4. South africa development community fisheries protocol

4.1 Background

In the South-East Atlantic, the Southern African fisheries are predominantly industrially. Some 90 percent of the catches are landed in Angola, Namibia and South Africa. Artisanal and recreational fisheries are more common on the Western Indian Ocean coast where they have greater socio-economic importance. The annual mean catch for the entire SADC region (Fig. 1) is about 1 900 000 t, roughly equivalent to 25 percent of sub-Saharan marine protein production. In Namibia the fisheries sector contributes more than 35 percent of gross domestic product (GDP) and employs more than 12 000 people. In South Africa, the annual revenue from coastal resources (fisheries, infra-structure and tourism) has been estimated at more than US$17 500 million (approximately 37 percent of the country’s GDP) while the total value of SADC fishery exports in 2002 was just under US$900 million (FAO 2002).

Depletion of fish stocks by unsustainable harvesting has been a major concern to many SADC countries for over a decade and for longer in countries such as Namibia. Most of the region’s coastal and marine resources have suffered from unsustainable levels of exploitation, driven by increasingly efficient harvesting methods. This has resulted from an ever-growing need for edible protein driven by population increase (including urban migration to coastal areas), rising economic demand from the developed world, lucrative export markets and expanding tourism demands (Sherman 2003). These factors affect not only the SADC coastal states, but also land-locked countries and distant-water fishing countries’ operations (UNEP 2002). Marine pollution from land-based activities and degradation of coastal areas is also increasing along with use of coastal areas. In addition, sea level rise, a product of global warming, may result in inundation of major coastal settlements and coastal infrastructure, causing population displacement and associated ecosystem damage.

To address these issues, the SADC initiated in Fisheries Protocol in Windhoek, Namibia in February 1997; a Draft Protocol was produced in December 1999 and sent to all member states for comment. The Protocol was approved by the SADC Fisheries Ministers^[365] in Maputo, Mozambique (UNEP 2002) and signed by all SADC heads of state in Blantyre, Malawi on 14 August 2001.

4.2 The Protocol

4.2.1 Scope, objective and principles

Scope

The Protocol (Anon. 2001b) (Article 2) applies to living freshwater and marine resources and aquatic ecosystems within the jurisdictions of SADC parties. It attempts to preserve the rights and obligations of the parties in respect of such resources where their ranges extend outside areas under national jurisdiction, or on to the high seas. A major impact of this provision is that UNFSA rights and obligations are explicitly recognized, as are those under LOSC Article 116 -119. The Protocol’s Article 2 focuses on fishing and related activities by state nationals and international activities outside SADC that conform with the Protocol’s objectives.

Objective

The Protocol’s primary objective (Article 3) is to promote the responsible and sustainable use of living aquatic resources and aquatic ecosystems in the interests of SADC Parties as a whole. Five key objectives are identified:

i. promote and enhance food security and human health
ii. safeguard the livelihood of fishing communities
iii. generate economic opportunities for nationals in the region
iv. ensure that future generations benefit from renewable aquatic resources and
v. alleviate poverty with the ultimate objective of its eradication.

The Protocol enjoys a high level of support in the SADC community, probably the result of the detailed consultations held with various stakeholders in each of the member states. The Protocol has a close affinity with Articles 10 and 11 of the Code of Conduct (Anon. 1998b), particularly Article 10.2.2, which highlights the need to consider economic, social and cultural factors when assessing the potential value of coastal resources.

Principles

Article 4 outlines the five primary principles on which the Protocol is based. The Protocol’s implementation is established on a national basis, with responsibility for shared resources being shared and dependent on co-operation between the parties concerned. The other four principles are essentially socio-economic and endeavour to

i. ensure participation of all stakeholders in promoting the Protocol’s objectives

ii. take appropriate measure to regulate use of living aquatic resources and protect such resources against over-exploitation while creating and enabling environment and building capacity for their sustainable utlization and

iii. promote gender equality and address potential inequalities.

