APPENDIX D - Comparative analysis of the fisheries legal frameworks of SADC coastal countries: status and options, by Blaise Kuemlangan

Blaise Kuemlangan
Legal Officer
Development Law Service
FAO Legal Office

ABSTRACT This is a brief study of existing fisheries laws on SADC Countries. The Study makes observations as to how such laws facilitate or otherwise, the effective management of fisheries using the requirements of the FAO Code of Conduct for Responsible Fisheries as a reference point. It also presents a brief description of the status of implementation, in these States, of the main international fisheries instruments, namely the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas adopted by the Conference of the Food and Agriculture Organization of the United Nations on 24 November 1993 and 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, adopted at New York on 4 August 1995. The areas that the SADC States may have to focus on to improve their fisheries laws both in respect of general fisheries management as well as the implementation of international fisheries instruments are briefly stated. The study also provides an overview of the opportunities at the regional level for Harmonization of fisheries laws of the States subject of this study.

A. INTRODUCTION

The FAO technical assistance project TCP/RAF/8933 “aims at identifying and analyzing priority marine policy issues at regional level with the view to develop a medium term strategy in support of SADC process of Harmonization of marine fisheries policy and legal framework”. A component of the project involves work by a FAO/LEGN legal officer to assist in the preparation of an outline for national reports and to undertake a comparative study of the fisheries laws of SADC Member countries.

This study is neither comprehensive nor exhaustive. It is basically a condensed comparative desk study of the fisheries laws of SADC coastal states namely Mauritius, Mozambique, Namibia, Seychelles, South Africa and Tanzania.[1] Typically, the strength of a comparative desk study depends on the information and material made available for the purposes of the study. While the national reports of the SADC countries compiled under TCP/RAF/8933 are the main references of this study, attempt is made to present, as much as possible, an independent overview using other sources of information available to the author.

The study provides a brief synopsis of existing fisheries laws of certain SADC Countries and makes observations as to how such laws facilitate the effective management of fisheries using the requirements of the FAO Code of Conduct for Responsible Fisheries (the Code) as a reference point. It also presents a brief description of the status of implementation, in these states, of the main international fisheries instruments, namely the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas adopted by the Conference of the Food and Agriculture Organization of the United Nations on 24 November 1993 (Compliance Agreement) and 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, adopted at New York on 4 August 1995 (Fish Stocks Agreement). The areas recommended for the SADC States to focus on to improve their fisheries law both in respect of general fisheries management as well as the implementation of international fisheries instruments are briefly stated. The study also provides an overview of the opportunities at the regional level for Harmonization of fisheries laws of the States subject of this study.

The study is presented in this paper in 3 main parts. The first part (B) is a brief presentation and summary of the provisions and observations made on the fisheries law of each country in relation to their ability to implement national fisheries policies and whether they contain the basic features for sound fisheries management as envisaged by the Code of Conduct. This includes observations on whether the relevant law facilitates the use of proven management options and trends. Fisheries management options and trends in this context, include elements such as fishery planning and the ability to ensure broad participation in fisheries management, mechanisms for controlling access to fishing and effort control and opportunities for effective monitoring, control and surveillance including enforcement. It will be noted also that the review of the fisheries law for the purpose of the comparative study focuses on the principal fisheries legislation in each country. This part of the paper also examines whether the relevant law of each country facilitates implementation of the Compliance Agreement and the Fish Stocks Agreement. This analysis is made against the overview of the two Agreements provided in Annex I and the provisions of the Fish Stocks Agreement and the Compliance Agreement that are identified as having legislative implications outlined in Annex II. The second main part of the paper (C) is a summary of the findings of the review undertaken in B. The third main part of the study (D) presents the overview of the opportunities at the regional level for Harmonization of fisheries laws of the States subject of this study.

It should be remembered, with respect to the analysis of the implementation of international instruments, that the focus of the analysis is only on implementation of the Compliance Agreement and the Fish Stocks Agreement. These two agreements generally reinforce certain classical requirements relevant to fisheries management found in the United Nations Convention on the Law of the Sea of 10 December 1982 (1982 UN Convention). Examples of these requirements include the need to authorise vessels for fishing, reporting and enforcement. In reviewing the performance of the SADC Coastal States on the implementation of the Agreements, the study does not asses the performance of the States against these classical requirements but focuses on the additional requirements imposed by the agreements. Prominent among these additional requirements are; the prescriptive nature of the exercise of flag state responsibility particularly in relation to high seas fishing; the need to ensure compliance with international conservation and management measures; establishment of fishing records; reporting of vessel data including the need to provide reports to FAO; establishment of boarding and inspection procedures for the high seas; enforcement against serious violations; and, setting fisheries conservation and management measures and ensuring compliance with such measures through global, regional and sub-regional corporation including through regional fisheries management agreements or arrangements. It shall be noted that the mere review of fisheries legislation is not a satisfactory way to measure implementation of the Agreements. Evidence of this could be found, among other things, in individual State practice and the conduct of its international relations.

B. BRIEF SUMMARIES AND ANALYSIS OF FISHERIES LAWS

1. MAURITIUS

1.1 Fisheries law and related legislation

The Fisheries and Marine Resources Act 1998 (FMR Act) is the principle legislation governing fisheries management and conservation in Mauritius.

The FMR Act invokes the application of the Maritime Zones Act and the Public Officers Protection Act and the Environment Protection Act 1991 (in relation to fish farming).

The Wildlife and National Parks Act 1993 and the Wildlife Regulations 1998 made under this Act, which implement the obligations of Mauritius under CITES, are also relevant to fisheries management.

The Environment Protection Act 1991, (the main legislation for the protection of the environment, including the marine environment) is particularly important because it requires the promoter of any undertaking which is likely to affect the environment to apply for an Environment Impact Assessment licence from the Department of Environment. Of equal importance is the power of the Minister responsible for environment to make regulations specifically for the purpose of preventing, reducing and controlling pollution in the coastal and maritime zone. The Director of Environment may, where he is of the opinion that an enterprise involves an imminent risk of serious pollution to the environment, serve on the person responsible for the enterprise, a prohibition notice requiring the person to take measures to remove the risk.

1.2 Scope, purpose and administration

The stated purpose of the FMR Act is to provide for the “management, conservation, protection of fisheries and marine resources and protection of the marine ecosystem.”

Typically, the FMR Act vests power in the Minister to set up institutions for the exercise of certain management responsibilities. The Minister can set up Consultative Committees using this power. The FMR Act also empowers the Minister to set up Marine Protected Areas, make regulations in relation to various management measures, approve certain activities (such as approval of imports and exports of fish or fish products) and to issue authorisations. Most of the administrative and management actions are however vested in the Permanent Secretary.

Observations

On the whole, the FMR Act is able to give fair support to implementation of policy based on the principle objective of the “management, conservation, protection of fisheries and marine resources and protection of the marine ecosystem.” However the overall legal framework can be further improved so that it explicitly supports management planning as well as be made flexible to respond to changes such as the need for changes to limits on number of licences for nets.

The FMR Act by implication gives full mandate for fisheries management in the Minister although this could be clearly stated so that there can be no question as to who is the ultimate authority on fisheries matters.

Consultative Committees provide an opportunity for consultation of stakeholders. However, Section 3 which establishes these institutions gives discretionary powers to the Minister to chose who is to be on the Committees. Thus whether or not a Committee is representative and competent depends entirely on the Minister’s actions.

There is no clear legal basis to establish broader participation beyond participation through the Consultative Committees. There could be limits placed on the mandate of the Consultative Committees and clearly, their legislative basis cannot be used to establish other management approaches such as co-management.

There is no logical sequence of the provisions of the FMR Act as they are currently set out and makes the Act a difficult reference document to follow. The arrangements of the provisions of the FMR Act could therefore be improved but this is not a substantive matter.

1.3 Fisheries management mechanisms and measures

The FMR Act contains provisions designed specifically for the protection of the aquatic ecosystem. The FMR Act makes it an offence to place, throw or discharge any poisonous substance into the waters of Mauritius. It also provides for the proclamation of Marine Protected Areas which, may be designated as Fishing Reserves, Marine Parks or Marine Reserves to better protect, conserve and manage the marine environment. Stringent conditions are set in relation in relation to activities carried out in those areas.

The Minister can prescribe measures by way of regulations for the protection, conservation and management of fisheries. Typical matters that can be regulated include the prohibition of fishing by certain means, in certain areas and or during certain periods; the prohibition of fishing of a specific species, size, or gender of fish; conditions to be attached to possession, manufacture or purchase of any gear; schemes for setting and allocating quotas and for limiting entry into all or specified fisheries; and, the prohibition of an activity likely to disturb the marine ecosystems and habitats.

Licensing is used as the primary mechanism to regulate fishing. Licences are required for: the use of specified nets and within specific limits on the number of licences to be issued; the use of foreign fishing vessels in Mauritius waters subject to the pre-existence of an fishing access agreement between the Government on the one hand and an intergovernmental organization, a State or an association on behalf of the vessels to be licensed, on the other (unless this requirement is dispensed by the Minister and the applicant provides financial and other guarantees); and, the use of a Mauritian vessel for fishing or related activity in Mauritian waters or on the continental shelf, the high seas or the fishing zone of a foreign State. Boats must be registered before they can be used.

An authorisation from the Permanent Secretary is required for fish farming while approvals are needed from the Permanent Secretary for the import and export of fish and fish products and for the manufacture, sale and supply of an implement (defined as a device used or intended to be used for fishing).

Observations

There are no provisions for management planning as has been noted. This does not prevent the fisheries authorities from adopting such a management mechanism but it would be better if management planning is institutionalised.

The FMR Act provides the minimum range of management options. Licensing for fishing and related activity is the main mechanism to regulate access while authorisations are needed for fish farming and the import and export of fish and fish products require approvals. There is no limitation on the issuing of Licences to foreign fishing vessels outside an access agreement where the Minister invokes Section 38 (2) and this may be open to abuse.

Under Section 42, it is not clear if the prohibition on the use of boats which are not registered means prohibition for use in relation to fishing or for any other purpose.

1.4 Monitoring, control and surveillance

Sections 40 and 41 of the FMR Act enable the Minister to attach conditions, which may include MCS requirements such as reporting, to licences issued to vessels and boats.

Sections 42 and 43 provide for registration and marking and identification of vessels and boats which are important for MCS purposes. These provisions are complimented by section 50 which requires the Permanent Secretary to record the particulars of the vessel including name, international radio call sign and net registered tonnage in the register.

Section 45 provides for the ability of the minister to designate places where catches can be landed while section 46 allows an authorised person to board a vessel for the purposes of inspection and collection of information in relation to fishing activities and fisheries resources.

Sections 48 and 49 relate to reporting upon departure and arrival of Mauritian fishing vessels respectively. The Master of a fishing vessel is required to inform the Permanent Secretary of intended date and time of departure of the vessel and comply with such conditions and provide such documentation as the Permanent Secretary may require. A Mauritian fishing vessel must also advise the Permanent Secretary of the expected time of arrival into port and upon arrival in port, report on the composition of catch, information on catch and effort and location of catches, and other information as may be required as well as provide the log book for examination and make the catch available for sampling and inspection.

Part VIII of the FMR Act deals with enforcement. It contains the typical enforcement provisions found under many fisheries legislation such as those which vest powers of search and entry (ss. 51 and 53), powers of arrest and detention (s. 54) the powers of seizure of fish (s. 55) and of vessels (s. 53) and the custody of seized articles (s. 58) and disposal of seized fish (s. 59). The provisions on enforcement are complemented by section 72 under Part X which gives jurisdiction to District and Intermediate Courts to try offences under the FMR Act.

Observations

A fairly solid MCS programme could be developed under the FMR Act using the provisions highlighted above. The requirements for registration of vessels, in particular the recording of particulars of vessels and the requirement for vessel markings enables a fisheries management authority to know the fishing capacity and to monitor the activities of licensed vessels. The power to designate ports for landing catches and for inspection enables the fisheries management authority to focus their on-shore monitoring and control activities at a specific place. The vessel reports before departure and entry into port ensure that the authority is put on notice so that inspection activities could be planned in advance. However, other reports or records such as at-sea catch records or position of vessel reports could provide a more complete picture of fishing effort for management planning purposes. If this is not already required, regulations could be made or conditions to licences could be imposed to require such reports.

The powers of entry and search seem adequate although entry and search would have to be normally undertaken under a warrant issued by a Magistrate. Searches can be done without a warrant but the element of impracticability has to be established by the officer exercising the powers of search. It may be easier to establish impracticability of obtaining a search warrant at sea but not so easy if search is done on a vessel in port.

The powers for investigating an offence under the FMR Act, particularly at sea, and the need to secure evidence are not as comprehensive compared with the fisheries legislation in other jurisdictions. The provisions in relation to enforcement could be strengthened to ensure such comprehensiveness.

The introduction of administrative procedures and penalties could be considered as an alternative law enforcement mechanism.

1.5 Implementation of Compliance Agreement and Fish Stocks Agreement

Mauritius has not lodged its instrument of acceptance for the Compliance Agreement although it appears to apply the requirements of the Agreement. Mauritius ratified the Fish Stocks Agreement on 25 March 1997.

Section 39 of the FMR Act prohibits fishing by Mauritian vessels or boats on the continental shelf, the high seas and the fishing zone of a foreign state except under a licence issued under Section 39. The Minister may not issue a licence under section 39 unless he is satisfied that the vessel is a Mauritian vessel or that the boat is registered under section 42 or that the applicant has satisfied the conditions prescribed by regulations. Licences are valid for not more than 1 year and are not transferable. If a licence under section 39 is issued to a vessel that has ceased to be registered under the Merchant Shipping Act 1986, such licence issued to the vessel will lapse on cessation of its registration.

Observations

Section 39 only satisfies the most basic requirement under the Compliance Agreement and the Fish Stocks Agreement which is for Flag States to prohibit unauthorised use of vessels flying their flag from fishing in waters beyond their national jurisdiction.

Pursuit, boarding and inspection of foreign vessels can be done under section 57 but these can be done only in a “hot pursuit” situation under international law and is therefore of limited application.

Section 47 provides that transhipment can be regulated so regulations ought to be made to control transhipment.

Regulations that can be made under section 39 or amendments to the FMR Act could provide for further requirements in order to satisfy the terms of the Compliance Agreement and the Fish Stocks Agreement. Such regulations or amendments could set out requirements for compliance with international conservation and management measures including the measures established by regional or sub-regional agreements or arrangements to which Mauritius is a party, the exchange or sharing of information with other States and FAO and MCS activities including boarding and inspection procedures for Mauritius flag vessels beyond waters under national jurisdiction.

2. MOZAMBIQUE

2.1 Fisheries law and related legislation

The Act 3/90 approving the Fisheries Act of 26 September 1990 is the principal fisheries legislation in Mozambique. It has been implemented by various subsidiary legislation a list of which follows:

- Decree No. 37/90 of 27/12/1990 enforcing the Fisheries Act

- Ministerial Decision of 29/02/1992 implementing Act No. 3/90 approving the fisheries Act

- Ministerial Decision of 29 February 1992 on the application of sanctions established by Act No. 3/90 approving the Fisheries Act.

- Ministerial Decision No. 118/91 of 13/11/1991 establishing a closed season and total allowable catch for shrimp fishing.

- Decision of 13 November 1991 establishing fishing vessel marking requirements.

- Decision of 18 February 1999 prohibiting catching, collecting and trading of ornamental fish and coral.

- Decision of 20 June 1999 providing for an industrial trawl fishing restriction beyond 3 nautical miles from the coastline.

- Decision of 16 July 1991 entitling the Provincial Supervision of Agriculture to issue licences for artisanal inland fishing.

- Ministerial Decision No. 138/92 of 16/09/2001 establishing minimum mesh for trawl fishing for shrimps.

