COMBATING ILLEGAL, UNREPORTED AND UNREGULATED …

University of Wollongong Thesis Collections

University of Wollongong Thesis Collection

University of Wollongong Year

Combating illegal, unreported and

unregulated fishing in Indonesian waters:

the need for fisheries legislative reform

Dikdik Mohamad SodikUniversity of Wollongong

Sodik, Dikdik Mohamad, Combating illegal, unreported and unregulated fishing in Indonesianwaters: the need for fisheries legislative reform, PhD thesis, Centre for Maritime Policy,University of Wollongong, 2007. http://ro.uow.edu.au/theses/732

This paper is posted at Research Online.

http://ro.uow.edu.au/theses/732

COMBATING ILLEGAL, UNREPORTED AND UNREGULATED FISHING IN INDONESIAN WATERS: THE NEED FOR FISHERIES LEGISLATIVE REFORM

A thesis submitted in fulfilment of the requirements for the award of the degree of DOCTOR OF PHILOSPHY

UNIVERSITY OF WOLLONGONG

By

Dikdik Mohamad Sodik, S.H., M.H.

CENTRE FOR MARITIME POLICY FACULTY OF LAW, UNIVERSITY OF WOLLONGONG

2007

Thesis Certification

Certification I, Dikdik Mohamad Sodik, declare that this thesis, submitted in fulfilment of

the requirements for the award of Doctor of Philosophy, in the Centre for

Maritime Policy, University of Wollongong, is wholly my own work unless

otherwise referenced or acknowledged. The document has not been

submitted for qualification at any other academic institution.

Dikdik Mohamad Sodik

September 2007

ABSTRACT This thesis addresses one of the contemporary problems facing the sustainability of world’s fisheries---illegal, unreported and unregulated (IUU) fishing. As a result of IUU fishing, it is estimated that Indonesia loses revenue in excess of US$4 billion annually. The Indonesian Government has identified IUU fishing as a priority policy issue to be addressed. A number laws, regulations and measures have been adopted by the Indonesian Government to address IUU fishing concerns. The thesis examines how Indonesia addresses the problem of IUU fishing and how it implements international fisheries instruments. The discussion commences by providing a brief overview of the key binding and non-binding international instruments and an examination of the national legal framework to address IUU fishing. Despite the enactment of fisheries laws and regulations, there is still a gap between international fisheries instruments and Indonesia’s domestic implementation of such instruments. One of the critical gaps in the effective implementation of its international fisheries obligations to combat IUU fishing is the failure of Indonesia to participate as a full member in existing regional fisheries management organizations. The continuous IUU fishing activities by Indonesian-flagged vessels in areas under the competence of RFMOs also indicates the failure of Indonesia to regulate the activities of its vessels on the high seas. The thesis also demonstrates the major challenge being faced by Indonesia with respect to its institutional framework to deal with the problems of IUU fishing. Indonesia’s institutional framework is characterized by multiple institutions at the national and provincial levels, lack of coordination in fisheries-related functions, and conflicts in jurisdiction. The thesis concludes that the national legal and institutional framework is inadequate to combat IUU fishing and that such framework needs to be improved and made consistent with international fisheries instruments in order to ensure long-term conservation and management of fisheries resources.