4.2.2 Stocks covered

Article 1 applies the Protocol to all aquatic ecosystems, fish and fish stocks. It provides definitions for the terms: "exotic species", "fish", "fish stocks", "highly migratory species", "resources" and "shared resources" as well as various activities associated with fishing including the term "trans-boundary" (Table 5). The definitions focus the Protocol on fishing and "all activities associated with the exploitation of fish, including processing, marketing, transportation, and trade of fish and fish products". Both "illegal fishing"^[366] and "nationals"^[367] are defined. Similarly, "stakeholders" are seen as "all persons whose interests are either directly or indirectly affected by fishing and fishing-related activities under the Protocol". The Protocol broadly addresses fisheries-related activities, including ecosystem protection and socio-economic issues.

TABLE 5
Some key definitions from Article 1 of the SADC Fisheries Protocol

4.2.3 National responsibilities

Article 5 urges parties to take measures at national and international levels to harmonize their fisheries legislation, policies, plans and programmes to promote the Protocol’s objectives. It calls for adoption of measures to ensure that nationals and judicial persons act responsibly when using living aquatic resources, within and beyond, national jurisdictional limits.

The Protocol mandates authorization to fish for vessels flying SADC party flags in the regions’ waters. It is foreseen that such authorization should only be granted when a party can effectively exercize its responsibilities.^[368] Parties are requested to ensure that vessels or nationals fishing in waters covered by the Protocol take appropriate steps to ensure they comply with measures adopted under it, and do not engage in activities that undermine the effectiveness of such measures. Finally, parties are requested to ensure that aquatic living resources in areas under their national jurisdiction are not endangered by unsustainable harvesting practices.

4.2.4 International relations

In Article 5, the Protocol parties are urged to establish common positions so as to undertake co-ordinated and complementary actions in relevant international organizations and forums identified in Protocol appendices 1 and 2 (Table 6), particularly in respect of LOSC, UNFSA and the Compliance Agreement (Anon 1998c). Such action is envisaged to include facilitation of trans-boundary activities and movements pursuant to the Protocol’s objectives.

TABLE 6
Marine fisheries and other conventions and agreements of significance to the Southern Africa marine environment Adapted from "International Environmental Governance: Multilateral Environmental Agreements (MEAs), United Nations Environment Programme (UNEP/IGM/1/INF/3/2001)

4.2.5 Management of shared resources

Protocol Article 7 aims at resolving potential disputes on the status of shared resources. Disputes can be referred to the SADC Integrated Committee of Ministers for resolution. While this could be applied to disputes concerning inland waters, Article 7.(2) ensures that consideration is given to the rights and obligations of state parties under the LOSC, and other compatible agreements, which do not affect their rights or performance of such obligations under the Protocol. It is envisaged that Protocol parties are able to assume the LOSC dispute resolution mechanism; a situation consistent with Article 30 of the Vienna Convention (see Section 4.2.9).

Article 7 also sets the conditions for the exchange of information on shared resources [Article 7.(3)], coordination of shared resource management [Article 7.(4)] including development of management plans [Article 7.(5)] and a variety of other actions. These latter include promotion of stakeholder participation [Article 7.(7)], elimination of over-fishing and reduction of fishing capacity [Articles 7.(8) and (9)], and legislation enabling rapid response to issues associated with utilization of shared resources [Article 7.(10)].

4.2.6 Harmonization of legislation and law enforcement

Harmonization of legislation

Article 8 stipulates that Protocol parties should harmonize their legislation to ensure that all illegal fishing and related activities by nationals and legal persons of a SADC state party are deemed as offences under the national law of the party concerned. Article 8 also notes that parties need to establish appropriate arrangements to enable co-operation in respect of "hot pursuit" of vessels that violate laws of one party and enter, or try and escape to, the jurisdiction of another. The Protocol urges parties to co-operate in enforcing effective legislation through adopting measures such as (a) procedures for the extradition to another party of persons charged with offences against the fisheries laws of one party and, or, serving a sentence under the laws of that party, (b) establishing region-wide comparable levels of penalties for illegal fishing by non-SADC-flag vessels, (c) consulting over joint actions to be taken when there are grounds for believing that a vessel has been used for purposes that undermine the Protocol’s effectiveness and (d), establishing mechanisms for the registration of international and national fishing vessels to serve as compliance instruments and for sharing of information on fishing and related activities.

Enforcement

Protocol Article 9 sets out the conditions for effective enforcement subject to the national responsibilities outlined in Article 5 [see Section 5.(iii).(c) above]. These are summarized in Table 7.

