, both from foreign vessels
and local vessels. Thus the geographical location of Indonesia is both an asset
in terms of rich marine biodiversity and a liability in terms of enforcement
challenges.65
Third, there are limited numbers of trained enforcement staff who have the
capability to control IUU fishing activities.66 Currently Indonesia only has 534
fisheries observers and 458 fisheries investigators in the Department of Marine
Affairs and Fisheries.67 The problem is worsened by the lack of enforcement
assets and platforms such as patrol vessels and aircraft. At present the
Indonesian Navy only has 114 warships and 63 aircrafts. Technologically
speaking, most of these vessels are in poor condition,68 making it difficult for
law enforcement agencies to capture and detain IUU fishing vessels.69
64 Mochtar Kusumaatmadja, “Sustainable Developments and the Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21”, Center for Archipelago, Law and Development Studies, Bandung, Indonesia, 1996, p. 56. 65 “Basic Strategy for Ocean Development in Indonesia”, Cooperation Between Research Centre for Coastal and Marine Affairs, Bogor Agricultural Institute and Coral Rehabilitation and Management Project, Centre for Research and Development-Oceanology, Indonesian Science Institute, 1998, p.V.6. 66 Martin Tsamenyi (Proponent), loc cit. 67 National Plan Draft of Action of Indonesia to Prevent to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p.27. 68 Admiral Indroko Sastorwiyono, op. cit, p. 9. 69 Bernard Kent Sondakh (Indonesian Navy Chief of Staff), “Law and Security Enforcement at Sea”, Paper Presented at Technical Meeting of Law Enforcement Officer at Sea, Directorate General of Marine and Fishery Resources Surveillance, Ministry of Marine Affairs and Fishery of the Republic of Indonesia, Jakarta, 11 June 2003, p.11.
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The fourth cause of IUU fishing in Indonesia is the inadequate enforcement 70 of
the fisheries laws and regulations.71 This problem is caused by the loopholes
and inconsistencies in the current legislation governing fisheries
management.72 As will be identified and discussed in chapters 7 to 9, the laws
and regulations in Indonesia are inadequate to meet the standards set out in
post-LOSC instruments relating to the conservation and management of
fisheries resources. The absence of regulations prohibiting Indonesian nationals
from engaging in IUU fishing in the waters of other countries is a significant
factor in promoting the problem. The author is also concerned about the lack of
laws and regulations on vessel registration and authorization to fish on the high
seas. The main fisheries concern is that Indonesia’s legislative framework and
policy on fishing vessel registration and authorization to fish are inappropriate to
combat IUU fishing. This problem will be discussed in detail in chapter 8.
6.7 Consequences of IUU Fishing
IUU fishing has three main impacts on Indonesia. The first impact is on
the sustainability of fisheries resources; the second relates to the economic
impact of IUU fishing; and the third is diplomatic embarrassment.
70 “Actual Information on Department of Marine Affairs and Fisheries of the Republic of Indonesia Combating Illegal Fishing”, 14 January 2005, p.1,http://www.dkp.go.id/content.php?c=1726 (accessed on 22 March 2006). 71 Etty R. Agoes, “Adequacy of Indonesian Laws and Regulations to Combat IUU Fishing: An Evaluation of the New Law on Fisheries”, Working Paper (Annex K), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, p.9. 72 See discussions in chapter 6.
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In terms of impacts on the sustainability of fisheries resouces, several illegal
practices, such as the use of cyanides, have serious consequences not only for
the coral reef ecosystem and human health in general but also on other fish
species. More than 75 per cent the total area of Indonesia’s coral reefs or about
60,000 square kilometers has been subjected to major and minor damages
caused by destructive fishing methods.73 This has undoubtedly been the result
of dynamite fishing, use of poisonous substances to fish and other illegal fishing
methods.74 These destructive fishing practices affect the biodiversity of the
marine environment and result in the depletion and eventually the collapse of
fish stocks.
IUU fishing also has economic consequences for Indonesia. In August 2002,
the Minister for Marine Affairs and Fisheries estimated that illegal fish catch in
Indonesian waters by foreign fishing vessels is between 1 million to 1.5 million
tons per year. The Minister identified the causes of the problem to include
ineffective enforcement of fisheries laws and regulations, limited enforcement
capacity and the large ocean space under the jurisdiction of Indonesia. It is
further estimated by Indonesian officials that the loss in revenue to the country’s
economy as a result of illegal foreign fishing is in excess of US$2 to 4 billion per
73 “Working Program and Surveillance Basic Activity for Marine and Fishery Resources”, Directorate General of Surveillance and Control of Marine and Fisheries Resources, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 3. For some background see Husni Mangga Barani (Director General of Capture Fisheries), “Policy and Investment Problems on Capture Fisheries Sector”, Paper Presented at Planning Consolidation and Implementation of Regional Investment in Indonesian Eastern Part Area, Organized by Coordinating Agency for Investment, Papua, 22 September 2003, p.19. 74 Rokhmin Dahuri, “Policies and Strategic for Coastal and Marine Resources Development As A New Source of Indonesia Sustainable Economic Development” (Invited Paper), Science and Technology Policy, ISTECS Journal Vo.1/2000, p. 2.
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annum (A$3,546,728,143).75 The breakdown of this economic impact can be
seen from Table 6.7 below.
Table 6.7 Economic Impacts of IUU Fishing in Indonesia
Source: Directorate General of Surveillance and Control of Marine and Fishery Resources, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.
IUU fishing by Indonesia vessels has also resulted in diplomatic embarrassment
for Indonesia. Failure by Indonesia to control IUU fishing by Indonesian flagged
vessels has often led to international accusation of irresponsible fishing.76
Consequently, Indonesia faces international protest which may lead to the
imposition of sanctions and trade embargos.77
75 “Illegal Fishing still Rampant in RI Waters”, Jakarta Post, 20 August 2002. 76 “Technical Policy on Marine Resources and Fisheries Surveillance”, Technical Meeting of Law Enforcement Officer, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, 8-12 June 2003, p. 4. 77 Martin Tsamenyi, “International Requirements to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing”, Power Point Presentation (Annex B), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Organized by Research Agency for Capture Fisheries Agency for Marine and Fisheries Research Department
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6.8 Case Study of IUU Fishing in Three Fishing Areas
Having established the general situation with regard to IUU fishing in
Indonesian waters, this section presents three case studies on IUU fishing. The
case studies are based on the Babel waters, the South China Sea and the
Sulawesi Sea.
6.8.1 IUU Fishing in Babel Waters
The Babel waters are connected to the Strait of Bangka in the west and
the Strait of Karimata in the east. Atolls and coral reefs are the predominant
ecosystems in Babel waters.78 Coastal fishing in the Babel waters is the main
fishing activity for many fishing families. In 2001, the number of marine
fishermen in Bangka was 22,795. Most of the fishing boats were small boats
less than 5 GT in size (1,937 boats); outboard motors (1,246 boats) and non-
powered boats (651). On the other hand, there were less powered boats
between 5 to 10 GT in size (36 units), 10 to 20 GT in size (113 units), and 20 to
30 GT in size (7 units).79 The types of fishing gear used in Bangka are
presented in Table 6.8.1(A) below.
of Marine Affairs and Fisheries of the Republic of Indonesian in Cooperation with Centre for Maritime Policy University of Wollongong, Jakarta, Indonesia, 28 April 2005, p.9. 78 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, “Some Indications of Illegal, Unreported and Unregulated”, Research Centre for Capture Fisheries Agency for Capture Fisheries Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 1
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Table 6.8.1(A). Types of Fishing Gear Used in Bangka in 2001
Source: Report of the Fisheries Service Office of Bangka Regency, 2002.
The number of fishermen in the Regency of Belitung in 2001 comprised 16,731.
The types of fishing boats used consisting of powered boats (2,098 units),
outboard motors (203 units) and non-powered boats (945 units).80 The types of
fishing gears used in Belitung is presented in Table 6.8.1(B) while the types of
fishing gears and targeted fish species in the Bangka-Belitung Province in 2001
is presented in Table 6.8.1(C).
79 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktiviani, op. cit, p. 3. 80 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, op.cit, p.6.
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Table 6.8.1(B) Types of fishing gear used and targeted fish species in the Belitung Regency in 2001
Source: Report of the Fisheries Service Office of Belitung Regency, 2001.
Table 6.8.1(C) Types of fishing gear used and targeted fish species in the Bangka-Belitung Province in 2001
Source: Sarjana and Budi Iskandar, “Elementary Study on Socio-Economics Factors of IUU Fishing”, Research Centre for Capture Fisheries Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.
The types of illegal fishing identified in the Babel waters include: (a)
discrepancies in the number and country of origin of the crew of foreign fishing
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vessels contrary to permit conditions; (b) fishing without a permit;81 (c) use of
prohibited gears;82 and (d) use of explosives by local fishing boats and foreign
fishing vessels. Unreported fishing is also a major problem in the Babel waters.
This is conducted mainly by local fishermen and typically takes the form of
directly selling fish on the fishing boats and failure to report fish catch to local
fisheries authorities.83
There are three forms of unregulated fishing activities in Babel waters. The first
involves fishing activities for fish species such as swimmer crab and other
crustaceans which are not covered by a management plan. The second is
fishing activities not requiring licenses under the Babel provincial/district
regulatory framework for small vessels less than 5 GT in size and outboard
powered vessels. The third is fishing activities using bagan apung fishing gear
and other pole and line, which have no governing regulations.84 These
unregulated fishing activities pose serious threats to the sustainable
management of the fisheries. There is an urgent need for managing these fish
species by determining and restricting the number of catch and by regulating
the use of fishing gears.
81 Vessels from Indonesia, Thailand and Vietnam have been charged with these illegal fishing activities. See Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktiviani, op.cit, p. 9. 82 Sarjana and Budi Iskandar, Elementary Study of Socio-Economic Factors of IUU Fishing, Research Centre for Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 9. 83 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, op. cit, p. 11.
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6.8.2 IUU Fishing in Indonesian Waters of the South China Sea
The South China Sea is part of the Sunda shelf, having a relatively
shallow water in the southern and northern parts.85 Most coastal ecosystems in
these waters comprise coral reefs and mangroves which support many valuable
but vulnerable fish species.86 Under the LOSC, the South China Sea is
classified as a semi-enclosed sea.87 The South China Sea is bordered by
Brunei Darussalam, Indonesia, Cambodia, Malaysia, the Philippines,
Singapore, Thailand, Vietnam, China and Taiwan.88 The South China Sea is
also the main area where Indonesia, Malaysia, Thailand and Vietnam have
shared stocks.
Today the most caught and consumed fish in the South China Sea are small
pelagic species. These species can be divided into three fish groups, namely
coastal species, neritic species, and oceanic species. 89 The Indonesian part of
the South China Sea currently has a potential fisheries yield of 1,057,050 tons
of fish per year with utilization level of 36 per cent.90 Fishing gear used in the
South China Sea, according to the 2002 Fishery Statistics issued by the Riau
and West-Kalimantan Provinces, are presented below.
84 Sarjana and Budi Iskandar, op. cit, p.13. 85 Agustinus Anung and Kusno Susanto, “Indication of IUU Fishing in the South China Sea Waters” ( A Case Study of West Kalimantan Area and Riau Island), Research Centre for Marine Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 3. 86 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op cit, p. 2. 87 Article 123.of Law of the Sea Convention. See Hasjim Djalal, Potential Conflicts in the South China Sea: In Search of Cooperation in Hasjim Djalal, Indonesia and the Law of the Sea, Centre for Strategic and International Studies, Jakarta, 1995, p.384. 88 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op cit, p. 1. 89 Suherman Banon Atmaja and Duto Nugroho, “Identification of Illegal, Unreported and Unregulated Fishing in Natuna Waters and South China Sea: An Overview from Fishery Bio-Exploitation”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, Research Centre for Capture Fisheries, 2003, p. 3.
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Table 6.8.2 Fishing gears used in the South China Sea
Source: Agustinus Anung and Kusno Susanto, “Indication of IUU Fishing Practice in Indonesian Waters of the South-China Sea” (A Case Study of West Kalimantan Area and Riau Island), Research Centre for Marine Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.
IUU fishing in the South China Sea takes four distinct forms. The first is fishing
activities by foreign fishing vessels without a valid authorization. The second is
the operation of illegal gears and trawling by Indonesian vessels and foreign
fishing vessel, notably Thai vessels and Vietnamese vessels in prohibited
areas. The third is the use of explosives for fishing and the fourth is the false
documentation of fishing vessels.91
The consequence of these bad fishing practices is the continued degradation of
regionally significant fish stocks. While it is absolutely essential that Indonesia
develop its capacity to control IUU fishing, it is believed that international
cooperation among the governments of the Association of Southeast Asian
90 Agustinus Anung and Kusno Susanto, ibid. 91 Agustinus Anung and Kusno Susanto, op. cit, p. 2
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Nations (ASEAN) countries will be more helpful. The presence of foreign fishing
vessels, especially Thai vessels who have been able to modify illegal fishing
gears illustrates the importance of such cooperation.
Unreported fishing is also a major problem in Indonesian waters of the South
China Sea. This is conducted by foreign and national vessels, especially
western Kalimantan local fishermen. It has been estimated that national trawl
vessels around 70 GT in size do not report 1,200 to 2,400 tons of fish catches
per year to any national fisheries authority. Foreign vessels, especially Thai
fishing vessels are also believed to be responsible for not reporting between
200 to 350 tons of fish and shrimp per year.92 There is also a practice of
modifying legal gear into illegal gear without authorization. Illegally modified
gear includes what is known as danish seine in the South China Sea. This gear
has been modified by adding otter board as a fish mouth device.93 It may be
argued that such modification constitutes unregulated fishing gear from a legal
point of view.
Additionally, there is evidence of significant use of unregulated lamp in purse
seining in the Indonesian waters of the South China Sea. The power of these
lamps is between 12 to 20 kWh. The lamp raises the water temperature,
enabling a conducive environment for the catching of young and small fish.94
92 Agustinus Anung and Kusno Susanto, op. cit, p.13 For more information on this issue, see also “Indonesian Navy Challenges Thailand”, Indo Pos Newspaper, 19 November 2003, p.14. 93 Agustinus Anung and Kusno Susanto, op. cit, p.9. 94 Agustinus Anung and Kusno Susanto, ibid.
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6.8.3 IUU Fishing in the Celebes Sea
The Celebes Sea is a semi-enclosed sea bordered by Indonesia and
Philippines. The Celebes Sea is a major fishing area for two reasons. First, it
supports a complex mixture of traditional, small-scale and large-scale fisheries
by targeting varieties of fish products.95 During the period between 1997 and
2000, the dominant fish caught were demersal, and shark/rays (small pelagic),
shellfishes, tuna skipjack and small tuna.96 Second, from sustenance and
employment viewpoint, the Celebes Sea provides food and livelihood for a large
number of people.97 In 2001, the number of marine capture fishermen in the
North Celebes Province was 161,123. From this number, 49,330 were full-time
fishermen. The rest, numbering 71,646, worked as major part time and minor
part time fishermen.98 Again, in 2001, there were 32,160 fishing vessels
engaged in fishing activities in the North Celebes Province of Indonesia. The
majority of the fishing vessels consisted of 26,610 non-powered boats.99 The
types of fishing gear registered in the Celebes Sea are listed in Table 6.8.3 .
Table 6.8.3 Types of fishing gears registered in the Celebes Sea
Source: Statistical of Capture Fisheries of Indonesia, 2001, Directorate General of Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia Jakarta, 2003.
95 Martin Tsamenyi (Proponent), op. cit, p. 8. 96 I Gede Sedana Merta, “The Current Status of Marine Fisheries in the Celebes Sea, Research Centre for Marine Capture Fisheries”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 7. 97 Martin Tsamenyi (Proponent), ibid. 98 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p.15. 99 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p. 16.
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In 2002, there were 15 reported incidents of unlicensed fishing activities by
foreign and national fishing vessels in the Celebes Sea.100 Of particular concern
is the large number of pump boats from the Philippines operating in Indonesian
waters without proper documentation.101 Another form of illegal fishing in the
Celebes sea is non-compliance with fisheries regulations, including foreign
fishing vessels using normal but high impact fishing methods such as drift-
netting, small mesh sized nets, scare nets, and FADs. Illegal fishing in the
Celebes Sea also takes the form of dynamite and cyanide fishing by both
licensed and unlicensed vessels.102
Unreported fishing activities in the Indonesian EEZ of the Celebes Sea are
conducted mostly by the Philippine flagged vessels. Most of the fish catches
caught by Philippine purse seiners are not recorded.103 It is estimated that
approximately 70 per cent of all tuna catches by Philippines vessels in the
Indonesian EEZ are landed in the Philippines without being reported to
designated Indonesian ports.104
There are several types of unregulated fishing activities in the Celebes Sea.
The first is unregulated fishing activities in coastal areas. Like in the Babel
waters, major fish species such as lobsters, crabs, aquarium fish and live (coral)
fish are not managed under the North Celebes provincial/regent regulations.
100 “Information Data on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2002, pp.1-4. 101 Republic of the Philippines-Republic of Indonesia Fisheries Bilateral Meeting, Gran Puri Hotel, Manado, Indonesia, 14-15 October 2003, p.1. 102 Martin Tsamenyi (Proponent), op. cit, p. 7. 103 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 24 104 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 43.
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The second type of unregulated fishing in the Celebes Sea is fishing activities
by small vessels less than 5 GT in size without valid licenses.105 The third type
of unregulated fishing in the Celebes Sea arises from the fact that no national
law has been promulgated to regulate and control seasons, age and the size of
commercially targeted species in the Celebes Sea.106
The fourth issue in the Celebes Sea relates to the use of FADs. Under
Ministerial Decision No. 30 of 2004, there are three categories of FADs, namely
bottom, shallow water and deep sea. Installation of bottom and shallow FADs is
governed by the district government and regional government regulations. The
installation of deep sea FADs is subject to the prior written authorization of the
Department of Marine Affairs and Fisheries. Despite the existence of a
regulatory framework, FADs have been deployed in the Celebes Sea. However,
because of the absence of a maritime boundary between Indonesia and the
Philippines, most of the FADs are not regulated in practice because it is often
not clear which country has jurisdiction over them.107
6.9 Conclusion
This chapter has demonstrated the enormity of the IUU challenge facing
Indonesia. It is clear that Indonesia is faced with a daunting task of combating
IUU fishing. Despite this fact, a sustainable fishery resource management may
still be implemented in Indonesian fishing management areas. However, an
adequate law and policy framework will be needed to achieve the best results.
In the implementation of such framework, the availability of accurate data and
105 Martin Tsamenyi (Proponent), op. cit, p.18. 106 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 98
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information will be very important. This will provide a basis for the fisheries
agency to take a rational decision, for example on whether a fishing license will
be suspended or extended.
A holistic approach to combating IUU fishing is therefore needed. Such
approach would require increased monitoring, surveillance and enforcement
efforts, formulation and implementation of adequate and enforceable fisheries
legislation, cooperation among various national agencies, and above all,
regional cooperation. Indonesia would further need to cooperate with other
States to combat IUU fishing in shared waters. The succeeding chapters will
assess the adequacy of the Indonesian legal, policy, and institutional
frameworks to address IUU fishing and provide recommendations on how such
frameworks may be improved to comply with the requirements of international
fisheries-related instruments.
107 Subhat Nurhakim and Martin Tsamenyi, loc. cit.
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CHAPTER 7
THE INDONESIAN FISHERIES LEGISLATIVE AND INSTITUTIONAL FRAMEWORK TO ADDRESS IUU FISHING
7.1 Introduction
This chapter outlines the fisheries legislative and institutional frameworks in
Indonesia and examines the adequacy of these frameworks to combat IUU fishing
within and beyond Indonesian waters. The adequacy of the legal framework will be
examined against the international legal framework set out in chapters 3 to 5. As
shown in chapter 6, IUU fishing within Indonesia’s EEZ remains a significant
problem and would need to be addressed through an effective legal and
institutional framework.
This chapter demonstrates that the Indonesian fisheries legal framework and
institutional framework for combating IUU fishing is fundamentally flawed and does
not meet the requirements of international fisheries instruments. The chapter
concludes by providing specific ways in which Indonesia can improve existing
regulations so that they remain consistent with international requirements in
preventing, deterring and eliminating IUU fishing.
7.2 The Indonesian Domestic Legal Framework
Indonesia’s international obligations to combat IUU fishing arise from a
number of international instruments which have been analysed in Chapters 3 to 5.
Specifically, it was shown in chapter 5 that the IPOA-IUU has been formulated
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within the framework of the FAO Code of Conduct for Responsible Fisheries, in
which a number of provisions also describe the relationship between the IPOA-IUU
and other relevant international instruments. The IPOA-IUU is to be interpreted and
applied in a manner consistent with the LOSC, the FAO Compliance Agreement,
and the UN Fish Stocks Agreement. The provisions of the IPOA-IUU that relate to
international trade-related measures are also to be interpreted and applied in
accordance with the rules of the World Trade Organisation. At the national level,
Indonesia is under an obligation to develop and implement a National Plan of
Action to combat IUU fishing.1
To address the threats posed by IUU fishing to the sustainability of Indonesian
fisheries, the Indonesian government has adopted and implemented a number of
policies in accordance with its international obligations. The 1982 LOSC is being
implemented in Indonesia through Law No.17 of 1985 which establishes maritime
zones and provides the framework by which Indonesia implements laws and
regulations to address various marine-related activities, including fisheries
conservation and management. These laws and regulations include Law No. 6 of
1996 on the Indonesian Territorial Waters and Government Regulation No. 61 of
1998, which was replaced by Government Regulation No. 38 of 2002 on the
Indonesian Basepoints.