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ACKNOWLEDGMENTS

In the name of God, Most Gracious, Most Merciful, I would like to thank my wife, Tini Purwantini, and my children for their profound support and encouragement in completing this research. I must also especially express my most sincere gratitude to, my supervisor, Professor Martin Tsamenyi, for coming up with the idea in the first place, securing the funding and his support, criticism and guidance. Many thanks are also due to Professor Dr. Etty R. Agoes (Padjadjaran University Law School, Indonesia) for her role in reading the first draft of the thesis, and Dr. Mary Ann (Centre for Maritime Policy, University of Wollongong, Australia) for her invaluable assistance in proofreading the final draft of my thesis. Inevitably in a study of this type, many institutions and individuals have assisted in providing scholarship, data, information and facilities. I am grateful to the Faculty of Law at Bandung Islamic University, Indonesia for granting me study leave. However, this study could never have been completed without the scholarship provided by the University of Wollongong and the Australian Government, and facilities provided to me by the Centre for Maritime Policy and the University of Wollongong library during my candidature. I am particularly indebted to the Secretary of the Centre for Maritime Policy, Myree Mitchell, for her assistance and encouragement. She has so kindly and politely humoured me in my feeble attempts to learn English. This research would likewise not have been possible without the cooperation and assistance of officials of the Department of Marine Affairs and Fisheries of the Republic of Indonesia and the Indonesian Navy Headquarters who provided data and information and so generously shared their knowledge and experience with me. I would also like to express my sincere appreciation to Dr Heather Jamieson (Learning Development Centre, University of Wollongong) and Margaret Schneider (Latrobe University, Melbourne) for their assistance in editing my thesis. I also would like to thank to the following colleagues at the Centre for Maritime Policy, University of Wollongong: Dr Clive Schofield, Dr Chris Rahman, Dr Ria Charidjah, Dr Vina, Dr Julia, Dr Dirhamsyah, Lara, Shilpa, Dorina, Georgia, Quentin, Wayne, Lowell, Jane, Amelia and Pakjuta who made my time in the Centre so intellectually rewarding and personally enjoyable. There are many other names not mentioned who helped me along the way by giving me ideas and an audience to speak to and I would like to thank them as well. Finally, my appreciation and memories to Nanang Soenarya and Nien Soemarni, my beloved parents, for bringing me up and educating me. I always pray for the peaceful repose of their souls.

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TABLE OF CONTENTS

ABSTRACT…………………………………………………………………..... iACKNOWLEDGMENT……………………………………………………….. iiTABLE OF CONTENTS……………………………………………………… iiiLIST OF ACRONYMS………………………………………………………... viiLIST OF FIGURES…………………………………………………………... ixLIST OF TABLES……………………………………………………………... ix CHAPTER 1: INTRODUCTION 11.1 Background……………………………………………………………. 11.2 Objectives of the Thesis and its Rationale…………………………. 61.3 Methodology…………………………………………………………… 101.4 Contribution of the Thesis……………………………………………. 111.5 Thesis Structure……………………………………………………….. 13

CHAPTER 2: THE CONCEPT OF IUU FISHING 182.1 Introduction…………………………………………………………….. 182.2 Concept of IUU Fishing…………………………..…………………... 18 2.2.1 Illegal Fishing ………………………………………………... 18 2.2.2 Unregulated Fishing…………………………………………. 20 2.2.3 Unreported Fishing………………………………………….. 212.3 The Development of the IUU Fishing Concept…………………….. 22 2.3.1 Development Through CCAMLR…………………………... 22 2.3.2 Development Through the FAO……………………………. 23 2.3.3 Development Through Other Organizations……………… 262.4 Causes of IUU Fishing………………………………………………... 29 2.4.1 Increasing Demand for Fishery Products…………………. 29 2.4.2 Subsidies in the Fisheries Sector and Overcapacity…….. 30 2.4.3 Lack of Flag State Control Over Its Fishing Vessels…….. 32 2.4.4 Ineffective Fisheries Monitoring, Control and

Surveillance……………………………….…………………. 362.5 Impacts of IUU Fishing……………………………………………….. 37 2.5.1 Impact of IUU Fishing on the Sustainability of Fisheries

Resources……………………………………………………. 38 2.5.2 Economic Impact of IUU Fishing…………………………... 402.6 Conclusion……………………………………………………………... 41

CHAPTER 3: THE FISHERIES PROVISIONS OF THE 1982 UN CONVENTION ON THE LAW OF THE SEA AND IUU FISHING 433.1 Introduction………………………………………………………......... 433.2 The Exclusive Economic Zone ………………………….................. 43 3.2.1 Coastal State Rights and Duties in the EEZ………………… 47 3.2.1.1 Conservation Obligations……………………...……… 47 3.2.1.2 Optimum Utilization of Fisheries Resources………... 50