4.2.7 High-sea fishing

In Article 11, the Protocol takes account of the rights and obligations of LOSC Articles 116-119 relating to management of high-seas fishing. Specifically, the Protocol urges parties to:

• recognize that all states have an equal right for their nationals to engage in fishing on the high seas

• work towards effective management living resources on the high seas

• collaborate in the establishment of common positions and polices aimed at effectively managing high-seas living resources and

• support the activities of international organizations that conserve and manage living resources on the high seas.

4.2.8 Protection of the aquatic environment

Article 14 of the Protocol urges parties to conserve aquatic ecosystems, including their biodiversity and unique habitats, insofar as these contribute to the livelihood and aesthetic values of the people and the region. Parties are called on to apply the precautionary approach to ensure that activities within their jurisdiction do not cause excessive transboundary adverse impacts. As such, they are required to co-operate with relevant SADC institutions and other relevant international agencies to protect endangered living aquatic species and their habitats including compiling lists of endangered species, introducing measures to progressively replace fishing gear and other technologies that are hazardous to the environment, promoting broad awareness by all stakeholders of the need for protection of the species and their habitats and seeking alternative economic activities for those whose livelihoods affect the survival of endangered species. Other than its reference to the precautionary approach, Article 14 is consistent with other Protocol articles and exhibits a degree of socio-economic bias.

TABLE 7
Some law-enforcement components addressed by Protocol Article 9

4.2.9 Other provisions and institutional arrangements

Other provisions

Other Protocol articles deal, inter alia, with establishing common SADC positions on subsistence, artisanal and small-scale commercial fisheries (Article 12), a rudimentary code of conduct for aquaculture (Article 13), human resources development (Article 15), trade and investment (Article 16)(Table 8), science and technology (Article 17) and exchange of information (Article 18). These articles strive to promote specific issues, at both a regional and international level that are related to the special needs of developing states^[369] (e.g. UNFSA Articles 25 to 26 and Code of Conduct Article 5) Other articles address collection and sharing of data (e.g. UNFSA Annex I), responsible aquaculture development (Code of Conduct Article 9), post-harvest practises and trade (as per Code of Conduct Article 11) and fisheries research (Code of Conduct Article 12) (FAO 1998b). In these terms, the Protocol clearly aims at codifying and harmonizing many of the Code of Conduct’s provisions on a regional basis.

Access Agreements

Protocol Article 10 calls for harmonization between the parties of the terms and conditions for fishery access by Non-SADC parties to resources covered by the Protocol. Article 10.(2) indicates that such agreements should be non-discriminatory (i.e. similar provisions should be applied in all SADC states’ waters). Article 10.(3) allows for joint negotiation by SADC parties on foreign fishing access agreements with a regional or sub-regional dimension, especially for highly migratory species. This final clause appears to be directed at forming a negotiating "power-block" within the various tuna commissions (most notably ICCAT).

TABLE 8
Trade and investment provisions of Protocol Article 16

Institutions

SADC is required to establish a oversight committee to ensure the Protocol’s effective implementation (Article 19)^[370] for which parties are called on to allocate the necessary funds (Article 20).

In regards to dispute resolution, Article 23 binds the Protocol parties to refer disputes on the Protocol’s interpretation or application to the SADC Tribunal. As drafted, the relationship between this particular provision and Article 7 is not entirely clear (Section 5.2.5). During the Protocol’s negotiation, South Africa questioned whether Article 23 might not draw into question the SADC Tribunal’s competence to deal with disputes of the kind likely to arise in connection with the Protocol on matters customarily assumed to fall under the LOSC. For political reasons, particularly in the interests of presenting a united faith in SADC’s efficacy, the matter was taken no further. However, on the Protocol’s signing by the SADC Heads of State, South Africa went on record as emphasizing that Article 23 should in no way be seen to compromize the rights of LOSC parties in relation to matters covered by that Convention - a position consistent with international law and Article 30 of the Vienna Convention (see Footnote 15).

