Andrew R. Smith[74]
ABSTRACT
This Article in the Code of Conduct for Responsible Fisheries is probably the most important. If there were no Fishing Operations there would be no need for the other Articles in the Code. The first section of Article 8 starts off by listing the general duties of All States whether fishing is important to their economies or not. Even land-locked States can be involved indirectly in fishing as we shall see later. Indeed, the occurrence of illegal, unreported and unregulated (IUU) fishing is sometimes assisted by the lack of action by countries that are indirectly involved in fishing activities (i.e., registration of fishing vessels).
SECTION 1: DUTIES OF ALL STATES
The Chapter does to some extent have an overlap with the previous Article - Fisheries Management however this is reiterated for Fisheries Operations. The first sections are concerned with the actions to be taken by governments in order to monitor and control their fisheries. They have to ensure that only fishing operations allowed by them are carried out within their waters in a responsible manner and that they issue authorisations to fish to their vessels fishing on the high seas. For coastal states this implies that there has to be some element of Monitoring Control and Surveillance (MCS) not only within their own jurisdiction but also to waters outside their jurisdiction, in cooperation with regional bodies. They should gather data on their fisheries in order to provide statistics. The countries should ensure that the Health and Safety Standards of the International Labour Organization (ILO) are applied to the fishing industry. The present ILO Conventions and Recommendations relating to the Fishing Industry are the following
And there are two recommendations:
It should however be noted that ILO are in the process of revising and consolidating these Standards into one Convention and one Recommendation. It is expected that this process will be completed at an ILO Conference in June 2005.
Countries should also make arrangements to integrate the fishing industry into the maritime search and rescue systems which are laid out by the International Maritime Organization (IMO).[75] States should also establish training programmes for their fishers and if necessary establish systems of professional qualifications.[76] Records should be kept of the details of fishers service and particularly certificates of competency (Note: there is growing concern at IMO on the occurrence of Certificates of Competency, which are genuine, but have been issued by a flag state on the basis of fraudulent documentation from another state).[77]
SECTION 2: FLAG STATE DUTIES
The second section of the Code deals with the duties of a Flag State (i.e., the state in which a vessel is registered). By virtue of the fact of registration, the country becomes responsible for the actions of the vessel and it has effective jurisdiction on that vessel, when it is in the waters of the flag state jurisdiction, on the high seas or in the waters under the jurisdiction of another flag state. In this later case, there is however a coastal state responsibility to control fishing activities so that the vessel cannot fish without the authorization from the coastal state. Some coastal states require, as a condition of joint ventures, that the vessels are bareboat chartered to the coastal state, effectively making the coastal state the flag state, and ensuring that they have full jurisdiction over the vessel. The certificate of registry is required to be carried on board the ship as evidence of its registry and the entitlement to fly the flag. Although this obligation appears to have been omitted from the Law of the Sea Convention (1982), it is in one of the earlier versions of the LOSC[78]. The Code requires that when fishing on the high seas or in the waters of another state the state's authorization to fish should be carried on board. It should be noted that if fishing in the waters under the jurisdiction of another state, the vessel should carry the authorization issued by the coastal state and the authorization issued by the flag State.
The vessels fishing on the high seas should also be marked in accordance with an internationally recognized system such as the FAO Guidelines.[79] Note that this does not pre-empt the vessel from using other vessel marking systems. The fishing gear should be marked so that the owner of the fishing gear can be identified should the fishing gear become detached from the vessel.[80]
Flag States should ensure compliance with safety requirements for safety requirements for fishing vessels in accordance with international conventions and guidelines and should adopt codes for small vessels not covered by conventions. The conventions and guidelines referred to are the two main Conventions for fisheries which have been agreed by IMO. These are the Torremolinos International Convention for the Safety of Fishing Vessels (SFV), 1977 International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F). Neither of these Conventions is in force the former only having nine ratifications and the latter only four ratifications. The IMO Assembly have expressed concern on the non ratification of these Conventions and the IMO Secretariat is running a series of Regional Workshops to identify the reasons for non-ratification and to encourage countries to ratify the Conventions. There are several other non-binding guidelines and Codes agreed by FAO/ILO/IMO[81] which are currently under revision which can be used for guidance.