1 Etty R. Agoes, “Research in Preparation for the Establishment for the Establishment of a National Plan of Action to Combat IUU Fishing” (A Preliminary Study for Further Research by Relevant Working Groups), Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p.6.
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7.2.1 Laws and Regulations Relating to the Limits of National
Jurisdiction
As pointed out in Chapter 3, the LOSC grants coastal States and
archipelagic States sovereignty over their internal waters, archipelagic waters, and
territorial waters.2 Therefore, before the fisheries legislation of Indonesia is
analyzed, it is important to first outline the Indonesian legal framework for the limits
of maritime jurisdiction, especially the legislation setting out the determination of
baselines. In the context of this thesis, the importance of this preliminary
background lies in the fact that a State’s rights to maritime jurisdiction are
measured from the baselines, with the outer limits of each of its maritime zones
being at a specific distance from the baseline.3 In the fisheries context, the drawing
of the Indonesian archipelagic baselines is essential for the determination of the
limits of national jurisdiction and the establishment of Indonesia’s fishing zones.
Indonesia implements Articles 2(1)4 47(1)5 and 486 of the LOSC through two basic
instruments, namely the Indonesian Waters Act No. 6 of 1996; and the
Government Regulation No. 38 of 2002 on the Geographical Coordinates of Base
2 See Articles 2 and 49 of the LOSC. 3 Clive Schofield and Chris Carleton, “Technical Considerations in Law of the Sea Dispute Resolution”, in Alex G.Oude Elferink and Donald Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Lediden/Boston, 2004, p. 232. 4 Article 2 (1) provides that the sovereignty of a coastal State extends, beyond its land territory and internal waters, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 5 Article 47 (1) states that ‘an archipelago State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines included the main islands in which the ration of the area of the water to the area of water, including atolls, is between 1 to 1 and 9 to 1.
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Points of the Baselines of the Indonesian archipelago. The Indonesian Waters Act
No. 6 of 1996 replaced Law No. 4 of 1960 on Indonesian Territorial Waters. As
stated in the Preamble to Law No. 6 of 1996, the driving force behind the
enactment of The Indonesian Territorial Waters Act No. 6 of 1996 was the
recognition of the archipelagic State principle under Part IV of the LOSC.7
The Indonesian Territorial Waters Act No. 6 of 1996 provides the legal basis for the
implementation of sovereignty derived from the LOSC. The Act takes into account
the interests of Indonesia, including its jurisdiction, rights and obligations, as well
as activities within Indonesia’s territorial waters. Sovereignty over Indonesian
maritime areas is provided under Article 4 which covers the internal waters,
archipelagic waters, and the territorial sea. Article 5 of the Indonesian Territorial
Waters Act No. 6 of 1996 provides that Indonesia may determine straight baselines
and normal baselines. Article 5 further provides that sovereignty over these waters
include the water column, airspace, seabed, subsoil, and all natural resources
contained therein.8
Under Article 5(5) of the Indonesian Territorial Waters Act No. 6, the normal
baseline for measuring the breadth of the territorial sea is the low water line along
6 According to Article 48 these lines used as the baseline from which the breadth of the archipelagic State’s territorial sea, contiguous zone, exclusive economic zone and continental shelf is measured in accordance with Article 47. 7 The 1960 Act did not contain provisions which dealt with straight archipelagic baselines as stipulated under Part IV of the LOSC. For a discussion of this issue, see Etty R. Agoes, “Current Issues of Marine and Coastal Affairs in Indonesia”, The International Journal of Marine and Coastal Law, Vol. 12, No. 2, 1997, p.203. 8 Etty R. Agoes, “Where are Boundaries of Our Territory at Sea?,” Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, 2000, p.15.
188
the coast as marked on large-scale charts recognised by the Indonesian
government. Straight baselines may only be used in localities where the coastline
is deeply indented and cut into, or if there is a fringe of islands along the coast in
the immediate vicinity of the coast. The Indonesian Territorial Waters Act No. 6 of
1996 provides that baselines are to be shown on large-scale nautical charts,
officially recognised by Indonesia. Alternatively, the government must provide a list
of geographic coordinates specifying the geodetic datum. Additionally, this list is
required to be deposited with the Secretary General of the United Nations.9 Article
7 provides another method of determining the archipelagic baselines. Closing lines
of an archipelagic baseline can be drawn at the mouth of rivers, estuaries, bays,
inland seas, and ports.
Government Regulation No. 38 of 2002 was enacted to implement Article 6(2) of
Law No. 6 on the Indonesian Territorial Waters. This regulation establishes the six
methods used to draw the Indonesian baselines, namely the straight archipelagic
baselines, normal baselines, straight baselines, closing lines of bays, closing lines
of the mouth of the rivers, estuaries and inland sea, and closing line of ports.10
As stated earlier, Indonesia’s fisheries management is faced with serious problem
due to the lack of defined maritime boundaries that encourages IUU fishing by
foreign fishing vessels in marine areas adjacent to Indonesian waters. Indonesia
9 Article 6. See also Hasjim Djalal, “ Implementation of the 1982 LOSC”, Paper Presented for Training of Indonesian Naval Command and Staff College at Agency for Legal Development of Indonesian Army, 30 January 1996, p.6. 10 Article 2 (2).
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would need to conclude treaties to delimit its boundaries with its neighbouring
countries to prevent or minimize jurisdictional disputes.
7.2.2 Indonesian Legislation Concerning Fisheries
Having outlined the Indonesian law dealing with baselines which is in
accordance with international law, the following section will analyze the adequacy
of the Indonesian law with regard to the management of fisheries resources in the
maritime zones of Indonesia. The analysis will adopt a historical approach by
examining the successive changes in legislation that address fisheries
management issues. This will enable analysis to be done on the effectiveness of
the legislative framework to address IUU fishing.
7.2.2.1 Law No. 5 of 1983 on the Indonesian Exclusive
Economic Zone
As provided under Article 56(1) of the LOSC, coastal States are entitled to
have sovereign rights in the EEZ for the purpose of exploring, exploiting,
conserving and managing living resources. In exercising their sovereign rights,
coastal States are obliged under Article 61 to determine the allowable catch of the
living resources in their EEZ. Article 62(4)(c) of the LOSC further provides that in
regulating foreign vessels fishing in the EEZ, coastal States have the power to
regulate the types of fishing gear and number of fishing vessels.
The first substantive modern fisheries legislation enacted by Indonesia was Law
No. 5 of 1983 on the Indonesian Exclusive Economic Zone, in accordance with the
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provisions of Part V of the LOSC. Under Article 4 paragraph 1 of Law No.5 of 1983
on the Indonesian Exclusive Economic Zone, Indonesia claimed sovereign rights
for the purpose of exploring, exploiting, conserving and managing the living and
non-living resources of the seabed, subsoil and superjacent waters of its EEZ.11
Article 4 (2 ) of Law No. 5 of 1983 must be read in conjunction with Law No.1 of
1973 on the Indonesian Continental Shelf. This is because in regards to the
seabed and subsoil, the continental shelf regime prevails and therefore Law No. 5
of 1983 must be read in a manner consistent with the provisions of the LOSC on
the continental shelf.
Government Regulation No.15 gave the Minister for Marine Affairs and Fisheries
(Formerly the Minister of Agriculture) the right to determine the total allowable
catch according to species or group of species either in the whole or parts of the
Indonesian EEZ. The total allowable catch was to be based on data derived from
research, survey, evaluation, or as a result of fishing activities.12 In addition, the
Minister of Marine Affairs and Fisheries could determine the allocation of the total
number of fishing vessels and types of fishing gear for each vessel on the basis of
the total allowable catch.13 To enable the living resources to be managed
sustainably, Regulation No.15 of 1984 prohibited the use of explosives, poisonous
substances, electrical current and other hazardous materials or equipment.
11 H.A.S Natabaya (Project Leader), “Final Report on an Overview and Evaluation of International Agreements on Marine and Coastal Management”, Cooperation Between Agency for National Law Development, Department of Justice and Directorate General of Regional Development Department of Home Affairs of the Republic of Indonesia, 1993-1994, p.52.
191
Indonesia has clearly fulfilled its obligation as a coastal State with respect to
regulating foreign access in the EEZ. Admittedly, however, there are still other
issues that need to be resolved, such as IUU fishing incidents targeting shared,
straddling, and highly migratory fish stocks. Law No. 5 of 1983 merely deals with
fisheries conservation and management measures within the IEEZ. Since this law
was enacted prior to the entry into force of the UN Fish Stocks Agreement, the
relevant provisions of this law will have to be restudied and readjusted to conform
to Articles 5, 6 and 7 of the UN Fish Stocks Agreement. These provisions are
concerned with the compatibility between the management measures in the IEEZ
and on the high seas.
7.2.2.2 Presidential Decree No. 39 of 1980 on the Elimination of
the Use of Trawls
The first substantive modern fisheries enactment by Indonesia was the
Presidential Decree No. 39 of 1980 on the Elimination of the Use of Trawls. This
Presidential Decree was intended as an interim measure to eliminate the use of
trawls pending the enactment of substantive fisheries legislation. Article 2 of the
Presidential Decree banned the use of trawling as of 1 July 1980 until 1 July 1981.
Further, Article 3 banned the use of trawlers in waters off Java and Sumatra until
30 September 1980. This provision has further imposed a ban on the use of
trawlers along the coast of Sumatra as of 1 January 1981. Subsequently,
Presidential Letter of Instruction No. 11 of 1981 extended the ban on trawling
12 Article 4 13 Article 5
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nationwide. The Arafura Sea, where large foreign operated joint-venture trawlers
operated, was exempted from the application of this Presidential Letter, because of
local opposition to the ban.14.
The ban was particularly important due to the fact that trawlers, at that time, made
up a large proportion of the Indonesian fishing fleet. This could be gauged by local
landings and by contributions to foreign exchange earnings. Currently, trawling is
only allowed to operate in the Indian Ocean and some parts of the eastern
Indonesian waters with specially designed trawls approved by the Department of
Marine Affairs and Fisheries.15
The Presidential Decree applied to all Indonesian marine areas, but excluded the
coastal waters of the Indian Ocean and the Arafura Sea. Significantly, under
Article 5(1) of Presidential Decree No. 39, the trawlers which were affected could
continue fishing after replacing their gears with non-trawling fishing gears.
Paragraph 2 of the Decree allowed a person who was owner of a vessel to transfer
his or her vessel to change their status from trawl to non-trawl.
A number of problems were encountered in relation to the implementation of the
trawl ban. Not only was there local industry opposition to the ban, but also certain
unscrupulous actors who had access to the fisheries management authorities
14 Conner Bailey, “Lessons from Indonesia’s 1980 Trawler Ban”, Marine Policy, Vol. 21 No. 3, May 1997, p.225. 15 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resource Management: An Archipelagic Concept of Rational and Sustainable Resource Management” (Occasional Paper
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obtained trawl operation licenses contrary to the legislation. Another difficulty was
related to the fact that Articles 6 and 7 allowed the creation of regulations which
became inconsistent with the Presidential Decree.16 The same provisions created
loopholes with respect to modifying fishing gears, which may be associated with
unregulated fishing. At this point, it would be appropriate to revoke Presidential
Decree No. 39 which contradicts the Fisheries Law No.31 of 2004 as will be
discussed later. The use of trawls would need to be regulated in a fisheries
legislation.
7.2.2.3 The Decision of the Minister of Agriculture No. 392 of 1999 Concerning Fishing Zones
Article 62 (4)(c) of the LOSC on the regulation of the EEZ is implemented in
Indonesia through the decision of the Minister of Agriculture No. 392 of 1999.
Article 2 of this decision establishes three different fishing areas namely, Fishing
Zone I, Fishing Zone II, and Fishing Zone III.
Fishing Zone I covers the coastal fishing belt measured from the seaward low-
water line of each island up to a limit not exceeding 6 nautical miles toward the
sea.17 This fishing zone is sub-divided into two belts. The first encompasses the
coastal fishing belt measured from the seaward low-water line up to 3 nautical
miles and the second comprises the coastal fishing belt outside 3 miles up to 6
Series No 2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.11. 16 Tridoyo Kusumastanto, Ocean Policy in the Maritime State Development in Regional Autonomy Era, Gramedia Pustaka Utama Ltd Publisher, Jakarta, 2003, p.88. 17 Article 3 (1)
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nautical miles.18 Two types of fishing gears are allowed to be used within 3 nautical
miles of Fishing Zone I. These are permanent fishing gears19 and non-modified
permanent fishing gears.20 Non-motorized fishing vessels of not more than 10
metres in length are permitted to operate within this part of the zone.21
Fishing gears and vessels allowed to operate within the coastal fishing belt outside
3 nautical miles and up to 6 nautical miles include: (a) modified non-permanent
fishing gear; (b) fishing vessels using non-powered boats and/or outboard motor
boats of not more than 10 metres in length; (c) outboard powered and inboard
powered motors of not more than 12 metres in length or 5 gross tonnage in size;
(d) purse seiners of not more than 150 metres in length; and (e) drift gill net of not
more than 1000 metres in length.22
Fishing Zone II covers the coastal fishing belt outside Fishing Zone I up to 12
nautical miles seaward.23 Fishing vessels allowed to operate in this zone include
(a) fishing vessels using outboard powered motors of not more than 60 gross
tonnage in size; (b) fishing vessels using purse seine nets of not more than 600
metres in length operating from one non-group single vessels or not more than
1,000 metres by using two non-group double vessel; (c) tuna longline of not more
18 Article 3 ( 2) 19 The legislation does not define this fishing gear. 20 The legislation does not define this fishing gear. 21 Article 3 (3) 22 Article 3 (4) 23 Article 4 (1). See also Samekto, ‘’Final Report on Legal Planning Team in the Framework of Re-arrangement of Marine and Coastal Development of Riau Province ‘’, Agency for National Legal Development, Department of Justice of the Republic of Indonesia, 1999/2000, p.85.
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than 1,200 metres; and (d) squid jigging and drift gillnet of not more than 2,500
metres in length.24
The problems with Fishing Zones I and II relate mainly to the regulation concerning
regional autonomy in marine fisheries. If this regulation is read in conjunction with
the provision contained in Article 18 of Law No. 32 of 2004 on Regional
Government, it may be argued that the boundaries of these fishing zones need to
be revised. This is because the establishment of these fishing zones does not
conform to the new national division of ocean space under the provincial
jurisdiction (12 nautical miles) and the jurisdiction of the regencies or municipalities
(4 nautical miles).
Fishing Zone III covers the coastal fishing belt outside Fishing Zone II and up to the
outer limit of the Indonesian EEZ. Fishing vessels flying the Indonesian flag which
are not greater than 200 GT are allowed to operate in Indonesian waters.
However, fishing vessels using big pelagic purse seine nets of all sizes are
prohibited from operating in Tomini Bay, Maluku Sea, Seram Sea, Banda Sea,
Flores Sea and Sawu Sea. These fishing vessels are also allowed to operate in the
Indonesian EEZ of the Strait of Malacca, with the exception of vessels using fishing
nets of at least 60 GT.
The fishing activities permitted in the Indonesian EEZ outside the Malacca Strait
are Indonesian- and foreign-flagged vessels not greater than 350 GT using all
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TP
24 Article 4(2)
types of fishing gears. Fishing vessels of more than 350 GT but less than 800 GT
using purse seine nets can only operate in areas outside 100 nautical miles from
the baselines of the Indonesian archipelagoes. Fishing vessels using purse seine
nets under a group system are only allowed to operate in areas outside 100
nautical miles from the baselines of the Indonesian archipelago. Foreign- flagged
fishing vessels are permitted to operate in Fishing Zone III in accordance with the
prevailing law and regulations.25
It is worth noting that the fishing activities of Indonesian flagged vessels that fall
under the competence of regional fisheries management organisations are not
covered by the regulations on Indonesian fishing zones. Hence, any conflict that
may result in the absence of clear rules on fishing zones may lead to unregulated
fishing. A major impediment to conserving and managing fish stocks on the high
seas lies with Indonesian-flagged vessels that fish outside the scope of the RFMO
regulations and Indonesian domestic laws. Similar to the regulations on Indonesian
fishing zones, there is a need to establish regulations on fisheries access of
Indonesian nationals on the high seas.
7.2.2.4 Decision of the Minister of Marine Affairs and Fisheries concerning the Regulation of Fishing Vessels Operations in the Indonesian Exclusive Economic Zone
This Ministerial Decision was designed to implement Government
Regulation No. 15 of 1984 concerning the Management of Living Resources in the
25 Article 5 (3)
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Indonesian EEZ. It also aims to implement Article 62(4)(l) of the LOSC which
entitles coastal States to establish requirements relating to joint ventures or other
cooperative arrangements in the exploitation of resources in the EEZ.
One of the main objectives of the Ministerial Decision is to utilise the fishery
resources within the Indonesian EEZ in a responsible, optimal, and sustainable
manner. The Decision provides three types of schemes for the operation of fishing
vessels for catching fish in the Indonesian EEZ, namely joint ventures, purchase on
instalments,and licensing.
7.2.2.4.1 Joint ventures
Arrangements for operating fishing boats through joint ventures are carried
out by using foreign fishing boats as a capital share of a joint venture fishing
company in accordance with regulations on foreign investment.26 The joint venture
company is allowed to procure fishing vessels through purchase in instalments.27
Such procurement requires obtaining prior approval from the Director General of
Capture Fisheries.28 The application for this approval must be submitted to the
Director General of Capture Fisheries and accompanied by a copy of the written
approval for foreign capital investment.29 Joint venture companies established
under Article 4 paragraph 1 of the Ministerial Decision which operate a total of 20
or more fishing vessels have an obligation to construct a fish processing unit on
26 Article 4 ( 1) 27 Article 4 ( 2) 28 Article 5 ( 1 ) 29 Article 5 (2 )
198
land, at a minimum value of 20 per cent of the total value of vessels in operation.30
The fishing vessels engaged in fishing within the Indonesian EEZ as part of a joint
venture fishing company are required to obtain fishing permits.31 This fisheries
policy lays down detailed requirements of joint venture arrangement for both the
national and foreign investors of the foreign fishing vessel.
Under this scheme, a domestic investor who wants to cooperate with the owner of
foreign fishing vessels is required to have a fishing vessel. When this requirement
is met, a domestic fishing investor will obtain a license to enter into a partnership
with the owner of the foreign fishing vessel. A major concern with this scheme is
that if the domestic investor does not have a vessel, they could use the fishing
vessel of another person in order to obtain a fishing license.32
7.2.2.4.2 Purchase on Instalments
The purchase on instalment system provides fishing companies the
opportunity to obtain foreign fishing vessels through a purchase system.33 Similar
to joint venture arrangements, Article 11 paragraph 2 provides that fishing
companies who wish to take advantage of this scheme are required to obtain prior
approval from the Director General of Capture Fisheries. The application for
approval must be submitted to the Director General and accompanied by an
30 Article 6 ( 1 ) 31 Article 8 (1) 32 Tridoyo Kusumastanto, op.cit, pp. 44-45. 33 Article 11 (1)
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original copy of the fishing business license, a vessel operation plan, and an
instalment payment plan.
There are several types of fishing vessels that can be procured through this
arrangement. These include (a) fishing vessels using longline gears between 100
GT and 350 GT with steel or fibreglass construction and not more than 15 years in
age; (b) fishing vessels using purse seine fishing gears between 100 GT and 800
GT of steel construction with one vessel system and not more than 15 years in
age; (c) fishing vessels using fishnets between 100 GT and 400 GT of steel
construction of not more than 15 years in age; (d) fishing vessels using shrimp nets
between 100 GT and 300 GT of steel construction and not more than 15 years in
age; (e) fishing vessels using gill nets between 100 GT and 300 GT of steel
constructed and not more than 15 years in age; and (f) other fishing vessels using
bouke-ami34 and squid jigging between 100 gross tonnage and 300 GT of steel
construction and not more than 15 years in age.35 In addition, these fishing vessels
must have fishing licenses issued by the Directorate General of Capture
Fisheries.36
There are several concerns related to the use of specific types of fishing vessels
and gears under the purchase on instalments scheme of the Indonesian
Government. Some fishing gears have negative effects on both target and non-
34 Bouke ami is a gear that uses a stick-held lift net which is operated at night with an attracting lamp. 35 Article 12 36 Article 15 (1)
200
target fish species and the marine environment. Tuna longline vessels catch at
least one sea turtle per month.37 Tuna purse seine vessels have the most
devastating direct human impact on the tropical epipelagic ecosystem in all
oceans.38 Fishing vessels using fish nets pose massive environmental degradation
and decrease the quality of economic life in many coastal fisheries villages in
Indonesia.39 Fishing vessels capturing shrimp incidentally catch sea turtles,
including hawksbill, green turtles, log ridley and leatherback turtles.40 Fishing
vessels using gill nets also catch large amounts of mammals, sea turtles and
occasionally sea birds.41 Vessels that conduct bouke ami impact on the marine
environment negatively while those conducting squid jigging contribute to the
incidental capture of seabirds.42
Most of the fishing gears described above are unregulated. As indicated earlier, the
problem is particularly evident in respect of unregulated use of lamp in purse
seining in the IEEZ of the South China Sea. Purse seines have a negative impact
on the sustainability of fisheries resources within and beyond national jurisdiction. It
37 International Sea Turtle Activities, NOAA National Marine Fisheries Service, NOAA Pacific Islands Regional Office, 2002, p.3, http://www.72.14.253.104/search?q=cache:TKYBoSDOyQk:www.fpir.noaa.gov/I (accessed on 31/1/2007). 38 Evgeny V. Romanov, “Bycatch in the Tuna Purse Seine Fisheries of the Western Indian Ocean”, Southern Scientific Research Institute of Marine Fisheries and Oceanography, Ukraine, 2002, p.1. 39 Mark V Erdmann, “Leave Indonesia’s Fisheries to Indonesians”, Inside Indonesia Journal No.63, July-September 2000, p.2, http://72.14.253.104/search?q= cache:KFN4uLPihY4J:www. inside Indonesia. o… (accessed on 31/1/2007). 40 International Sea Turtle Activities, op.cit, p.2. 41 Fishing Technique Fact Sheet, Fisheries Global Information System Fishing Technique Sheets FAO, 2003, p.1. http://www.fao.org/figis/servlet/fishtech?fid=1011. 42 Final Report on IUU Fishing on the High Seas: Impacts on Ecosystems and Future Science Needs, Marine Resources Assessment Group LtD 18 Queen Street London, United Kingdom, August 2005, p.19.