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3.2.2 Fisheries Law Enforcement in the EEZ………………………. 553.3 Management of Stocks in the EEZ and on the High Seas……….. 62 3.3.1 Shared Stocks……………………………………………….. 62 3.3.2 Straddling Fish Stocks…..………………………………….. 65 3.3.3 Highly Migratory Species…………………………………… 703.4 Freedom of Fishing on the High Seas………………………………. 733.5 Conclusion……………………………………………………………... 76

CHAPTER 4: POST LAW OF THE SEA LEGALLY BINDING INSTRUMENTS AND MEASURES TO ADDRESS IUU FISHING 774.1 Introduction…………………………………………………………….. 774.2 Background to the FAO Compliance and UN Fish Stocks

Agreement……………………………………………………………… 774.3 The FAO Compliance Agreement…………………………………… 81 4.3.1 Definition and Application of the 1993 FAO Compliance

Agreement…………………………………………............... 82 4.3.2 Flag State Responsibilities……………………………….. 84 4.3.3 Exchange of Information Concerning Records of Fishing

Vessels………………………………………………………. 89 4.3.4 International Cooperation to Combat IUU Fishing by

Non-Parties…………………………………………………... 92 4.3.5 Gaps in the FAO Compliance Agreement………………... 934.4 The UN Fish Stocks Agreement ………………………………..…... 94 4.4.1 Compatibility of Conservation Measures………………..… 96 4.4.2 International Cooperation ………………………………….. 98 4.4.3 Deterring IUU Fishing Within the Jurisdiction of RFMOs.. 103 4.4.4 Duties of the Flag State……………………………............ 107 4.4.5 Compliance and Enforcement…………………………….. 110 4.4.6 Fisheries Law Enforcement by Port States……………. 1174.5 Conclusion……………………………………………………………... 118

CHAPTER 5: NON-BINDING GLOBAL INSTRUMENTS TO COMBAT IUU FISHING 1205.1 Introduction…………………………………………………………….. 1205.2 The FAO Code of Conduct for Responsible Fisheries……………. 120 5.2.1 Scope of Application of the FAO Code of Conduct……….… 121 5.2.2 General Principles of the FAO Code of Conduct………….… 122 5.2.3 International Cooperation…………………………………… 125 5.2.4 Fisheries Management……………………………………… 126 5.2.5 Monitoring, Control and Surveillance………………….….. 128 5.2.6 Flag State Responsibilities……………….………………… 130 5.2.7 Port State Measures………………………………………… 1315.3 The IPOA-IUU ……………………………………………….............. 132 5.3.1 Flag State Responsibilities………………………….……… 133 5.3.1.1 Fishing Vessel Registration……………………. 133 5.3.1.2 Record of Fishing Vessels……………………… 135 5.3.1.3 Authorization to Fish……………………………. 1365.3.2 Coastal State Measures……………………………………………… 140

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5.3.3 Port State Measures………………………………………………….. 1415.3.4 Internationally Agreed Market-Related Measures…………………. 1445.3.5 Conclusion……………………………………………………………... 148 CHAPTER 6: INDONESIAN FISHERIES AND IUU FISHING 1506.1 Introduction…………………………………………………………….. 1506.2 Indonesia’s Fisheries Jurisdiction…………………………………… 1506.3 Indonesian Fisheries Resources……………………………………. 1526.4

Indonesian Fishing Industry…………………………………………. 6.4.1 The Artisanal Fisheries Sector………………………..……

156156

6.4.2 The Commercial Fisheries Sector………………………… 1586.5 IUU Fishing in Indonesia…………………………………................ 160 6.5.1 Illegal Fishing in Indonesia….……………………………… 160 6.5.2 Unregulated Fishing in Indonesia………………………….. 162 6.5.2 Unreported Fishing in Indonesia….……………………….. 163 6.5.4 IUU Fishing in Waters of Other States and on the High