4.3 Relationship with UNFSA and Other Instruments

A comparative analysis of the Protocol’s intended impact clearly indicates a strong regional push for SADC Members to review their relevant legislation and to establish whether these

• contain clear statements in relation to the scope of application and the authority responsible for fisheries management

• facilitate broad participation in fisheries management including co-management

• support and implement policies and provide a range of fisheries management mechanisms and measures, including the use of fishing rights or quotas, and management planning

• facilitate implementation of the Compliance Agreement, Code of Conduct and the UNFSA

• implement a full range of monitoring, control and surveillance^[371] MCS) and enforcement action and in this context:

  i. consider possible adoption of administrative processes and penalties to enforce fisheries laws
  ii. increase the levels of penalties
  iii. enhance port state enforcement to address lack of essential capacity and resources to undertake enforcement and other MCS activities, introduce ‘long-arm’ enforcement, protect confidentiality of information, particularly where it concerns fishing operations and where the use of VMSs for vessel positions and catch reports are anticipated.

There is little doubt that the Protocol represents one of the first major attempts to codify many of the broader legal obligations set out in UNFSA and the Code of Conduct. One of its significant impacts will be to focus regional action by the SADC on, e.g. harmonizing legislative provisions, ensuring effective implementation of relevant fisheries agreements such as the SEAFC, develop common management and enforcement measures and promote sustainable utilization of aquatic resources in the face of socio-economic needs and demands. The Protocol clearly constitutes a political manifesto as well as a fisheries management instrument - both qualities likely to affect its eventual success.

5. Discussion

Growing concern over the finite nature of many of the world’s natural resources along with widening recognition of the aspirations of developing states pre-occupied the post-colonial world of the late 1970s and early 1980s. These concerns, rooted in the "common heritage of mankind" debates of the United Nations General Assembly in 1967, culminated in the Convention on the Law of the Sea being opened for signature on 10 December 1982 in Montego Bay, Jamaica. As emphasized in its introduction (Anon. 1983) the LOSC was an attempt to establish true universality in efforts to achieve "a just and equitable economic order" governing ocean space. An attached and equally profound principle was that effective governance of the oceans could be viewed as an important contribution to the maintenance of peace, justice and progress for all people of the world.^[372]

The LOSC constitutes a "package" that is the product of the circumstances prevailing at the time the Convention was negotiated.^[373] This required that "every individual provision of the text be weighted accordingly throughout the text thereby producing intricate impartiality as a basis for universality" (Anon. 1983). It was these strengths that rendered the LOSC’s provisions difficult to apply effectively; a consideration compounded by geography and economic disparity. As a result, Paragraph 17.49 from Agenda 21 of the 1992 UN Conference on Environment and Development attempted to provoke states to take effective and appropriate action, both bilaterally and multilaterally, at sub-regional, regional and global levels to ensure that high-seas fisheries are managed in accordance with LOSC provisions. This particular injunction culminated in the convening of the 1992 UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks pursuant to paragraph 1 of UN Resolution 47/192. The subsequent negotiating process resulted in the UNFSA.

It should be apparent that during the UNFSA negotiations, the South-East Atlantic and Western Central Pacific regions, in particular, recognized that there were gaps in the fisheries agreements existing at that time. Such gaps directly affected the potential sustainability of straddling and highly migratory fish stocks in the two regions. At the centre of this recognition was that affected states should empower themselves to compete with other states (particularly with distant-water fishing fleets), which had had easy access to resources in the past. The four main principles in this process can be identified as follows.

i. Developing fairer ways of allocating fishing opportunities. These would aim to "level the playing field" between fishing rights based on historic performance and the aspirations of developing states, which for political or economic reasons had been excluded from potential benefits associated with fish resources found in their respective regions.

ii. Providing for fair and equitable access to fishing opportunities to states that did not share previous access.

iii. Reducing access to fishing opportunities for stocks that had been exploited beyond sustainable levels on a fair and equitable basis.

iv. Managing fishing capacity so that it is more evenly distributed between developing and developed states, but not at the expense of sustainability of target stocks.

Lutgen (1999) reviewed 22 FAO and Non-FAO regional fisheries organizations or arrangements. She focused on measures taken by these bodies to address contemporary fisheries issues and found that RFMOs had until then made efforts to implement the conservation and management measures provided for in post-LOSC fishery instruments. At the global level, such efforts are strongly dependent on effective co-operation between RFMOs (Lutgen 2000). To evaluate Lutgen’s conclusion, Appendix I identifies the key topics addressed by the three instruments reviewed in this paper. They are cross-referenced to the most relevant UNFSA Articles.