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would therefore be necessary for Indonesian fisheries management authorities to
address the use of unregulated fishing gears.
7.2.2.4.3 Licensing
The last scheme to be discussed on the operation of foreign fishing vessels
is the licensing system, which is regulated by Article 18 of the Decision of the
Minister of Marine Affairs and Fisheries Concerning the Regulation of Fishing
Vessels Operation in the Indonesian Exclusive Economic Zone. This regulation
provides opportunities for foreign persons or legal entities to use their vessels to
undertake fishing activities in the Indonesian EEZ. Licenses are granted by the
Director General of Capture Fisheries upon the fulfilment of three requirements.
First, there needs to be a bilateral agreement between the Indonesian government
and the national government of the foreign person or legal entity. Second, the
nationality of the foreign fishing vessel must be the same as that of the foreign
person or legal entity. Third, there needs to be a surplus of the total allowable
catch, which must be separately determined through a Ministerial Decree.43
Another important requirement that must be fulfilled under the licensing system is
the obligation of foreign fishing companies to obtain an allocation from the
Department of Marine Affairs and Fisheries.44 Licensing arrangements are based
on specific international agreements. What Article 18 of the Ministerial Decision
implies is that unless there is an agreement in place, fishing licenses cannot be
43 Article 18 44 Article 19 (1)
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issued to foreign fishing vessels. Based on this scheme, licenses have been given
to foreign fishing vessels of different nationalities.45 Rather than partner with
foreign investors, the current policy in Indonesia is to enter into access agreements
with foreign countries allowing licensed foreign fishing vessels to fish in the
Indonesian EEZ. Some of these access arrangements which are based on
previous agreements on fisheries cooperation include:
• Bilateral Arrangement between the Department of Marine Affairs and
Fisheries of the Republic of Indonesia and the Ministry of Agriculture of the
People’ Republic of China on the Utilisation of Part of the Total Allowable
Catch in the Indonesian Exclusive Economic Zone. This agreement is a
follow-up to the Memorandum of Understanding between the two parties on
fisheries cooperation, signed in Beijing on 23 April 2001.
• Arrangement between the Department of Marine Affairs and Fisheries of the
Republic of Indonesia and the Department of Agriculture of the Republic of
the Philippines on the Utilisation of Part of the Total Allowable Catch in the
Indonesian Exclusive Economic Zone, which was preceded by a
Memorandum of Understanding between the two parties, signed in Jakarta
on 12 November 2001.
• Arrangement between the Department of Marine Affairs and Fisheries of the
Republic of Indonesia and the Ministry of Agriculture and Cooperatives of
the Kingdom of Thailand on the Utilisation of Part of the Total Allowable
45 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources : An Archipelagic Concept of Rational and Sustainable Resource Management”, (Occasional Paper Series No.2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.17.
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Catch in the Indonesian Exclusive Economic Zone, which was based on the
Memorandum of Understanding between the Indonesian and Thai
Governments on Fisheries Cooperation, signed in Jakarta on 17 January
2002.
Based on these arrangements, only Thai, Philippine and Chinese fishing vessels
are presently allowed to catch fish in designated areas of the Indonesian EEZ.
Such a policy is in line with the provision of Article 62(2) of the LOSC which permits
foreign access through agreements or arrangements subject to the availability of a
surplus in fisheries resources.
Under Article 2 of the Arrangement between Indonesia and China, the fishing
vessels of the People’s Republic of China are permitted to take tuna and billfish
stocks in the Indonesian EEZ off the Pacific Ocean within the coordinates 128E
and 140E, and in the Indonesian EEZ off the Indian Ocean, within the coordinates
92E and 102E. fishing vessels flying the flag of the People’s Republic of China are
also allowed to carry out fishing activities in the Indonesian EEZ off the north of
Riau Province and the Arafura Sea.46 The fishing vessels flying the flag of the
Philippines operating under the Indonesia-Philippine Arrangement can fish tuna
and billfish stocks in areas of the Indonesian EEZ and Pacific Ocean between
120E and 140E and in the Indonesian EEZ off the Indian Ocean between 92E and
102E;47 whilst under the Indonesian-Thai Arrangement, Thai fishing vessels are
46 Article 2 of this Arrangement 47 Article 2 of this Arrangement
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permitted to fish demersal fish species in the Indonesia EEZ off the South-China
Sea and the Arafura Sea.48
One of the shortcomings of these arrangements is that they do not describe the
compliance obligation of flag States as required in paragraphs 1 and 2 of Article 18
of the UN Fish Stocks Agreement. These provisions state that flag States like
China, Philippines, and Thailand have the primary responsibility for the regulation
and control of the activities of vessels carrying their flags in the IEEZ. Thailand and
the Philippines have been criticized for their growing fleet of distant water fishing
vessels, which continue to engage in IUU activities in fishing areas provided under
the bilateral arrangements. In order to improve the effectiveness of flag State
control, the arrangements would need to contain provisions that would ensure that
flag States would enforce proper control and jurisdiction over vessels conducting
fishing activities in the IEEZ.
7.2.2.5 Law of the Republic of Indonesia No. 31 of 2004
Concerning Fisheries
As highlighted earlier, the main objective of the UN Fish Stocks Agreement is
to ensure the long-term conservation and sustainable use of straddling fish stocks
and highly migratory fish stocks in their entirety through effective implementation of
the relevant provisions of the LOSC.49 Even though the UN Fish Stocks Agreement
applies mainly to the conservation and management of these fish stocks on the
48 Article 2 of this Arrangement. 49 Article 2 of the UN Fish Stocks Agreement.
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high seas,50 the key conservation and management principle also apply in EEZs in
order to ensure compatibility of management measures between the EEZ and the
high seas.51 The principle of compatibility of measures provides coastal States with
the appropriate legal support for measures designed to monitor fishing activities in
order to prevent vessels from undermining conservation and management
measures.
Indonesia has recently implemented a new fisheries law which incorporates the
fisheries management requirements of the FAO Code of Conduct for Responsible
Fisheries, instead of acceding to the UN Fish Stocks Agreement. The new law,
Republic of Indonesia No. 31 of 2004 Concerning Fisheries, encourages
development in fisheries whilst emphasizing the need to achieve long term
conservation of fish species and the sustainable use of the fisheries resources. 52
Article 7 of Law No. 31 on Fisheries gives power to the Minister to establish
fisheries management plans and implement a number of fisheries management
measures, including the: (a) allocation of fisheries resources within fisheries
management areas; (b) determination of the total allowable catch for fisheries
resources in the management areas; (c) determination of the types, quantity, sizes,
and positions of fishing gears and supporting gears, as well as zones and period or
seasons of fishing; (d) requirements or standard operating procedures for capture
fisheries; and (e) implementation of fishing vessel monitoring system.
50 Article 3 (1) 51 Articles 5, 6 and 7
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Article 7 of Law No. 31 on Fisheries also grants power to the Minister to determine
protected fish species and protected sea areas. Additionally, for the benefit of
science, culture, tourism, and the preservation of fisheries resources and its
environment, the Minister has the power to declare national marine protected areas
where restrictions may be imposed on fishing activities or other related activities.
However, the crucial issue is whether or not this special area can be declared as a
fishery ecosystem in which specific provisions prohibiting the catching of fish would
apply. A question may arise whether fishing in such an area is regarded as illegal
fishing, so that the catching of fish is totally prohibited.53 Similarly, Article 9 of Law
No. 31 on Fisheries prohibits all persons from possessing, controlling, carrying,
and using certain types of fishing gears within the fisheries management areas of
the Republic of Indonesia. These include all fishing gears and/or supporting fishing
gears that do not conform to the prescribed sizes or prescribed requirements or
standards and all other fishing gears which are prohibited.
Articles 8 and 9 of Law No. 31 on Fisheries have two main intentions, namely: the
prohibition of the use of destructive methods and the prohibition of illegal fishing
gears and supporting fishing gears. These provisions address the problem of
degradation or depletion of fish stocks in the long-term.
52 Article 13 53 Mochtar Kusumatmadja and Tommy H. Purwaka, “Legal and Institutional Aspects of Coastal Aspects of Coastal Zone Management in Indonesia”, Marine Policy, Vol. 20, No 1, Elsevier Science Ltd, Great Britain, 1996, p.79.
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The implementation of the new Fisheries Law has not been without difficulty.
Arguably, serious fisheries problems exist because large scale unregulated fishing
occur in the Indonesian EEZ of the South China Sea. The concern expressed over
the use of illegally modified fishing gear such as the danish seine has highlighted
significance deficiencies in the existing regime. Inclusion of provisions on banning
the use of this fishing gear into the Indonesian fisheries law would certainly
enhance Indonesia’s commitment to the long- term conservation and sustainable
use of shared fish stocks in the Indonesian EEZ and the adjacent high seas.
For the first time in Indonesia, Law No. 31 on Fisheries also introduced a
substantial change to the actors who can be held responsible for violating fisheries
regulations. To ensure that all persons fish responsibly, Article 8(1) of Law No. 31
on Fisheries prohibits all persons from using chemical substances or biological
substances such as explosives when fishing. Under Article 8(2) and 8(3), the same
prohibitions are applied to the vessel master or commander of a fishing vessel,
fishing expert, and all crews of a fishing vessel, as well as the proprietor of a
fishing company, and any person in charge of a fishing company, and/or operator
of a fishing vessel.
Consistent with the IPOA-IUU,54 Articles 84 and 85 of Law No. 31 on Fisheries
also endeavour to deter fisheries-related offences through the application of
54 Paragraph 21 requires States to ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.
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stringent penalties. The penalty for using illegal fishing gear under the Law No. 31
on Fisheries is contained in Article 85. This provision sets a 5 year maximum
imprisonment for possessing, controlling, carrying, employing illegal fishing gear
and/or supporting fishing gears on a fishing vessel. Article 84(1) imposes a strict
liability offence on all persons who use destructive fishing methods in Indonesian
fishing areas. Penalties for these fisheries-related offences include up to ten years
maximum imprisonment and a fine of up to 1.2 billion rupiahs. Further, under
paragraph 2, the vessel master and crew, would be equally liable if they are found
guilty for committing an offence under the Law No. 31 on Fisheries. In case where
the proprietor of a fishing vessel, owner of a fishing company and any person in
charge of a fishing company fail to observe Article 8(3), they would be liable up to a
fine of up to two penalties which is increased for those who use destructive fishing
methods. Fines for individuals and companies who use destructive fishing methods
are significantly increased from 1.2 billion rupiahs to two billion rupiahs.
Obviously, the imposition of criminal sanctions and heavy penalties as deterrent to
IUU fishing activities has gained widespread acceptance. Penalties also
demonstrate the seriousness of offences as viewed by enforcement agencies.55
However, penalties for heavier criminal offences under the Law No. 31 on
Fisheries have yet to be imposed by Indonesian courts since the enactment of the
law in 2004.
55 Diane Erceg, “Deterring IUU Fishing Through State Control Over Nationals”, Marine Policy, 2005, Elsevier, p. 4.
209
Despite its bold efforts, it could still be argued that Law No.31 on Fisheries is
inadequate in enabling Indonesia to fully comply with its international fisheries
obligations to combat IUU fishing. Law No. 31 on Fisheries only prescribes a range
of conservation and management measures to be applied within the Indonesia’s
EEZ and does not deal with the conservation and management of transboundary
fish stocks as provided in the UN Fish Stocks Agreement.56 The intention of
adopting conservation and management measures for such stocks is to reduce,
eliminate or prevent the use of destructive methods and excess fleet capacity.
There is also a general duty for States to prohibit fishing activities which undermine
conservation and management measures.57
Indonesia is considered to be among the most important tuna fishing States in the
Indian Ocean. The annual catch of tuna and tuna like species in the Indian Ocean
waters of Indonesia was estimated to be 177,384 tonnes in 2002. This represented
10.09 per cent of the nominal catch of these fish stocks in the Indian Ocean Tuna
Commission (IOTC) area.58 This tuna catch is taken by both small and big
Indonesian long line vessels. Southern bluefin tuna (SBT), yellowfin, and bigeye
tuna are also targeted by Indonesian fishing vessels off south of Java and the
Lesser Sunda Islands.59 There are also a number of transboundary fish stocks in
Indonesian fishing management areas of the South China Sea, the Indian Ocean
56 Article 5 (h) 57 Article 5(h) 58 Craig H. Proctor, I. Gede S.Merta, M.Fedi A.Sondita, Ronny I. Wahyu, Tim L.O. Davis, John S.Gunn and Retno Andamari, op. cit, p. 5. 59 T.L.O. Davis and R.Andamari, “The CSIRO/RIMF Monitoring Systems Used to Determine the Catch of SBT by the Indonesian Long-line Fishery”, Prepared for the CCSBT Indonesian Catch Monitoring Review, 10-11 April 2003, Queenstown, New Zealand, C S I R O Marine Research, p. 1.
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and the Arafura Sea. Further, the Philippines and Indonesia have the largest
annual catch of pelagic tuna taken from the Philippines and the Pacific Ocean
waters of Indonesia. In 2002, both countries had an combined estimated catch of
599,612 tonnes, which is 29.9 per cent of the total catch of pelagic tuna in the
Western and Central Pacific Ocean.60
Article 10(b) of Law No. 31 on Fisheries provides the requirement for Indonesia to
cooperate with other States for the purposes of conservation and management of
fisheries resources on the high seas and in enclosed or semi enclosed seas. Under
Article 10(2) of Law No. 31 on Fisheries, Indonesia is obligated to actively
participate in RFMOs. However, to date, Indonesia has not yet become a full
member of any of the RFMOs in whose areas jurisdiction Indonesian nationals and
vessels fish. These include the IOTC, the Commission for the Conservation of
Southern Blue-fin Tuna (CCSBT) and the Western and Central Pacific Fisheries
Commission (WCPFC). Instead, Indonesia has chosen to remain as a cooperating
non-contracting party to these RFMOs.61
To effectively combat IUU fishing, Indonesia must participate actively in RFMOs.
This is because the exploitation of the resources in Indonesia’s EEZs can
adversely affect similar activities in neighbouring countries or areas under the
60 “Proposal for Monitoring the Catches of Highly Migratory Species in the Philippines and the Pacific Ocean Waters of Indonesia”, Secretariat of the Pacific Community, Neomea Cedex New Caledonia, 2003, p.1. 61 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2004, p. 38.
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jurisdiction of RFMOs.62 Given Indonesia’s geo-strategic position between the
Pacific and the Indian Oceans and between the Australian and the Asian
continents, lack of cooperation will be counter-productive.63 Apart from
membership in RFMOs, Indonesia would need to develop comprehensive rules at
the national level to address IUU fishing problems, particularly to ensure that its
vessels comply with conservation and management measures inside and outside
its areas of national jurisdiction.
7.3. Challenges in Institutional Framework to Combat IUU Fishing
There are several challenges confronted by Indonesian government
agencies in combating IUU fishing. These challenges may be categorised into
problems of management and problems of enforcement.
7.3.1 Problems in Management
Indonesia is faced with the inadequacy of fisheries-related management,
institutional framework, and laws. It must be pointed out that inadequate
management controls, institutions and law are the main factors contributing to
unsustainable fisheries development. Inadequate management and institution may
lead to ineffective monitoring, control and surveillance (MCS) and undefined
powers of each agency.64 Inadequacy in management can also be in the form of
62 Hasjim Djalal, “The Law of the Sea Convention and Indonesian Responses”. in Hasyim Djalal, The Indonesia and the Law of the Sea, Centre for Strategic and International Studies, Jakarta, 1995, p. 221. 63 Hasjim Djalal, “Indonesian Foreign Policy at the Advent of the 21ST Century”, Department of Education and Culture, Padjadjaran University, Bandung, Indonesia, 1996, p. 40. 64 Report of the International Workshop on the Implementation of International Fisheries Instruments and Factors of Unsustainability and Overexploitation in Fisheries, Mauritius, 3-7
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conflicting objectives, lack of will and authority, and the inability to implement
required management measures by fisheries authorities.65 The failure to deliver an
effective institution and management reflects the inadequacy in the law. The author
argues that the national framework established for the conservation and
management of fisheries in Indonesia is inadequate in the current context of
sustainable development.
The Department of Marine Affairs and Fisheries has the responsibility for the
management and protection of particular fish species and protected sea areas.
Law No. 5 of 1990 on Conservation of Living Resources and their Ecosystems
recognizes the need to protect particular fish species. Article 8 of Law No. 5 of
1990 provides power to the Minister for Forestry to establish nature conservation
areas on land or at sea for the purpose of preserving biological diversity and
national parks. The aim of the establishment of nature conservation areas under
this law is to ensure the global conservation of both terrestrial and aquatic fauna
and flora and their ecosystems in Indonesia. Based on this law, the Department of
Forestry also has the responsibility for marine conservation, planning and
management of marine protected areas.66 This shows that two agencies have the
same responsibilities for the regulation of fish stocks.
February 2003, FAO Fisheries Report No.700, Food and Agriculture Organization of the United Nations, 2004, p.19. 65 Report of the International Workshop on the Implementation of International Fisheries Instruments and Factors of Un-sustainability and Overexploitation in Fisheries, op.cit, p.21. 66 Etty R. Agoes, Policing Offshore Zones: Indonesia’s Model and Experiences in Doug Mac Kinnon, and Dick Sherwood (Editors), Policing Australia’s Offshore Zones (Problems and
213
Another critical issue with respect to fisheries management relates to the lack of
regulation in the exploitation and conduct of commercial activities for ornamental
fish.67 A major problem in this area is the lack of fisheries policy to clearly identify
and define the scope of each department competence. Unregulated ornamental
fishing activities highlight a gap in the current fisheries management.
In dealing with the growing number of unregulated ornamental fishing activities, it is
suggested that a joint fisheries policy between the Department of Marine Affairs
and Fisheries and the Department of Forestry be adopted. Rather than focusing
exclusively on a department agency, it is suggested that both departments
determine total allowable catch and that measures on reporting, vessel number
limitation, fishing gears and licensing be applied with the discretion of the
Department of Marine Affairs and Fisheries. Fishing permits must contain terms
and conditions necessary to protect and control ornamental fish development. A
system of joint surveillance to enforce the policy is also needed.
7.4.2 Problems of Enforcement
As stated in Article 73 of the LOSC, coastal States have the right to enforce
national fisheries laws and regulations on vessels engaged in fishing in the EEZs.
The powers of enforcement of coastal States with respect to foreign vessels fishing
in their EEZ include boarding, inspection, arrest, and conduct of judicial
Prospects), Wollongong Papers on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, Wollongong, New South Wales, Australia, 1997, p.183.
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proceedings. In the context of transboundary fish stocks, Article 5(h) of the UN Fish
Stocks Agreement lays down further extension of a coastal State’s power to
implement and enforce the conservation and management measures of straddling
fish stocks and highly migratory fish stocks through effective MCS systems. The
UN Fish Stocks Agreement provides four types of enforcement, namely through (a)
the flag States; (b) international cooperation; (c) RFMOs; and (d) the port States.
The ability to effectively enforce fisheries legislation is also a crucial factor in
combating IUU fishing. Three major gaps can be identified in the enforcement of
Indonesia’s legal and institutional framework. These gaps must be solved if
Indonesia wishes to effectively combat IUU fishing. The first is an institutional gap
whereby the responsibility for enforcement of fisheries laws and regulations is
divided between two institutions, namely: the Department of Marine Affairs and
Fisheries, which is responsible for the licensing of fishing vessels and the
monitoring of all fishery-related activities; and the Indonesian Navy, which has the
general responsibility for fisheries enforcement, particularly in addressing illegal
fishing activities. The central problem with respect to the conflict of jurisdiction
between these two agencies partly results from the unclear division of functions in
fisheries law enforcement in the IEEZ. According to the current laws, there are two
types of officers having the primary power to enforce fisheries regulations in the
IEEZ. The first are officers of the Navy designated by the Commander in Chief of
the Indonesian Armed Forces, who, under Article 14(1) of Law No. 5 of 1983 on
67 Interview with Subhat Nurhakim, who is Director of Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research of the Department of Marine Affairs and Fisheries of the
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the IEEZ are competent to enforce the fisheries law in the IEEZ.68 The second are
fisheries control officers, who, under Article 66(1) of the Law No. 31 on Fisheries
have the power to enforce fisheries laws and regulations in the Indonesian waters.
Two types of fisheries control officers, pursuant to paragraph 2 of this article, can
be distinguished--civil servant fisheries investigators and non-civil servant fisheries
investigators.