2.2 Scope, purpose and administration

The basic Fisheries Act No. 3/90 (basic Act) is a framework law for fisheries and applies to all waters under jurisdiction of Mozambique and, as far as enforcement is concerned, to all Mozambican fishing vessels fishing in international waters or the waters of third countries (art.2). The basic Act defines 6 types of fisheries and provides guidance for their definition to the regulatory level (art. 3). These fisheries are (a) subsistence fisheries; (b) artisanal fisheries; (c) semi-industrial fisheries; (d) industrial fisheries; (e) scientific and research fisheries; (f) recreational fisheries. Title II of the basic Act relates to fisheries management and administration, and lays down the general principles. The Council of Ministers plays a key role in the overall management and development of the fisheries. It sets the general policies for the sector development at central and provincial/local level, negotiates and concludes international (especially regional) cooperation agreements (Harmonization, fishing licences, shared stocks, management measures for specific zones, etc.) and ensures the preparation and implementation of fisheries development plans. Special consideration is given also to the development of small scale fisheries, to the creation of a fisheries development fund, resolution of conflicts among fishers, the development of marine and freshwater aquaculture, inland fisheries, recreational and sports fishing as well as the fisheries processing plants. The Secretariat of State for Fisheries is vested with specific responsibilities, and in particular policy-making powers in these areas. The responsibilities of the Council of Ministers can be delegated to the Secretariat of State for Fisheries (art. 69)

Observations

It seems that the basic Act has wide scope. It appears to address fishing by Mozambican vessels outside the Mozambican waters including by ensuring that Mozambican vessels do not fish illegally in other countries’ waters. These vessels are also registered and their high seas fishing activities are thus subject to control. It is worthy of note that the term “vessel” is defined as any type of floating construction used or capable of being used as a means for transport on water or underwater. This is a rather broad definition of fishing vessel as it may include, for example, a manually operated raft or submarine.

The Council of Ministers are a central figure in the management and development of fisheries from the stage of policy making through to cooperation on enforcement. It can share its responsibilities by delegation to the Secretariat of State for Fisheries. The only drawback in the power of sharing responsibilities is that it can be delegated to one person only. It is obvious that basic Act heavily relies on a top-down approach in management and there is no formal basis for stakeholder input except, to some extent, in the realm of resolution of conflicts among fishers. However, even in this area, the state agencies take a lead role.

2.3 Fisheries management mechanism and measures

Following the definition of the general principles regarding the management and administration of fisheries, the basic Act deals (in its Chapter II of Title II) exclusively with the legal regime for fishing permits. As a general principle, fishing, with the exception of subsistence fisheries, can only take place with a permit, issued by the Secretariat of State. Permitting is also used for the construction of any new Mozambican fishing vessel (art. 29(4)). There is a fishing vessel register and criteria are set for the allocation and renewal of fishing licences. Foreign fishing vessels may only operate, in principle, within the framework of a fishing agreement (art. 32(1)) or, as an exception, under a foreign fishing licence (art. 32 (3).

Foreign fishing vessels are not allowed to fish in territorial waters (12 nautical miles) (art. 34(2)) but the Secretariat of State for Fisheries may grant special permits for specific operation (art. 34(3)(a)) or for research or scientific fishing activities (art. 34(3)(b)).

The basic Act vests general broad powers in the Secretariat of State for Fisheries to define fisheries conservation measures. Such conservation measures may include measures relating to mesh size, closed seasons, prohibited or restricted areas, use of fishing gear, maximum allowed catch per vessel or per person in a particular fishery or area, prohibited fishing methods and measures or plans limiting the access and the fishing effort. Other typical matters that can be regulated relate to the fishing of rare or endangered species or marine mammals. As a typical general principle the use of explosives or other toxic substances and electric devices for fishing are prohibited.

Under the basic Act quality of fishery products receive special attention too. The Secretary of State of fisheries can prescribe measures and promote codes of practices by way of regulations relating to quality control of fishery products. Typical matters that can also be regulated relate to the inspection of quality control for export purposes, the issuing of quality certificates, etc.

The Marine Fisheries Decree No 16/96 is also relevant to fisheries management. The Decree regulates in detail the basic provisions laid down in the basic Act, applies to all persons, whether individuals or not and whether Mozambican or foreigner, which fish in the marine waters of Mozambique. With respect to fisheries management, it sets the required contents of fisheries management plans, mechanism for managing a particular fishery (TAC, fishing quota, criteria for setting quotas, etc.). It provides for the establishment of the Commission for Fisheries Management which is responsible for setting TAC, fish quotas, closed seasons, restricted areas and other management measures with regard to a particular or more reference fisheries.

Under the conservation measures, provision is made for the setting of marine national parks, marine nature reserves, protected marine areas, areas unsuitable for sanitary reasons and areas for marine security.

Observations

The basic Act relies heavily on licensing and the permit mechanism for the management of fisheries (input control). However, it also provides alternative mechanisms for fisheries management (e.g. TAC, fishing quotas). These options combined with management plans and the ability to establish marine national parks, marine nature reserves, protected marine areas and marine sanctuaries could be used by the authorities to establish a comprehensive management regime for general fisheries management or the management of a specific fishery.

It is noted again that the legal framework sets out a centrally driven management approach. Such an approach relies heavily on adequate capacity and resources of the fisheries authorities to be able to ensure effective implementation of the law and compliance with management measures

The power of the Secretariat of State for Fisheries to issue licences to foreign fishing vessels under an agreement ensures transparency in the process of licensing of foreign fishing vessels. The exception (power of the Secretariat of State for Fisheries) to issue a licence even if there is no agreement could compromise such transparency.

2.4 Monitoring, control and surveillance

Control of fishing operations, is one of the cornerstones of the basic Act of 1990 (Title V). The Secretariat of State for Fisheries has exclusive authority for the control of fishing operations in the waters under jurisdiction of Mozambique. However, the Secretariat may delegate this authority to other agencies and establish appropriate co-operation mechanisms with other administrations (art. 41). The Act then goes on to define the responsible enforcement officers and the inspection powers (arts. 42 and 43). Typically these powers include powers of search, entry, seizure of fish and of vessels, custody of seized articles etc. Special provision is made for the right of hot pursuit as provided for in international law (art.45). Consistent with the provisions of the 1982 UN Convention, the Secretariat of State for Fisheries must immediately inform the relevant bodies when a foreign vessel is apprehended.

Routine inspections should not, as far as possible, encroach on normal fishing activities (art. 44). Fishing offences are listed according to their nature and seriousness. Specific fishing offences are punishable by fine or by the confiscation of the fishing gear and/or catch. The setting of the fine is left to the Secretariat of State for Fisheries so that it may reflect the particular circumstance (art. 58).

The enforcement section of the basic Act concludes with a chapter on those bodies empowered to set the penalties, including administrative and criminal penalties. The Act establishes the administrative nature of penalties by authorising the Secretariat of State for Fisheries to apply all the penalties envisaged by the Law or its implementing regulations (art. 60). However, any penalty set may be disputed in court (art. 61). Interestingly, article 66 of the basic Act allows for the State to be held responsible in the event of damages to vessel owners resulting from illegal acts from Mozambican authorities or fisheries inspection authorities, and especially from unwarranted immobilisation. The basic Act prescribes that in such situations the vessel owner shall be awarded compensation in the form of fishing rights.

Article 23 of the Fisheries Act No. 3/90 sets the basic regulatory powers for the marking of fishing vessels and fishing gear and article 138 of Decree No. 16/96 enforcing the Fisheries Act provide explicitly for the marking of industrial and semi-industrial, Mozambican or foreign fishing vessels and fishing gear.

The Marine Fisheries Regulation (Decree No16/96) regulates the control of catches and the monitoring of resources (Chapter VI). It deals with issues relating to the keeping of logbooks, the keeping and maintaining of records on catches and fishing effort, the catch details and reporting sheets. Typically, any enforcement officer may demand a person to produce such records. The Regulation contemplates further aspects relating to the reporting of entry into or departure form Mozambican waters, the position of fishing vessels and commencement and termination of harvesting operations.

Observations

In general, there is adequate basis for MCS activities and programmes provided in the basic Act. The basic Act appears silent on surveillance matters but these may well be dealt with under other legislation.

The delegation of authority by the Secretariat of State for Fisheries for the control of fishing operations in the waters under jurisdiction of Mozambique to other agencies and to establish appropriate co-operation mechanisms with other administrations (art. 41) is an interesting and useful approach in fisheries enforcement. This provides a basis for inter-agency MCS and enforcement programmes and activities.

The Fisheries Act does also authorise the Council of Ministers to enter into regional arrangements for statistics and enforcement but only cooperation (and not regulatory powers) is envisaged.

The ability of the Secretariat of State to administratively deal with a contravention and to apply the penalties set out under the basic Act is also worth noting.

Other interesting aspects in enforcement is the clearly set out responsibility of the State in relation to wrongful exercise of powers and the obligation of State to compensate by awarding fishing rights.

2.5 Implementation of Compliance Agreement and Fish Stocks Agreement

Mozambique is neither a party to the Compliance Agreement nor the UN Fish Stocks agreement. As the basic Act was promulgated in 1990, it is understandable that it did not envisage the implementation of the two Agreements.

Observations

The fact that Mozambique is not a party to the two agreements does not mean that it could not give effect to the principles of the agreements. Indeed, as regards flag state responsibility (a basic principle stated under both agreements), there is clear indication in the basic Act (art. 2) that Mozambique by ensuring that it can enforce its laws over its nationals and Mozambican vessels in international waters or waters of third parties is giving effect to flag state responsibility. This could be built upon if it is decided that Mozambique shall become party to the two agreements or give effect to them.

3. NAMIBIA

3.1 Fisheries law and related legislation

The Marine Resources Act (MR Act) 2000[2] is the principle fisheries legislation in Namibia. It repeals the Sea Fisheries Act of 1992. Related legislation include the Merchant Shipping Act 1951 and the Territorial Sea and Exclusive Economic Zone of Namibia Act of 1990. The Merchant Shipping Act is relevant for the purposes of establishing the nationality of vessels (in this case to establish whether or not a vessel is a Namibian vessel) while the Territorial Sea and Exclusive Economic Zone of Namibia Act is relevant for determining the jurisdictional scope of the MR Act.

3.2 Scope, purpose and administration

The MR Act is to “provide for the conservation of the marine ecosystem and the responsible utilization, conservation, protection and promotion of marine resources on a sustainable basis; for that purpose to provide for the exercise of control over marine resources; and to provide for matters connected therewith.”

The MR Act applies in Namibian waters which is defined as “the internal waters, the territorial sea, the contiguous zone and the exclusive economic zone of Namibia as defined in the Territorial Sea and Exclusive Economic Zone of Namibia Act, 1990 (Act No. 3 of 1990), and includes the sea bed up to the high water mark”. The Act also applies, in as far as enforcement is concerned, to Namibian flag vessels in or outside Namibian waters and to foreign flag vessels to the extent authorised by international agreements to which Namibia is a party, outside Namibian waters.

The MR Act provides that the Minister may determine the general policy with regard to conservation and utilization of marine resources. The Minister is also vested with typical powers such as the powers of appointment of officers or persons to serve in various capacities under the MR Act, receive applications for fishing rights, set total allowable catch and management measures and make regulations under the MR Act.

The Permanent Secretary is vested with administrative powers under the MR Act including the chairing of the bodies established under the MR Act, the receiving of applications, the issuance of notice for a possible contravention, and receives reports or information required under the MR Act.

The MR Act establishes two multi-sectoral and representative institutions: the Fisheries Observer Agency; and, the Marine Resources Advisory Council. The former body deals with MCS matters and will be discussed later. The Marine Resources Advisory Council advises the Minister in relation to any matter on which the Minister is required to consult the Council and other matters referred to the Council by the Minister.

Observations

The MR Act ensures that that government policies guide fisheries management in Namibia and therefore explicitly provides that the Minister determines such policy from time to time. Section 3 leaves no doubt that the management, protection and utilization of marine resources in Namibia and Namibian waters shall be subject to the MR Act.

Broad participation in fisheries management decision is possible under the auspices of the Fisheries Observer Agency and the Marine Resources Advisory Council.

There is no provision to establish other forms of participation in fisheries management, in particular, co-management. However, this may be a subject that falls under the purview of other legislation.

3.3 Fisheries management mechanisms and measures

Under the MR Act, the harvest of marine resources for commercial purposes in Namibian waters is possible only under a right, an exploratory right or a fisheries agreement, or, in the case of a quota fisheries, under the terms of a quota (s. 32). Applications for rights under the Act shall be submitted within a specified period and shall be determined and granted by the Minister.

Namibia may, through the President, enter into a fisheries agreement with a member country of the Southern African Development Community to enable such country to harvest marine resources in Namibian waters (s. 35). A person who fishes under such fisheries agreement shall be apply for a quota and shall fish in accordance with the terms of the quota (as if it where a right) where such quota is granted.

The Minister may set a total allowable catch to limit the quantity which may be harvested in respect of any marine resources. (s. 38).

The Minister may subject the harvesting of marine resources to such management measures he considers necessary and such measures may include quotas (s. 39).

Persons who wish to use fishing vessels to harvest marine resources must obtain a licence (section 40). However, such licences can only be issued if the person holds a right or an exploratory right or a quota where a quota has been issued for that resource.

The MR Act prohibits the use of explosives and noxious substances to kill or disable fish. The use of driftnets is also prohibited. The Minister has powers to prescribe other management measures (s. 47).

Section 51 of the MR Act provides that the Minister may designate a specified area of Namibian waters, State land or land subject to the jurisdiction of a traditional authority to be a marine reserve for the protection or regeneration of marine resources and set requirements and objectives in respect of such reserves (s. 51).

Observations

Namibia has a well established and operational system of harvest rights, exploratory rights and quota system in place which is working well. This system of rights and quotas is rooted in the MR Act (formally the Sea Fisheries Act). The rights and quota system works along side the licensing system for vessels. It appears from various reports on the successes of the Namibian fishing industry that the legal framework adequately provides for management of marine resources.

It is noted that there is no management planning provision under the MR Act. This does not prohibit the Namibian authorities from using management plans specific to the management of each fishery and it is reported that management plans exist for the major fisheries. Broad plans such as the 1991 White paper “Towards Responsible Fisheries Development of the Fisheries Sector” and the Strategic Plan 1999-2003 have also managed to ably guide the management of fisheries in Namibia. However, it may be useful to include the requirement for the preparation of fishery specific management plans in legislation.

3.4 Monitoring, control and surveillance

The MR Act sets out matters related to MCS and enforcement in various sections. Sections 4-6 deal with the appointment of fisheries inspectors and honorary fisheries inspectors and their respective powers. Section 7 deals with the appointment of observers and their functions as well as set out the obligations of holders of a right, exploratory rights, quota or licence in respect of observers which include compliance with a request by the Minister to carry the observer on board a fishing vessel, give access to all parts of land, premises or fishing vessels, records, documents and marine resources found in these places, and to provide accommodation and equipment to observers for the purposes of carrying out observer duties. As noted earlier, Namibia has a unique Observer Agency set up under Part IV of the MR Act which is responsible for providing observers to perform observer tasks enumerated under the MR Act, provide appropriate expertise and facilities to train fisheries observers and make observers available to carry out duties outside Namibian waters pursuant to an agreement to which Namibia is a party.

Under section 48, any person holding a right, exploratory right, a quota, licence or other authorisation can be required to keep records or provide information to the Permanent Secretary as may be prescribed. In addition, any staff authorised by the Minister may demand a person to keep or maintain such record and to produce them for inspection.