The 1993 FAO Compliance Agreement is now in force and countries which have ratified the Convention are now bound by the terms of the Agreement. They are required to report to FAO all vessels over 24 meters that they authorize to fish on the high seas. They are also required to report any convictions of vessel for IUU Fishing and details of the offence.
The flag States should also make certain activities that prejudice the good management of fisheries, an offence under their legislation and take adequate measures to ensure that the penalties are such as to discourage further illegal activity, including the suspension of an authorization to fish. The States should also promote access to insurance schemes and the owners should avail themselves to protect their crews and to indemnify third parties.
A serious problem for many fishermen has been repatriation following the arrest of a vessel or its abandonment by the owner. This often arises when a vessel is caught fishing illegally, and the vessel and the crew are arrested. Some fishermen have remained imprisoned for many months, with the owner of the vessel unable or unwilling to pay the cost of their return home. The issue of financial responsibility in the case of abandonment of Seafarers was discussed by the Joint ILO/IMO Ad Hoc Expert Working Group on Liability and Compensation regarding claims for Death, Personal Injury and Abandonment of Seafarers. The outcome was an ILO Convention on the Repatriation of Seafarers (Revised) 1987 (No. 166). This replaced an earlier Convention that specifically excluded fishing vessels. The outcome may be relevant to the development of ILO's proposed standard concerning work in the fishing sector
SECTION 3: PORT STATE DUTIES
The third section deals with Port State duties as is outlined in several international agreements such as the Compliance Agreement and the UN Straddling Stocks Agreement as Port State Measures (PSM). PSM is broadly based on the IMO and ILO concept of Port State Control (PSC) which has been established to ensure implementation of safety at sea and prevention of pollution measures for IMO Conventions and of the conditions of work and service by ILO Conventions. The IMO/ILO system is based on regional agreements and consists mainly of the inspection of Certificates that the vessels have to carry under the relevant Conventions. The PSC authorities can however carry out inspections of the condition of the ship and of the living conditions and conditions of work and service by the crew to ensure that the Certificates have not been issued to ships which do not meet the criteria of the Conventions. The success of the PSC has been established by the nature of the maritime trade. In near every case the vessel travels from one port to another, which is usually in a foreign country, and the vessel can be inspected by Port State Authorities - usually under the maritime administration so that established procedures are already in place. However the majority of fishing vessels set sail from one port to fish then return to that port to land fish, even if they do not, then it is usually in a port of the same country and is subject to his own countries administration. If in the limited cases in which a fishing vessel does have to call in the port, then there are no IMO/ILO conventions in force for fishing vessels so PSC is not applicable (in some cases PSC has been applied to fishing vessels under MARPOL). Under PSM there are just the Compliance Agreement and the UN Straddling Stocks Agreement which contain reference to the PSM and these are not very specific and related to the inspection of documents. Some references have been made with regard to the inspections of the fish cargo to ensure that it is consistent with the entry in the fishing logbook or the manifest, however the sheer impracticality of inspecting a 1,000 ton frozen fish catch in a foreign port would probably mean that this is rarely or never done.
SECTION 4: FISHING OPERATIONS
The fourth section on Fishing Operations opens by referring to the IMO Safety of Life at Sea and the Collision Regulations (SOLAS[82] and COLREGS[83]). The other issues that come under the IMO mandate for all ships, including all fishing vessels, such as traffic separation schemes, protection of the marine environment and the prevention of damage or loss of fishing gear is mentioned.
The following sections deal with fishing methods and the universally destructive fishing methods of poisoning and dynamiting is prohibited. Unfortunately, the operative sentence contains reference to "and other comparable destructive methods". Some environmental groups have set out to find such methods and seek to have them prohibited. With this in mind, the Expert Consultation on Sustainable Fishing Technologies and Practices[84] agreed that
"It was noted that all fishing gears impacted to some degree on the environment and that fishing gears could not be characterized as "clean" or "dirty" in this respect. Overfishing has been largely caused by the excessive amount of fishing gear being used. Overfishing could be controlled by appropriate management measures.