Seas…………………………………………………………... 1646.6 Causes of IUU Fishing in Indonesia………………………………… 1686.7 Consequences of IUU Fishing………………………………………. 1716.8 Case Studies of IUU Fishing in Three Fishing Areas…………….. 174 6.8.1 IUU Fishing in Babel Waters………………………………. 174 6.8.2 IUU Fishing in Indonesian Waters of the South China

Sea…………………………………………………………… 178 6.8.3 IUU Fishing in the Celebes Sea…………………………… 1816.9 Conclusion…………………………………………………………….. 183 CHAPTER 7: THE INDONESIAN FISHERIES LEGISLATIVE AND INSTITUTIONAL FRAMEWORK TO ADDRESS IUU FISHING 1857.1 Introduction…………………………………………………………….. 1857.2 The Indonesian Domestic Legal Framework………………………. 185 7.2.1 Laws and Regulations Relating to the Limits of National

Jurisdiction…………………………………………………… 187 7.2.2 Indonesian Legislation Concerning Fisheries…………… 190 7.2.2.1 Law No. 5 on the Indonesian Exclusive

Economic Zone………………………………….. 190 7.2.2.2 Presidential Decree No. 39 of 1980 on

Elimination of the Use Trawl……………………. 192 7.2.2.3 The Decision of the Minister of Agriculture No.

392 of 1999 Concerning Fishing Zone…….….. 194 7.2.2.4 Decision of the Minister of Marine Affairs and

Fisheries Concerning the Regulation of Fishing Vessels Operation in the IEEZ….…….. 197

7.2.2.4.1 Joint Ventures……………………….. 198 7.2.2.4.2 Purchase on Instalments…………… 199 7.2.2.4.3 Licensing…………………………….. 202 7.2.2.5 Law of the Republic of Indonesia No. 31 of

2004 Concerning Fisheries ……………………. 2057.3 Challenges in Institutional Framework Combat IUU Fishing…….. 212

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7.3.1 Problems in Management ………………………………..... 212 7.4

7.3.2 Problems of Enforcement ………………………………..… Conclusion…………………………………………………………..….

214221

CHAPTER 8: THE INDONESIAN REGULATORY FRAMEWORK FOR VESSEL REGISTRATION AND FISHING VESSEL LICENSING 2238.1 Introduction…………………………………………………………….. 2238.2 Legal Framework for Fishing Vessel Registration…………………. 224 8.2.1 Fisheries Law No. 31 of 2004………………………….…... 224 8.2.2 Shipping Law No. 21 of 1992…………………………….… 225 8.2.3 Government Regulation No. 51 of 2002……………….…. 225 8.2.4 Gaps in the Fishing Vessel Registration Framework……. 2288.3 Authorization to Fish………………………………………………….. 232 8.3.1 Types of Fishing Licenses…………………………………. 234 8.3.1.1 Fisheries Business License ……………………

8.3.1.2 Fishing License………………………………….. 8.3.1.3 License for Fish Transporting Vessels……….. 8.3.2 Licensing of Foreign Fishing Vessels……………………..

235 237242247

8.3.3 Defects in the Fishing License Regime…………………... 2508.4 Regulation of Fish Aggregating Devices ....................................... 2558.5 Conclusion……………………………………………………………... 259 CHAPTER 9: ANALYSIS OF THE INDONESIAN LEGAL FRAMEWORK FOR MONITORING AND SURVEILLANCE OF FISHING VESSELS 2619.1 Introduction…………………………………………………………….. 2619.2 The Indonesian Laws and Regulations on Monitoring and