Section 61 provides that Regulations can be made by the Minister in relation to: the display on any fishing gear of identification marks or information; reporting entry into or departure from Namibian waters; the position of fishing vessels and the commencement and termination of harvesting operations; registers, records or other documents to be kept for the purposes of the MR Act and the information to be recorded therein and the inspection thereof; the carrying on board fishing vessels of fisheries inspectors, honorary fisheries inspectors, observers or other persons designated by the Minister and the powers and functions of the persons so appointed; installation and maintenance of communication, safety or surveillance equipment of fishing vessels; and, the making of surveys and the gathering of information regarding the requirements and demand in respect of marine resources, the state and potential of marine resources and the harvesting, processing, transport and disposition of marine resources.

In addition to the provisions relating to the appointment of inspectors, honorary inspectors and observers (ss. 4-7), Namibia has other elaborate provisions relating to enforcement under Part IX of the MR Act. This is where fisheries offences are set out together with the penalties for each offence (s. 52). There are very detailed procedures for forfeiture (s. 54) and custody of seized items (s. 55). Section 56 provides for the jurisdiction of courts capable of dealing with fisheries offences. The section on evidence (s. 57) provides for the admissibility of information obtained by the use of charts or an instrument as evidence. The same provision allows the use of certificate evidence and information stored electronically in courts. Related to monitoring and surveillance is the confidentiality of information provided to and kept by the fisheries management authority. Section 59 assures the preservation of secrecy of such information and allows that such information can be accessed only under certain circumstances or for specific purposes.

Observations

The MR Act provides a broad base for MCS activities to take place. Regulations made under Section 61 to support specific MCS activities would help ensure that Namibia has a comprehensive MCS programme built on past programmes.

Unique to Namibia is the creation of a separate agency responsible for administering the fisheries observer programme as well as a fund to support the activities of the agency. It would be interesting to find out whether this institution will help improve the MCS situation in Namibia.

The Preservation of Secrecy clause is the only one of such clause amongst the SADC legislation that have been examined. Such clause is important in that they provide providers of information a level of comfort on privacy issues thus increasing the level of cooperation of such persons in information sharing.

The introduction of administrative procedures and penalties could be considered as an alternative law enforcement mechanism.

3.5 Implementation of Compliance Agreement and Fish Stocks Agreement

Namibia ratified the Fish Stocks Agreement on April 1998. On 7 August 1998, Namibia deposited its instrument of acceptance of the Compliance Agreement.

Section 37 of the MR Act is directly relevant to the implementation of the UN Fish Stocks Agreement and the Compliance Agreement. However, the provision is only generic in nature. It would need regulations to ensure that a specific international agreement is implemented. Under the Section, Namibia will be able to designate international conservation and management measures as applicable in Namibia or Namibian waters. Such international conservation and management measures will be deemed to be a regulation made under the Act.

Section 32 (5) compliments section 37 by ensuring that Namibia does not have vessels which fly its flag undertaking fishing outside Namibian waters unless Namibia grants a right, an exploratory right or allocates a quota to a person.

Observations

Namibia has made it possible under Section 37 for the implementation of the Fish Stocks Agreement and the Compliance Agreement. In order to give the agreements full effect, regulations will need to be made forthwith.

Section 32 (5) however can be restrictive on the application of Namibia’s sovereignty over its vessels (vessels that fly the flag of Namibia). The way in which the section is worded can be taken to mean that Namibia cannot authorise or does not have the power to authorise any person to use Namibian vessels to fish beyond Namibian waters unless such right or power is granted to Namibia by an international agreement. This interpretation however is made without having discussed constitutional laws and other laws that could bear on the interpretation of section 32 (5).

4. SEYCHELLES

4.1 Fisheries law and related legislation

The Fisheries Act 1986 (the Act) is the principle fisheries legislation. The Fisheries (Amendment) Act, 2001 amends the Act. The Act is supported by Regulations made under the Act.

The following laws are of direct relevance as the Act invokes their application to certain fisheries management activities: the Seychelles Fishing Authority Act; (the Seychelles Fishing Authority (SFA) is tasked with the overall management of fisheries under the Fisheries Act); the Seychelles Licensing Authority Act (licences under the Act are issued by the Seychelles Licensing Authority (SLA)); the Town and Planning Authority Act (The Town and Planning Authority gives approval for granting exclusive rights to propagate, raise and take fish and other aquatic organisms) and the Public Officers (Protection) Act 1976 (this Act provides protection for fisheries officers).

4.2 Scope, purpose and administration

The Act revises and consolidates the laws relating to fisheries. It provides a general framework for the regulation of fishing and aquaculture in the Seychelles waters, which is defined as “the exclusive economic zone, territorial waters, internal waters and all other waters subject to the fisheries jurisdiction of Seychelles”. The purpose of the Act is not explicitly stated but it can be implied from its operative provisions that it is the principal legislation governing fisheries and aquaculture management in the Seychelles. The Fisheries (Amendment) Act 2001 introduces changes for the implementation of the Compliance Agreement and the Fish Stocks Agreement.

The main management actions are vested in the SFA. Typically, the Minister responsible for fisheries is vested with the powers to make regulations for the proper management of fisheries and to establish specific management measures. The Minister can enter into agreements with other States, intergovernmental organizations and associations representing foreign fishing vessels operators for the purposes of allocating fishing rights. He can also compound offences.

Observations

Many important fisheries management powers are shared as indicated above. This could be naturally problematic as difficulties in administering legislation and fisheries management powers could occur if the various agencies that deal with different aspects of fisheries management have poor working relationships. However this may not be necessarily true for small government administrations and this seems to be the case for Seychelles.[3]

The recent amendments that enable Seychelles to implement the Compliance Agreement and the Fish Stocks Agreement widens its scope and make it, relatively, the most comprehensive legislation in the SADC region in this respect but more could be done through legislation to implement the two Agreements.

There is no additional institutional mechanism under the Act that will enable participation by stakeholders in management decisions or that allow them to influence such decisions. Nevertheless, consultation with local fisherman and other persons could occur in the preparation of the plans. Consultation with the fisheries management authorities of other states can also influence fisheries management decisions.

4.3 Fisheries management mechanisms and measures

The Acts requires the SFA to prepare and keep under review plans for the management and development of fisheries. These plans shall indicate the current state of fisheries, the objectives to be achieved and the management, development and licensing measures to be applied including the amount of fishing to be allocated to foreign fishing vessels. Each fisheries management plan shall be submitted to the Minister for approval.

The Minister may make regulations concerning management and conservation measures such as closed seasons, closed areas, use of gear, species and size of fish. Any licence issued under the Act for the use of a vessel, net or activity shall be subject to general operating and management requirements as the Minister may prescribe and such conditions that are endorsed on the licence (s. 12).

The Act (ss. 6 to 8) authorises the Minister to enter into agreements for the allocation of fishing rights to foreigners and provides in general for foreign fishing in the Seychelles waters. Licences to foreign fishing vessels shall be granted only pursuant to an agreement except when the Minister determines that an agreement is not practical and the applicant provides sufficient financial and other guarantees for the fulfilment of obligations under this Act (s. 7). Other provisions of Part II deal with fishing by local vessels and for pleasure and with aquaculture (s. 18).

The new section 17A and amendments in sections 19, 24, 25 and 27 introduce, inter alia, the regulation of fishing by Seychelles vessels beyond Seychelles waters including in the high seas and enables boarding and inspection. (See also discussion under 4.5 Implementation of international instruments).

Observations

There appears to be a minimum basis for policy support and implementation in the Act particularly if the mechanism of fisheries management and development plans is effectively used with the broad basis for regulations for fisheries conservation and management. However, the legal framework for fisheries management could be strengthened through formal establishment of a consultative body. There is no legal basis for establishment of co-management systems should there be a decision to utilise such a management approach. Co-management could be integrated into plans but these do not create an enforceable system for co-management until clear requirements are stated under the Act.

The Act also provides that plans should state what rights are to be allocated to foreign fishing vessels and also that total fishing rights allocated by agreements with other States, intergovernmental organizations or associations should not exceed the total resources or the amount of fishing permitted to foreign fishing vessels by the applicable plan. This requirement is commendable but can be circumvented if licences are issued without an agreement as allowed by Section 7 (3) (b).

4.4 Monitoring, control, surveillance

There is no explicit reference in the Act to observer programmes, inspection schemes (other than inspection for enforcement purposes) and vessel monitoring systems. Section 22 provides that Seychelles may enter into arrangements or agreements with other States in the Indian Ocean to provide for joint or harmonized surveillance and enforcement measures in respect of foreign fishing vessels.

Section 5 provides that the SFA can collect and analyse statistical information. It also requires that persons engaged in fishing, related activities or aquaculture shall supply information regarding those activities as is required by the SFA. Exchange of fisheries information and for Harmonization of systems for collection of such information.

Despite the absence of explicit typical MCS provisions in the Act, the powers provided in Section 5 and the licensing provisions (e.g. section 12) are broad enough for the Minister to require the undertaking of MCS activities such as the reporting of information such as vessel position and activity. Under the new amendments to the Act (s. 17A) Seychelles vessels fishing on the high seas could be required to report their position and activity if this requirement is specified in their licence as a condition.

The Minister can make regulations under Section 27 requiring any licensed vessel to be equipped with specified communications and position fishing equipment. The amendments to Section 27 also allows for such specifications and other MCS requirements to be made in Regulations in respect of Seychelles vessels fishing on the high seas.

Enforcement and related provisions of the Act are the most detailed compared with the other provisions of the Act. Section 19 as amended gives the typical powers of stopping, boarding and searching Seychelles fishing vessels in Seychelles waters and on the high seas. An authorised officer of Seychelles can, on the high seas, stop and board the fishing vessel of a State party to an international Agreement to which Seychelles is a party and if such agreement provides for such stopping boarding and searching. An authorised officer of a State party to an international agreement to which Seychelles is also a party can also stop and board a Seychelles vessel.

The Act also vests the power of seizure of vessels, its stores and cargo, fish and fishing gear; the power of hot pursuit; sale of seized fish or other perishable items; and, release of vessels on receipt of satisfactory bond or security.

The Act provides for fines only for offences under the Act. It also provides that the Minister can compound offences if the person admits the commission of the offence and if the person agrees to be dealt with under Section 26.

Observations

A minimum of MCS activities can be undertaken through effective use of the provisions of Section 5 and those provisions relating to licensing for fishing and related activities and the power to make regulations under Section 27. A set of regulations on MCS which include requirements for licensed vessels to carry specified communications and position fishing equipment would greatly facilitate reporting needs and, when appropriate, the introduction of VMS.

It is noticeable that fines are a fixed amount in the Act (i.e. no minimum or maximum penalty). Most of the fines which are imposed for convictions (which range from R10,000 to R50,000) appear to be inadequate particularly when it is contrasted against the fines for offences introduced by the new amendments (R500,000). This marked difference between the fines for high seas fishing related offences and other fishing allowed under the Act is discriminatory. It may even become a disincentive for high seas fishing and is certainly counter productive if Seychelles vessels are encouraged to fish high seas stocks to relieve pressure from overfishing in Seychelles waters.

The SFA of Seychelles is the only legislation that provides for compounding of offences in fisheries law enforcement. The impact of such a provision is not known. The introduction of administrative procedures and penalties could be examined and considered as an alternative law enforcement mechanism.

4.5 Implementation of Compliance Agreement and Fish Stocks Agreement

Seychelles ratified the 1982 UN Convention on 16 September 1991. Seychelles became a party to the Compliance Agreement on 7 April 2000 and the UN Fish Stocks Agreement on 20 March 1998.

The recent amendments to the Fisheries Act introduced by the Fisheries (Amendment) Act 2001 were specifically made to implement the Compliance Agreement and the Fish Stocks Agreement.

Observations

The new section 17A introduces the primary obligation to institute an authorisation for high seas fishing by Seychelles vessels, thus fishing outside Seychelles waters by Seychelles vessels is now covered by the Fisheries Act. “Seychelles vessels” is defined under the amended definition section as “a vessel required to be registered under the Merchant Shipping Act and a local fishing vessel”. Section 17A (2) ensures that the prerequisite conditions as required by the Compliance Agreement (Article III paragraphs 3 and 5) exist before an authorisation is issued. This may require further elaboration in regulations so as to enable easier implementation of the requirements of the two Agreements and the Act. This is envisaged as can be seen from amendments to Section 27(1) which adds the power to make regulations in respect of “fishing by Seychelles vessels beyond the limits of Seychelles waters”, “the exercise of powers under the Act outside Seychelles waters” and “landing and transhipment of any fish”. Requirements for reporting of vessel position and fishing activities, marking of vessels, vessel monitoring systems and other requirements of the Agreements can also be regulated. Non compliance with Section 17A (fishing without an authorisation and contravention of prescribed standards) is an offence under the amendment made to section 24.

The amendments to Section 19 ensures that boarding and searching can be done on the high seas in respect of any Seychelles vessel and other vessels that fly the flag of a State party to an agreement to which Seychelles is also a party. In respect of boarding searching of the latter category of vessels, a Seychelles authorised officer cannot carry out boarding and inspection until the Agreement to which Seychelles is a party provides for appropriate procedures for boarding and inspection. An authorised officer of a State party to an international agreement to which Seychelles is also a party can also stop and board a Seychelles vessel. Regulations “for the exercise of powers under the Act outside Seychelles waters” which can be made under the amendments to Section 27 is a reference to the powers added by the amendments to section 19.

In sum, Seychelles vessels cannot be used for fishing on the high seas without an authorisation. It seems possible that the use of Seychelles vessels in another jurisdiction cannot occur without an authorisation under section 17A. It should be noted however that this does not prohibit the use of a non Seychelles vessel by a Seychellois outside Seychelles waters. Seychelles can enforce only measures introduced under Agreement to which Seychelles is a party. This a restrictive interpretation of what is an “international conservation and management measures” and the objective of the amendments can be frustrated if Seychelles is not a party to any Agreement for the conservation and management of fisheries important to Seychelles. However, this may not be of any consequence as Seychelles is fairly active in its region in respect of fisheries conservation and management. In this respect it shall be noted that Seychelles is a party to: the South West Indian Ocean Fishery Commission which is concerned with the management of demersal stocks; the Indian Ocean Commission which is concerned with environmental programmes relating to the marine environment; the Indian Ocean Tuna Commission, and the Western Indian Ocean Tuna Organization which are concerned with the management of tuna stocks within their respective jurisdictions. Seychelles hosts the seat of the Indian Ocean Tuna Commission. Thus Seychelles is fairly active in meeting its obligations under the UN Convention on the Law of the Sea as elaborated by the Fish Stocks Agreement to cooperate in the conservation and management of fish stocks.

The level of fines that can be imposed in relation to high seas fishing offences contrast sharply with fines imposed for offences in relation to other fishing in Seychelles waters. It is understood that the fines fixed for high seas fishing related offences should be comply with the requirement of the Fish Stocks Agreement that penalties be severe enough to deter offenders and deprive them of the benefits of their illegal conduct. However, if there is no similar increase in the level of fines for offences related to fishing in Seychelles waters, it can be discriminatory against Seychelles vessels and their owners who wish to fish on the high seas.

5. SOUTH AFRICA

5.1 Fisheries law and related legislation

The Marine Living Resources Act of 1998 (“the MLR Act”) is the principal fisheries legislation in South Africa. Other legislation also impact on conservation and management of marine living resources and their environment in varying degrees. These legislation include: (1) the Sea Birds and Seals Protection Act 46 of 1973 which, inter alia, relates to the control over the acquisition, gathering and disposal of all products of sea birds and seals within the Republic, in its territorial waters and fishing zone and on any specified island (and the Antarctica in respect of citizens) as well as protection of sea birds and seals; (2) the Environment Conservation Act 73 of 1989 and the National Environmental Management Act 107 of 1998. The latter two legislation contain general provisions relevant to the exercise of ministerial powers and other administrative powers that may have an impact on the environment.