Although it was possible to measure the impact of specific fishing gears on a particular substrate, all types of sea bottom had to be considered. A particular fishing gear might be used on a muddy silty substrate without causing any detrimental affect but it could be quite inappropriate for another more sensitive ecosystem. In this respect there was an observed need for governments to identify and map different substrate type, and where appropriate regulate fisheries according to these substrates. In particularly sensitive areas the prohibition of certain gears should be considered. The use of Vessel Monitoring systems to monitor closed areas was recommended."
States should ensure that data on the quantity and type of fish caught are recorded by the vessels and reported to the appropriate authorities. This generally means the skippers filling in logbooks. However It should be noted that the section includes reference to quantifying discards.
SECTION 5: FISHING GEAR SELECTIVITY
Fishing Gear Selectivity has been raised as an issue that can to some extent reduce the discard of unwanted catch from fishing vessels. The original estimate of 27 million tons +/- 12 million tons has now been drastically reduced following detailed analysis. Nevertheless even lower quantities of discards and waste are environmentally and socially unacceptable. FAO is dealing with the development of Guidelines and a Methodology for countries to measure their discards and for them to take measures to mitigate the amount of discards. With regard to the means achieving increased fishing gear selectivity, many countries have developed equipment and devices which allow the escape of unwanted species and sizes of fish. To date, the work has concentrated on the fishing gears which have been identified as those with high levels of discards or those which capture charismatic or endangered species. The fishing gears involved have been purse seines, shrimp trawls, bottom trawls and long lines. Although these are further explained below, it must be emphasized that specialist publications are referred to which gives further guidance.
Purse Seines
Normally purse seines are not considered to be a problem with species selectivity as most schooling pelagic species are mono-specific and tend to be all of one size. However in tuna fisheries a problem occurs with the catch of dolphins along with the tuna. In fact in many cases the purse-seiner sets the net on schools of dolphin with the knowledge that there is likely to be schools of tuna swimming beneath the dolphins. The original problem occurred in the 1980s and threatened to have a ban on purse seining. However, the problem was resolved to a great extent by the fishing vessels adopting procedures that involved modifications to the net i.e. The Medina Panel, named after the fisherman who invented it) and associated back down procedures which spilled the higher swimming dolphins out of the net leaving the tuna in the net.
Shrimp Trawls
Shrimp trawls have been associated with a high rate of discards in several shrimp fisheries. A figure of 90 percent discards has been used and the amount of discards extrapolated on this basis. However this is a gross simplification as many shrimp fisheries have no discards and there are numerous fisheries in developing countries where the by-catch is used for human consumption. The problem is mainly caused by the very high value of the shrimp catch and the very low value of the other fish caught (i.e. mainly small juvenile fish. Large fish are usually able to swim away from the trawl). Turtles have also been caught in trawls and selectivity devices have to be introduced that both reduce the amount of unwanted fish catch and to eliminate the possibility of catching turtles. This requires two completely different types of device (i.e., Turtle Excluder Devices (TEDS and By-Catch Excluder devices (BEDs) to avoid the catch of juvenile fish). FAO are currently executing a project funded by the Global Environmental Facility (GEF) in cooperation with a number of developing countries to introduce both types of device into their fisheries as appropriate.
Bottom Trawls
The selectivity of bottom trawls are usually dictated by the cod-end mesh size - fish beneath a certain size are able to pass through the mesh and escape (whether they survive this ordeal is another issue). The problem occurs when several fish species are targeted and the optimum mesh size for each species is different. It is then inevitable that some juvenile species are caught and at the same time fish of another species that are mature escape. The problem is compounded that most bottom trawl fisheries are multi-species and that fishers have devised several methods to circumvent the escape of small fish through the cod-end mesh. This has led to very complicated regulations to prevent fishermen from using these techniques. In the search for better selectivity, square mesh as opposed to diamond mesh has been proposed. Square mesh has a better selectivity, but is more difficult to arrange in the net. This has led to the use of square mesh panels in the section of the net leading to the cod-end rather than in the cod-end itself.