Surveillance of Fishing Vessels…………………………………..…. 261 9.2.1 Satellite-based Vessel Monitoring System……………….. 262 9.2.2 Fishing Logbooks……………………………………………. 271 9.2.3 Observer and Inspection Scheme…………………………. 275 9.2.4 Admissibility of Electronic Evidence in Courts……………. 2849.3 Conclusion……………………………………………………………... 290 CHAPTER 10: CONCLUSION 291 BIBLIOGRAPHY 298

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LIST OF ACRONYMS

ACIAR Australian Centre for International Agricultural Research ADB AMFR

Asian Development Bank Agency for Marine and Fisheries Research

CCAMLR Commission for the Conservation of Antarctic Marine Living Resources

CCSBT Commission for the Conservation and Management of Southern Bluefin Tuna

CMP Centre for Maritime Policy COFI FAO Committee on Fisheries. COLP Center for Oceans Law and Policy DWFN Distant Water Fishing Nations DGCF Directorate General of Capture Fisheries DMAF EEZ FAO FCR

Department of Marine Affairs and Fisheries Exclusive Economic Zone Food and Agriculture Organization Fish Code Review

FFA Forum Fisheries Agency FOC Flag of Convenience GRT Gross Tonnage HP horsepower ICCAT International Commission for the Conservation of Atlantic Tunas ICLOS Indonesia Center for the Law of the Sea IEEZ Indonesian Exclusive Economic Zone IMO International Maritime Organization IOTC Indian Ocean Tuna Commission IPOA-IUU International Plan of Action on Illegal, Unreported and

Unregulated Fishing ITLOS International Tribunal for the Law of the Sea IUP Fisheries Business License IUU Illegal, Unreported and Unregulated LBP Logbook on Catch and Fish Transport LLO Logbook on Vessel’s Technical/Operational Worthiness LIPI The Indonesian Institute of Science NM nautical mile MCS Monitoring, Control and Surveillance MSY Maximum Sustainable Yield NAFO Northwest Atlantic Fisheries Organization NPOA-IUU National Plan of Action to Prevent, Deter, and Eliminate Illegal,

Unreported and Unregulated Fishing OECD Organization of Economic Cooperation and Development RCCF Research Centre for Capture Fisheries RFMO Regional Fisheries Management Organization SBT Southern Bluefin Tuna SEAPOL South-East ASIAN Programme in Ocean Law SIKPI Fish Carrier License SIUP Fisheries Business License SPI Fishing License TAC Total Allowable Catch

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UN United Nations UNCSD United Nations Commission on Sustainable Development UNCED United Nations Conference on Environment and Development UNCLOS United Nations Convention on the Law of the Sea UNCLOS I United Nations Conference on the Law of the Sea UNCLOS II Second United Nations Conference on the Law of the Sea UNCLOS III Third United Nations Conference on the Law of the Sea UNGA United Nations General Assembly UNICPOLOS United Nations Open-Ended Informal Consultative Process on

Oceans and the Law of the Sea. UOW University of Wollongong. VMS Vessel Monitoring System WCPFC Western and Central Pacific Commission WTO World Trade Organization

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LIST OF FIGURES

6.2 Indonesia’s Fisheries Management Areas 151

LIST OF TABLES 6.3.1 Production of Fish Species Group in each Fisheries

Management Area, 2001…………………………………….…… 1546.7 Economic Impacts of IUU Fishing in Indonesia………….…….. 1736.8.1(A) Types of Fishing Gears in Bangka, 2001…………..…………... 1756.8.1(B) Types of Fishing Gears in Belitung, 2001……………………… 1766.8.1(C) Types of Fishing Gears and Targeted Species in the

Bangka Belitung Province…..………………………………... 1766.8.2 Types of Fishing Gears in the South China Sea…....………… 1796.8.3 Types of Fishing Gears in the Celebes Sea…………………… 181

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CHAPTER 1

INTRODUCTION

1.1 Background

This thesis addresses one of the contemporary problems facing the

sustainability of global fisheries resources: illegal, unregulated and unreported

(IUU) fishing.1 According to the United Nations Food and Agriculture

Organization (FAO), approximately 47 per cent of the major fish stocks in the

world are now fully exploited, 18 per cent are overexploited, and 10 per cent are

significantly depleted.2 There is no denying that the world’s fisheries are

experiencing a catastrophic crisis.3 This crisis in global fisheries is compounded

by inappropriate and inadequate international regulations governing the

conservation and exploitation of fisheries resources, particularly high seas

fisheries,4 as well as ineffective and poor implementation of national fisheries

management framework.