The MRL Act gives fisheries authorities cross-cutting mandates which relates, inter alia, to resources and habitat management, protection of endangered species, the requirement for an environmental impact assessment report for the purposes of an application for a fishing right, and the duty to avoid or minimise any harmful environmental impact caused by mariculture.

5.2 Scope, purpose and administration.

The MLR Act clearly states its purpose, scope and the general objectives for fisheries management. The MLR Act’s long title states that it provides “for the conservation of the marine ecosystem, the long-term sustainable utilisation of marine living resources and the orderly access to exploitation, utilisation and protection of certain marine living resources; and for these purposes to provide for the exercise of control over marine living resources in a fair and equitable manner to the benefit of all the citizens of South Africa; and to provide for matters connected therewith.” It applies to all South African subjects and vessels and all persons within South African waters.

Section 2 sets out broad objectives and principles for fisheries management in the Republic which shall guide the exercise of powers under the MRL Act. This objectives and principles are: (a) the need to achieve optimum utilisation and ecologically sustainable development of marine living resources; (b) the need to conserve marine living resources for both present and future generations; (c) the need to apply precautionary approaches in respect of the management and development of marine living resources; (d) the need to utilise marine living resources to achieve economic growth, human resource development, capacity building within fisheries and mariculture branches, employment creation and a sound ecological balance consistent with the development objectives of the national government; (e) the need to protect the ecosystem as a whole, including species which are not targeted for exploitation; (f) the need to preserve marine biodiversity; (g) the need to minimise marine pollution; (h) the need to achieve to the extent practicable a broad and accountable participation in the decision-making processes provided for in this Act; (i) any relevant obligation of the national government or the Republic in terms of any international agreement or applicable rule of international law; and (j) the need to restructure the fishing industry to address historical imbalances and to achieve equity within all branches of the fishing industry.

The MRL Act also establishes the institutions through which fisheries management and administration will occur which is largely through the Minister, the Consultative Advisory Forum for Marine Living resources, The Director General, and the Fisheries Transformation Council.

Observations

The MRL Act has broad scope of application. It also states objectives and principles of fisheries management in the Republic which shall be the yardstick for implementation action for as long as these objectives and principles are contained in legislation. The MRL can be labelled as the “principal fisheries policy reference document” as it provides a basis from which detailed strategies can be developed. It also provides a framework for further policy support through elaboration of the basic mechanisms for planning and regulations in support for fishing (input and output) controls through regulations.

Specifically, the establishment of the Consultative Advisory Forum and Fisheries Transformation Council may increases stakeholder participation in certain facets of management. Its weakness in this area is perhaps seen in the strict limitation of stakeholder participation through the Consultative Advisory Forum and the Fisheries Transformation Council. In terms of participation through the Fisheries Transformation Council, such participation has no assurance for continuation since the life of the Council depends on the wishes of the Minister who could abolish it if he wants. No clear mandate exists to broaden scope of participation through institutions and approach such as fisheries co-management. This situation does not help the government’s intent to move to self regulation and co-management.

It may help with the organization and reading of the MRL Act if the provisions that establish the administrative and institutional mechanisms for fisheries management are grouped under one part of the legislation but this is not a substantive matter.

5.3 Fisheries management mechanisms and measures

The MLR Act sets out some typical management mechanisms that can be found in recent fisheries legislation in various parts of the world. Among these mechanisms are fisheries planning which, in South Africa’s case, also involves the establishment of the total allowable catch (TAC) for a fishery) and the ability to establish fisheries management areas as a management unit. There are also established under the MLR Act typical conservation and management measures such as prohibitions on the use of explosives and noxious substances for fishing, driftnets and certain fishing gear.

The management and conservation mechanisms under the MLR Act worthy of note are the ability of the Minister to introduce emergency management measures, the establishment of priority fishing areas, the creation of marine protected areas and the allocation of fishing rights.

The MLR Act provides that a system of allocation of fishing rights, licences, and permits shall be used to grant access to and regulate fishing. Fishing rights may be allocated for local fishing or foreign fishing. Local fishing includes commercial and subsistence fishing by South African persons. A local fishing vessel that is to be used for fishing must have a fishing vessel licence. Any person can undertake recreational fishing if he has a permit.

A foreign fishing licence is required for any foreign fishing vessel wishing to fish in South African waters. In principle a foreign fishing vessel licences can be issued only if the vessels belong to a government of a flag state which has a fishery agreement with the Government of South Africa or if the vessel’s owner or charterer is a member of an association which has a fishery agreement with the Government of South Africa. However, the Minister can decide to issue a foreign fishing vessel licence without a fishery agreement in place if the applicant can provide substantial financial and other guarantees.

No fishing right is exercisable and no activity that is permissible under the MRL Act can be undertaken without a permit issued under section 13.

Observations

The array of management mechanisms available to fisheries authorities under the MRL Act facilitates a broad and flexible approach to management. However, a possible weakness is the need to also obtain a fishing permit under Section 13 (even if a right is obtained under Section 18) which introduces a certain complexity into the system for granting and exercising rights. Such permit is also required for other activity under the Act which raises a question whether one needs, for example, a licence for a local fishing vessel required under section 23 and a permit under section 13, to be able to use a local fishing vessel.

A possible weakness exists in the granting of foreign fishing vessel licences under Section 39 where the Minister has the ability to grant licences outside the requirement of there being in place a fishery agreement. This power, if exercised judiciously, could encourage investment and act as a conduit for long term benefits to the country. It could also bring in additional funds as access agreement fees. However, if it is indiscriminately exercised, it will encourage “one-off operations” at a cost of a license fee without long term benefits accruing to South Africa.

The MRL Act is unclear as to the status of fishery plans (although their purpose and role may be clear in the minds of the fisheries authorities). The White Paper on a Marine Fisheries Policy for South Africa stipulates that fishery plans shall be binding (with procedures to allow for amendments) but this is not specifically provided for in the MRL Act.

5.4 Monitoring, control and surveillance

Section 50 of the MRL Act specifically provides for the designation of persons to be observers who shall “exercise the scientific, compliance, monitoring and other functions determined by the Minister.” The observer coverage shall be for vessels licensed under the MRL Act. A fishery agreement contemplated under Section 38 can also designate such observers. Regulation 82 of the Marine Regulations elaborates the scientific, compliance and monitoring functions of the observers.

Section 42 refers to a specific MCS aspect (the provision and sharing of information on international conservation and management measures). This is discussed below under implementation of international instruments.

Under Section 76 (1) and (2), the Minister may designate “a device or machines or class of device or machines” for the purposes of obtaining information or data relating to a vessel’s position or activities. Section 76 (7) provides protection for observation devices against interference or actions which will render them inoperative while Section 76 (8) protects observation devices against actions which will feed or cause the device to capture information that is not required. Regulation 76 of the Marine Regulations requires licensed foreign fishing vessels to be equipped with an automated satellite linked vessel monitoring system (VMS). Information transmitted shall include the vessel’s identification, latitude, longitude, date and time, course and speed which shall be transmitted at required intervals. Such a system shall be tamper proof, is able to be polled by the monitoring centre, has a two way messaging capability between the vessel and the monitoring centre, is fully automated and operational at all times regardless of environmental conditions.

The only other specific references to MCS matters other than enforcement powers are found in the “regulation-making” section. Under Section 77, regulations can be made regarding any matter required or permitted to be prescribed in terms of the MRL Act or which are reasonably necessary or expedient to be prescribed in order to achieve the objectives of the Act. Such regulations will no doubt deal with

MCS matters. Section 77 (2) (u) specifically provides that regulations can be made by the Minister to require the provision of statistical and other information related to fisheries including fishing logbooks, and the format in which the information is recorded.

Law enforcement and associated provisions are the most elaborate of provisions of the MRL Act. Section 51 sets out the powers that are typically exercised by fisheries enforcement officers including the powers of stopping a vessel, requiring the master to facilitate boarding, entering and searching a vessel without a warrant, bringing a vessel to port and seizing the vessel, its equipment and fish or fish products on board the vessel. A notable MCS activity associated with enforcement is the requirement for all holders of a right, licence or permit under the MRL Act to report any contravention of the Act by other persons.

Judicial provisions (in support of enforcement) are also elaborate and deal with matters including offences and penalties, security for release of vessels, vehicle or aircraft, treatment of things detained or seized, forfeiture, jurisdiction of the courts and documentary and photographic evidence. A provision relating to penalties and worthy of note is Section 77 which allows for regulations to be passed to increase the size of penalties where this is necessary due to inflation or to comply with international law (s. 77 (2)(a)). Regulations can also provide for the imposition of any additional fine representing the value of any forfeited item (s. 77 (2) (d)).

Observations

There exists the minimum legal basis for elaborating MCS programmes and activities under the MRL Act, which are built upon by the Marine Regulations. Other MCS requirements in the Marine Regulations include the marking of fishing vessels (Reg. 77), radio call signs (Reg. 78), logbooks (Reg. 79), documents to be carried on board fishing vessels (Reg. 80), and stowage of gear (Reg. 81).

Potential exist for MCS activities to be further elaborated and integrated with the system for fishing authorisation so that they are minimum requirements for access to fishing and related activity. Thus, vessel marking, keeping of log books, data collection, reporting and routine monitoring and inspection as part of MCS requirements can become conditions for exercise of fishing rights or for licences or permits, inter alia, under sections 18, 21, and 77 (g). This requirement could be entered on the physical authorisation as, for example, a condition of licence. This method of imposing MCS requirements can be the most effective for fisheries management as authorisation documents containing requirements are the most visible and readily available to the holder particularly if he is required to keep a copy of such authorisation with him while undertaking fishing or a related activity.

The MRL Act provides for adequate penalties for contravention and indeed to increase penalties in the future if they are considered inadequate. Potential for the use of other administrative penalties in addition to the use of suspension and cancellation of rights licences and permits or the reduction of rights could be considered. Such administrative penalties would require the introduction of a system, which allows the chief executive of the fisheries authority to deal with a contravention and imposes penalties including monetary penalties.

5.5 Implementation of Compliance Agreement and Fish Stocks Agreement

South Africa is party to the 1982 UN Convention (ratified 23 December 1997). It is a signatory to the Fish Stocks Agreement and is in the process of ratification of the same. South Africa has not lodged its instrument of acceptance of the Compliance Agreement.[4] However it appears to implement some requirements of the Compliance Agreement and the Fish Stocks Agreement.

Section 40 contains the basic requirement of the Compliance Agreement in effecting flag state responsibility by requiring that no vessel registered in South Africa shall be used for fishing on the high sea unless it has a high seas fishing licence issued under the MRL Act. Section 41 compliments section 40 by stating the basic requirements for a high seas fishing licence. Section 42 is evidence of an effort to implement Article of the Compliance agreement to ensure compliance with conservation measures but it only enables the provision and exchange of information with a regional fishery organization to which the Republic is a member or to states parties to such international conservation and management measure. Information exchanged with state members of an international conservation and management measure may include evidentiary material which can enable the state party to better implement the objects if the international conservation and management measure.

The Director General may provide authorities of a flag state of a vessel of an alleged contravention of an international conservation and management measure. If the vessel which is alleged to have contravened the international conservation and management measure is in the port of the Republic the Director General may promptly notify the authorities of the flag state of the vessel. The Minister may any international conservation and management measures or international agreement concerning marine living resources in the Gazette.

The provisions highlighted above that attempt to implement the Compliance Agreement also implement certain similar requirements under the Fish Stocks Agreement particularly the provisions relating to the requirement for fishing vessels to have an authorisation before fishing (including fishing on the high seas) and ensuring compliance with international conservation and management measures by vessels registered in South Africa, thus exercising flag state responsibility.

Observations

The MRL Act does not contain specific provisions or have the necessary detail to fully meet the requirements of the Compliance Agreement and the Fish Stocks Agreement.

In respect of the Compliance Agreement, the requirements that need implementation include: the need to maintain a record of fishing vessels and to ensure that information on any change to the information in the records is provided to the fisheries authorities and also communicated to FAO ((Articles IV and VI); and, an elaboration of the conditions that must exist before a high seas fishing authorisation is issued (Article III). These requirements could be stated in regulations promulgated under the MRL Act.

Provisions that are needed to implement specific requirements of the Fish Stocks Agreement are those regarding boarding and inspection procedures on the high seas and enforcement of serious violations. Under Section 52, the fishery control officer can exercise the powers given him under the MRL Act outside South African waters. This facilitates boarding and inspection and in some respects implements the Fish Stocks Agreement. However, the power under Section 52 is limited in that it can only apply in situations arising out of hot pursuit in accordance with international law and as reflected in article 111 of the 1982 UN Convention.

South Africa, with its western SADC neighbours (Angola and Namibia), UK (on behalf of Ascension, St Helena and Tristan da Cunha) initiated negotiations to establish the South East Atlantic Fisheries Organization (SEAFO) to manage the high seas fish stocks of the South East Atlantic region. South Africa is also a party to the International Convention for the Conservation of Atlantic Tunas and the Benguela Environmental Fisheries and Training Programme (Benefit) which is consistent with the spirit and obligation envisaged by the Fish Stocks Agreement. For the same interests, South Africa is considering to become a party of the Abidjan and Nairobi Conventions and is considering participating in the Convention on the Indian Ocean Tuna; and the draft of the Convention on the High Seas Marine Living Resources of the South West Indian Ocean.

6. TANZANIA

6.1 Fisheries law and related legislation

The principal fisheries legislation in Tanzania is the Fisheries Act 1970 and, in relation to fishing in the EEZ, the Deep Sea Fishing Authority Act, 1998 (which establishes the Deep Sea Fishing Authority (the Authority). The following regulations and Orders implement the Fisheries Act:

- Fisheries Principal Regulations, 1989
- Fisheries (Amendment) Regulations 2000
- Fisheries (Inland Waters) Regulations, 1981
- Fisheries (Marine Reserves) Regulations, 1975
- Fisheries (General Amendment) Regulations, 1994
- Fisheries (Prohibition of Use of Specified Vessels or Tools) Regulations, 1994
- Fisheries (Amendment) Regulations, 1997
- Closure of Upangu Reef, Kitanga Reef and Dambwe Reef from Fishing Activities Order, 1998
- Fisheries (Explosives Poisons and Water Pollution) Regulations, 1982
- Fisheries (Authorised Officers’ Identification) Regulations, 1983
- Fish (Quality Control and Standards) Regulations 2000

The scheme of the Fisheries Act is that it provides for broad powers for fisheries management but leaves the finer details of management action to be spelt out by regulations. The Principal Fisheries Regulations 1989 and its subsequent amendments provide much of the detail requirements in accordance with this regulatory scheme.

6.2 Scope, purpose and administration

Under the Fisheries Act, the Minister exercises most development and control powers over fisheries. These powers include the power to make orders to regulate under licence, fishing, collecting, gathering or manufacturing fish products or products of aquatic flora, selling or marketing of fish, fish products, aquatic flora or products of aquatic flora, importing or exporting fish, fish products, aquatic flora or products of aquatic flora. The Minister can also make regulations on a wide range of issues.

The Deep Sea Fishing Authority Act also applies to Zanzibar (s. 2). Under this Act the Authority is empowered to, inter alia, regulate and control fishing in the EEZ of the United Republic including the licensing of persons and ships intending to fish in the EEZ, initiate, implement and ascertain the enforcement of policies on deep sea fishing vessels, formulate and coordinate programmes for scientific research in respect of fishing, negotiate and enter into any fishing or other contract, agreement or any kind of fishing coorperation with any government, international organization or other institution in pursuance of the provisions of the Act (s. 4). The Authority acts through an Executive Committee (which is responsible for appointment of the Director General who heads the Management, formulates and determines policies, approve projects and approves application for fishing licences - s. 5 (3)), the Advisory Committee (which is responsible for initiating policies, evaluates projects, monitor inspection and sea worthiness of ships, prepare and evaluates reports- s. 5 (7)) and the Management (which is responsible for issuing of fishing licences, prepares the budget of the Authority, prepares plans and keeps records of vessels licensed to fish in the EEZ, catches of licensed vessels and illegal practices and defaulters of rules and regulations - s. 6).