Long Lines
Long lines could be considered to be the most selective of fishing gear with the species being caught mainly the larger fish species. However in the operation of long-lines, there is often a catch of seabirds as it is being set as the birds come down to feed on the bait. This is not much of a problem where seabirds are in abundance (although unfortunate). Where it does come as a problem is where the birds are an endangered species. This is particularly so in the southern oceans where several species of albatross are considered to be endangered. Twenty-two species of seabird are reported to be globally threatened - including 17 albatross species. Several mitigation measures have been adopted and there is an International Plan of Action on Seabirds. The mitigation measures used are set long-line gear at night. Albatrosses are most active during the day and at dusk.
Decrease lights that illuminate the water at night. Lights only help the birds find the bait.
Throw hooks into the water from the lee side of the boat. Hooks sink faster there than on the turbulent windward side.
Haul in gear as fast as possible and keep the line coming up at a steep angle to the surface.
Thaw bait completely. Frozen bait floats.
Only buy bait with deflated swim bladders. Air trapped in bait bodies makes them float.
At some cost to fishermen, they can:
SECTION 6: ENERGY OPTIMIZATION
The Fishing industry is very dependent on fossil fuels and this section deals with the economic impacts of fuel prices in the fishing operations. The effects of the fuel exhausts in the atmosphere are dealt with in Section 7. At sea, there is no possibility of using other forms of energy such as electricity, nuclear power and other alternative energy sources such as gas or coal would require very substantial changes to the power machinery on board. This means that the fishing industry becomes very dependent on fossil fuels, particularly diesel for larger vessels and petrol for smaller vessels using small inboard and outboard engines. Each fishing method uses different amounts of fuel which can be expressed as a percentage of the total costs of running a vessel. This figure ranges between 10 and 30 percent under normal circumstances. However in times of fuel crisis where the price increases by up to 30 percent the percentage of the total costs attributed to fuel increases to the extent that in many cases the fishing vessels operation becomes uneconomic. The subject of energy optimisation tends to be forgotten about when fuel prices are low and then it becomes vitally important when fuel prices rise.
SECTION 7: PROTECTION OF THE AQUATIC ENVIRONMENT
The UN organization with the mandate for the prevention of pollution of the marine environment is IMO and they have implemented the International Convention for the Prevention of Pollution from Ships which was agreed in 1973 and modified by a Protocol in 1978 (MARPOL 73/78)[85]. MARPOL applies to all ships, including fishing vessels, even though it is aimed mainly at larger ships such as oil tankers and ships whose fuel could cause contamination and pollution. The London Dumping Convention relates to other forms of waste and spoil disposal and to all types of substances including garbage.[86] Although fishing vessels are far smaller in size to merchant vessels, they are far more numerous and the cumulative effect of oil discharge and garbage discharge could be greater. One item that is specific to fishing vessels is the loss or dumping of fishing gear. This issue was one of the reasons for the Expert Consultation on the Marking of Fishing Gear[87] Guidelines on the marking of fishing gear is contained in a Supplement to the Report[88]. It should be noted that some loss of fishing gear is inevitable and allowances have to be made for this, but the deliberate dumping of old or unwanted fishing gear should not be allowed under the London Dumping Convention.