Interestingly, Article 66 of Law No. 31 on Fisheries emphasizes that the Minister of
Marine Affairs and Fisheries has the power to designate fisheries control officers
recruited from civil servant investigators of the Department of Marine Affairs and
Fisheries, the Navy officers or the Marine Police or officers of other agencies such
as the Department of Forestry.69 This means that the policy guidelines and
directives on the enforcement of fisheries laws and regulations are provided by the
Minister of Marine Affairs and Fisheries.
The boarding and inspection powers provided to fisheries control officers according
to Article 73(4) of the Law No. 31 on Fisheries include searching, seizure, arrest
and deterrence of vessels and persons suspected of violating fisheries laws and
regulations in the Indonesian waters. The article goes on to emphasize that civil
servant investigation officers of the Department of Marine Affairs and Fisheries
who are designated to be principal investigators have the primary responsibility of
Republic of Indonesia, 14 January 2003. 68 Philippe Cacaud, “Indonesia Review of Legal Issues and Revised Fisheries Law”, Food and Agriculture Organization of the United Nations, Rome, October 2001, p.43. 69 Philippe Cacaud, op.cit, p.44.
216
enforcing fisheries laws and regulations. The question is whether these powers
cover the fisheries law enforcement in the IEEZ, which overlap with the Navy
officers’ competence as sole investigators of fisheries violations in the EEZ
provided by Law No. 5 of 1983 on the IEEZ. The problem is that Law No. 31 on
Fisheries is unclear as to whether or not Navy officers have the primary
responsibility in investigating IUU fishing cases in the IEEZ.
Broadly speaking, Indonesia has not yet established a comprehensive ocean policy
on marine resources management under the jurisdiction of a coordinating agency.
Even though the Department of Marine Affairs and Fisheries is responsible for the
formulation of ocean policy, it has no specific function to coordinate all marine-
related affairs.70 Meanwhile, the existing agencies have a variety of functions and
often act on their own. As a result, the present institutional framework lacks the
integrative capacity that is required to effectively enforce fisheries laws and
regulations71 and effectively combat IUU fishing.
Hence, inadequate legal and institutional frameworks have contributed to the
deterioration of fisheries law compliance. The fact that IUU fishing in Indonesian
waters has increased during the last few years is prima facie evidence that law and
institutional frameworks are inadequate to deter the growing number of fisheries
violations.
70 M. Husseyn Umar, “Development Problem and Maritime Enforcement in Indonesia”, A Paper Presented at Seminar on Sea Communication Empowerment, Jakarta, 2003, p.6 71 Interview with Nur Zuhri, who is Head of Law Division, the Indonesian Navy Office, Jakarta, 5 January 2004.
217
The second gap in the existing legal and institutional framework is Indonesia’s lack
of adequate legislation and enforcement measures to combat IUU fishing on the
high seas. The inadequacy of legislation and enforcement measures is caused by
the inability to implement required management measures and the existence of
loopholes and ambiguities in the legislation. This problem is magnified at the
regional level as shown by Indonesia’s lack of initiative to participate actively in
RFMOs. The slow progress in Indonesia’s implementation of international fisheries
instruments has contributed significantly to Indonesia’s lack of appropriate fisheries
laws and regulations to combat IUU fishing. Gaps in the current Indonesian
fisheries legal framework allow some Indonesian vessels to conduct unregulated
fishing on the high seas beyond the reach of national and international laws.
The lack of adequate controls over fishing activities on the high seas can be
regarded as one of the factors of non-compliance72 with international fisheries
instruments by Indonesian fishing vessels. As concerns over IUU fishing grow, the
Indonesian Government will be increasingly faced with two legal problems: first, the
establishment of adequate institutional arrangements and regulatory measures;
and second, the high seas fisheries management. A major issue that Indonesia will
have to consider is the development of an effective fisheries law enforcement in
accordance with the UN Fish Stocks Agreement. A coordinating minister for ocean
72 John G. Sutinen, Alison Rieser, and John R. Gauven, “Measuring and Explaining Noncompliance in Federally Managed Fisheries”, Ocean Development and International Law , Vol.21, 1990, p.362.
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affairs and other relevant sectors is needed to implement and enforce the modern
international fisheries instruments in a comprehensive and integrative manner.
The third problem affecting the effectiveness of Indonesia’s laws to address IUU
fishing relates to regional autonomy. Article 3 of the Law No. 32 of 2004 on
Regional Governments divides the territory of the Republic of Indonesia into
autonomous provinces, regencies and municipalities. Under Article 18(1) of Law
No. 32, regional governments are granted jurisdiction to manage natural resources
within their marine areas. Such jurisdiction includes the exploration, exploitation,
conservation and management of marine natural resources within assigned
territories, as well as the enforcement of relevant laws and regulations. Under
paragraph 4 of the same article, the management of marine natural resources
within 12 nautical miles is the responsibility of provincial governments. One third of
the jurisdiction assigned to the provinces comes under the jurisdiction of the
regency government. Regional governments are entitled to apply and enforce their
fisheries conservation and management measures and those adopted by the
central government within and beyond 12 nautical miles. The latter jurisdiction has
to be linked with Article 65(2) of the Law No. 31 on Fisheries which deals with the
delegation of fisheries functions from the central government to regional
governments.
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The main underlying legal and policy issue for Indonesia’s regional government
system is the lack of sufficient legislative authority for fisheries activities.73 Without
a legislation defining the role and powers of local government, the effectiveness of
the regional government will remain at risk. The lack of a clear policy on this issue
affects the ability of Indonesia to effectively control IUU fishing. Although issues
between the central and provincial governments are basically domestic in nature,
the problems which arise influence the implementation of international fisheries
instruments.
Indonesia not only needs a clear legislative mandate, but also a clear division of
functions and responsibilities between central and provincials agencies to achieve
the above goals. 74 The threat of IUU fishing raises important issues of jurisdiction
and fisheries resources protection in municipal and national marine fisheries
areas.75 An adequate legislative basis for regional government would give regional
governments the authority to develop and manage its fisheries resources in an
effective manner.
73 For discussion for the significance of this area see Suparman A.Diraputra, “Guideline for the Establishment of Jurisdiction Zone Determination of Regional Government at Sea”, Directorate General of Capacity Development and Institution, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2000, p.2; See also Abdul Malik, “Policy Approach in the Arrangement of Marine Area”, Paper Presented at Seminar and Exhibition of the Indonesian Mariculture Development Supporting National Employment Project 2003, Jakarta, Indonesia, 26 August 1999, p.9 ; See also Mochtar Kusumaatmadja, “Defence Jurisdiction at Sea and on Air Beyond Limits of Province and Regency”, Center for Archipelago, Law and Development Studies”, Bandung, Indonesia, 1995, p.13. 74 Mochtar Kusumaatmadja, Rights Over Natural Resources in Southeast Asia : Managing Fisheries in Indonesia, op.cit, p. 122. 75 See also Raefuddin Hamurunny (Director General of Regional Development, Department of Home Affairs of the Republic of Indonesia, ”Regional Autonomy and Coastal Area Development
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7.4 Conclusion
This chapter analysed the adequacy of the Indonesian fisheries legislation
and institutional framework to combat IUU fishing. The chapter has demonstrated
Indonesia’s commitment to implementing effective international fisheries law in the
battle against IUU fishing. Unfortunately, Indonesia’s fisheries laws and regulations
with respect to fisheries conservation and management are inadequate to address
the problems of IUU fishing. The legal framework provisions fail to adequately
address a range of issues, including straddling fish stocks and highly migratory
species and IUU fishing within and beyond national waters. The recent enactment
of the Law No. 31 on Fisheries has helped fill some of the gaps in earlier
legislation; however, much more remains to be achieved. Protection of world
fisheries resources has grown in importance, as the levels of IUU fishing have
increased. Therefore Indonesia would need to revise its current laws by ratifying,
and adopting international rules and principles of conservation and management
measures, as well as enforcement regimes contained in the UN Fish Stocks
Agreement.
This chapter also argued that the institutions created under existing laws and
regulations do not successfully address the problems of IUU fishing. They have
involved a range of Indonesian Ministries with unclear division of fisheries-related
functions including the Departments of Marine Affairs and Fisheries, Department of
Forestry and the Navy. There are also conflicts of jurisdiction between the central
Funding”, A Keynote Speech at Marine Seminar, Jakarta 15 April 1999, The Nature Conservancy, p.10.
221
and provincial governments. There is an urgent need for legislative and institutional
reform to respond to IUU fishing challenges.
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CHAPTER 8
THE INDONESIAN REGULATORY FRAMEWORK FOR VESSEL REGISTRATION AND FISHING VESSEL LICENSING
8. 1 Introduction
In an attempt to combat IUU fishing, international fisheries instruments
impose a range of obligations on States to exercise effective control over fishing
vessels flying their flags.1 As discussed in chapter 6, Indonesia is faced with a
problem of IUU fishing in various forms, including the falsification of vessel
information by vessel owners, the double flagging of vessels and unregistered and
unlicensed fishing activities. Most of these IUU fishing activities are caused by the
absence of effective legislation with respect to fishing vessel registration and
vessel licensing. Accordingly, the purpose of this chapter is to assess the
adequacy of the laws and regulations of Indonesia dealing with fishing vessel
registration and licensing, including the licensing of the use of fish aggregating
devices (FADs). The chapter argues that the current Indonesian regulatory
framework for vessel registration and licensing is not adequate to implement
Indonesia’s obligations under international fisheries instruments to combat IUU
fishing. The chapter concludes by providing some suggestions on how Indonesia
can improve the existing regulatory framework for fishing vessel registration and
licensing.
1 Articles 18, 19 and 20 and 22 of UN Fish Stocks Agreement.
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8.2 Legal Framework for Fishing Vessel Registration The legal framework for fishing vessel registration in Indonesia consists of
three instruments, namely (a) the Law No. 31 on Fisheries; (b) the Law No. 21 on
Shipping; and (c) Government Regulation No. 51 of 2002 on Shipping. Each of
these instruments will be examined in turn.
8.2.1 Law No. 31 of 2004 on Fisheries
Article 35(1) of the Law No. 31 on Fisheries requires all persons who
construct, import or modify fishing vessels to obtain prior approval from the Minister
of Marine Affairs and Fisheries. Article 35(2) the Law No. 31 on Fisheries further
provides that fishing vessels may be constructed or modified either in Indonesia or
abroad, after obtaining approval from the Minister for Sea Communication in
respect of the technical capabilities and seaworthiness of the vessel. Additionally,
pursuant to Article 36(1) of the Law No. 31 on Fisheries, all Indonesian citizens
who own fishing vessels operating in Indonesian waters are required to register
their vessels as Indonesian fishing vessels prior to applying for fishing licenses.
The Minister for Sea Communication may issue a provisional registration certificate
to a vessel.2 This certificate expires upon delivery of the vessel.3 Penalties for
constructing, importing, or modifying fishing vessels without an approval pursuant
to Article 95 of the Law No. 31 on Fisheries include imprisonment for up to one
2 Article 25 of the Government Regulation No. 51 of 2002 on Shipping. 3 Article 27(1) of the Government Regulation No. 51 of 2002 on Shipping.
224
year and a fine of up to 800 million rupiahs. Article 96 of the Law No. 31 on
Fisheries imposes identical penalties in relation to unregistered fishing vessels.
8.2.2 Shipping Law No. 21 of 1992
Turning now to the Law No. 21 on Shipping, Article 45(1) provides that
vessels must be measured prior to engaging in any shipping activity.4 Article 45(2)
further provides that once a ship has been measured, a letter of measurement will
be issued to vessels which are not less than 20 meters in length or 7 gross
tonnage (GT). Pursuant to Article 46(2), vessels may be registered in Indonesia by
the Registrar of Indonesian Ships when the gross length of the vessel is not less
than 20 meters or 7 GT, and the vessel is owned by an Indonesian citizen or legal
entity under Indonesian law and having its operation in Indonesia.
8.2.3 Government Regulation No. 51 of 2002
Under Government Regulation No. 51 of 2002, an application for registration
of a ship under the Indonesian flag must be submitted to the Director General of
Sea Communication and accompanied by supporting items of documentation,
including (a) proof of ownership in the form of a letter of agreement for the
construction of the vessel; (b) identity of the owner; (c) specification of the stage of
construction of the vessel; and (d) information regarding size and tonnage of
vessel.5 Notification of approval must be issued within 14 days from receipt of the
4 Article 45(1) of the Act No.21 of 1992 on Shipping. 5 Article 27(3) of the Government Regulation No. 51 of 2002 on Shipping.
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completed application.6 If the application is rejected, written reasons must be given
by the competent authority.7
Government Regulation No. 51 of 2002 further requires that all vessels operating in
Indonesian waters must be registered in the Indonesian Ships Register regardless
of their size. Certificates issued are valid for 5 years and are granted by the
Director General of Sea Communication upon the completion of the following
requirements: photocopy of the certificate of registry; photocopy of certificate of
measurement; and a letter of statement from the vessel owner on data and
designed vessel.8 Once issued with a certificate entitling the vessel to fly the
Indonesian flag,9 the vessel is required to carry the certificate at all times.10 Article
43(2) of the Government Regulation prohibits the use of the same name for two
different vessels.
According to Article 44(1) of Government Regulation No. 51 of 2002, a provisional
certificate may be granted to a vessel which has not met the requirements as
prescribed in Article 41(4)(a) of the Regulation. Where a vessel has met the
requirements under Articles 41(b) and (c), a provisional certificate may be granted.
Under Article 44(3) of Government Regulation No. 51 of 2002, this certificate is
issued in the form of provisional certificate which is valid for three months. Vessels
6 Article 5(2) of Decision of the Minister of Communication No.14 of 1996 on Procedure of Availability and Vessel Registration 7 Article 5(3) of Decision of the Minister of Communication No.14 of 1996 on Procedure of Availability and Vessel Registration. 8 Article 41(3) and (4) of the Government Regulation No. 51 of 2002 on Shipping. 9 Article 42(1) of the Government Regulation No. 51 of 2002 on Shipping. 10 Article 42(2) of the Government Regulation No. 51 of 2002 on Shipping.
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operating under a provisional certificate are required to adhere to the same
conditions as vessels operating under a full certificate. Article 21 of Government
Regulation No. 51 of 2002 prohibits a vessel from being registered simultaneously
in two different places.
Article 23(4) of Government Regulation No. 51 of 2002 gives the Registrar of
Indonesian Shipping the power to register fishing vessels by issuing of a certificate
of registry. Under Articles 24(1) and (2) of Government Regulation No. 51 of 2002,
before the Registrar of Indonesian Shipping can register a ship, there must be
proof of ownership, the identity of the owner and a certificate of measurement. For
vessels purchased or obtained outside Indonesia that are already registered in the
country of origin, the Registrar of Indonesian Shipping shall also be provided with a
deletion certificate.
The Decision of the Minister of Sea Communication No. 14 of 1996 on Procedure
of Availability and Vessel Registration implements Government Regulation No. 51
of 2002. Article 4(d) of this regulation further stipulates that certificates of
ownership and encumbrances are required as additional documents for fishing
vessel registration.11
11 Article 36(2) of the Fisheries Law No. 31 of 2004 stipulates similar conditions with regard to the documentation required. Similarly, Article 36(3) of the Fisheries Law No. 31 of 2004 provides that any fishing vessel whose registration was purchased or obtained abroad, and which is already registered in its country of origin, must be re-registered as an Indonesian fishing vessels and must follow these same conditions. Lastly, submission of the certification of deletion from the vessels’ current flag of registry is a perquisite to fly the Indonesian flag.
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8.2.4 Gaps in the Fishing Vessel Registration Framework
A number of weaknesses inhibit the effectiveness of the fishing vessel
registration system in Indonesia. The greatest weakness relates to the provisions
for deletion certificates. There are practical difficulties in applying the regulation
that would permit the registrar to investigate the formal truth of deletion certificate
in case of false documentation. This is detrimental to the discharge by Indonesia of
its flag State responsibilities to combat IUU fishing. There have been cases of
fraudulent re-flagging by some foreign-flagged vessels. For example, many
Taiwanese tuna long-liners fishing in Indonesian EEZ were registered
simultaneously both in Indonesia and Taiwan.12 Fraudulent change to the vessel
nationality rules is a problem which Indonesia must deal with. Indonesia must
undertake investigations into the ownership and real nationality of foreign fishing
vessels that also fly the Indonesian flag.13 This is necessary because foreign
fishing vessels have shown the ability to avoid specified requirements in order to
obtain necessary documents when operating in the Indonesian EEZ.14
Another weakness in the vessel registration system relates to the provisional
certificate for the registration of vessels built in Indonesia or abroad.15 The
provision on the issuance of a provisional certificate for registration has been
12 Philippe Cacaud, ‘’Indonesian Review of Legal Issues and Revised Draft Fisheries Law ‘’, Food and Agriculture Organization of the United Nations Rome, October 2001, p.19. 13 Opening Remarks by Husni Mangga Barani (Director General of Capture Fisheries of the Department of Marine Affairs and Fisheries of the Republic of Indonesia), The First Meeting of the Sino-Indonesian Joint Committee on Fisheries Cooperation, Jakarta, 6-7 August 2003, p. 2. 14 A Working Paper Presented by the Indonesian Police Chief of Staff in the Law Enforcement Officer Technical Meeting on Law Enforcement Over Fisheries Criminal Act Pertaining to False Document, the Directorate General of Surveillance and Control of Marine Resources and Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 10 June 2003, p. 4.
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subject to misuse. Foreign fishing vessels have been reported to be built by
Indonesian docks. This is done by issuing a fraudulent letter of dock statement
which is a requirement for obtaining a license. The presentation of fraudulent
documentation is also a concern in the provision of other documents such as
calculation letters, annual passes, vessel worthiness and certificates of registry.16
An additional problem is that when processing an application to a flagged vessel,
there is no process for identifying vessels with a history of non-compliance.
Consequently, Indonesia does not have the capacity to avoid flagging a vessel on
the basis of a previous or existing owner with a history of non-compliance with
conservation and management measures.
To correct the above-mentioned defects, it will be necessary for Indonesia to ratify
the UN Fish Stocks Agreement and the FAO Compliance Agreement and
implement their provisions in domestic law. Ratification of these instruments will
give power to Indonesia as a flag State to exercise more control and enforcement
over fishing vessels flying its flag. Without implementation of these agreements,
Indonesia will have difficulty exercising control over fishing vessels in the adjacent
high seas and the fishing areas of RFMOs.17 Of particular significance is the
ratification of the FAO Compliance Agreement which would give Indonesia the
jurisdiction to impose stringent requirements on Indonesian fishing vessels
15 Article 44(3) of the Government Regulation No. 51 of 2002 on Shipping. 16 A Working Paper Presented by the Indonesian Police Chief of Staff in op. cit, p. 5. 17 Hasjim Djalal, “Recent Developments in the Law of the Sea”, Paper Presented at the 29th Annual Conference, the Law of the Sea Institute, Denpasar, Bali, Indonesia, June 1996, p. 12.
229
operating on the high seas. The FAO Compliance Agreement, which Indonesia has
not yet accepted, requires State parties to maintain a record of all fishing vessels
carrying their flag and fishing on the high seas. In order to deter and prevent IUU
fishing, Indonesia will need to maintain specific records of the vessels that are
authorized to fish on the high seas.
Under international law, Indonesia has an obligation to take appropriate measures
to deter and prevent Indonesian nationals from engaging in IUU fishing within and
outside its waters. For this reason, it is important that Indonesia accepts the FAO
Compliance Agreement and implement the IPOA-IUU. The ability to control
Indonesian tuna long line fishing vessels which conduct fishing on the high seas is
an important factor in the ability of Indonesia to combat IUU fishing.
The success or failure of efforts to combat IUU fishing is dependent upon
regulating vessel registration.18 The registration of a fishing vessel should be
accompanied by a requirement to provide information on any previous registrations
including any previous names if they are different from the present.19 In
accordance with the FAO Compliance Agreement, the fishing vessel registration
process should include the name of the vessel, a registration number, the port of
18 Etty R. Agoes, Annex L Power Point Presentation on “Adequacy of Indonesian Laws and Regulation to Combat IUU Fishing: An Evaluation of Indonesian New Law on Fisheries”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing in Indonesia”, Jakarta 28 April, 2005, Organized by Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wollongong, Australia, p. 6. 19 Etty R. Agoes, “Research in Preparation for the Establishment of a National Plan of Action to Combat IUU Fishing” (A Preliminary Study for Further Research by Relevant Working Groups),
230
registration, the previous flag, the vessel’s International Radio Call Sign, the name
and address of the vessel’s owner or owners and where and when the vessel was
built. Other information that should be recorded when the vessel is registered
include the length and material of build, the method of fishing that the vessel will
employ, the type of fishing gear used, the fish hold capacity in cubic metres, the
number of crew, the horse power of the vessel’s main engine, and details of any
mortgages, maritime liens and other encumbrances.20 These requirements must
be linked with the authorisation to fish. By recording such information, it is hoped
that Indonesian vessels would be unable to fish in the high seas unless they were
registered.
The challenges Indonesia faces in reforming the vessel registration system lie with
the Indonesian administrative system which regulates fishing vessels. In the past,
vessel registration has been dealt with by the Directorate General of Sea
Communication as part of the Department of Communication. Whilst this
arrangement may have been adequate to deal with vessel registration, it is clearly
not adequate to handle the changes in fisheries law to combat IUU fishing. The
Department of Marine Affairs and Fisheries should be given power over fishing
vessel registration.
Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, August 2003, p. 5. 20 FAO Technical Guidelines for Responsible Fisheries on Fishing Operations, FAO of the United Nations, Rome, 1996, p. 8.