The Executive Committee is a 3 member Committee of chief executives (Permanent Secretary of the Ministry Responsible for fisheries matters, Permanent Secretary of the Ministry responsible for external affairs and international cooperation and the Principal Secretary of the Ministry responsible for fisheries in the Revolutionary Government of Zanzibar) and has a rotating chairmanship.

The Advisory Committee has 14 members representing various agencies of the Union Government and the Revolutionary Government of Zanzibar and 4 representatives of the industry (2 each from Mainland Tanzania and Tanzania Zanzibar).

The Deep Sea Fishing Authority Act (ss. 20 and 21) provides for consultations with the Ministry responsible for fisheries of the Revolutionary Government of Zanzibar and the Union Government agencies and agencies of the Revolutionary Government of Zanzibar.

The Minister responsible for fisheries of the government of the United Republic is empowered to make regulations under the Deep Sea Authority Act on various matters relating to the management of the resources in the EEZ of the United Republic.

Observations

It is not clear as to what is the jurisdictional scope of the Fisheries Act, however, read together with the Deep Sea Fishing Authority Act, 1998 and the Territorial Sea and Exclusive Economic Zone Act, 1989, the Fisheries Act would have to apply only in the territorial waters. It is implicit that the Fisheries Act applies to Tanzanian nationals and to vessels and fishing. Perhaps the Fisheries Acts’ jurisdictional scope is provided for in other named legislation but an explicit statement in the principal legislation may be needed to clarify its scope.

Related to the scope of the principal legislation is the definition of the term “fishing”. “Fishing” is defined as the “collection, capture, gathering, killing, snaring or trapping of fish, fish product or aquatic flora.” In many jurisdictions this term has been given a much wider definition than the Tanzanian definition which ensures that the search for or attempt at capturing fish is also considered as fishing.

The regulatory scheme of the Fisheries Act is simple to follow i.e. that much or the detailed requirements for regulating fishing will be in regulations. One of the weaknesses of this scheme is that the Regulations attract a lesser penalty for offences and some offences are serious enough to warrant higher penalties. This creates a situation where a set of regulations can be without a severe penalty so as to have a deterrent effect such that regulations are contravened with impunity. However, the penalties under the Deep Sea Fishing Authority Act is higher for non compliance with request for information by the Authority and even much higher for fishing contrary to the Deep Sea Fishing Authority Act.

There is no legal basis under the Fisheries Act to introduce broad participation by stakeholders. The Deep Sea Fishing Authority Act allows the industry to be represented only on the Advisory Committee.

6.3 Fisheries management mechanisms and measures

The Minister has sweeping powers under article 4 of the Fisheries Act to make orders to regulate fishing, collecting, gathering or manufacturing fish products or products of aquatic flora, selling or marketing of fish, fish products, aquatic flora or products of aquatic flora, importing or exporting fish, fish products, aquatic flora or products of aquatic flora. Licensing is the mechanism for regulating the aforementioned activities.

The orders made under article 4 of the Fisheries Act can apply to all or specific species or kind of fish, fish product or aquatic flora or products of aquatic flora and may specify licence fees, terms and conditions and penalties for such orders. The Minister may also restrict access to certain areas of waters declared to be a controlled area. (art. 5)

Exemptions, reservations and conditions can be made in relation to the orders made under article 4. A preference shall be given to citizens over other applicants for a licence unless a written law allows licences to be issued to non citizens (art. 6).

Article 7 of the Fisheries Act allows the Minister to make regulations on a broad range of matters. The Principle Fisheries Regulations 1989 were made pursuant to this Article. The Regulations require the registration of fishing vessels (Part II ss. 3 - 10). No vessel shall be used for fishing unless it is registered. All licensing authorities shall keep a register of all fishing vessels. The Director of Fisheries appoints the licensing authority that shall be the Central Registry. Fishing vessels and fish dealers must also obtain a licence (Part III ss. 11- 13.) in an appropriate licence form. No licence shall be issued to a fishing vessel if it is not seaworthy (s. 12). The licensing authority shall keep a register of all licences issued under the Regulations.

General prohibitions and restrictions apply in respect of: import of live fish or fish products, introduction of certain species of fish and other fish not indigenous to the Tanzanian Mainland or transfer of fish from one water to another water within the Tanzanian Mainland or export any live fish which are protected or fish products from the Tanzanian mainland.

The Licensing authority may destroy fish or fish product if any water is infected with an epidemic decease.

Use of poisons and explosives are prohibited from use. Water pollution from an emission is prohibited.

Under the Deep Sea Fishing Authority Act, the Minister of the United Republic can make regulations on many aspects of fisheries management in the EEZ.

Observations

The Minister, under the Fisheries Act can make regulations on a wide range of matters relating to the management of fisheries. However, the Minister’s power to make exemptions and reservations in relation to any order made under article 4 can be abused and undermine proper fisheries management.

The Deep Sea Fishing Authority Act does not provide the minister with similar regulation making powers. This may not place fisheries management at a disadvantage as the appropriate policies and their implementation is in the hands of an institution (the Authority) which focus only at EEZ fisheries resources management

Licensing powers are delegated to licensing authorities (any officer authorised under the Fisheries Act under Regulation 4). This appears to be a sharing of powers but does not ensure broad participation in management. The management approach contained in legislation is therefore centralised and is dependent on adequate capacity and resources to ensure implementation of legislation and compliance with conservation and management measures. The same can be said of the management framework under the Deep Sea Fishing Authority Act.

There are no provisions for management plans under the Fisheries Act and the Deep Sea Fishing Authority Act. This may be provided for under regulations implementing either of the two legislation.

6.4 Monitoring, control and surveillance

The Fisheries Act provides typical powers of search and seizure (art. 9), seizure and forfeiture of things used for the commission of offences (art. 10) and forfeiture (by a magistrate) of things in respect of which offences are committed (art. 11). The Court has specific powers for the forfeiture of vessels or vehicles. As is typical of fisheries legislation, obstruction, assaults or hindrance of fisheries officers is an offence. (art. 13).

Most of the MCS related matters could be dealt with under regulation through the exercise of the Ministers powers to make regulations in relation to, inter alia, prescribing terms and conditions of licences, registration of fishing vessels, use and description of fishing gear and controlling of foreign fishing vessels in territorial waters (art. 7). The Principle Fisheries Regulations gives some substance to MCS requirements in terms of the requirements to: register fishing vessels (Regs. 3-10); and, registration of fishing licences.

Article 8 of the Fisheries Act provides that the general penalty for offences committed against regulations is a fine not exceeding 20, 000 shillings or imprisonment for a term not exceeding 5 years.

The Deep Sea Fishing Authority Act does not provide monitoring or surveillance mechanisms or measures such as inspections or observations although this could be matters for which the authority could formulate policies and programmes and the Minister could regulate in accordance with his powers under section 23. This power can be buttressed by section 17, which provides the power of the Authority to request information (which may include catch and position reports). The same section provides hefty penalties for failing to furnish the requested information (fine of not less than 250 000 shillings or a term of not less than 6 months or both fine and imprisonment for first offence, fine of not less than 5,000,000 shillings or a term of not less than 3 years or both fine and imprisonment for subsequent offence, and forfeiture for any further subsequent offence).

For fishing in contravention of the Deep Sea Fishing Authority Act, section 18 provides a fine of not less than 1 billion shillings or to imprisonment for a term not less than 20 years or to both fine and imprisonment and in addition to both fine and imprisonment, the Court may order the forfeiture of the vessel etc. There is also a hefty penalty for obstruction, hindrance etc. of an authorised officer (s. 19).

There is no enforcement provisions under the Deep Sea Fishing Authority Act presumably because the powers to enforce measures which relate to the EEZ are already specified in the Territorial Sea and Exclusive Economic Zone Act. Part IV (ss. 13-14) of the latter Act designates authorised officers and provides the powers of these officers. Typically the powers specified relate to boarding and search and the seizure of vessels and catch or other equipment used in the commission of the offence and the power to direct a vessel to port for further enforcement action.

Observations

There are no specific or clear provisions under the Fisheries Act or the Principle Fisheries Regulations relating to MCS. The same can be said of the Deep Sea Fishing Authority Act except that the latter Act can be applied, with some imagination, to require MCS related information.

The penalties under the Fisheries Act are generally inadequate.

Surveillance activities (e.g. VMS) may be regulated but it is unclear whether information from VMS or other modern surveillance equipment could be relied upon in court to secure a conviction. A review of laws and in particular the MCS provisions of the various legislation that impact on fisheries may be in order.

The introduction of administrative procedures and penalties could be considered as an alternative law enforcement mechanism.

6.5 Implementation of Compliance Agreement and Fish Stocks Agreement

Tanzania accepted the Compliance Agreement on 17 February 1999. It has not ratified the Fish Stocks Agreement.

Observations

The Fisheries Act, enacted in 1970 and the Territorial Sea and Exclusive Economic Zone Act enacted in 1989 clearly do not have provisions relating to the implementation of the Compliance Agreement or the Fish Stocks Agreement as these agreements were not envisaged at that time. Licensing efforts is focussed in waters under national jurisdiction. The Deep Sea Fishing Act enacted in 1998 only relates to fishing within the EEZ. In order for the 2 agreements to be effectively implemented, amendments to existing legislation or the enactment of new legislation or regulations is needed.

C. SUMMARY OF FINDINGS

The findings summarised hereunder are those that can be made based on a review of the principal fisheries legislation in the forgoing part of the Report.

Clear statement of scope of legislation and the authority for fisheries management

• Namibia has very clear provisions in legislation in respect of the scope of legislation and the authority responsible for fisheries matters. Tanzania’s Fisheries Act is the unclear in terms of its application. Seychelles’ fisheries management powers are shared by several institutions. Fisheries management is best served if principal fisheries legislation clearly sets out the limits of jurisdiction as well as the ultimate authority in respect of fisheries management. Such clarity is required for most of the SADC countries. (Reference: The 1982 UN Convention, the Code art. 7.3.1, art. 7.3.2, art. 7.7.1)

Broader participation in fisheries management (by stakeholders) including co-management

• Fisheries is largely centrally regulated or managed (by government Ministries or agencies) in all the SADC countries. Participation by representatives of stakeholders (in the private sector) is possible in certain countries through representative bodies but is not adequate. There is no basis in fisheries legislation for taking participatory management options such as using co-management. It is noted that this broader participation may not be a matter to be prescribed in fisheries legislation. However, where there are no fundamental legal difficulties (e.g. in the constitution) that restricts the adoption of co-management approaches in management, the SADC countries should make available such an option in fisheries legislation. (Reference: The Code - 6.13, 6.16, 7.1.2, 7.6.6, The SADC Protocol on Fisheries (the Fisheries Protocol) - art. 7.7)

Support and implementation of policies and fisheries management mechanisms and measures

• Generally, law (legislation) can lay down the foundations of initiating or making policies or give support to policies. With respect to the latter function, the type of laws that have this characteristic, particularly in common law based jurisdictions, are subsidiary legislation (e.g. regulations). However, as can be seen in the analysis of the laws (in Part B), it is not common that laws clearly express this function. It is noted that while Namibia’s fisheries legislation clearly states that the Minister responsible for fisheries can make policies from time, Tanzania’s Deep Sea Fishing Authority can initiate and make policies, and fisheries management in South Africa is guided by general principles of management stated in its principal fisheries legislation, the legislation of other jurisdictions are silent on these matters. This does not mean that other jurisdictions’ fisheries legislation do not give effect to national policies on fisheries. Where fisheries laws are silent on this issue, it may be that this is a matter dealt with in the administrative framework or other laws. Where it is possible and can help in better fisheries management, general policies or principles of management should be stated in the principle fisheries legislation as is the case in South Africa but this depends on the practice in the jurisdiction concerned. The best option cannot be stated without a broader study, which reviews more than the fisheries law. (Reference: The Code - art. 2, art. 6.13, art. 7.1.1, art. 7.2.1, art. 7.3.3)

• With respect to management, the fisheries law can set out management mechanisms or approaches, specific measures which are well established in the fisheries management world such as prohibitions on use of explosives and poisons for fishing, and provide the basis for establishing further measures using prescribed mechanisms. The SADC countries subject of this study are uniform in stating the prohibited fishing methods but are not consistent when it comes to stating the choice of mechanisms for generating further management measures. (Reference: The Code - art. 7.1.1)

• The power to issue foreign fishing vessel licences in the absence of an access agreement in Mauritius, Mozambique, Seychelles and South Africa, needs reviewing with the view to remove the exception. In addition, the SADC States may need to review their laws with the aim of setting out or giving effect to minimum requirements for access by foreign fishing vessels to waters under national jurisdiction considering that minimum requirements for access is envisaged under Article 10 of the Fisheries Protocol.

• The power of the Minister to make exemptions and reservations in relation to any order made as is the case in Tanzania should be avoided as it may undermine sound fisheries management if it is abused. (Reference: The Code - art. 7.1.1, art. 7.1.7, art. 7.1.9)

Licensing and fishing rights

• Licensing or permitting as an input control mechanism is common for the SADC countries. However, it is not the principal control mechanism for all the countries. In Namibia and South Africa, it is used in conjunction with and supports fishing rights. Mozambique uses licensing as the principal control mechanism but sets out the possibility of using fishing rights. The jurisdictions can learn from each other and decide what control mechanism is best suited for their fisheries. Setting out the management mechanisms as alternatives for future use as is done in Mozambique legislation could be considered. (Reference: The Code - art. 7.1.1)

Management planning

• Seychelles and South Africa are the only jurisdictions that have institutionalised fishery management planning in their principal fisheries legislation. Other countries use fishery management planning in varying degrees but the status of fishery plans in these countries is not clear. (Reference: The Code - art. 7.3.3)

Monitoring, control and surveillance and enforcement

• In general, the fisheries legislation of all the countries are more detailed in matters relating to MCS compared to the treatment in legislation given to other management matters. There is a noticeable inadequate basis for monitoring and surveillance aspects of MCS activities in the principal fisheries legislation in Tanzania only. However, the fisheries legislation of the jurisdictions other than Namibia, South Africa, and Seychelles, will need to be strengthened particular in ensuring that fisheries authorities can undertake the full range of MCS activities including observer programmes, vessel and gear markings, and reporting of vessel position and catch reports as well as reports on entry and exit of fishing areas or the waters under national jurisdiction. In the case of vessel position and catch reports, legislative provisions are needed to enable the use of modern communication and surveillance technology such as satellite-based vessel monitoring systems. (Reference: The Code - art. 6. 10, art. 7.1.7, art. 7.4.4, art. 7.4.7, art. 7.7.3, art. 8.1, art. 8.2, art. 8.3, The Fisheries Protocol - art. 9)

• Most of the legislation will need to be strengthened with respect to the provisions concerning the powers of officers to inspect or investigate vessels at sea in particular the powers to board and inspect national vessels beyond waters under national jurisdiction. This power is needed also in respect of implementation of the Compliance Agreement and Fish Stocks Agreement. (Reference: The Code - art. 7.1.7, art. 7.7.1, 7.7.3, 8.1.4, the Compliance Agreement (generally), the Fish Stocks Agreement - art. 21, art. 22)

• Only Seychelles has compounding of offences as an alternative to enforcement of the fisheries law in courts. Mozambique has an administrative procedure and penalties system that can be used instead of enforcing the fisheries law in the courts. These options should be considered by the other jurisdictions for possible adoption as it has the potential of introducing efficacy in dealing with a contravention.[5] (Reference: The Code - art. 7.7.1, art. 7.7.3)