SECTION 8: PROTECTION OF THE ATMOSPHERE
In recent years serious concerns have been raised over the issue of global warming and as outlined earlier the fishing industry is a prolific user of fossil fuels. The amount of nitrous oxides discharged into the atmosphere is considerable and care should be taken that this is minimized. This can be done by careful maintenance of engines and where necessary the fitting of catalytic converters. The fishing industry is and has been a primary user of refrigeration and older systems used chloroflourocarbons (CFCs) and hydroflourocarbons (HFCs). The use of these substances in new refrigeration systems has been discontinued but older systems might still be in use. Care should be taken in the scrapping of vessels that these substances that are particularly damaging to the atmosphere are not released directly into to the atmosphere but are collected and disposed of by experts. In a similar manner fire extinguishers used halon gases as an extinguishing agent for fighting fires. These are no longer acceptable
SECTION 9: HARBOURS AND LANDING PLACES FOR FISHING VESSELS
Fishing harbours and landing are a central focus for the support of fishing activities. The larger vessels require deeper water to remain afloat at all times and this requires the appropriate structures to provide shelter in the event of bad weather. Provisions are normally made for the marketing and sale of fish and the provisioning and repair of the fishing vessels. Needless to say that the concentration of numerous vessels in an enclosed area creates an environment that is readily polluted. Vessels change oil, land fish and wash out their fish holds in these enclosed area which leads inevitably to pollution. The supply of fresh water and sanitation is an absolute necessity.[89]
The cost of harbour infrastructures are very expensive and in many cases mistakes have been made that have cost tens of millions of dollars, hence the design and construction of fishing harbours should only be carried out after detailed environmental and economic study with all people involve in coastal area management.
SECTION 10: ABANDONMENT OF STRUCTURES AND OTHER MATERIALS
The fishing industry is not the only users of the marine environment and structures have been built for the oil industry and other uses. Concern has been raised over the removal of these structures after their useful purposes have been served. The industries have on the other hand been concerned over the cost of the removal of these structures and have suggested that simply removing the structures to a depth at which is considered navigable is sufficient to meet their obligations that the structures should be removed. It should be remembered that in many cases these structures are no longer owned by the original owners and in many cases feel that they are not bound by the original agreements. Some companies have even suggested that such partial structures could be useful as fish aggregation devices motivated by the fact that this would also save millions of dollars. It is essential that the competent fisheries authorities are consulted prior to such decisions being made. Standards and guidelines have been drawn up by the IMO for the removal of these redundant offshore structures.
SECTION 11: ARTIFICIAL REEFS AND FISH AGGREGATION DEVICES
In recent years, the use of artificial reefs and fish aggregation devices has been used to develop more efficient fishing operations.[90] Artificial reefs provide a habitat for bottom living organisms which in turn provide an environment that attracts fish and other marine resources. However the indiscriminate construction of these artificial reefs can be detrimental to other users of the sea and care should be taken that the materials that are used for the construction are relatively inert and do not cause pollution. In shallow waters care should be taken that the appropriate clearances are sought from the appropriate authorities and that such structures are clearly identified on navigation charts.[91]
Fish aggregation devices (FADs) attract fish in a similar fashion but float free in the water or are moored so that coastal fishermen can use them for an extended period of time. The fish are attracted to the attachments to the FAD and thereby increase the density of fish which in turn makes the fishing operation more economic. Recently there have been some concerns that this might lead to overfishing. Some FADs are relatively small and made from natural materials but on the other hand some are large and made of steel so that they could constitute a danger of collision to passing vessels. In this later case, authorization should be sought from the maritime authorities and when put in place the maritime authorities should ensure that the FAD is entered into navigational charts.
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[74] The author is Fishery
Industry Officer, Fishery Industries Division, Fisheries Department, FAO, Rome,
Italy. [75] IMO International Convention on Maritime Search and Rescue, 1979. [76] Convention on the Standards of Training Certification and Watchkeeping for Fishing Vessel Personnel 1995 (STCW-F) and the FAO/ILO/IMO Document for Guidance on Training and Certification of fishing Vessel Personnel. [77] IMO Assembly Resolution on Fraudulent Certificates of Competency. [78] Reference the appropriate Convention. [79] The FAO Standard Specifications and Guidelines for Marking and Identification of Fishing Vessels. [80] Recommendations on the Marking of Fishing Gear Supplement to the Report of the Expert Consultation on the Marking of Fishing Gear Victoria, British Columbia, Canada 14 - 19 July 1991. FAO Fisheries Report No. 485 Suppl. Rome FAO 1993. [81] The FAO/ILO/IMO Code of Safety For Fishermen and Fishing Vessels. Part A Safety and Health Practices for Skippers and Crews. Part B Safety and Health requirements for the Construction and Equipment of Fishing Vessels. The FAO/ILO/IMO Voluntary Guidelines for the Design
Construction and Equipment of Small Fishing Vessels. |