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8.3 Authorization to Fish
The provision of fishing licenses is one of the most important management
tools available to fisheries management authorities because it gives vessels the
legal rights, privileges and obligations in relation to fisheries.21 Within the
Indonesian context, the licensing system has three purposes. First, it is a
preventive system to control exploitation of the fisheries resources in order to
protect the rate of exploitation at a sustainable level. Second, it is an instrument for
data collection which can be used as a basis for planning for fisheries resources
development and management. Third, it is also a revenue generating mechanism
whereby fisheries management authorities collect a fee from licensees.22
An authorization to fish may be given by the central government, the provincial
government, and the district government. The central government is responsible
for issuing authorizations to fish for fishing vessels greater than 30 GT and/or
vessels with an engine size less than 90 horse power (HP) or vessels which use
foreign employees and capital.23 The central government is responsible for issuing
such authorisations for vessels in Fishing Zone III as prescribed in the Decision of
the Agriculture Minister No. 392 of 1999.
21 P. Flewwelling and Corman Culliman, David A Balton, R.P. Saunter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p. 69. 22 “Fishing Vessel Registration System and Authorization to Fish”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing ”, Jakarta, Indonesia 28 April 2005, Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia, p. 13. 23 Fishing Vessel Registration System and Authorization to Fish, op. cit, p. 21.
232
Government Regulation No. 54 of 2002 on Fisheries Business regulates
Indonesia’s decentralized fisheries management policy. Article 13(1) of this
Regulation delegates provincial governors or appointed officers to issue fisheries
business licenses; fishing licenses; and license for fish transporting vessels to
companies engaged in fishing activities in provincial marine areas. Licenses issued
under Article 13(1) are intended to cover fishing activities in provincial areas which
use non-motorized vessels, vessels with an outboard engine, vessels with an
inboard engines of between 10 to 30 GT, and/or Indonesian vessels that have an
engine size of less than 90 HP which do not use foreign capital and/or
employees.24 Similarly, under Article 13(2a) of Government Regulation No. 54 of
2002 on Fisheries Business, regency chiefs or city majors or appointed officers can
issue the same licenses to fishing companies that engage in fishing activities in the
regency/city marine area. Licenses issued under Article 13(2a) are limited to non-
motorized vessels, vessels with an outboard engine, vessels with an inboard
engine of no more than 10 GT, and/or vessels that have engine of less than 30 GT
which do not use foreign capital and/or employees.
Pursuant to Article 12 of Government Regulation No. 15 of 1984, a fishing license
is valid for one year and may be extended for another year. A new application must
be submitted 30 days before the expiry date of the current licence. 25 It should be
emphasized that a fishing license is granted in the name of the applicant for each
24 Arif Satria and Yoshaiki Matsuda, Decentralization of Fisheries Management in Indonesia, Marine Policy Vol.28 (2004) 437-450, Elsevier Science Ltd Printed in Great Britain, 2004, p. 444. 25 Article 12 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ.
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of the vessels and the law prohibits the transfer of the fishing licence from one
person to another person.26
Through Law No. 31 on Fisheries and associated regulations, stringent controls
are provided against illegal fishing activities within Indonesian fisheries
management areas. Penalties for unauthorized fishing activities can include fines
and imprisonment. Under Article 92 of Law No. 31 on Fisheries, the penalties for all
persons conducting fisheries business without a license within the Indonesian
fisheries management areas may include imprisonment for up to 8 years and a fine
of up to 1.5 billion rupiahs. Furthermore, under Article 93(1), imprisonment of up to
6 years and a fine of up to two billion rupiahs may be imposed on all persons who
undertake unauthorized fishing in Indonesian fisheries management areas. Article
94 also provides that all persons who conduct unauthorized transportation in these
same areas can be punished by imprisonment for up 5 years and a fine of up 1.5
billion rupiahs. However, these stringent penalties are yet to be imposed on those
who have conducted unauthorized fishing.
8.3.1 Types of Fishing Licenses
Three types of fishing licenses are required under Indonesian law, namely
the fisheries business license (SIUP), fishing license (SIPI) and finally a license for
fish transporting vessels (SIKPI). The operations of, and defects in each of these
26 Article 13 of the Government Regulation No.15 of 1984 on the Management of Living Resources in the Indonesian EEZ.
234
licenses are analyzed below. The licensing system for foreign fishing vessels is
also discussed in this section.
8.3.1.1 Fisheries Business License (Surat Izin Usaha Perikanan)
Article 26 (1) of the Law No. 31 on Fisheries requires any person who
operates a fisheries business which captures fish, undertakes aquaculture,
transports fish, undertakes the processing of fish or markets fish within the
Indonesian fishing management areas to obtain a fisheries business license
(SIUP). An exemption is recognised in Article 26(2) of the Law No. 31 on Fisheries
in the case of small-scale fishermen. A fishing business license can also be
granted to foreign fishing companies only where there is a surplus of the total
allowable catch; when there is a bilateral agreement between the Indonesian
government and the government of the country of the applicant; and when the
business has met the requirements as prescribed in Article 4(4) of Law No. 31 on
Fisheries.27
A fishing business license may be granted by the provincial governor or an
appointed officer in cases where the fishing activity is outside the authority of the
Director General of Capture Fisheries. The permit is granted by the provincial
governor or appointed officer only when there is a surplus of the total allowable
27 Article 5(4) of Decision of the Minster of Marine Affairs and Fisheries No.10 of 2003 on Fish Catching Business Licensing Article 4(4) provides that for fisheries business license granted by the Director General of Capture Fisheries, the application submitted by foreign fishing company must include: a recommendation issued by the authorized officer of the country of the applicant; a designated letter of an Indonesian company to represent its interest in Indonesia; one coloured photograph with size 4 x 6 of vessel owner or the designated company; an operation planning of foreign- flagged fishing vessel.
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catch and the business has met all requirements established by the concerned
provincial government.28 A fisheries business license can be granted by the
provincial governor or appointed officer in cases involving Indonesian fishing
companies under the following circumstances: the applicant is domiciled in the
province concerned; the applicant uses a non-motorized boat or an outboard
engine boat, inboard engine sizes of more than 10 GT, but not exceeding 30 GT or
90 HP; the base of operation of the business is within the province concerned; and
no foreign capital and or foreign employees are involved in the operations.29 In
cases outside the authority of the provincial governor, an application for a fisheries
business license can be granted by the regency chief/city major or appointed
officer.
For Indonesian fishing companies, a fisheries business permit is valid for as long
as the concerned company carries out fishing business activities and continues to
transport fish.30 In contrast, for foreign fishing companies, the permit is valid for the
duration of the special agreement between the Indonesian government and the
foreign State.31
The implementation of the fisheries business licensing system faces major
problems. The first problem is related to the issuance of a fisheries business
28 Article 5(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 29 Article 13 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 30 Article 39(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
236
license before a vessel can be physically inspected by the regulatory agency. The
second problem is that a large number of fishing vessels, both domestic and
foreign, operate in the Indonesian fishing areas without proper authorization. The
third problem is the growing demand by certain provinces/regencies to issue
licenses for vessels greater than 30 GT operating in their marine areas.32 In the
Papua Province, for example, the Sorong regent demands the power to issue
licenses to vessels more than 30 GT to engage in fishing activities in the Pacific
Ocean.33 In many cases, the reality is that many licenses for vessels greater than
30 GT or equipped with an engine exceeding 90 HP are issued locally by the
governors of the provinces and the regent authorities.34 Such actions are contrary
to national fisheries legislation and has potential to create tensions and conflict
between small-scale artisanal type fisheries on the one hand and commercial
fishermen on the other, resulting in overfishing and excess fleet capacity.
8.3.1.2 Fishing License (Surat Izin Penangkapan Ikan)
According to Article 27(1) of Law No. 31 on Fisheries, any person who
possesses and operates an Indonesian flagged vessel within the Indonesian
31 Article 39(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 32 This is based on the author’s interview with Bambang Aryadi, Head of Fishing Enterprise, Monitoring and Evaluation Division, Directorate of Fishing Enterprise, the Directorate General of Capture Fisheries, the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 20 November 2003. 33 This is based on the author’s interview with Suparman A.Diraputra, who was Director of Institution Affairs of the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 17 December 2003. 34 This is based on the author’s interview with Parlin Tambunan, who is Director of Fisheries Resources, Directorate General of Capture Fisheries of the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 21 January 2004. For detailed discussion of such issues see Emil Salim “Ocean and Development”, Paper Presented at Marine Seminar, 15 April 1999, Jakarta, Indonesia, The Nature Conservancy, pp.1-2.
237
fisheries management area and/or the high seas is required to obtain a fishing
license (SIPI). A fishing license must be obtained by fishing vessels intending to
operate as units of a fishing fleet, whether they are flying the Indonesian flag or a
foreign flag. A fishing license may be granted to Indonesian fishing companies
upon submission of an application annexing the required documentation. The
required documentation varies depending on the type of license that the fishing
company is applying for. In general, the application must include a photocopy of
the vessel’s fishing license or letter of investment approval/fishing company permit;
a photocopy of the vessel’s certificate of registration legalized by the authorities;
and a recommendation issued by an officer appointed by the Director General of
Capture Fisheries following an examination of the physical condition and
documentation of the vessel.35
A fishing license must be obtained by fishing vessels intending to operate as units
of a fishing fleet, whether they are flying the Indonesian flag or a foreign flag. A
fishing license for Indonesian vessels is granted by the following officers:
(a) The Director General of Capture Fisheries for a fishing vessel operated as a
single member of a fishing fleet;
(b) The Director General of Capture Fisheries for fishing vessel operated as units
of a fishing fleet;
(c) The Provincial Governor or appointed officer; or
35 Article 14(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
238
(d) The Regent/Major City or appointed officer. 36
For foreign fishing vessels operating either singly or in a group, a fishing license is
issued by the Director General of Capture Fisheries.37
A fishing license may be granted to Indonesian fishing companies upon submission
of an application annexing the required documentation, which vary depending on
the type of license that the fishing company is applying for. The application must
contain (a) a photocopy of the vessel’s fishing license or letter of investment
approval/fishing company permit; (b) a photocopy of the vessel’s certificate of
registration legalized by the authorities; and (c) a recommendation issued by an
officer appointed by the Director General of Capture Fisheries following an
examination of the physical condition and documentation of the vessel.38 This type
of fishing license is granted by the Director General of Capture Fisheries upon the
fishing vessel having met the above requirements and having paid the fishing
fee.39
For a fishing license granted by the provincial governor, the application must
include a photocopy of the vessel’s fisheries business license; a photocopy of the
vessel’s certificate of registry legalized by the authorities; a recommendation
issued by the chief of province for marine and fisheries service or appointed officer
36 Article 13(2) of Decision of the Minister of Marine Affairs and Fisheries No.10 of 2003 on Fish Catching Business Licensing. 37 Article 13(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 38 Article 14(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
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following and examination of the physical condition and documentation of the
vessel.40 A fishing license is granted by the provincial governor or appointed officer
upon the vessel having met the above requirements and having met any other
requirements which may be established by the provincial government from time to
time.41
For a fishing license granted by the regency chief, the application must include a
photocopy of the vessel’s fisheries business license; a photocopy of the vessel’s
certificate of registry or blueprint legalized by the authorities; an original certificate
issued by the chief of regency marine and fisheries service following an
examination of the physical condition of the vessel.42 This type of license is
granted by the regency chief or city major upon the vessel having met the above
requirements and having met any other requirements which may be established by
the particular regency or city government from time to time.43
Finally, a fishing license may be granted to foreign fishing companies upon
submission of an application, including a photocopy of the vessel’s fisheries
business license; a photocopy of the vessel’s captain’s passport or seaman book
and list of boat crew; and a recommendation by the Director General following an
39 Article 16 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 40 Article 14 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 41 Article 18(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 42 Article 14(3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
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examination of the physical condition of the vessel.44 This license is granted by the
Director General of Capture Fisheries upon the vessel having met the above
requirements and having paid the foreign fishing fee.45
A number of important conditions must be observed by fish catching and fish
transporting vessels holding a fishing license for Indonesian waters. First, fishing
vessels are prohibited from carrying out the transhipment of fish caught in
Indonesian fishing management areas by non-single fleet unit transporting vessels.
The second condition is that fish transporting vessels carrying fish to foreign
countries must enter and report to the designated Indonesian landing port in
compliance with the relevant procedures on fisheries product exports. The third
condition is that the transhipment of fish caught from a fishing vessel to a fish
transporting vessel or from one fish transporting vessel to another must be
conducted in the designated landing port under the supervision of an appointed
officer. Finally, in the case of fishing vessels operating beyond the Indonesian
fishing management area, transhipment must be carried out under the existing
international or regional rules in the fishing area concerned.46
A change in fishing license is allowed under the Decision of the Minister of Marine
Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. An
43 Article 17(3) of Decision of the Minister of Marine affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 44 Article 15 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 45 Article 18 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
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application for a change in license must be submitted by the fishing company
concerned 47 within at lease six months from the date of issue of the initial fishing
permit.48 Where an application is submitted to modify the type of fishing gear,
physical specifications or function of the vessel, the vessel must undergo a
physical examination.49
A fundamental requirement with respect to transhipment is that the fishing vessels
must report fish catches to a management authority. Specific information that must
be recorded and submitted to the Department of Marine Affairs and Fisheries
include data on the location of transhipment, the weight of the fish catch by
species, details of the vessels involved in the transhipment, and the port of
landing.50
8.3.1.3 License for Fish Transporting Vessels (Surat Izin Kapal
Pengangkut Ikan)
The third type of license required under Indonesian fisheries law is the
license for fish transporting vessel. Under the Law No. 31 on Fisheries, any fishing
vessel intending to collect and transport fish must obtain a license for fish
transportation. This requirement applies to fishing vessels flying the Indonesian
46 Article 19 of Decision of the Minster of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 47 Article 20 (1) of Decision of the Minster of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 48 Article 20 (2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 of Fish Catching Business Licensing. 49 Article 20 (3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 50 See Article 19
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flag or a foreign flag.51 This license cannot be separated from the fisheries
business license.52
A fish transportation license for Indonesian flagged fish transporting vessels is
issued by a number of authorities, including the Director General, for Indonesian
vessels operated as a single member of a fishing fleet; the Director General, for
Indonesian vessels operated as units of a fishing fleet; the provincial governor or
appointed officer; and the regency chief/city major or appointed officer.53 A fish
transportation license for foreign flagged transporting vessels is issued by the
Director General for foreign vessels operated as either a single member or units of
a fishing fleet.54
A fish transportation license for Indonesian flagged fish transporting vessels is
issued by the Director General for Capture Fisheries, the provincial governor or
appointed officer; and the regency chief/city major or appointed officer.55 A fish
transportation license for foreign flagged transporting vessels is issued by the
Director General for foreign vessels operating as a single unit or a group of units in
a fishing fleet.56
51 Article 23(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 52 Fishing Vessel Registration System and Authorization to Fish, op. cit, p.15. 53 Article 23(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 54 Article 23(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 55 Article 23(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 56 Article 23(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
243
A fish transportation license is granted by the Director General of Capture
Fisheries to Indonesian fishing companies who have submitted the following
documents in their applications: a photocopy of the vessel’s fisheries business
license authorised by the relevant authority; a list of boat crew; a photocopy of the
passport of the vessel’s captain or seaman book; and a recommendation by an
officer appointed by the Director General following an examination of the physical
condition and documentation of the vessel; a letter of cooperation between the fish
transporting company and the vessel owner; and a photocopy of the vessel leasing
agreement. This permit may be granted to a foreign fish transporting vessel
operated as a single member of a fishing fleet.57
A fish transportation license is granted by the Director General to foreign fishing
companies who have provided the following data in their applications: a photocopy
of the vessel’s fisheries business license for a foreign fishing company; a
photocopy of the passport of the vessel’s captain or seaman book; a list of the boat
crew; and a recommendation by an officer appointed by the Director General of
Capture Fisheries following an examination of the physical condition of the vessel.
This permit is issued by foreign fish transporting vessels operated as units of a
fishing fleet.58 Applications for this license must be submitted to the Director
General of Capture Fisheries, in accordance with the following procedures:
57 Article 26(1) Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 58 Article 26(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
244
• No later than 11 working days after receiving the completed license
application, the Director General will issue a payment order for the fishing fee,
or issue a rejection letter;
• No later than one month, on the basis of the above payment order, the
applicant must pay the required fee through the Persepsi Bank and submit a
proof of payment to the Director General;
• Where payment is not made within the required period the application may be
cancelled;
• No later than 5 working days after receiving a proof of payment, the Director
General of Capture Fisheries will issue the license for the fish transporting
vessel; and
• If the application is rejected, the fishing companies will be given another
chance to re-submit the application.59
In addition to the above conditions, the license holder is also required to:
• Implement the rules prescribed in the license for the fish transporting vessel;
• submit an application for the revision or the replacement of the permit if the
license is lost or damaged, or the data contained in the existing permit
changes;
• report to the license provider on the fishing activities of the vessel every three
months; and
59 Article 31 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
245
• observe the rules relating to monitoring and control of the fisheries resources
as well as fish product quality.60
A fish transporting license for Indonesian fishing vessels operated as a single
member of a fishing fleet is valid for three years and may be renewed for another
three years.61 A fish transportation license for foreign fishing vessels in the same
category is valid for one year and may be extended for another year.62
A fish transportation license is issued by the provincial governor or appointed
officer to Indonesian fishing companies who have submitted the following data in
their applications: a photocopy of the vessel’s fisheries business license; a
photocopy of the vessel’s certificate of registry; a recommendation by the chief of
province for marine and fisheries services or an appointed officer following an
examination of the physical condition and documentation of the vessel; and a letter
of transportation cooperation between fish transporting company and the vessel
owner.63
A fish transportation license is issued by the regency chief, city major or appointed
officer to Indonesian fishing companies which have attached the following
documents in their applications: a photocopy of the vessel’s fisheries business
60 Article 32(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 61 Article 42(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 62 Article 43(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
246
license; a photocopy of the vessel’s certificate of registry or blueprint; a
recommendation by the chief of regency or city marine and fisheries services or
appointed officer following an examination of the physical condition of the vessel;
and a letter of transportation cooperation between the fish transporting company
and the vessel owner.64
The Indonesian regulations on licensing for fish transporting vessels are largely
consistent with paragraph 48 of the IPOA-IUU. However, a gap exists in the
Indonesian regulations in relation to provisions on authorization to tranship for
support vessels operating in Indonesian fishing areas. Consistent with paragraph
48 of the IPOA-IUU, Indonesia would need to include provisions on authorization to
tranship for support vessels. As a flag State, Indonesia must also ensure that its
fishing, transport and support vessels involved in transhipment on the high seas
have prior authorization to tranship.
8.3.2 Licensing of Foreign Fishing Vessels
Under Government Regulation No. 15 of 1984 Concerning the Management
of Living Resources in the Indonesian EEZ, foreign vessels may be granted a
fishing license on the basis of special bilateral agreements.65 A similar provision is
also found in Article 29(2) of the Law No. 31 on Fisheries which allows any foreign
person or any foreign legal entity to fish within the Indonesian EEZ. A bilateral
63 Article 24(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 64 Article 24(3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.
247
fisheries agreement between the Indonesian Government and the flag State must
be entered into prior to a grant of a fishery business license.66 An agreement under
Article 30(2) of the Law No. 31 on Fisheries must prescribe the compliance
obligations of the flag State government. Article 30(3) of the Law No. 31 on
Fisheries further requires the Indonesian government to establish regulations
regarding the granting of fishery business license to a foreign person and or foreign
legal entity fishing within the Indonesian EEZ. However, such regulations have not
been promulgated.
Articles 14, 15 and 16 of the Government Regulation No. 15 of 1984 contain a
number of provisions designed to prevent IUU fishing by foreign vessels operating
in the Indonesian EEZ, including mandatory reporting, and use of observers or
fisheries officers. The regulations provide that the captain of a foreign fishing
vessel must report to the assigned officer at the port, or check points as stated in
the permit at the start, during, and after completion of each fishing voyage.67 The
foreign fishing vessel must also receive the assigned observer or other officers
authorized to conduct all necessary inspection on board of the vessel.68
Furthermore, a foreign fishing vessel which has been granted a fishing license is
required to designate an Indonesian fishing company to represent its interest in
65 Article 10 of the Government Regulation No. 15 of 1984 Concerning the Management of Living Resources in the Indonesian EEZ. 66 Article 30(1) of the Law No. 31 of 2004 on Fisheries. 67 Article 14 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ. 68 Article 15 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ.
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Indonesia.69 The designated Indonesian fishing company will then submit an
application to the Directorate General of Capture Fisheries requesting the issue of
a fishing permit to the foreign fishing vessel. The Indonesian fishing company is
then responsible as agent, for all foreign fishing vessels operating under its
authority.70
Indonesia has entered into arrangements with China, the Philippines and Thailand
and has modified the licensing regime applicable to the vessels of these countries.
Chinese fishing vessels granted fishing licenses under the Indonesian-China
Arrangement are required to report their catch at designated fish ports. For
vessels operating in the Indonesian EEZ of the Pacific Ocean, the designated fish
ports are Bitung, Ternate, Sorong and Biak. For vessels operating in the EEZ of
the Indian Ocean, the designated ports are Bungus, Sibolga, Jakarta, Sabang and
Benoa. For vessels operating in the EEZ of the north Riau Province, the
designated ports are Tarempa, Pemangkat, Tanjung Pinang and Batam. For
vessels operating in the EEZ of the Arafura Sea, the designated ports are Tual,
Kendari, Merauke, Sorong and Ambon.