• Where it is intended to use electronically generated or stored information in courts as evidence, legislative provisions will need to explicitly state that the use of such information as evidence is permitted so as to circumvent the rules against hearsay (particularly in common law jurisdictions).[6] Only the legislation of South Africa and Namibia enable the use of such information as evidence in court. (Reference: The Code - art. 7.7.1, art. 7.7.3)

• The SADC countries could follow the example of Namibia and South Africa by introducing provisions in legislation that permit the use of certificate evidence in courts in order to facilitate speedier trials. The use of such certificates must be accompanied by safeguards to protect the rights of the accused and to avoid the situation where certificate evidence become convenient tools for the prosecution and as a substitute for excellent case preparation. (Reference: the Code - art. 7.7.1, art. 7.7.3)

• For many of the SADC countries, the penalties for fisheries offences will need to be revised upwards particularly in respect of the countries which have not revised their legislation in recent years. (References: The Fish Stocks Agreement - art. 19.2, the Code - art. 7.7.1, art. 7.7.2, art. 7.7.3)

• The SADC countries may need to enhance Port state enforcement in the light of the lack of capacity and resources to undertake enforcement and other MCS activities over and above cooperation in MCS and enforcement activities through the options of extradition and cross-authorisation for enforcement purposes as outlined in the Fisheries Protocol. In this regard, the SADC countries can learn from the United States and the South Pacific Island Countries in introducing Lacey and Lacey type clauses (long arm enforcement). A State which introduces this clause makes it an offence for any person to bring into its area of jurisdiction, fish (or animals) that have been caught contrary to the laws of another State[7] or a sub-regional, regional or global fisheries organization or arrangement (Reference: The Fish Stocks Agreement - art. 23)

• Only Namibia has a secrecy clause in its principal fisheries legislation that assures the confidentiality of information. The need to ensure the confidentiality of information, particularly where it concerns fishing operations and commercial secrets is paramount if the providers of such information are to be comfortable providing such information in the interest of better fisheries management. Secrecy in other jurisdictions may be a matter that is dealt with under other laws (e.g. secrecy laws). Where secrecy is not assured in other laws, the SADC countries may wish to consider introducing secrecy provisions in fisheries legislation. Confidentiality is particular important if a State is considering the use of VMS for vessel position and catch reports. (Reference: The Code - art. 7.4.4, art. 7.4.7, art. 12.3)

Implementation of the Compliance Agreement and the Fish Stocks Agreement

• Seychelles has the most elaborate of provisions in the new amendments to its fisheries legislation introduced in March 2001 that implement the Compliance Agreement and the Fish Stocks Agreement. South Africa has basic provisions to implement the two agreements in respect to prohibition of fishing on the high seas without authorisation and could pass further regulations to control fishing on the high seas by South African nationals and vessels. Namibia has made it possible for it to implement the two agreements by regulations under its new fisheries legislation. The other countries will need to amend legislation or make regulations to effectively implement the two agreements as they only have very basic and inadequate provisions in principal legislation in this respect.[8] (Reference: The Code - art. 1.1, art. 3.2, art. 8.2.6, The Fisheries Protocol art. 6.2)

D. OPPORTUNITIES FOR HARMONIZATION OF LAW AT THE REGIONAL LEVEL

1. The SADC commitment to harmonize laws

The objective of Harmonization of laws or policies among a number of states inherently requires cooperation among these states. Cooperation in fisheries management which may include actions such as a Harmonization of fisheries laws among the cooperating states is an obligation for the parties to the 1982 UN Convention.

The need to cooperate in fisheries and in particular in working towards Harmonization of fisheries legal frameworks is not lost on the members of SADC. The Fisheries Protocol clearly stipulates that in relation to shared resources, the State Parties shall cooperate with one another to ensure that the objective of the Fisheries Protocol is met. Article 6 of the Fisheries Protocol further states that Member States shall endeavour to establish joint positions and undertake coordinated and complementary actions with regard to international fora, conventions and agendas of relevance to the Fisheries Protocol. The Member States undertake to bring in line provisions in their fisheries laws and other relevant legislation to the 1982 UN Convention, the Fish Stocks Agreement and the Compliance Agreement. Most of the international treaties and conventions of relevance to the Fisheries Protocol and the two aforementioned agreements underscore the duty for states to cooperate. More importantly, Article 8 of the Fisheries Protocol clearly imposes the duty on Member States to harmonize their legislation.

2. Areas for harmonization of laws

Article 8 of the Fisheries Protocol stipulates the undertaking for harmonization of legislation as follows:

1. State Parties shall take measures required to harmonize legislation with particular reference to the management of shared resources.

2. All illegal fishing and related activities by nationals and juridical persons of a Member State shall be made an offence in the national laws of the State Party.

3. State Parties shall establish appropriate arrangements to enable co-operation on hot pursuit of vessels that violate the laws of one State Party and enter the jurisdiction of another State Party.

4. State Parties shall co-operate in such matters as the following:

(a) procedures for the extradition to another State Party of persons charged with offences against the fisheries laws of that other State Party or serving a sentence under the laws of that State Party;

(b) establishment of region-wide comparable levels of penalties imposed for illegal fishing by non-SADC-flag vessels and with respect to illegal fishing by SADC-flag vessels in the waters of other State Parties;

(c) consultation with regard to joint actions to be taken when there are reasonable grounds for believing that a vessel has been used for a purpose that undermines the effectiveness of measures adopted under this Protocol and such actions shall include notification of the Flag State and the undertaking by Port States of such investigatory measures as may be considered necessary to establish whether the vessel has indeed been used contrary to the provisions of this Protocol; and

(d) establishment of a mechanism for the registration of international and national fishing vessels as an instrument of compliance and as a means of sharing information on fishing and related activities.

1. Taking account of national responsibilities pursuant to Article 5 of this Protocol:

a) State parties shall take adequate measures to optimise use of existing fisheries law enforcement resources;

b) State Parties shall co-operate in the use of surveillance resources with a view to increasing the cost effectiveness of surveillance activities and reducing the costs of surveillance to the Region and two or more State Parties may conclude an arrangement to co-operate in the provision of personnel and the use of vessels, aircraft, communications, databases and information or other assets for the purposes of fisheries surveillance and law enforcement;

c) State Parties may designate competent persons to act as fisheries enforcement officers or on-board observers, in order to carry out activities on behalf of two or more State Parties;

d) A State Party may permit another State Party to extend its fisheries surveillance and law enforcement activities to its inland water bodies and the Exclusive Economic Zone and, in such circumstances, the conditions and method of stopping, inspecting, detaining, directing to port and seizing vessels shall be governed by the national laws and regulations applicable to the waters where the fisheries surveillance or law enforcement activity is carried out;

e) State Parties shall strive to harmonize the technical specifications for vessel monitoring systems and emerging technologies of interest to fisheries surveillance activities; and

2. In applying the provisions of paragraph 1, State Parties shall co-operate, either directly or through international fisheries organizations or arrangements, to ensure compliance with and enforcement of applicable international, management measures.

• harmonization of legislation with particular reference to the governance of shared resources. This commitment relates to the commitment under Article 7, in particular paragraph 10. It requires that the shared stocks must be identified as is implicit in paragraphs 1 and 2 of Article 7 and the negotiation and agreement on an multilateral arrangement for conservation and management of the shared stock. In some respects, cooperation to this end is made easy given that there is the obligation to cooperate and there is ample guidance on the nature of cooperation that can be found in 1982 UN Convention and the Fish Stocks Agreement. Harmonization of laws may not pose too much difficulty as it may require only that the States ensure the implementation of conservation and management measures agreed under the auspices of the arrangement. The difficulty is in reaching agreement on specific conservation and management measures and the sharing of fishing rights (if any) as cooperation for the management of shared stocks will not only involve SADC Countries but may include States with fishing interests in the region.

• illegal fishing and related activities by nationals and juridical persons of a Member State shall be made an offence in the national laws of the Member State. Giving effect to this commitment is relatively easy and can be done through amendments to legislation or the passing of new laws. Many SADC countries already have laws that make it an offence for their nationals or vessels to fish in the waters of another State. This commitment could be broadened to ensure that any person who catches fish in contravention of the law of a third State and brings it into the area under jurisdiction of the Member State shall be guilty of an offence (the introduction of the so called long arm enforcement. i.e. the Lacey Clause).

• appropriate arrangements to enable cooperation on hot pursuit. This may seem on its face an easy task to undertake but could be more involved in reality. While hot pursuit in certain situations are allowed under the 1982 UN Convention, an agreement to elaborate on hot pursuit will primarily involve lawyers and other law enforcement agencies and experts, particularly those experts that are knowledgeable on the rules/procedures of boarding and inspection and engagement at sea.

• cooperation on procedures for the extradition to another State Party of persons charged with offences against the fisheries laws of that other Member State or serving sentence under the laws of that State Party. This matter may also seem easy to achieve but requires a lot of effort in reality as it also involves the application of international law or other international arrangements on extradition (and noting that fisheries offences are not typical extraditable offences).

• establishment of region-wide comparable level of penalties imposed for illegal fishing activities by non-SADC vessels and with respect to illegal fishing by SADC-flag vessels in the waters of other State Parties. This commitment is relatively easy to realise as it would need an exchange of information between Member States or a simple review of the penalties provisions and the making of necessary adjustments by the Member States.

• consult with regard to joint actions, to be taken when there are reasonable grounds for believing that a vessel has been used for a purpose that undermines the effectiveness of measures adopted. Consultation can be achieved with little effort and therefore this commitment is easy to give effect to. Actions could include denial of port access, which is possible in some Member States who already require notification and permission to enter their ports.

• establish a mechanism for registration of international and national fishing vessels as an instrument of compliance and as a means of sharing information on fishing and related activities. A regional register can be easily agreed upon. Such regional registry which could be similar to that operated by the South Pacific Forum Fisheries Agency (FFA) will need a designated authority or secretariat to manage the registry. However, it requires that a regional institutional arrangement for the implementation of the register is necessary. The success of the register will also depend on implementation at the national level including legislative support in the granting of a responsible status or “good standing” and the commitment to refuse a fishing authorisation by all the Member States if the vessel does not have “responsible status” or loses “responsible status” through “black listing”.[9]

• optimise use of existing fisheries law enforcement resources. This commitment is primarily a national one but it may include regional law enforcement. The sharing of law enforcement information and experiences through an agreed forum may kick-start the process for cooperation on this matter. External assistance may have to be sought to give effect to this commitment.

• co-operate in the use of surveillance resources with a view to increasing the cost effectiveness of surveillance activities and reducing the costs of surveillance to the Region and two or more State Party may conclude an arrangement to co-operate in the provision of personnel and the use of vessels, aircraft, communications, databases and information, or other assets for the purposes of fisheries surveillance and law enforcement; this commitment implies pooling of resources and may require an examination of options for surveillance that could reduce MCS costs for Member States. The option that has been hailed as cost saving and which could complement conventional MCS mechanisms is the use of satellite-based vessel monitoring system. The use of satellite based VMS also has legislative implications which would need consideration by member states. Bilateral arrangements for joint surveillance and enforcement could also be considered.

• designate competent persons to act as fisheries enforcement officers or on-board observers, in order to carry out activities on behalf of two or more State Parties. This commitment requires cross-authorisation and designation of competent persons and needs legislative support.

• A Member State may permit another Member State to extend its fisheries surveillance and law enforcement activities to inland water bodies and the Exclusive Economic Zone of that State Parties and in such circumstances, the conditions and method of stopping, inspecting, detaining, directing to port and seizing vessels shall be governed by the national laws and regulations applicable in the waters where the fisheries surveillance or law enforcement activity is carried out; This commitment also requires cross-authorisation and designation of competent persons and needs legislative support. Further, it would need good dissemination of laws and information of individual State practice in law enforcement. A lot of training may be required to ensure that the enforcing State officers can competently carry out enforcement activities in another State.

• harmonize the technical specifications for vessel monitoring systems and emerging technologies of interest to fisheries surveillance activities. Satellite-based vessel monitoring system is an emerging technology that is worth considering. The use of satellite based VMS also has legislative implications which would need consideration by Member States including ensuring that information generated by such technologies can be admissible in judicial proceedings.

• member states shall co-operate, either directly or through international fisheries organizations or arrangements, to ensure compliance with and enforcement of applicable international, management measures. Many of the SADC countries are also members of international fisheries organizations and arrangements. Close coordination by Member States with their counterparts in the relevant international organization or arrangement may be required on conservation and management and MCS matters, particularly in relation to the management of shared stocks that are also occur on the high seas.

Clearly, the Member States of SADC have set themselves an agenda for harmonization of fisheries laws and which points to specific areas for such harmonization. However, Articles 8 and 9 of the SADC Fisheries Protocol lean towards cooperation in the area of law enforcement.

While cooperation in the area of fisheries law enforcement remains valid, the commitment for cooperation and harmonization of laws should be applied more broadly to cover other areas. A more complete picture for the cooperation to harmonize fisheries laws will involve a general sharing of legal information and resources that will eventually lead to legislative action by each Member State to address the areas identified in Part C of this Report. Generally, the harmonization of legislation should occur in the following broad areas (but not necessarily undertaken in this order):

• ensuring that national fisheries legal regimes generally support policy and management directives and to specifically facilitate adoption/adaptation of fisheries management trends such as:
  • management planning,

  • enabling broader participation by stakeholders in fisheries management (including co-management),

  • use of fishing rights,

  • minimum terms and conditions for fisheries access agreements,

  • post harvest activities (e.g. seafood safety and quality issues)

  • effective implementation of international fisheries instruments and management measures; and,

• compliance with and enforcement of fisheries laws.

It should be remembered above all that harmonization of legislation is not a matter of simply standardising text but rather in ensuring that the laws have the agreed desired effect.

3. A pragmatic approach to harmonization of fisheries legislation

Harmonization of laws requires legislative action, which is a matter within the domestic domain of Member States. Thus the Member States can individually take action to satisfy their commitments under the Fisheries Protocol. However, impetus can be given to domestic action through a simple and practical approach for the exchange and sharing of information. Much can be learnt from the developing countries that are members of the South Pacific Forum (the Forum) who have the harmonization of fisheries laws on their agenda. Under the auspices of the Forum, an annual meeting of senior state lawyers (usually a delegation led by the head of justice departments)[10] is convened to discuss topical issues relating to administration and enforcement of law in their own countries. At this meetings, the delegates share information and experiences that could assist their colleagues better administer the laws of their countries.

In relation to legal issues concerning fisheries, the subsidiary body of the Forum on fisheries, the FFA,[11] coordinates the sharing of information and resources on fisheries management amongst members and facilitates training including MCS and law enforcement. The FFA’s governing body, the Forum Fisheries Committee receives and reviews technical information and advice and makes recommendations which the member governments undertake to implement pursuant to their commitments under the FFA Convention.[12]

The Member States clearly draw on the experience of the FFA countries on many aspects for cooperation stipulated in the Fisheries Protocol. It could also learn from the same experience on matters of implementation. An arrangement similar to that of the FFA for legal information and resource sharing set up under the institutional framework of the Fisheries Protocol could facilitate further cooperation towards harmonization of fisheries laws and the effective implementation thereof. The arrangement could be set up initially as an ad hoc working group for information exchange and resource sharing could suffice in the initial stage of giving effect to the Member States’ commitments. The ad hoc forum could eventually become a formal institution.

The ad hoc working group could prioritise issues to focus on and/or evolve a strategy to fulfil the commitment of Member States for cooperation in fisheries legal matters. Initially, the areas for cooperation and harmonization of laws could be those that are listed in Article 9 of the Fisheries Protocol but as recommended above, it should not be restricted to these areas. Legal information, which may be shared initially, could include the announcement of legislative reviews and new laws and associated procedures, compliance and enforcement action including judicial decisions and discussion of emerging trends and issues and experiences.