Appendix I illustrates the high level of convergence between SEAFC and WCPFC, despite the differences highlighted in Sections 2.3 and 3.3. This indicates that in at least two regions considerable and independent efforts to develop the necessary policies to facilitate implementation of conservation and management measures post-UNFSA have attained a remarkably similar result. Therefore, both SEAFC and WCPFC’s clear identification of their objectives provided for improved international standards of ocean governance, particularly through application of the precautionary approach, harmonization of measures, elaboration of flag and port state duties, and the setting up of workable compliance and enforcement regimes. The Protocol goes further and attempts to provide the political and socio-economic framework to mobilise the political will to enhance co-operation and to co-ordinate regional application of agreements such as SEAFC.

The SEAFC, WCPFC and SADC fisheries protocols therefore represent the first and only fruits of contemporary efforts aimed at providing equity, equality and sustainability in the execution of commercial exploitation of fish stocks at a regional level. If effective, they should greatly contribute to sustainable fisheries by securing global food security, the primary objective of the Kyoto Declaration and Plan of Action (Anon. 1995)^[374].

6. Conclusions

The UNFSA provides a blueprint for regional arrangements aimed at ensuring sustainable utilization of straddling and highly migratory fish stocks. While such agreements can be tailored for specific regional applications, their general objectives and underlying principles remain the same. Therefore the impact of post-UNFSA agreements, such as SEAFC and WCPFC should greatly contribute to ensuring responsible and improved governance of the oceans’ fishery resources.

Rayfuse (2000) has emphasized that there is little doubt that eventual state practice for regional instruments such as SEAFC and the WCPFC will clarify their inter-relationships with UNFSA. This is not only self-evident in respect of some of UNFSA’s strengths, but also interms of SEAFC’s objective to regulate discrete high-seas stocks. The SEAFC process will test whether such precedent setting, or innovative, developments are workable when combined with other measures, e.g. control of individual nationals and industries.

The close similarities between SEAFC and UNFSA are readily apparent. The SEAFC Preamble expressly recognizes this link, which is reinforced by the large degree of commonality in text despite apprehensions exhibited by some of the negotiating parties. While UNFSA provided much of the basis for many SEAFC provisions, it remains to be seen how these will be applied in practice, particularly in respect of allocating fishing opportunities. For WCPFC, the most distinctive feature is its attempt to provide essential detail for a compliance and enforcement regime compatible with, but not apart from, UNFSA. SEAFC on the other hand is not as prescriptive and only future state and institutional practices will indicate how effective these two approaches have been compared to each other.

The SADC Protocol constitutes a model for how essential regulatory provisions may be put into practice to address political and socio-economic needs. The Protocol is thus the "sharp-end of the anticipated outputs from fisheries agreements such as SEAFC and WCPFC. There is much to be gained from SADC states making sure that the Protocol is effective so that the entire RFMO "process" is seen to benefit distant-water and developing states alike. All the SADC states should be seen to participate in the process, while other states should be encouraged to develop similar arrangements to identify their own particular regional and political needs. Such initiatives should lay the ground for the next developmental phase in ocean governance - the consideration of discrete stocks on the high seas. SEAFC’s future success here is obviously crucial, especially in light of growing global concern at the ecologically damaging and economically unfair practice of IUU fishing (FAO 2001).

Finally, it should be clear from Table 9 that the future effects of SEAFC, WCPFC and the SADC Protocol are likely to be profound and hold great significance for the future legitimate governance of the oceans, including the high seas. These effects are as much a result of the need to address the issues highlighted in Section 5 as they are to ensuring a more equitable approach in dealing with the inalienable "right to fish the high seas". It is therefore concluded that the three fishery instruments considered in this paper represent the dawn of a "new age" in fisheries management; an age that will be consistent with the direction set by LOSC and UNFSA.

TABLE 9
Some anticipated outcomes from SEAFC, WCPFC and the SADC Protocol

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APPENDIX I
SUMMARY DETAILS ON THE UNFSA, SEAFC, WCPFC AND SADC FISHERIES PROTOCOLS

(Adapted from Doulman 1999)