Under the Indonesian-Philippine Arrangement, Philippine vessels operating in the
Indonesian EEZ of the Pacific Ocean must report their fish catch at the fishing
ports of Bitung, Sorong, Manokwari, Biak and Jayapura. Philippine vessels
69 Article 16 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ. 70 Suparman A.Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I. Maticts and Ted L. McDorman (eds), Seapol International Workshop on Challenges to
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operating in the Indonesian EEZ of the Indian Ocean must report their fish catch at
the ports of Bungus, Jakarta, Sabang, Surabaya and Banyuwangi.
The Indonesian-Thai Arrangement requires Thai fishing vessels operating in the
Indonesian EEZ of the South China Sea to land their catch at the fishing ports of
Tarempa, Pemangkat, Tanjung Pinang and Batam. The designated fishing ports
for the Thai vessels fishing in the Indonesian EEZ of the Arafura Sea are Tual,
Kendari, Sorong, Ambon, Ternate, Kupang and Merauke.
8.3.3 Defects in the Fishing License Regime
Despite the existence of legal provisions for vessel licensing, in practice, the
law is not effective. One of the main problems is the abuse of power by those
responsible for decision-making. Such abuse of power includes fishing licenses
being issued in municipal waters by incompetent authorities and attempts to
shorten the license process.71 Another problem identified in the implementation of
the licensing regime is the practice of regional government authorities granting
licenses intended to be used for large scale fishing vessels to small scale fishing
vessels. This practice has forced small-scale fishers to compete with big fishing
companies and has also affected the accuracy of data on the utilization of fisheries
resources.72
Fishery Policy and Diplomacy in South-East Asia, Rayong Thailand, South-East Asian Programme in Ocean Law, Policy and Management, Bangkok, Thailand, 6-9 December 1992, p. 27. 71 Busran Kadri, op.cit, p. 34. 72 A Final Research Report on “A Review of the Development and Sustainability Model of Fisheries Management in the Indonesian EEZ, Cooperation Between Directorate General of Fisheries Department of Agriculture of the Republic of Indonesia and Centre for Archipelago, Law and Development Studies, Jakarta, 1996-1997, p. 42.
250
Concerns have also been raised on the discrepancies between the information
contained on the fishing license and the reality of the situation. In particular, there
have been substantial discrepancies identified in vessel crew numbers and
passport details. Concern is also being expressed on the presence of a number
foreign fishing vessels operating beyond the fishing grounds stated in the fishing
license. It is also a well-known fact that many fishing vessels use fishing gear other
than those prescribed in the fishing license.73
An additional gap is that although the Indonesian regulations examined above
provide a legal framework for the adoption and implementation of transhipment
adopted by RFMOs, the regulations do not meet the requirements of paragraph 50
of the IPOA-IUU.74 The absence of such regulations makes it difficult for Indonesia
as a flag State to control and enforce national fisheries laws over its fishing
vessels. There is clearly a need to harmonize the Indonesian legislation with
international instruments in order to achieve an integrated regional and national
reporting system. Such harmonization could be achieved through the adoption of
detailed rules, regulations and procedures for obtaining authorization to fish on the
high seas. To overcome the problem of unreported fishing, the reporting
73 Busran Kadri, “Technical Policy on Survaillance and Control of Marine and Fisheries Resources”, A Working Paper Presented at Law Enforcement Officer Technical Meeting, Directorate General of Surveillance and Control of Marine Resources and Fisheries of Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta Indonesia, 8-12 June 2003, p.33. 74 Paragraph 50 provides that “flag States should make information from catch and transshipment reports available, aggregated according to areas and species, in a full, timely and regular manner and, as appropriate, to relevant national, regional and international organizations, including FAO, taking into account applicable confidentiality requirements”.
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requirements for fishing and the information database of fishing licenses and
registration must be upgraded and developed on a regular basis.
It is clear that the effective implementation of the Indonesian licensing regime
depends largely on the commitment and capabilities of fisheries management
authorities. Fisheries management authorities must have qualified personnel with
high moral standards so as to mitigate potential abuse of power.
In practice, Articles 14, 15 and 16 of the Government Regulation No. 15 of 1984
Concerning the Management of Living Resources in the Indonesian EEZ has a
number of loopholes which encourage violation of the requirements for fishing in
the IEEZ and encourage IUU fishing. A common problem has been collusion
between Indonesian fishing companies and their foreign counterparts to breach the
law. Article 16 of the Government Regulation No. 15 of 1984 has been misused by
national fishing companies in collaboration with their foreign fishing vessels to
change the legal status of foreign fishing vessels from that of a foreign flagged
vessel into an Indonesian flagged fishing vessel. It is estimated that 70 per cent of
the 7,000 Indonesian flagged fishing vessels that have obtained fishing licenses in
the Indonesian EEZ are owned by foreigners.75 The granting of licenses to these
fishing companies to fish in the IEEZ has raised major problems for the sustainable
management of fisheries resources as there are no supporting instruments under
this system to effectively implement the policy. Furthermore, because there are no
incentives or disincentives to follow the correct process, it is feared that the
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problem will grow, greatly increasing the incidence of IUU fishing.76 There is
therefore a need for urgent fisheries legislative reform through the revision of the
relevant provisions which deal with Indonesian fishing companies.
There are also gaps in Indonesia’s legal powers to address unauthorized fishing
activities on the high seas. Whilst the provisions of Article 27(1) of Law No. 31 on
Fisheries clearly refer to fishing outside national waters, this provision is
inadequate to combat IUU fishing. Hence, this article needs to be further supported
by provisions implementing the UN Fish Stocks Agreement and the IPOA-IUU
dealing with authorizations to fish.
Three observations can be made in relation to the suggestion above to revise the
Indonesian fisheries legislative framework. First, implementing Article 18(1) of the
UN Fish Stocks Agreement and the IPOA-IUU requires a viable national licensing
framework which ensures that Indonesian fishing vessels comply with conservation
and management measures of RFMOs. Indonesia must ensure that its vessels do
not become involved in activities that are contrary to the management and
conservation measures adopted by RFMOs. Second, in order to effectively control
its vessels, Indonesian is required under Article 18(2) of the Agreement to permit
Indonesian vessels to fish in areas regulated by RFMOs to which Indonesia is a
member. Third, Indonesia must improve its regulation with respect to terms and
conditions of licensing. Aside from requiring Indonesian fishing vessels to carry
75 Busran Kadri, op. cit, p. 4.
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their licenses on board at all times in accordance with Article 18(3b) of the UN Fish
Stocks Agreement, the regulation must stress the importance of abiding by the
terms and conditions of licenses. The regulation must also provide that if
Indonesian fishing vessels fail to abide by any of these terms and conditions, their
license may be revoked.
Currently the means to implement the provisions of Article 18(3)(b) of the UN Fish
Stocks Agreement is found in Article 27(4) of the Law No. 31 on Fisheries. The
article requires Indonesian flagged vessels that fish in areas under national
jurisdiction of another State to obtain prior approval from the Department of Marine
Affairs and Fisheries. Consistent with Article 18(3)(c) of the UN Fish Stocks
Agreement, Indonesia has to ensure that its fishing vessels are properly recorded.
All information related to licensed and IUU fishing vessels should be registered and
maintained in a secure national database.
An additional problem is the fact that there is a conflict of jurisdiction between the
Minister of Agriculture, who, under Government Regulation No. 15 of 1984 has the
right to issue fishing licenses and the Minister of Marine Affairs and Fisheries, who
under the Law No. 31 on Fisheries also has jurisdiction to issue fisheries licensing
procedures. Conflict emerged in the beginning of the establishment of the
Department of Marine Affairs and Fisheries which the competence of the Minister
of Marine Affairs and Fisheries. This institutional conflict has resulted in
76 Tridoyo Kusumastanto, “Ocean Policy in the Maritime State Development in Regional Autonomy Era”, Gramedia Pustaka Ltd Publisher, Jakarta Indonesia, 2003, pp. 43-44.
254
considerable duplication of functions and inefficiency in fisheries management that
encourage IUU fishers to circumvent the law. To address the existing legislation, it
is suggested that the fishing license provisions of Government Regulation No. 15
of 1984 be amended to conform to the new fisheries law.
8.4 Regulation of Fish Aggregating Devices
Under the IPOA-IUU, Indonesia is encouraged to implement measures to
combat IUU fishing in its EEZ.77 In an attempt to regulate the deployment and
utilization of FADs, the Minister of Marine Affairs and Fisheries issued Ministerial
Decision No. 30 of 2004 on Installation and Utilisation of Fish Aggregating Devices.
Article 2(1) of this Ministerial Decision No. 30 on FADs allows individuals or fishing
companies to install and/or utilise FADs in order to increase fisheries production
and community income. Paragraph 2 of the Decision specifies three areas where
FADs can be installed, namely: the coastal fishing belt extending from 2 to 4
nautical miles seaward measured from the shoreline; the coastal fishing belt
extending from 4 to 12 nautical miles measured from the shoreline; and the coastal
fishing belt extending from 12 nautical miles up to the outer limit of the Indonesian
EEZ.
According to Article 3(1) of the Ministerial Decision No. 30 on FADs, individuals or
legal entities must obtain a permit in order to install FADs. In paragraph 2,
installation of FADs is subject to prior written authorization being granted by
various bodies having authority over a particular marine area. First, permits for
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installation of FADs may be granted locally by the regency chief (or city mayor) or
the appointed officer in the area extending from 2 to 4 nautical miles. Second,
permits for installation of FADs may also be granted locally by the provincial
governor or fisheries officer in the area from 4 to 12 nautical miles. Third, permits
may also be granted nationally by the Director General of Capture Fisheries or an
appointed officer in the area from 12 nautical miles to the outer limit of the
Indonesian EEZ. 78
When granting a permit for the installation of FADs, the concerned officers must,
under Article 9, consider the level of sustainability of fisheries resources as well as
cultural-social aspects of the local community. This provision should be read in
conjunction with Article 10 of the Ministerial Declaration No. 30 on FADs which
imposes an obligation on individuals or fishing companies to ensure that FADs will
not disrupt navigation; that the distance between one FAD and another is not less
than 10 nautical miles; and that the FADs will not be installed so as to cause
congestion in a particular area.
Article 10 of the Ministerial Decision No. 30 on FADs gives rise to a number of
interesting questions. Article 10 is only concerned with the negative impact of
deploying FADs on non-fisheries activities while the Ministerial Decree in general
deals with fishing activities. Although Article 9 of the Ministerial Decision No. 30 on
FADs is framed in terms of sustainability, the wording of Article 10 fails to address
77 Paragraph 51.1.
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the effect of FADs on the migration of fish and the sustainability of fisheries
resources. Article 10 is clearly ineffective in promoting and establishing sustainable
goals for fisheries management. Indeed, the absence of effective regulations can
be seen as a contributing factor to FADs posing a threat to living marine
resources.79
From a biological viewpoint, large-scale FADs may, if left unregulated, pose a
threat to several target and non-target fish species. Not only does this type of
supporting gear create a problem in fishery conservation and management
measures, but also arguably poses a fundamental problem in the protection of the
marine environment. Particular attention should be given to the potential
detrimental impact of FADs on tuna migration in the Sulawesi Sea. Of particular
concern is the existence of conflicting domestic law and international instruments
governing straddling fish stocks and highly migratory species. Any legal measures
by Indonesia with respect to these fish stocks should be consistent with Article 5(f)
of the UN Fish Stocks Agreement. To recollect, Article 5 of the UN Fish Stocks
Agreement imposes a number of conservation obligations on States with regard to
straddling fish stocks and highly migratory species. Of particular relevance are the
obligations to adopt measures to support long-term sustainability of straddling fish
stocks and highly migratory species and promote optimum utilization. Measures to
78 See Department of Marine Affairs and Fisheries Policy on Capture Fisheries, 22 December 2004, p.1, http://www.dkp.go.id (accessed on 24 May 2005). 79 For a discussion of this and other issues which have arisen since the enactment of this regulation, see Actual Information on IUU Fishing, “Surveillance Operation and Operation Cooperation between Department of Marine Affairs and Fisheries and Indonesian Navy”, 7 April 2005, p.1.http://www.dkp.go.id (accessed on 27 June 2006).
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be adopted should be those based on best scientific evidence available and those
that will help maintain or restore stocks at levels capable of producing maximum
sustainable yield as qualified by relevant listed factors. These measures are to
effectively assess the impacts of fishing, other human activities and environmental
factors on target species, and the rest of the ecosystem. Conservation and
management measures are to be applied to an entire ecosystem so as to protect
both target species and non-target species and minimize pollution, discards, waste,
and abandoned or lost gear. These measures should also include the development
and use of selective fishing gear and techniques, the protection of marine bio-
diversity, and the prevention or elimination of overfishing and excess fishing
capacity.
For fishing activities within the Indonesian fisheries management areas, especially
in the EEZ, any FAD regime must promote the development and use of selective
fishing gear and techniques. The status and role of FADs must be fully realized
within both existing domestic law and the international law regime to protect the
Indonesian EEZ and the adjoining transboundary areas. In order to address the
shortcomings in the current regime for managing FADs, it is suggested that a new
condition be inserted into the Ministerial Decision No. 30 on FADs so as to
underscore the obligation of FAD users to refrain from conducting their activities in
any manner that undermines fisheries conservation and management measures.
The inclusion of this condition is important in order to demonstrate Indonesia’s
commitment to complying with international fisheries instruments.
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Although the national legislation is an effective means of protecting transboundary
fish stocks, an international cooperation is needed to halt the depletion of skipjack
tuna and small tuna that has resulted from the utilization of unregulated FADs. It
should be obvious that an international problem on FADs in shared waters, such as
the Sulawesi Sea, cannot be solved through unilateral action and Indonesian
enforcement measures. There is growing conviction that large-scale, unregulated
use of FADs has created a problem in sustainable fisheries development that
requires a bilateral cooperation between Indonesia and the Philippines in the
Sulawesi Sea. This threat seems to be most serious in the case of tuna, which
range widely over the oceans of the world and therefore need to be conserved and
managed through the Indonesian membership in the Western and Central Pacific
Fisheries Commission (WCPFC).
8.5 Conclusion
This chapter has demonstrated that there is still a gap between the
Indonesian regulatory regime and practice in so far as fishing vessel registration
and licensing is concerned. The analysis in the chapter has shown that Indonesia’s
current registration and licensing system faces serious challenges. There are
inadequate provisions in the current fisheries legislation with respect to the
verification of deletion certificates, tracking of history of fisheries compliance of a
fishing vessel, maintenance of records of fishing vessels, implementation of fishing
vessel licensing systems between the central and local governments, and licensing
of Indonesian fishing vessels which conduct activities in the RFMO areas and on
the high seas. These problems contribute to the proliferation of IUU fishing in
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Indonesia. Legislative reform is therefore required with respect to the registration
and licensing of fishing vessels, including the regulation of fish transportation and
FADs, in order for Indonesia to effectively address IUU fishing.
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CHAPTER 9
ANALYSIS OF THE INDONESIAN LEGAL FRAMEWORK FOR MONITORING AND SURVEILLANCE OF FISHING VESSELS
9. 1 Introduction
The previous chapter analysed the adequacy of the Indonesian legal
framework for vessel registration and fishing vessel licensing to combat IUU
fishing. This chapter continues the examination of measures adopted by Indonesia
to address IUU fishing by focusing on the Indonesian legal framework relating to
monitoring, control, and surveillance (MCS) for fishing vessels and analyzing it
against the international requirements discussed in chapters 3 to 5. The chapter
focuses on five issues, namely the satellite vessel monitoring system (VMS),
logbook system, observer and inspection system, and admissibility of electronic
evidence in court. The chapter concludes that despite efforts to address these
problems through legislation, the Indonesian implementation of international
standards still falls short of what is needed to combat IUU fishing.
9.2 The Indonesian Laws and Regulations on Monitoring and Surveillance
of Fishing Vessels
As previously indicated, the LOSC, the UN Fish Stocks Agreement and the
IPOA-IUU require States to prescribe laws and regulations on monitoring and
surveillance of fishing vessels. Indonesia has enacted regulations and legislation
relating to the mandatory use of satellite vessel monitoring system (VMS), use of
logbooks, observer programme, and national boarding and inspection scheme.
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These measures are considered significant accomplishment in monitoring and
controlling IUU fishing in the IEEZ. These four areas of MCS implementation in
Indonesia are discussed below.
9.2.1 Satellite-based Vessel Monitoring System
Satellite-based VMS are increasingly being employed by many States to
monitor the fishing activities of national fishing vessels and foreign fishing vessels
operating in waters under their jurisdiction. The VMS is an important tool for
monitoring, control and enforcement when combined with other measures, such as
sea and air surveillance, controls on landing, and embarkation of observers. VMS
provides an effective means for coastal States to monitor the activities of national
and foreign fishing vessels licensed to fish in their EEZs. The underlying aim of
using VMS is to increase the effectiveness of a national MCS framework.1
As noted earlier, Article 62(4)(e) of the LOSC allows coastal States to enact laws
and regulations to require fishing vessels engaged in fishing in the EEZ to report
their positions. Correspondingly, Article 18(2) of the UN Fish Stocks Agreement
obliges flag States to require their fishing vessels to install VMS in accordance with
sub-regional, regional and global systems. In the context of combating IUU fishing,
further implementation of these instruments is reflected in paragraph 24 the IPOA-
IUU. It requires States to implement VMS in accordance with relevant national,
1 Fishing Operations Vessel Monitoring Systems, FAO Technical Guidelines for Responsible Fisheries, Rome: FAO, 1998, p.34.
262
regional or international standards, including the requirement for vessels under
their jurisdiction to carry VMS on board.
In line with the requirements of the IPOA-IUU, Indonesia implements VMS through
the Decision of the Minister of Marine Affairs and Fisheries No. 29 on the
Implementation of the Fishing Vessels Monitoring System in 2003. In accordance
with Article 2 of Ministerial Decision No. 29 on VMS, the objectives of VMS are to
enhance fisheries management through monitoring and surveillance; fishing fleet
management; compliance of fishing vessels and/or fish transporting vessels with
the existing laws and regulations; and obtaining data and information on fishing
vessel activities for the conservation and sustainable use of the fisheries
resources.
The Department of Marine Affairs and Fisheries is empowered under Article 3(1) of
Ministerial Decision No. 29 to implement VMS as part of its broader duty in
fisheries management. Specifically, paragraph 2 provides that the Ministry is
responsible for the planning, establishment and development of equipment
standards as well as the monitoring and evaluation of VMS implementation.
There are three fisheries management authorities directly involved in VMS,
namely: (i) the Directorate General of Surveillance and Control of Marine
Resources and Fisheries; (ii) the Directorate General of Capture Fisheries; and (iii)
the Agency of Marine Affairs and Fisheries Research. The roles and functions of
each of these authorities are examined in turn.
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Article 5(1) of Ministerial Decision No. 29 on VMS provides that the Directorate
General of Marine Resources and Fisheries Surveillance has the power to
establish an operational technical policy; provide infrastructure required for the
implementation of VMS; conduct and/or facilitate the availability of transmitter and
supporting facilities; implement VMS management; establish reporting standards
for monitoring activities; and conduct evaluation on the implementation of VMS.
The establishment of operational technical policy under paragraph 2 includes
policy dealing with standard operating procedures; transmitter operation technical
methods; technical security over transmitters and other related devices; physical
checking of technical appropriateness and transmitter function; and monitoring and
control of system development and agreement.
In order to assist in the implementation of the above policies, the Directorate
General of Capture Fisheries under Article 4 is obliged to provide data on fishing
companies and fishing vessels for VMS; provide for transmitters to be installed on
fishing vessels; provide for transmitter identity numbers to be included on all fishing
licenses; establish and carry out transmitter installation; allow for fisheries data to
be integrated with VMS data; and inform the Directorate General of Marine
Resources and Fisheries Surveillance of the installed transmitter identity number of
fishing vessels.
Under Article 7 of Ministerial Decision No. 29 on VMS, the Research Agency for
Marine Affairs and Fisheries is charged with the responsibility to establish
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technological specifications for VMS, particularly integration systems and technical
standards for infrastructure; identify satellite providers; give consideration to the
view of the Directorate General of Marine Affairs and Fisheries on technological
aspects in the implementation of VMS; conduct evaluation on technological
aspects of the VMS operations; and develop a VMS technology.
It can be seen from the above discussion that the three fisheries management
authorities charged with implementing the VMS are interdependent. The
Directorate General of Surveillance and Control of Marine Affairs and Fisheries is
the focal agency charged with the implementation of the VMS, while the
Directorate General of Capture Fisheries and the Agency for Marine Affairs and
Fisheries Research perform a supplemental role in the implementation of the
system. Accordingly, cooperation amongst the three agencies will determine the
success of the implementation of the VMS.2
As a condition of holding an EEZ fishing license, Article 9 of Ministerial Decision
No. 29 on VMS provides that all foreign-flagged vessels and all Indonesian-flagged
vessels over 100 GT are required to carry and operate a transmitter. Further,
Article 15(1) provides that fishing vessels must have their transmitters activated at
all times. Paragraph 3 adds further scope to this obligation by requiring vessels to
activate the transmitter from within 200 nautical miles of entering the Indonesian
EEZ. This VMS regulation applies only to big commercial vessels operating in the
2 “Fishing Vessel is Under Obligation to Install VMS”, Sinar Tani, Edition 15, 21 October 2003, No.3018, Jakarta, Indonesia, p.42.
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Indonesian EEZ. Small commercial vessels and artisanal vessels are exempt from
installing VMS.