REFERENCES

Caucaud, Legal issues relating to vessel monitoring systems in FAO FISHCODE/MCS Report of a Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kulua Terangau, Malaysia 29 June-3 July 1998, Supplement 2 Technical papers.

T. Aqorau, Illegal Fishing and Fisheries Law enforcement in Small Island Developing States: The Pacific Islands Experience, International Journal of Marine and Coastal Law, Vol. 12, No.1, 37-63.

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: (Mauritius), TCP/RAF/8933 (A).

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: Mozambique, TCP/RAF/8933 (A).

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: Republic of Namibia, TCP/RAF/8933 (A).

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: Seychelles, TCP/RAF/8933 (A).

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: South Africa, TCP/RAF/8933 (A), 21 May 2001.

FAO, Harmonization of marine fisheries policy within SADC coastal countries: National Report: Tanzania, TCP/RAF/8933 (A).

Kuemlangan B, Legal Aspects of Implementing the FFA Vessel Monitoring System, Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Ed. Nordquist M. H. and Moore N J at pp. 409-435.

Kuemlangan B, National legislative options to combat IUU Fishing, AUS:IUU/2000/9.

Mollenaar and Tsamenyi, Satellite-based vessel monitoring systems (VMS) for Fisheries Management, International Legal Aspects and Development in State Practice, FAO Legal Papers on line: http://www.fao.org/.

Moore, Gerald “Enforcement without Force: New Techniques in Compliance Control for Foreign Fishing Operations Based on Regional Cooperation” (1993) 24 Ocean Development and International Law 19-203.

Southern African Development Community, Draft Protocol on Fisheries, June 2001.

Southern African Development Community, Protocol on Trade.

Lawrence Schäfer, Rhodes University (South Africa), the University of Ghent (Belgium) and the Vrije Universiteit Brussels (Belgium), Domestic and International Law of Fisheries in the SADC Region, Internet site: http://cdserver2.ru.ac.za/cd/cdlaw/index.htm

ANNEX I

OVERVIEW OF THE COMPLIANCE AGREEMENT
AND THE FISH STOCKS AGREEMENT

COMPLIANCE AGREEMENT

The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) was adopted by the Conference of the Food and Agriculture Organization in November 1993. It is open to acceptance by members of FAO and other bodies of the United Nations system and will come into force upon receipt of the twenty-fifth instrument of acceptance.

The Compliance Agreement covers similar ground to the Fish Stocks Agreement, but with some differences. The most significant is that it applies generally to fishing on the high seas, not just to straddling and highly migratory stocks. On the other hand, a party may exempt vessels less than 24 metres long. A party to the Compliance Agreement may not normally register a fishing vessel that has “undermined the effectiveness” of international management measures under its previous flag.

A register of high-seas fishing vessels is established under the Compliance Agreement and parties are required to report relevant information to FAO for inclusion in the register and, subject to requirements of confidentiality, for circulation to the other parties.

Like the Fish Stocks Agreement, the Compliance Agreement obligates the parties to require an authorization for high seas fishing (in this case, for all species) and prohibits a state from authorizing vessels that it cannot control.

The parties are to require their high-seas fishing vessels to be marked and to report on their fishing activities. The parties are required to take enforcement action for violators (i.e. those that undermine the effectiveness of international management measures), including explicitly to make violations a criminal offence “where appropriate”. Sanctions for serious violations must include refusal, suspension or withdrawal of the high seas authorization.

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 (Fish Stocks Agreement) was adopted in New York in December 1995. It will come into force thirty days after the deposit of the thirtieth instrument of ratification or accession.

In general, the Fish Stocks Agreement applies to straddling stocks (i.e. those occurring both within and beyond the fishing jurisdiction of coastal nations) and highly migratory species “beyond areas under national jurisdiction”. So, except as specified, the Fish Stocks Agreement does not apply to non-straddling, non-highly migratory stocks and does not apply to any stocks within areas under national jurisdiction.

Parties to the Agreement are required to “cooperate” to manage the relevant stocks, and in particular to:

(a) adopt measures to ensure long-term sustainability...;

(j) collect and share, in a timely manner,... data... on... position, catch and fishing effort...;

(l) implement and enforce... measures through effective monitoring, control and surveillance.

The authorization may be granted only where the flag state is “able to exercise effectively its responsibilities” under the agreement. The authorization must be subject to conditions “sufficient to fulfil any [international] obligations of the flag state”.

Other obligations of the flag state include requiring reporting of position, catch and effort in accordance with applicable standards, requiring vessels to be marked, monitoring, control and surveillance through various means including vessel monitoring systems and ensuring that its vessels do not engage in unauthorized fishing (apparently for any species) in other countries’ waters.

International actions are focussed on “subregional and regional fisheries management organizations or arrangements”. States are required to establish an organization or arrangement where none exists. They are required to work through the organization or arrangement to establish management measures, data standards and “appropriate mechanisms for effective monitoring, control, surveillance and enforcement.” Where an organization or arrangement with competence to establish management measures exists, both coastal and fishing states must either join the organization or arrangement or give effect to the measures. States that refuse to do either may not authorize their vessels to fish for the stocks covered by the organization or arrangement.

There are rather involved provisions for regional surveillance and enforcement. In general, members of a regional body may board and inspect a vessel of any party to the Fish Stocks Agreement, whether or not it is a member of the regional body. Where there is evidence of a violation, the flag state should be informed and it may either investigate the suspected violation or allow the inspecting state to do so. In the latter case, the results of the investigation are communicated to the flag state which, again, may either take “enforcement action” or allow the inspecting state to do so. If a serious violation as defined by the Agreement is discovered and the flag state does not respond, the vessel may be taken into port. Regional bodies may also establish alternative procedures, as long as they are consistent with the Fish Stocks Agreement. The same provisions apply to boarding in national waters where the coastal state believes a vessel has violated regional management measures on the high seas during the same fishing trip. Port states are also authorized to inspect vessels and catches and to prohibit landings and transhipments in cases where the catch “undermines the effectiveness” of international measures.

Where a vessel violates management measures on the high seas, the flag state is required to “institute proceedings.” Sanctions for violations should be severe enough to deter violations and to deprive the offender of the benefits of his illegal fishing. The flag state must ensure that the violator does not fish again on the high seas (presumably by withdrawing its authorization) until the sanction has been purged. The flag state should also have the means to suspend or withdraw the authorization of offending masters and officers to serve on fishing vessels.

ANNEX II

LEGISLATIVE IMPLICATIONS OF THE COMPLIANCE
AGREEMENT AND THE FISH STOCKS AGREEMENT

COMPLIANCE AGREEMENT

Principal Provisions with Legislative Implications

The FAO Compliance Agreement is simpler than the Fish Stocks Agreement and has correspondingly fewer provisions that require legislation for their proper implementation. They are set out below.

Art. III - Flag State Responsibility

(1) (a) This paragraph requires each party to take necessary measures to ensure that its vessels do not undermine the effectiveness of international conservation and management measures. This would be complied with by legal requirements by individual SADC States that designate or which enables the SADC State to designate what international conservation and management measures are recognised and this is linked to the system of authorisation for fishing so that such authorisations are subject to appropriate conditions (including compliance with the recognised international conservation and management measures), sanctions for violation of the conditions including being able to suspend or cancel the licence.

(2) This paragraph requires parties to prohibit fishing on the high seas by their vessels without authorization and requires the authorized vessel to fish in accordance with the conditions of the authorization. This would be complied with by requiring an authorization to fish on the high seas, imposing appropriate conditions, applying sanctions for violation of the conditions including being able to suspend or cancel the licence.

(3) This paragraph requires parties to be able to exercise effective control over their vessels. This would require legal requirements that ensure that vessels which the State cannot exercise effective control over is not authorised to fish or which enable the cancellation of an authorization to fish if the fisheries or licensing authority can no longer exercise effective control over such vessel.

(4) This paragraph provides that the authorization is deemed cancelled when the vessel ceases to fly the party’s flag.

(5) This paragraph requires parties to refuse an authorization to reflagged vessels that have had an authorization cancelled or suspended for undermining international conservation and management measures, subject to various conditions.

(6) This paragraph requires that vessels be marked according to generally accepted standards, such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels.

(7) This paragraph requires vessels to supply information on area, catches and landings.

(8) This paragraph requires enforcement measures including refusal, suspension or withdrawal of the authorization.

Art. IV - Records of Fishing Vessels

This article requires records of authorized vessels.

Art. V - International Cooperation

(1) The parties are required to exchange information including evidence.

(2) This paragraph requires parties to notify the flag state where a vessel in port has undermined an international management measure.

This paragraph also provides for parties to arrange for port state investigations. In any case, it would appear that a port state may inspect fishing vessels.

Art. VI - Exchange of Information

This article provides for supply of information to FAO. Legislation may not be necessary, but the provisions could amplified the need for additional information listed if this is not already required.

UN FISH STOCKS AGREEMENT

Principal provisions with legislative implications

The Fish Stocks Agreement is a complex instrument. It should be noted that it relates only to the conservation and management of straddling and highly migratory fish stocks. The provisions which could be reflected in legislation are numerous, but many of them can be dealt with by the same legislative measure. Existing legislative provisions could be able to implement the requirements of certain provisions of this Agreement such as those relating to the provision of data. The Agreement also recapitulates some provisions of the Compliance Agreement so that legislative provisions that are suggested for one Agreement for such provisions are also relevant for the other.

Art. 5 - General principles

This article requires coastal and fishing states to cooperate in a variety of ways in relation to straddling and highly migratory stocks. Later articles spell this out in greater detail. The only obligation of article 5 that requires specific action is to collect and share date in accordance with Annex I of the agreement (art. 5(j)). This is more particularly dealt with in articles 10(f) and 14.

Art. 6 - Application of the precautionary approach

This article requires states (by implication both coastal and fishing) to apply the precautionary approach to conservation, management and exploitation of straddling and highly migratory stocks. The approach is set out in the form of guidelines in Annex II, which essentially requires the establishment of reference points. This can be fully provided for through the fishery management and development plans (if this are provided for in legislation).

States are required to take action if reference points are approached, presumably reducing or restricting allowed catches or effort. Actions that may be taken include application of additional conservation and management measures and cancellation or suspension of certain rights (including fishing). Legislative provisions must enable fisheries authorities “to take action” where reference points are approached.

Art. 7 - Compatibility of conservation and management measures

This article restates the rights and obligations of coastal and fishing states under the 1982 UN Convention on the law of Sea. It then requires “agreement” (compatibility) between conservation and measures for straddling and highly migratory fish on the high seas and areas under national jurisdiction. If measures cannot be agreed on, dispute-settlement provisions of the Agreement may be invoked. None of this appears to require legislation, although the measures finally applied would have to be made applicable to SADC States’ vessels through their legislation. Assuming that the power to establish conservation and management measures for straddling and migratory stocks is founded in each SADC State legislation, they would have to, in establishing compatible measures within areas under national jurisdiction, “take into account” measures for straddling and migratory stocks on the high seas determined by coastal and fishing states and organizations (art. 7(2)(b)-(c)).

Art. 8 - Cooperation for conservation and management

This article is associated with article 7. It creates an obligation for coastal and fishing states establish an organization or arrangement where none exists for the conservation and management of straddling and highly migratory fish stocks and to join or to accept the measures of an organization or arrangement with competence for the relevant straddling or migratory stock. It makes all states with a “real interest” in the fishery eligible to join the organization or arrangement and excludes non-members or non-accepting states from the fishery. These obligations do not require legislation.

However, the individual SADC State would have to be able to give effect to the conservation and management measures of the organization or arrangement to which it is a party or to the measures which it recognises as international conservation and management measures (including measures established by organizations or arrangements to which it is not a party). The SADC state must also be able to prohibit its vessels from fishing in a fishery that was covered by an arrangement that the SADC State had not joined or accepted. These powers would have to be provided by legislation. (See legislative proposal for giving effect to international measures under Article III (1) of the Compliance Agreement [in ANNEX II)

Art. 10 - Functions of subregional and regional fisheries management organizations and arrangements

This article provides for the matters on which states should agree, and therefore enforce on their vessels, in cooperating on straddling and migratory stocks. The paragraphs with legislative implications are:

(a) management measures (see discussion under Art. 8 (above) and the legislative proposal for giving effect to international measures under Article III (1) of the Compliance Agreement [in ANNEX II);

(b) catch and effort (This could be effected through fishery plans);

(c) adopt and apply minimum standards. (This could be required in legislation as conditions for authorisations);

(f) compile statistical data in accordance with Annex I (see discussion of art. 14)

(h) establish cooperative mechanisms for surveillance and enforcement - at a minimum, individual SADC States would have to be responsible for assuring compliance by their own vessels and punishing violations. If joint or “regional” enforcement is agreed to, the ability to give effect to this must be provided in legislation (For example, a regional observer or authorised officer, if appointed under an established regional observer or enforcement programme, may be given enforcement powers in respect of vessels of a SADC which allows this through its legislation).

This article requires parties to collect and exchange information in accordance with Annex I, as well as to agree on data requirements. Annex I obligates states to collect data from their vessels fishing straddling and migratory stocks and to make them available to relevant fisheries management bodies. At a minimum the data should comprise time series of catch and effort statistics by fishery and fleet, total catch by number or weight and species, discards, effort statistics and fishing location and time. Other information should be collected and provided as appropriate. Parties are also required to collect a variety of vessel data. They should ensure that their vessels submit logbook data to the national administration or a fisheries management organization. They should establish systems for verification, of which vessel monitoring systems, observers and port sampling are given as examples. (This could be required in legislation as conditions for authorisations or as specific legislative requirements)

Art. 17 - Non-members of organizations and non-participants in arrangements

This article provides that non-member, non-complying states shall not authorize their vessels to fish for straddling and migratory stocks subject to international measures. Members are to take action consistent with international law to deter such non-entitled vessels, but it is not clear what actions would fit this definition.

Art. 18 - Duties of the flag state

This article essentially recapitulates the FAO Compliance Agreement (see Annex II). It obligates flag states to ensure that their vessels do not undermine international fisheries conservation and management measures on the high seas. They are required to prohibit fishing on the high seas without an authorization, to require vessels fishing on the high seas to carry the authorization, to apply conditions to the licence in order to fulfil obligations of the flag state, and to ensure that their vessels do not conduct unauthorized fishing in the waters of other states.

Other requirements are to maintain a record of authorized vessels, marking and reporting. Monitoring, control and surveillance requirements may include observers, inspection, vessel monitoring, and regulation of transhipment.

Art. 19 - Compliance and enforcement by the flag State

This article requires the flag state to take action against its vessels that violate international measures for straddling or migratory stocks. Sanctions would have to include the possibility of disqualifying masters or officers from serving on such vessels. The basic requirement can be met through requiring an authorization for the high seas, imposing a condition of complying with applicable international measures, and making unauthorized fishing or violation of conditions an offence. Disqualification of masters and officers can be made an additional penalty on conviction.

Art. 20 - International cooperation in enforcement

This article provides generally for cooperation and specifically requires the flag state to investigate and eventually prosecute violations of other states’ fisheries legislation committed in coastal state waters by vessels subsequently found on the high seas. This would require an authorization to fish in other states’ waters and making conditions of the authorization, including obedience of coastal state laws, enforceable. This article also authorizes action in accordance with international law to deter vessels that have violated international management measures (not limited to straddling or migratory stocks) from fishing until the flag state acts, but does not indicate what international law might permit.

Art. 21 - Subregional and regional cooperation in enforcement

This article authorizes a member or participant in a subregional or regional organization or arrangement to board and inspect vessels of any party to the Fish Stocks Agreement, even if it is not party to the organization or arrangement. This power may be exercised in the high seas or in the waters of the boarding state. The purpose is limited to ensuring compliance with measures relating to straddling or migratory stocks. The action permitted is to notify the flag state of violations, although if there is no response, if the flag state fails to act or if the flag state so authorizes, the boarding party may bring the vessel into port in order to continue the investigation in the case of a serious violation. The boarding state may only report the results of its investigation to the flag state; this article does not authorize the inspecting state to institute criminal proceedings. The flag state, on the other hand, is required either to investigate and prosecute or to authorize the boarding state to do so. Any state may also board and inspect a vessel on the high seas suspected of being without nationality.

Art. 22 - Basic procedures for boarding and inspection pursuant to article 21

This article provides procedures for exercising the powers under article 21 unless the regional fisheries body agrees on its own procedures. The article can be implemented by granting extraterritorial powers in respect of foreign vessels subject to international law.

This article also requires the flag state to ensure that its vessels cooperate and, if one does not, to suspend the vessel’s authorization and order it to return to port immediately.

Art. 23 - Measures taken by a port State

This article authorizes port states to inspect fishing vessels when they are voluntarily in port, as well as to prohibit landing and transhipment of catches taken in a manner that undermines international measures for the high seas, not limited to straddling and migratory stocks.

The remaining articles of the Agreement do not have any necessary implications for legislation, although they do contain provisions for developing countries and for the settlement of disputes that SADC States may find pertinent to their situation. Article 31 in particular authorizes a tribunal to prescribe provisional measures to preserve rights or “to prevent damage to the stocks in question”.

ANNEX III

Information Paper 1
The use of administrative/civil penalties and compounding of offences and in fisheries law enforcement

by

Blaise Kuemlangan, Legal Officer, Development Law Service, FAO

1. Civil and administrative processes and penalties for fisheries violations are in use in the US and certain FFA member countries. These procedures are alternatives to normal criminal proceedings for fisheries enforcement and may be judicious as they allow a reasonable/lower standard of evidence to be used in proceedings as well as the swift and economic settlement of violations, including negotiated settlements. Such processes are relevant where lengthy delays are experienced in having matters heard by Courts and the undesirability of criminalisation of persons who breach fisheries laws.

1 Administrative/civil processes and penalties in enforcement

2. One of FFA options in response to, inter alia: 1) the difficulties in using evidence generated by GPS or VMS due to the hearsay rule; 2) the high standard of proof in criminal cases; and 3) the delay in dealing with criminal wrongs in many jurisdictions, is that countries adopt US civil and administrative processes and penalties for dealing with fisheries offences. This approach presents the advantages of permitting hearings, which do not necessarily follow strict rules of evidence, expedited proceedings and lower standard of proof.

3. Another attractive aspect of using civil and administrative processes for fisheries law violations is that it allows for a negotiated settlement. This entails the ability of the fisheries agency or the appropriate government authority to: notify the offender of the breach committed; present a summary of its case with an indication of penalties (usually fines); and, request the offender to show cause. If the offender considers that there is indeed a breach committed, the fisheries agency may then negotiate with the offender on the penalty to be paid. While there may be little or no negotiation on the fine, bargaining can be done on the number of breaches that can be substantiated by the fisheries agency. Bonds may be lodged so that a vessel is released to continue fishing.

1.1 The scheme for the use of civil penalties for fisheries law violations

4. Based on the legal framework for administrative action in the US, the first necessary element is the legal basis for the executive to exercise legislative and judicial powers. The Administrative Procedures Act (APA)[13] sets out the basic Congressional intent for such exercise of powers.

5. The second element is that the act or omission, which is considered a violation of a fisheries law, must be clearly specified. Connected to this is the need to clearly distinguish, in the relevant legislation, between the criminal offence and the civil penalty. The relevant legislation in the US is the Magnuson-Stevens Fishery Conservation and Management Act.

6. In addition to the use of different provisions to create the two types of liability (one criminal and the other civil) the relevant provisions in the Magnuson-Stevens Fishery Conservation and Management Act are carefully drafted so that the usual terms used in a provision that creates an offence (criminal liability) are avoided. Section 1857 is an example of careful legal drafting that avoids making a breach of a law solely criminal or solely civil. The relevant part of Section 1857 states as follows:

It is unlawful -

(1) for any person -

(A) to violate any provision of this Act or any regulation or permit issued pursuant to this Act;

(B) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this Act;

.......
.......
.......

Section 1859 creates criminal liability and provides as follows:

(a) Offences. A person is guilty of an offence if he commits any act prohibited by-

(1) Section 307(1)(D), (E), (F), or (H) [16 USCS ss. 1857(1) (D), (E), (F) or (H)]; or

(2) section 307 (2)[16 USCS ss 1857(2)].”

The provision that creates civil liability and enables the use of administrative penalties is Section 1858.

“Section 1858 Civil Penalties

(a) Assessment of Penalty. Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code [5 USCS ss 554], to have committed an act prohibited by section 307 [16 USCS ss 1857] shall be liable to the United States for a civil penalty. The amount of the penalty shall not exceed $25,000 for each violation. Each day of a continuing violation shall constitute a separate offence. The amount of the civil penalty shall be assessed by the secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offences, ability to pay, and such other matters as justice may require.”

7. It shall be noted that the use of the words “it is unlawful” and “to violate” in the prohibition section (Section 1857) provides the choice to invoke a civil or criminal process for enforcement. In complementing Section 1857, Section 1858, on one hand, uses the words, “shall be liable to the United States” (creating the basis for use of civil penalties) while Section 1859, on the other hand, uses “is guilty of an offence” (which establishes criminal liability).

8. The process for use of civil penalties is established. It includes issuance of notice by the designated authority to the person alleged to have committed a violation after detailed investigation is conducted and there is enough evidence to support the finding that the violator committed a prohibited act.

9. There must be provision for hearing. All interested parties must be given an opportunity to be heard including the opportunity for the submission and consideration of facts and arguments or offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and public interest permit it. Where the parties are unable to determine a controversy by consent, hearing and the decision on notice will ensue.

10. Settlement and other alternative dispute resolution are encouraged. The fact that the resulting liability is civil enables the parties to settle just like the parties would in litigation in civil suits. This can be compared to a criminal proceeding in some common law jurisdictions where the only form of settlement allowed is plea bargaining.

11. It shall be noted that the majority of the fisheries cases using APA procedures to impose civil penalties are settled.[14]

1.2 Use of civil penalties outside the US

12. Marshall Islands has a simplified procedure for the use of civil penalties. Such procedures apply to violations by foreign vessels only. The provisions relating to a contravention for which a civil penalty may be imposed reflect the ability for any breach to have a criminal or civil liability. Civil penalties that are imposed shall not exceed $1,000,000. Fishing vessels used in any contravention of the fisheries law and fish taken in the course of such contravention may be forfeited in accordance with a civil proceeding.[15]

13. In New Zealand, section 113z of the Fisheries Act 1996 provides for the use of administrative penalties for offences that have a penalty of a fine not exceeding $250,000 and where no information or charge is laid in respect of an alleged offence. However the use of the administrative penalties applies only in respect of minor offences and where it would be appropriate to impose an administrative penalty in the light of previous conduct of the vessel and the accused person. The procedures involves: the issuance of notice of violation which includes the date and time of the alleged violation, summary of facts and information on the sections on administrative penalties; and, the admission of offences and submissions by the person to whom notice is served. The maximum penalty that can be imposed is one third of the maximum monetary penalty to which the person may be liable if the person was convicted of the offence in court.[16]

14. Papua New Guinea has a more complex administrative enforcement proceeding that involves: the establishment of a Summary Administrative Panel; issuance of notice; right of the person to whom notice is served to opt for court proceedings; authorisation from the Public Prosecutor to allow a violation to be dealt with by summary administrative proceedings and notice of final settlement under summary administrative proceedings to a court of competent jurisdiction.[17]

2. Compounding of offences

15. While only a few countries have adopted the US administrative proceedings approach, many States in the Indian Ocean, Caribbean and South Pacific regions have adopted the compounding of offences[18] process in order to deal swiftly with fisheries offences. The main component in compounding of offences is that the person in whom powers to compound offences is vested (usually the Minister responsible for fisheries or the chief executive officer in the fisheries administration (Director or Secretary)) decides to accept sums of money (usually not more than the maximum of fines allowed) from the offender if it is believed that an offence has been committed. Other requirements in more recent legislation are that offences may be compounded only with the consent of the person found by the Minister or Director to have committed the offence and that notifications of the compounding of an offence may be made to the appropriate courts. The Minister or Director may also be empowered to release any article seized in relation to the offence if he compounds such offence.


16. Seychelles has a provision that allows the Minister to compound an offence committed under the Fisheries Act.

17. It should be noted that few States have used the compounding of offences provisions in their fisheries legislation. SADC countries could consider introducing in national legislation the ability to compound offences or the effective use of existing provisions. A caveat is necessary for any decision to opt for the use of compounding of offences. As noted in respect of the use of administrative penalties, the process of compounding of offences involves an exercise of judicial powers. Therefore, constitutional and administrative law implications for such options need to be comprehensively examined before using the compounding of offences as an option in enforcement.

ANNEX IV

Information Paper 2
Long-arm approach to enforcement: The “Lacey Act” provision by

Blaise Kuemlangan, Legal Officer, Development Law Service, FAO

1. A mechanism for fisheries law enforcement which has been considered and adopted by some of the member countries of FFA, is an offence creating provision that can be introduced in national fisheries legislation commonly referred to as the “Lacey Clause”. The provision basically makes it unlawful to import fish that has been taken contrary to the laws of another country. The provision derives its name from its origin, the Lacey Act of the US. This mechanism should, if given a wider application, buttress cooperation in enforcement to stem illegal fishing operations in the region. Outside the US only three countries namely Papua New Guinea, Solomon Islands and Nauru, have adopted this so called “long arm” mechanism in enforcement.

Brief background

2. The Lacey Act[19] was originally passed to outlaw interstate traffic in birds and other animals illegally killed in their State of origin. There have been several amendments to the original Act. These amendments to the Lacey Act combine the Lacey Act and Black Bass Act into a single comprehensive statute to provide more effective enforcement of State, Federal, Indian tribal, and foreign conservation laws protecting fish, wildlife, and rare plants and strengthen Federal laws and improve Federal assistance to States and foreign governments in enforcement of fish and wildlife laws.[20] The amendments also strengthen the Lacey Act by, inter alia: (1) expending underlying violations so that they are not, under certain provisions of the Lacey Act, restricted to acts or attempted acts of taking or possession but also transportation or sale of wildlife contrary to State or foreign law, (2) explicitly defining the sale of wild life to include the provision or purchase of guiding or outfitting services for the illegal acquisition of wildlife, (3) expending the underlying violations to include the intended violation rather than just actual violations, and (4) requiring a felony violation to be committed only with the prerequisite knowledge of the import or export of fish, wild life or plants or the sale of fish, wildlife or plants with a market value greater than US$ 350.[21]

3. The relevant provision of the Lacey Act makes it unlawful[22] for any person to: import, export, transport, sell, receive, acquire, possess, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Indian tribal law, treaty, or regulation (referred to as underlying laws); import of live wild animals and birds to occur under inhumane and unhealthful conditions; make or submit any false record, account, or identification of any fish, wildlife, or plant which has been, or is intended to be imported, exported, sold, purchased, or received from any foreign country; or transported in interstate or foreign commerce[23]. Federal agents are authorised to seize any wildlife which they have reasonable grounds to believe was taken, possessed, transported, or imported in violation of any provisions of the underlying laws.

Dealing with a Lacey Act contravention.

4. With the exception of the marking offences, none of the offences under the Act stand on their own. There must first be a violation of an underlying Federal, State, foreign, or Indian Tribal law, treaty, or regulation relating to fish, wildlife, or rare plants.

5. Both criminal and civil penalties can be assessed, depending upon the nature and type of the violation. A civil penalty can be as much as $10,000 if there is evidence that the violator should have known that the fish, wildlife, or plants were taken, possessed, transported, or sold in violation of any underlying law.

6. Vehicles, aircraft, vessels, or other equipment used during the commission of the crime may be forfeited to the government in cases involving felony convictions. Any fish, wildlife, or plants involved in violations of the Act are also subject to forfeiture.

7. The Lacey Act has become a vital tool in efforts to control smuggling and trade in illegally taken fish and wildlife. In particular, the Lacey Act is useful in enabling the Federal government to aid other governments in enforcing their own conservation laws.[24]

Overview of the use of the “Lacey Act provision” outside the US

8. Under an understanding between the United States and FFA members called the Agreed Minute on Cooperation on Surveillance and Enforcement (the Agreed Minute), the parties agree to exchange fisheries information including information on violations, exchange personnel and develop vessel monitoring system to generally enhance surveillance and enforcement. Cooperation under the auspices of the Agreed Minute has enabled the US to frequently use the Lacey Act to prosecute vessels importing fish taken contrary to the laws of the FFA member States and to provide assistance to FFA members to develop their own Lacey Act provisions.

9. The suggestion for use of the Lacey Act provision first arose in an FFA regional legal consultation in October 1993 where it was agreed that the FFA Secretariat examine the potential for use of a Lacey clause in enforcement by FFA members. Papua New Guinea first incorporated a Lacey Act provision in the Fisheries Act of 1994 followed by Nauru in 1997 and Solomon Islands in 1998 following further discussion on the Lacey Act provision and potential for its use under the auspices of assistance provided under the Agreed Minute.

10. A typical Lacey Act provision may be drafted as follows:

(1) Subject to subsection (3), a person who, in (insert name of country) or in fisheries waters -

(a) on his own account, or as partner, agent or employee of another person, lands, imports, exports, transports, sells, receives, acquires or purchases; or

(b) causes or permits a person acting on his behalf, or uses a fishing vessel, to land, import, export, transport, sell, receive, acquire or purchase,

any fish taken, possessed, transported or sold contrary to the law of another State shall be guilty of an offence and shall be liable to a fine not exceeding (insert monetary value).

(2) This section does not apply to fish taken on the high seas contrary to the laws of another State where (insert name of country) does not recognise the right of that State to make laws in respect of those fish.

(3) Where there is an agreement with another State relating to an offence referred to in subsection (1) (b), the penalty provided by subsection (1), or any portion of it according to the terms of the agreement, shall, after all the costs and expenses have been deducted, be remitted to that State according to the terms of the agreement.[25]

12. So far, only one prosecution of an offence committed against a Lacey Act provision has been conducted in Papua New Guinea where the master of a fishing vessel with a Papua New Guinea fishing licence was convicted and penalised for catching fish in Solomon Island waters without a Solomon Islands fishing licence and then bringing the catch into Papua New Guinea waters. Some issues that arose from that prosecution and which are worth noting are: (1) the need to prove foreign law and in this respect, the need for expert an witness on or the availability of certified copies of the foreign law in question; (2) the need for broad interpretation of terms such as “imports” and “exports” so as to include the casual import or export of a shipment of fish even if it is not for commercial import or export purposes; and, (3) that the offence committed under the Lacey Act provision is not an enforcement of the other State’s laws but the enforcement of the law of the country that has the Lacey Act provision.

Conclusion

13. It is too early to gauge the success of the use of Lacey Act provisions. Nevertheless, the Lacey Act provision has the potential for application in the instance where the fish imported into a country is taken in violation of internationally agreed conservation and measures applicable on the high seas and as reflected in regional regulations. It enhances control over chartered vessels when they are fishing on the high seas and Port State control (routine checks of fishing vessels including examination of log books could reveal illegal activity in other States’ waters). In addition, there is the potential for reciprocity in the application of the Lacey Act provision where such provision exists in the law of neighbouring States or through bilateral agreements as envisaged by the provision relating to remittance of penalties. Extensive adoption of the Lacey Act provision could also become a direct deterrence for illegal fishing wherever it occurs.