Under Article 16(1) of Ministerial Decision No. 29 on VMS, all fishing vessels are
required to report to the Directorate General of Marine Resources and Fisheries
Surveillance data on vessel position; quantity and type of fish caught; vessel
position at the time of fishing; and the quantity and type of fish to be collected and
transported by each carrier vessel and/or fish transporting vessels. The vessel
position must be reported at least every two hours. For this purpose, under
paragraph 3, technical reporting is regulated by the Directorate General with
reference to fishing logbooks.
Generally, VMS can be used to monitor the position of a legal fishing vessel
authorized to fish3 within waters under national jurisdiction or other specified
fishing zones.4 VMS is seen as a periodic monitoring system of the position and
activities of licensed vessels.5 In terms of the basic requirements for VMS, a fishing
vessel must be capable of reporting automatically, accurately and reliably its
3 “Directorate General of Surveillance and Control of Marine Affairs and Fisheries Encourages the Owner of Fishing Vessel to Obey the Use of VMS”, Department of Marine Affairs and Fisheries Policy on Marine Resources Surveillance, Jakarta 26 October 2005, p.1, http:// www.dkp.go.id (accessed on November 7 2005). 4 Philippe Cacaud, ‘’Indonesia Review of Legal Issues and Revised Draft Fisheries Law ‘’, Food and Agriculture Organization of the United Nations Rome, October 2001, p.14 ; See also ‘’Hunting Illegal Fisher by VMS’’, IMFS Expo and Seminar, Indonesia Marine Fisheries Seafood, Jakarta Convention Centre, 13-16 December 2003, p.2. 5 Hartanta Tarigan, Luh Putu Ayu Savitri Chitra Kusuma and Taufic Dwi Ferindra, Annex I Power Point Presentation on “Technology-Based Fisheries Monitoring, Control and Surveillance in Indonesia”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing in Indonesia, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of
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position to a relevant fisheries management authority.6 Therefore, this system not
only provides for compliance with reporting requirements, but also enhances safety
at sea and provides new tools to managers for near real-time catch reporting.7
The scope of VMS data analysis is to identify fishing grounds, fishing vessel
violations, fishing vessel movements, use of fishing gears, fishing vessels
conducting transhipment at sea, and fishing vessels in port.8 Clearly as a part of a
MCS system for achieving effective fisheries management, VMS must be
integrated with other MCS measures.9 One such measure is Synthetic Aperture
Radar (SAR), which can detect non-licensed vessels or vessels which are not
participating in a VMS program.10
When a fisheries management authority makes a decision on the installation of a
satellite-based VMS, it will be important to adapt the systems to the needs of the
particular authority. A primary consideration should be the purpose of the VMS for
collecting data and ensuring compliance, or both. Having completed the installation
the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wollongong, New South Wales, Australia, p.6. 6 Fishing Operations: Vessel Monitoring System, FAO Technical Guidelines for Responsible Fisheries, FAO Fisheries Department, FAO Fisheries Offices in FAO Regional Offices, 1998, p.38. 7 National Plan of Action of the United States of America to Prevent, Deter and Eliminate Illegal, Unregulated and Unreported Fishing, The U.S Department of State and the National Oceanic and Atmosphere Administration, the National Marine Fisheries Service, the U.S. Coast Guard, the Officer of the U.S. Trade Representative, the U.S. Fish and Wildlife Service and the U.S. Customs Service, 2004, p.9. 8 Heriyanto Marwanto, “Law Enforcement and Implementation of Fishing Patrol”, Power Point Presentation (Annex J), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wolongong, New South Wales, Australia, p. 15. 9 “Fishing Operations: Vessel Monitoring Systems”, op. cit, p. 38.
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of a satellite-based VMS in conjunction with other forms of enforcement, VMS will
have to be included in the legal framework for fisheries management or the control
component in other MCS measures. Legal considerations will include licensing,
requirements on vessels marking and identification, catch reporting through
logbooks, prescribing fixed ports of landings, and controlling transhipments.11
Challenges to VMS regulation come from government agencies, fishing industries
and other flag states. There are three key problems encountered by Indonesia in
implementing the VMS. First, the Department of Marine Affairs and Fisheries
Surveillance has difficulty in obtaining fisheries business license data from the
Directorate General of Capture Fisheries. Despite a specific duty of the agency to
provide the data,12 there is still a considerable delay in installing VMS to deal with
fisheries management. As a result, the government’s target of installing VMS for a
number of fishing vessels cannot be achieved.13
A second major problem encountered by Indonesia in the implementation of VMS
is the refusal of fishing companies to comply with VMS installation requirements.14
This problem has a number of distinct components, including failure to comply at
the socialization stage; failure to comply because of mitigating factors; and failure
10 Hartanta Tarigan, Luh Putu Ayu Savitri Chitra Kusuma and Taufic Dwi Ferindra, op.cit, p.12. 11 Erik Jaap Molenaar and Martin Tsamenyi, “Satelitte-Based Vessel Monitoring Systems International Legal Aspects and Development in State Practice”, FAO Legal Papers Online, April 2000, pp. 9-10. 12 Article 6 13 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, Directorate General of Surveillance and Control of Marine Resources and Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 20.
268
to comply after the installation of VMS. In the first case, only a few fishing
companies return vessel registration forms which provide for the installation of
transmitters. For companies that do return the vessel registration forms, the
information provided is largely incomplete. For example, the data provided only
contained information on vessel name and gross tonnage, without providing
information on vessel landing timeframes beyond the installation period. There
have also been problems with the removal or relocation of transmitters after
installation. The second concern with the implementation of VMS in Indonesia is
the reluctance of fishing companies to evacuate their vessels during emergencies
due to a fear that VMS equipment would be stolen when the fishing vessel was
mooring at port.15
A third problem is the lack of support from the Chinese government to encourage
its fishing vessels to participate in the VMS program. At the First Meeting of the
Sino-Indonesian Joint Committee on Fisheries Cooperation in Jakarta in 2003, the
Indonesian delegation informed the meeting that any compulsory transmitter
installation and operational requirement for VMS used by China should be
compatible with the Indonesian system. In response, the Chinese delegation
considered VMS to be extremely difficult to implement, primarily because of the
potential cost to the Chinese fishing industry.16
14 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, op. cit, p.21. 15 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, ibid.
269
It is clear from the above discussion that there are a number of obstacles to the
implementation of VMS in Indonesia. Critically, a failure to implement the VMS
regulations discussed above may eventually lead to IUU fishing. It is argued that
the key to the successful implementation of VMS is the willingness or ability of
fishing industry players to participate in the VMS programme and implement
relevant regulations. There is a need for cooperation between licensed and
artisanal fishermen and the fisheries administration and enforcement authorities. A
regional coordinated approach to MCS, including the sharing of information on
vessels across national jurisdictions is a desirable way to implement the VMS to
eliminate IUU fishing.17
A further problem to bear in mind regarding the scope of the VMS regulation is that
its application is only restricted to the IEEZ. The Ministerial Decision No. 29 on
VMS contains no requirement on the installation of VMS by Indonesian fishing
vessels conducting activities on the high seas. Indonesia has not yet taken any
further step to bring its VMS consistent with the post-LOSC fisheries instruments.
Indonesia must commit to the implementation of the LOSC, the UN Fish Stocks
Agreement and the IPOA-IUU, which respond to IUU fishing issues in the
Indonesian EEZ and on the high seas. What is particularly important is that
regional and high seas IUU fishing concerns should also be taken into account at
the national level because of the huge number of Indonesian fishing vessels
16 Records of Discussion The First Meeting of the Sino-Indonesian Joint Committee on Fisheries Cooperation, Jakarta, 6-8 August 2003, p. 4.
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operating on the high seas and RFMO areas. The implementation of VMS at the
national, regional and international level is necessary to provide data on IUU
fishing.
9.2.2 Fishing Logbooks
Under Paragraph 51.5 of the IPOA-IUU, coastal States are required to
ensure authorized fishing vessels in the EEZ to maintain logbooks which contain a
record of their fishing activities. In 2002, the Department of Marine Affairs and
Fisheries implemented the log book provisions contained in IPOA-IUU through the
Decision of the Minister of Marine Affairs and Fisheries No. 03 of 2002 on Fish
Transporting and Catch Log Book. The purpose of the logbook system is to collect
information on the catching and transportation of fish for the purpose of fisheries
control and surveillance.18 According to Article 4 of the Ministerial Decision No. 03
of 2002, the scope of the regulation extends to planning, implementation, analysis
and evaluation of fish transportation and logbook system.
Three forms of logbooks are required under the Ministerial Decision 03 of 2002,
namely Form A, Form B and Form C, which must be filled out by vessel masters
and fisheries control officers.19 Form A requires vessel masters to record details of
fishing and fish transporting activities. Form B requires fisheries control officers to
record details of a vessel’s fishing and fish transportation activities while Form C
17 “Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries” (Synthesis Report), Marine Resources Assessment Group Ltd 18 Queen Street London, United Kingdom, June 2005, p. 5. 18 Article 3
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requires fisheries control officers to record details of the operational
appropriateness of fishing vessels and/or fish transporting vessels.
Articles 6, 7, 8 and 9 of the Ministerial Decision No. 03 of 2002 enumerate a
number of requirements, mechanisms and application procedures for fish
transportation and catch logbooks to be fulfilled by all persons. Under Article 6(1),
all fishing vessels involved in fishing or fish transportation are required to have the
original copies of Form A, B and C logbooks. The logbook is provided by fisheries
control officers to the vessel master.20 Article 6(3) provides for certain
administrative requirements to be fulfilled by vessels, including having an
authorised copy of the fisheries business license and an approval for the use of
foreign fishing vessels and foreign fish catch allocation. In addition, vessels must
also carry their original copy of the fishing license, licenses for Indonesian and
foreign fish transporting vessels and, where relevant, an approval letter for foreign
fish transporting vessels. Other requirements include a license for foreign
expatriates, a vessel master certificate, a certificate of measurement, proof of
ownership, and a certificate of appropriateness and vessel supervision.
Indonesia currently requires all foreign fishing vessels seeking access to
Indonesia’s ports to provide a copy of their authorisation to fish and details of other
relevant documents. The submission of such documents is ultimately for the
benefit of the fishing industry as such documents are used by fisheries control
19 Article 5 20 Article 6(2)
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officers to verify the accuracy of the information provided. On this basis, Indonesia
should collect and maintain information on IUU fishing within Indonesian fisheries
management areas. Under Article 7(1) of Ministerial Decision No. 03 of 2002, the
fishing vessel master has to report its fish catch to fisheries control officers upon
landing in a designated port. This is done by submitting the completed Form A prior
to the vessel loading or transporting its fish catch. Paragraphs 2 and 3 then require
the vessel master to allow fisheries control officers to inspect the above-mentioned
documents and to conduct a physical inspection of the vessel and fish catch and/or
transported fish.
From a reporting perspective, Article 7(1) of Ministerial Decision 03 of 2002 is of
particular importance as it is designed to obtain information from the vessel master
relating to the fishing trip and quantities of fish on board. During fishing periods,
fishing vessels are obliged to maintain daily logbooks containing information on the
position, effort, catch and other relevant information such as reports of landing or
transhipment of catch. These logbooks or records are provided to fisheries control
officers at the end of each fishing operation or within a specific period after the end
of such operation.21
Article 8(1) places an obligation on the vessel master to report to fisheries control
officers about the fishing operation and/or fish transportation activities of the vessel
at least two hours prior to departure. The fisheries control officers are then required
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to inspect relevant documents and conduct a physical examination of the fishing
vessel. Overall, the reporting regime requires that information regarding the vessel
position and fish catch on board the vessel be provided prior to the vessel leaving
the port for the purpose of commencing a fishing operation, each designated day of
the week within the licensed fishing area or a closed area and before entry into port
for the purpose of unloading fish from any fishing activities in the licensed fishing
area.22 Following such verification, the vessel logbook can be used to check
collected data.23
The primary purpose of the logbook is to assist in establishing where the vessel
has been and where and when it was fishing. In certain cases concerning IUU
fishing, this sort of evidence is particularly important in the absence of universal
VMS requirements.24 However, the implementation of the logbook system is not
without problems. In most cases, the problem of unreported fishing and mis-
reported fishing is derived from the inadequacy of the logbook system. A key
problem is the complexity of the current system. The logbook system is
characterised by a long and tedious process of monitoring and control that makes it
difficult for vessel masters to complete all the required forms. The problem is
exacerbated by the lack of awareness of fisheries control officers, data input
operators and vessel masters about the importance of the logbook system.
21 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p. 5. 22 Blaise Kuemlengan, op.cit, p. 4. 23 Erik Jaap Molenaar and Martin Tsamenyi, op.cit, p.4. 24 National Plan of Action of the United States of America to Prevent, Deter, and Eliminate Illegal, Unregulated, and Unreported Fishing, op.cit, p. 21.
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Another problem is the lack of adequate personnel and equipment necessary for
the processing of fish catch. This reduces the capability of the government to
obtain accurate fisheries data and information.25
Given the identified gaps of the current logbook system, there is a need to have an
effective reporting system to ensure the flow of fisheries information to the fisheries
manager. Additionally, the quality of information is equally important and should be
as accurate as possible so as to form a sound basis for decision-making. This
accuracy could be achieved by a standardized logbook and rapid data
processing.26 The logbook system must be improved through the adoption of
simple rules and procedures to enable the vessel master to fill out all required
information. There is also a need for an authority to be established with the power
to implement logbook requirements and address the problems of IUU fishing as a
whole.
9.2.3 Observer and Inspection Scheme
Article 62(4)(g) of the LOSC entitles coastal States to prescribe laws and
regulations placing observers on board fishing vessels operating in the EEZ. In
addition, Article 18(3)(f) of the UN Fish Stocks Agreement places an obligation
upon the flag States to ensure that fish catch is properly verified through observer
25 This is based on the author’s interview with Turman Hardianto MAHA, a Master Student in Maritime Studies at Centre for Maritime Policy of the University of Wollongong, Australia, 31 August 2005. 26 Suparman A. Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I. Matics and Ted L. McDorman (eds), Seapol International Workshop on Challenges to Fishery Policy and Diplomacy in South-East Asia, Rayong, Thailand 6-9 December, South-East Asian Programme in Ocean Law, Policy and Management Bangkok, Thailand, p. 30.
275
programmes and inspection schemes. Paragraph 24.4 of the IPOA-IUU requires
States to undertake comprehensive and effective MCS of fishing from its
commencement, through the port of landing to final, including by implementing
observer programmes in line with relevant national and regional requirements.
These three instruments require States to implement observers and inspections
schemes.
Indonesia’s implementation of this requirement is through Decision of the Minister
of Marine Affairs and Fisheries No. 02 of 2002 on Fisheries Control Guidance.
Under these regulations, the Department of Marine Affairs and Fisheries created
the position of fisheries control officers for the purpose of collecting reliable and
accurate information for fisheries management, and enforcement.27 The purpose of
having fisheries control officers under Article 2(2) of this regulation is to control fish
catch and/or fish transportation in a sustainable, responsible manner, and to
ensure the conservation of fisheries resources and its environment.
Under Article 3 of Ministerial Decision 02 of 2002 on Fisheries Control Guidance,
fisheries control officers are charged with controlling fish catch and/or fish
transportation not only through monitoring and field observation, but also through
inspection and investigation. Article 5(1) of the regulations enumerates the types of
information that the fisheries control officers may collect, including: (a) information
on fishing vessels and/or fish transporting vessels which moor, anchor, sail and or
27 Article 2(2) of Decision of the Minister of Marine Affairs and Fisheries No. 02 of 2002 on Fisheries Control Guidance.
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conduct fish catch and/or fish transportation; (b) information on fishing gear and/or
supporting fishing gears; (c) information on any other fishing gears; and (d)
information on methods used for fishing. Article 5(2) of Ministerial Decision 02 of
2002 on Fisheries Control Guidance further allows fisheries control officers to
exercise control over various areas, including fishing ports, landing/fish landing
centres, ports which are designated ports, and places where vessels conduct
fishing activities.
The powers of fishing control officers associated with surveillance and enforcement
can be broken into two, namely inspection and investigation. The first power of
fisheries control officers under Article 6(1) of Ministerial Decision 02 of 2002 on
Fisheries Control Guidance is the power of inspecting fishing vessel license
documents, the physical condition of fishing vessel and/or fish transporting vessels,
fishing gears and supporting fishing gears, number and composition of master and
vessel crew in one unit of fishing activity, fish catch and fish transporting activities,
and compliance with base port loading and unloading reports.
In the context of fishing vessel license document, Article 7(1) of Ministerial
Decision 02 of 2002 on Fisheries Control Guidance allows fisheries control officers
to inspect a copy of the authorized fisheries business license or permanent
business license; a copy of the approval for using foreign vessel; an original fishing
letter; an original fishing license; an original license for fishing and fish
transportation for Indonesian vessels; an original license for fishing and fish
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transportation for foreign vessels; an original approval letter for foreign fish
transportation vessels; an authorized copy of employment certification for the
master and crew of foreign vessels; an authorized copy of vessel certificates such
as the certificate of measurement; a proof of fishing fee payment; and an
authorized foreign fish catch allocation for foreign-flagged fishing vessels.
Article 7(2) of Ministerial Decision 02 of 2002 on Fisheries Control Guidance further
allows fisheries control officers to conduct physical inspection of vessels. The
scope of this power extends to inspecting the compatibility of vessel certifications
with the type, size, and form of the fishing vessel; the vessel’s identification in the
form of vessel marks and flag; the quantity and size of cargo hold; and the type,
trademark, serial number and machine power of the fishing vessel. Under Article
7(3), fisheries control officers are also able to conduct physical inspection of
vessels in relation to the compatibility of fisheries business license with the type,
quantity, size and technical specification of fishing gear and supporting fishing
gear.
Another significant responsibility for fisheries control officers under Article 7(4) of
Ministerial Decision 02 of 2002 on Fisheries Control Guidance is to conduct
physical inspection of other devices used in fishing other than cargo hold which
include the type, quantity and size of the device. Under Article 7(5), fisheries
control officers are also responsible for inspecting the number and composition of
masters and crew for both Indonesian and foreign fishing vessels. Under Article
7(6), the task of inspection extends to fishing vessel operations and the type, size,
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quantity, fish origin and physical condition of fish caught. It can be questioned
whether the power under Article 7(6)(b) should more appropriately be given to
fisheries observers rather than fisheries control officers.
In general, observers are often tasked with collecting data for monitoring catch,
discards, and incidental takes of protected species which include marine
mammals, seabirds and sea turtles. In relation to certain fisheries, observers are
also given the power to monitor compliance with fisheries regulations. However,
observers who are initially trained as biological technicians have primary duties
that are scientifically oriented.28 An example of the duties of observers is to collect
data at sea such as biological data on size, length, age, and sexual maturity of fish
catch. In addition, observers can also collect data on the stomach content and
genetic samples of fish. In terms of end-use, program managers must be trained in
sampling design in order ensure that collected information from observers is useful
and relevant.29
Article 11 of Ministerial Decision 02 of 2002 on Fisheries Control Guidance gives
fisheries control officers substantial powers to exercise their authority as fisheries
civil servant investigators. These include the power to receive reports or complaints
from any person on the violation of the regulation, and the power to call upon and
investigate any person suspected of violating the regulation. Further powers
28 National Plan of Action of the United States of America to Prevent, Deter, and Eliminate Illegal, Unregulated and Unreported Fishing, op. cit, p. 9.
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include the authority to enter and search any fishing vessels, transportation
facilities and any premises used for storage and preservation of fish suspected of
being used in the violation of the regulation. Article 11 also allows the seizure or
confiscation of any fish products, equipment and documents used in the
commission of such offences.
From the above discussion, it can be seen that fisheries officers are equipped with
law enforcement powers to ensure compliance by fishing vessels with national
conservation and management measures. Fisheries officers have the power to
enforce such measures where violations occur in Indonesian waters, investigate
violations of such measures and board and seize the vessel concerned. The
powers given to fisheries officers under the regulation are particularly broad so as
to cover a wide range of enforcement measures.30 In carrying out their functions,
the fisheries officer must ensure that they observe and record all activities on the
vessel to be boarded. Designated fisheries staff and boarding personnel both in the
boarding team and onboard the patrol vessel should faithfully record all dates,
times and events of the fishing activity monitored or observed.31 In the event of an
alleged violation, such observations and records may assist in the prosecution of a
fisheries case.
29 Sali Jayne Bache and Nathan Evans, Fisheries Observer Programs : Lesson from a Global Review and Policy Options for Australia, Department of Agriculture, Fisheries and Forestry Fisheries and Agriculture Business, Canberra, September 2003, p. 10. 30 Erik Jaap Molenaar and Martin Tsamenyi, op.cit, p. 7. 31 P. Flewweling, Corman Cullinan, David A Balton, R.P. Sautter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Technical Paper No.415, Rome: FAO, 2002, p. 88.
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It is clear that the accuracy of vessel inspections either in port or at sea is an
important part of the surveillance aspect of MCS. Inspection of the quantity of fish
on board a vessel is designed to test compliance with regulations. Inspection
during the authorised fishing period is to ensure that all fishing activities comply
with fisheries legislation.32 A control and inspection system in ports and other
places may be used to confirm that vessels possess valid documentation. Such a
system can strengthen the existing fishing vessel registration and licensing system
as an effective means of deterring IUU fishing.
Theoretically speaking, the implementation of MCS system through fisheries
control officers in the Indonesian EEZ is vital for the success of fisheries
management. It is important that the fisheries control officers have the ability to
identify at an early stage any change in the utilisation of fisheries resources in the
Indonesian EEZ. At the same time, all types and location of illegal fishing activities
should be determined precisely.33 MCS systems could also be used for other
purposes such as the investigation of a fisheries offence. These measures could
potentially provide valuable information on the activities of all fishing vessels in
fishing grounds and, in particular, on the position of the vessels from time to time.34
32 P.Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter and J.E. Reynolds, op. cit, p.60. 33 Final Research Report on “A Review of Model for the Development and Sustainability of Fisheries Management in the Indonesian EEZ”, Cooperation Between Directorate General of Fisheries, Department of Agriculture of the Republic of Indonesia and Centre for Archipelago, Law and Development Studies, 1996-1997, p. 98. 34 Yohan Sanggelorang, “Expectation and Recommendation of Nusantara Fisheries Community Towards Fisheries Sector Policy Entering Local Autonomy Era”, November 2000, p.10.
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One of the problems in the implementation of Indonesia’s observer programme and
inspection scheme is the limited number of trained fisheries control officers. As a
result, both schemes utilize the same officers on the high seas. However,
Ministerial Decision 02 of 2002 on Fisheries Control Guidance does not authorize
fisheries control officers to board and inspect on the high seas any Indonesian
fishing vessel which has engaged in unauthorized fishing in RFMO areas.
Indonesia has failed to implement international boarding and inspection regime laid
down in the UN Fish Stocks Agreement. The failure of Indonesia to become a full
member of existing RFMOs is a critical gap in the effective implementation of the
high seas enforcement regime. The absence of boarding and inspection power by
the fisheries control officers over fishing activities of Indonesian fishing vessels on
the high seas contribute to unregulated fishing.
In implementing the Ministerial Decision 02 of 2002 on Fisheries Control Guidance,
three potential problems arise. The first problem is that fishing vessels do not land
their catches in designated ports often to avoid the reporting commitments of the
vessel master. The second problem is that general ports, private bases and some
fishing ports do not have fisheries control officers.35 The third problem is related to
inadequate facilities, which makes it difficult for fisheries control officers to directly
control fishing grounds. As a result, the activities of fishing control officers have
been limited to the inspection of fish catch and fishing gear on board the vessel at
port. Such measures are considered inappropriate as there may be a difference
35 Heriyanto Marwoto, “Law Enforcement and Implementation of the Fishing Patrol”, op. cit, p.35.
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between the actual fish catch and fishing gears used and those landed by fishing
vessels in ports.36
Aside from the issues discussed above, there are a number of concerns that must
be addressed in relation to the implementation of the UN Fish Stocks Agreement
and the IPOA-IUU. Although the Ministerial Decision 02 of 2002 on Fisheries
Control Guidance contains measures adopted under the IPOA-IUU on the
inspection of vessels, it fails to address several issues concerning IUU fishing. At
present, the regulation does not require foreign fishing vessels to give prior
notification of entry into or departure from Indonesian ports. The regulation also
fails to provide for the Indonesian government to refuse entry of vessels suspected
of conducting IUU fishing. It is suggested that this problem be addressed by
incorporating the port State measures contained in paragraphs 52 to 58 of the
IPOA-IUU, such as the requirement to present logbooks and other relevant
documents in ports. Approval must be issued prior to entry into Indonesia for the
purpose of ensuring compliance with regional and national conservation and
management measures.
The analysis in this section also demonstrates that while Indonesia has authority to
board and inspect all vessels in waters under the jurisdiction of Indonesia, law
enforcement measures fail to fully address violations of fisheries management
36 Final Research Report on “Development and Management of Natural Resources Based on Archipelagic Concept”, Cooperation Between Agency for Research and Development, Department of Foreign Affairs of the Republic of Indonesia and Center for Archipelago, Law and Development Studies, Bandung Indonesia, 1993-1994, p.117.
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rules on the high seas by Indonesian-flagged fishing vessels. While the Ministerial
Decision 02 of 2002 on Fisheries Control Guidance is seen as a further tightening
of the enforcement regime, the regulations fall short of the number of respects. The
problems may be addressed somehow by ensuring that the powers of fisheries
officers extend to both Indonesian waters and the high seas.
9.2.4 Admissibility of Electronic Evidence in Courts
The rapid advancement in the development of information integration
systems on fishing vessels has resulted in the widespread use of electronic
logbooks37 and the transmission of logbook information through VMS.38 The
mandatory use of VMS, along with the development and application of electronic
logbook systems, has the potential to combat IUU fishing.39 However, the use of
electronic information systems raises the question of whether or not information
obtained through electronic devices is admissible as evidence of illegal fishing in
courts. 40
From the perspective of national and regional fisheries management, two major
problems have arisen in relation to the collection and use of observers data for
enforcement proceedings. The first problem concerns the right to collect data and
37 Paragraph 17 of the IPOA-IUU requires national legislation to address, inter alia, evidentiary standards and admissibility including, as appropriate, the use of electronic evidence and new technologies. 38 David Evans, “The Consequences of Illegal, Unreported and Unregulated Fishing for Fishery Data and Management”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 7. 39 David Evans, op.cit, p. 6. 40 Philippe Cacaud, op.cit, pp.14-15.
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its use in the prosecution of illegal fishers, while the second problem concerns the
legal status provided to both the information as evidence and the observers as
enforcement officers.41
The authorized officers can use evidentiary provisions to enable them to certify
evidence. For instance, authorised officers may use position fixing instruments to
identify the position of a vessel, then use the position certificate as evidence in the
prosecution, if the defendant has not yet objected to it.42 In general, however,
fisheries officers, other than on board observers, have faced difficulties in
observing fisheries offences due to the fact that the majority of crimes are
committed at sea. Specifically, fisheries officers face difficulties in identifying the
vessel with accuracy, or determining the precise position of the vessel at the time
of alleged illegal action.43
The problems faced by fisheries officers are exacerbated when Global Position
Systems or VMS information is used, due to the general rule that hearsay evidence
may not be admissible in criminal proceedings.44 Essentially, courts are unwilling
to accept evidence from witnesses who do not appear before the court itself.
Witnesses are also unable to testify to matters beyond their personal knowledge.45
41 Sally Jayne Bache and Nathan Evans, op. cit, p.20. 42 Ghana National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, June, 2004, p. 15. 43 P.Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p.26. 44 Blaise Kuemlengan, op.cit, p. 8. 45 P. Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p. 28.
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In light of the above limitations, Indonesia is considering the introduction of a
presumption in cases of fisheries law infringement.46 Generally, presumptions are
used in circumstances where the prosecution has reason to believe that an offence
has been committed and it would otherwise be difficult to prove the offence.47 In
the context of fisheries law infringement, a presumption of illegal fishing may be
raised where observations show that a vessel has engaged in fishing activities
without the necessary authorisation. The use of presumptions allows the court to
highlight the issues that may or may not be in dispute between the parties, so as to
facilitate a more expeditious trial. The duty of the prosecutors is then to ensure that
sufficient evidence is gathered and adequate preparations are made for trial in
order to prove the guilt of the accused.48
The use of expert evidence to prove the validity and accuracy of information taken
from satellite-based VMS is also fraught with problems. Aside from being both
time-consuming and expensive, the use of expert evidence would also constitute a
significant obstacle to prosecutions.49 The use of a presumption system,50 with the
46 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2004, p. 17. 47 P. Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p.27. 48 Blaise Kuemlengan, op. cit, p. 9. 49 P. Flewwelling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p. 29. 50 For a similar concept of the use of the presumption liability principle for domestic air transport in Indonesia see E.Saefullah W, “Air Carrier’s Liability Under International and National Air Transportation”, Liberty Publisher, Jogyakarta, Indonesia, 1989, pp.268-269. He observed “For the first and last time in Indonesia, the 1939 Ordinance intoduced the presumption liability in cases of damage caused by air transport accident”. He emphasized that the principle of air carrier’s liability under the 1939 Ordinance was based on a rebuttable presumption of the liability on the part of the carrier. Under this principle, the victim was not obliged to prove negligence or fault of any kind; whereas the carrier was not liable for damage caused by an accident if he proved that he and his agent had taken all necessary measures to avoid the damage. Thus, the burden of proof lies on the shoulder of the carrier. Apart from that, the carrier could be exonerated from his liability, and his
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obligation placed upon the prosecutors to prove fault of IUU fishers, would also be
an extremely expensive and complex process. The prosecutors may simply fail to
prosecute the fisheries law violation on the basis of lack of evidence. The failure of
the prosecutors to prove the alleged crime may eventually render fisheries law and
regulations ineffective. Essentially, fisheries law infringements may become an
unregulated and unresolved problem.
An alternative to the use of presumption is the strict liability system, which is
generally applied in determining compensation in relation to ultra-hazardous
activities.51 In international law, the strict liability principle is applied in the 1969
International Convention on Civil Liability for Oil Pollution (CLC), the LOSC, and
the 1972 Convention on International Liability Damage Caused by Space Objects
(the Liability Convention).
The objective of the CLC is to ensure that adequate compensation be payed to the
victim of oil pollution damage caused by the discharge of oil from a vessel meeting
with marine casualty. Under Article III.1 of the CLC, a tanker owner or operator
must pay damages based on the application of the strict liability principle subject to
liability was limited. He further argued that the weakness of the presumption of liability, especially from the victim’s point of view, are inter alia: (a) the application of this principle was based on the ‘protective philosophy’ for the carrier; (b) the application of the presumption liability principle might produce lengthy litigation. To exonerate himself from his liability the carrier would often try to prove that the accident was not caused by his fault; (c) if the litigation took a long time, the plaintiff’s litigation costs and other expenses would be great. 51 Rosemary Rayfuse, “International Environmental Law”, in Sam Blay, Ryszard Piotrowicz, and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Second Edition), Oxford University Press, 2005, p.358.
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specific exceptions.52 The liability of a tanker owner or operator based on this
principle is further regulated in Article 235 of the LOSC on the responsibility and
liability on States. Article 235(1) provides that States must fulfil international
obligations for the protection and preservation of the marine environment. Under
paragraph 2 of this article, States have the obligation to ensure that recourse is
available in accordance with their legal systems for prompt and adequate
compensation or other relief with regard to damage caused by pollution of the
marine environment by natural or juridical persons under their jurisdiction.
Under the strict liability system, the liability for compensation in pollution damage53
comes into immediate existence at the time the marine casualties occur,
regardless of whether the fault lies with the vessel carrying the oil, a third party or
the owner of the oil itself. Although a cap is generally placed on the maximum
amount of compensation payable, the strict liability system provides a simpler
system, both from an evidentiary and procedural perspective.54 Exception to the
principle of strict/absolute liability is accepted only in one case--if the launching
State can establish that the damage is caused either wholly or partly by gross
52 E.D Brown, “The Conventional Way of the Environment”, in Ludwik A. Telclaff and Albert E.Utton (eds), International Environmental Law, Praeger Publishers, 1974, p.46. 53 Daud Silalahi, “Development of Indonesian Environmental Law”, Proceeding of ICLOS – NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nederlandse Raad Voor Jurisdische Samenwerking met Indonesia, 1993, p.358. 54 Komar Kantaatmadja, “Compensation in Oil Pollution Damage”, Proceeding of ICLOS – NILOS Seminar on the Law of the Sea in the 1990’S Offshore Resources Development Bandung, Indonesia 24–26 January 1991, op. cit, pp.381-382.
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negligence or act omission on the part of a claimant State with intent to cause the
damage.55
The correlation between IUU fishing and marine casualty may be illustrated by the
potential environmental damage consequences of the problem. IUU fishing mostly
affects the population of coastal States and potential claimant States where these
incidents occurred. The great risks to the victims are dramatically demonstrated by
the degradation of fisheries resources, marine environment degradation, and
economic consequences. Strict liability in these circumstances can be imputed to
the fishing industries or operators who have engaged in IUU fishing.
Accordingly, the choice between a presumption or a strict liability system will
require a consideration of which system is the most effective for and compatible
with the Indonesian legal system. In the context of IUU fishing, where a serious
violation of fisheries management measures has occurred, lack of evidence should
not be a basis for postponing legal proceedings. The fishing industry must take
responsibility for safely and carefully managing fisheries resources and take all
necessary measures to prevent IUU fishing from occurring. Exception to the
principle of strict liability can only be accepted in the case of negligence or
omission act on the part of fisheries management authorities and fisheries control
officers with intent to cause the fisheries law infringement.
55 Carl Q. Christol, “the Modern International Law of Outer Space, Pergamon Press, New York, Oxford, Toronto, Sydney, Paris, Frankfurt, 1982, p.102.
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9.3 Conclusion
This chapter provided an analysis of the existing Indonesian legal
framework on monitoring, control and surveillance to effectively address IUU
fishing. This chapter particularly focused on the use of the vessel monitoring
system, logbook system, observer and inspection schemes, and electronic
evidence in court.
There is evidence to suggest that the failure of Indonesia to address the problems
of IUU fishing is primarily due to the inadequacy of an effective MCS framework.
The existing MCS framework fails to adequately address a range of issues dealing
with mandatory use of VMS on the high seas by Indonesian vessels and
inadequacies in the logbook system and boarding and inspection regime. The
regulations have not yet satisfied the requirements of the post-LOSC international
fisheries instruments. Specifically, there is a complete absence of regulations
authorizing government officers to refuse entry to foreign vessels and inadequate
regulations relating to fisheries observer programs. Indonesia must improve
monitoring, control and surveillance of fishing vessel activities in order to combat
IUU fishing both within and outside national jurisdiction. The challenge for
Indonesia today is to develop a system that will allow the use of electronic data as
evidence in legal proceedings against fisheries violations and apply the strict
liability principle in the Indonesian legal system.
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CHAPTER 10
CONCLUSION
The objective of this study has been to test the adequacy of the
Indonesian fisheries legislative framework against the provisions of relevant
international fisheries instruments on IUU fishing, particularly the LOSC, UN Fish
Stocks Agreement, FAO Compliance Agreement, FAO Code of Conduct for
Responsible Fisheries, and the IPOA-IUU. The areas of consideration focused,
in general, on management of fisheries in Indonesia and the implementation of
national fisheries laws and policies and in particular, on the implementation of
the fishing vessel registration and licensing system and monitoring control and
surveillance (MCS) for fisheries,
In chapter 2, a general overview and background to IUU fishing activities was
presented. This chapter discussed and analyzed the factors causing IUU fishing,
such as the increase in the demand for fisheries products globally, application of
subsidies in the fisheries sector and overcapacity in fishing fleet, and ineffective
fisheries monitoring, control and surveillance. Among the major impacts of IUU
fishing identified are loss of marine biodiversity, collapse of major fisheries, and
negative economic impacts on coastal and fishing communities. Chapter 1
concluded by arguing that international cooperation is required to combat IUU
fishing.
291
Chapter 3 examined the provisions of the LOSC on fisheries and how the legal
framework under the LOSC addresses IUU fishing. The gaps identified in the
LOSC include the lack of effective provisions on fishing vessels registration,
records of fishing vessels, and authorization to fish on the high seas. Chapter 2
also demonstrated that the provisions of the LOSC on the management of
transboundary fish sotcks are inadequate to address IUU fishing. Other
inadequacies identified in the LOSC relate to the mechanisms for surveillance
and enforcement and compliance with conservation and management
measures.
Chapter 4 addressed post-LOSC legally binding instruments and assessed the
extent to which they address IUU fishing concerns. The analysis in chapter 4
focused on the FAO Compliance Agreement and the UN Fish Stocks
Agreement. The key conclusions drawn in chapter 4 are that the FAO
Compliance Agreement and the UN Fish Stocks Agreement play important roles
in addressing the problems of IUU fishing through their requirements for more
effective exercise of flag State responsibility, control of nationals through
authorization to fish, and requirements for regional cooperation.
Chapter 5 concluded the analysis of the international legal and policy framework
to address IUU fishing by focusing on non-legally binding instruments that
support the implementation of the legally binding agreements discussed in
chapter 4. The instruments discussed in this chapter are the FAO Code of
292
Conduct for Responsible Fisheries and the IPOA-IUU. The chapter considered
the extent to which these non-legally binding instruments build on the
frameworks under the LOSC, FAO Compliance Agreement, and the UN Fish
Stocks Agreement. Although these instruments are not legally binding, they
provide policy guidance for States to support national efforts to combat IUU
fishing, and as such, contribute to the international legal and policy efforts to
combat IUU fishing.
Chapter 6 started the discussions on the Indonesian framework in combating
IUU fishing by providing a general background to fisheries management in
Indonesia. It also discussed the various types of IUU fishing in Indonesia’s
fisheries jurisdiction. The key IUU fishing practices identified include non-
compliance with terms and conditions of fishing licenses and unlicensed fishing
activities. In the case of fishing vessels registration, two types of illegal fishing
activities were discussed, namely fraudulent re-flagging and change of
nationality of foreign-flagged vessels. The chapter demonstrated that
unregulated fishing activities in Indonesian waters are often associated with the
ineffectiveness of rules and regulations adopted by fisheries management
authorities. Chapter 6 also examined a number of factors that have contributed
to IUU fishing in Indonesian waters. These include inadequate MCS and
fisheries management legislative frameworks, and the lack of agreed maritime
boundaries with neighbouring States. What emerged from this chapter are the
293
negative impacts of IUU fishing on the sustainability of fisheries resources in
Indonesia.
Chapter 7 analyzed the fisheries legislative framework in Indonesia and
examined the adequacy of this framework to combat IUU fishing within and
beyond Indonesian waters. The key finding in this chapter is that the Indonesian
legal framework for combating IUU fishing is fundamentally flawed and that its
application does not meet the requirements of international fisheries
instruments. The chapter concluded by providing specific ways in which
Indonesia can improve existing regulations so that they remain consistent with
international requirements in preventing, deterring and eliminating IUU fishing.
Chapter 8 assessed the adequacy of the laws and regulations of Indonesia
dealing with fishing vessel registration and licensing. The chapter demonstrated
that there are gaps in the Indonesian regulatory regime with respect to the
registration and licensing of fishing vessels. Legislative reform is therefore
required and would need to include regulations on fish transportation and fish
aggregating devices in order to effectively address IUU fishing in Indonesia.
Lastly, chapter 9 focused on the Indonesian legal framework on monitoring,
control, and surveillance for fishing vessels. The issues discussed in the chapter
include regulations on satellite vessel monitoring systems (VMS), use of logbook
system, and observer and inspection schemes.. The Chapter concluded that
294
despite efforts to address these problems through legislation, the Indonesian
implementation of international standards on MCS still falls short of what is
needed to combat IUU fishing.
Overall, the thesis has demonstrated that although Indonesia has enacted a
series of legislation designed to combat IUU fishing, the existing legislative
framework does not adequately implement international legal requirements to
combat IUU fishing. As a developing country with inadequate human and
financial resources to eliminate IUU fishing in its waters, Indonesia would have
to rely on international cooperation. This is particularly important in light of
Indonesia’s position as a world tuna producing nation.
To combat IUU fishing, it is important that Indonesia addresses the lack of clarity
in the institutional framework for the management of fisheries resources and
enforcement of fisheries regulations. The thesis has demonstrated the conflict of
jurisdiction among the relevant agencies in managing fisheries resources. For
instance, the competence of the Department of Marine Affairs and Fisheries
overlaps with the Department of Forestry and the Department of Industry and
Trade. The thesis has recommended that the Department of Marine Affairs and
Fisheries, together with the Department of Forestry develop a joint policy relating
to ornamental fish. There is also conflict of jurisdiction between the Indonesian
Navy which has exclusive power in fisheries law enforcement in the Indonesian
EEZ, and civil government fisheries investigators who have the same power in
295
the archipelagic waters and territorial sea. This conflict needs to be resolved by
clarifying the powers of each agency.
Currently, Indonesia controls and monitors the activities of national and foreign-
flagged fishing vessel through vessel registration, licensing, mandatory reporting
of fisheries information, and installation of vessel monitoring systems. However,
it is arguable that the national legal framework established for MCS for fisheries
is inadequate to combat IUU fishing and contribute to the sustainability of
fisheries resources. To date, Indonesia’s failure to combat IUU fishing has been
apparent, mainly because of the problems of lack of implementation of
international MCS frameworks and enforcement.
It should also be noted that unreported fishing activities stem from the
weaknesses in the fisheries data collection system of Indonesia due to lack of
sufficient port facilities and lack of effective implementation of MCS and logbook
systems. These difficulties are compounded by the absence of provisions for the
denial of landing and transshipment of fish into the Indonesian ports by vessels
believed to have engaged in or supported IUU fishing. The port State measures
provided for in the UN Fish Stocks Agreement and the IPOA-IUU also need to
be implemented by Indonesia. In addition, Indonesia is encouraged to implement
an observer program to prevent, deter and eliminate IUU fishing in the
Indonesian exclusive economic zone, especially in the Sulawesi Sea.
296
In terms of unregulated fishing activities, the thesis has demonstrated the
ineffectiveness of Presidential Decree on Trawl Ban that led to unregulated
fishing in the form of using modified illegal gear in the Indonesian EEZ of the
South China Sea. Another issue is the inadequacy of regulations on fish
aggregating devices. Rational management of fisheries resources cannot be
achieved if Indonesia does not have the rules to control the use of fishing gears.
The effectiveness of the efforts to combat IUU fishing depends on the availability
of an adequate legal framework. Indonesia needs to introduce reforms to its
existing fisheries regulations. Any legal reform must also address the
admissibility of electronic evidence in courts. The thesis also proposed the
application of a strict liability principle in determining fisheries infringements.
It is hoped that the analysis provided in this thesis will provide some policy
guidance to legislators and fisheries managers not only to combat IUU fishing
but also to overhaul the Indonesian legal framework governing fisheries
management with a view to ensuring the sustainability of Indonesia’s fisheries
resources for the present and future generations.
297
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