It is now universally agreed that a major cause of the global fisheries crisis is

what has become popularly known as IUU fishing. According to the United

Nations, IUU fishing is the “main obstacle in achieving sustainable fisheries in

both areas under national jurisdiction and the high seas.”5 IUU fishing is also

1 The definition and scope of IUU fishing is discussed in Chapter 2. 2 Report of the UN Secretary General of Fifty-Ninth Session of the United Nations General Assembly, 24 August 2004, p. 8. 3 Howard L. Brown, “The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: An Analysis of International Environmental Law and the Conference’s Final Agreement”, Vermont Law Review, Vol. 547, 1996-1997, p. 548. 4 Christopher C. Joyner, “Compliance and Enforcement in New International Fisheries Law”, Temple International Law & Comparative Law Journal, Vol. 271, 1998, p. 272. 5 Report of the UN Secretary-General on “Oceans and the Law of the Sea, Sustainable Fisheries, including through the Agreement for the Implementation of the Provisions of the

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considered as “one of the most severe problems affecting world fisheries”6 and

known to have “far-reaching consequences for the long-term sustainable

management of fishery resources.”7 On 29 November 2005, the UN General

Assembly expressed concern that IUU fishing seriously threatens to deplete

certain fish stocks and significantly damage marine habitats and ecosystems to

the detriment of sustainable fisheries as well as the food security and

economies of many states, particularly developing States.8 IUU fishing can

occur in all marine capture areas, both within and outside national fisheries

waters, especially on the high seas adjacent to the exclusive economic zone

(EEZ).

In an effort to combat IUU fishing, the 1982 United Nations Convention on the

Law of the Sea (LOSC), in Part V on the Exclusive Economic Zone and Part VII,

Section 2 on the Conservation and Management of the Living Resources of the

High Seas contains a number of provisions stipulating the obligations of coastal

and flag States to ensure the conservation and management measures of the

fisheries resources9 in the EEZ and on the high seas.

United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments”, UNGA Doc A/59/298, 26 August 2004, para. 36, p.13. 6 Report of the UN Secretary General on Oceans and the Law of the Sea: Law of the Sea Results of the Review by the Commission on Sustainable Development of the Sectoral Theme of “Oceans and Seas, UNGA Doc A/54/429, 30 September 1999, para. 249, p. 42. 7 United Nations Open-ended Informal Consultative Process on Ocean Affairs First Meeting 30 May-2 June 2000, Discussion Panel A, Responsible Fisheries and Illegal, Unregulated and Unreported Fisheries Moving from Principles to Implementation Illegal, Unreported and Unregulated Fishing, Submission by the Food and Agriculture Organization of the United Nations UNGA Doc A/AC.259/1, para 1, 15 May 2000, p. 1. 8 United Nations General Assembly Resolution A/Res/60/31 on “Sustainable Fisheries, including the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments”, 10 March 2006, p. 2. 9 Ellen Hey, “A Healthy North Sea Ecosystem and a Healthy North Sea Fishery: Two Sides of the Same Regulation”, Ocean Development and International Law, Vol. 23, 1992, p.224.

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As far as the management of the EEZ is concerned, Article 61 provides the duty

of coastal States to determine the total allowable catch (TAC).10 In regulating

fishing activities, Article 62(4) of the LOSC allows coastal States to impose the

terms and conditions on distant water fishing nations which seek to gain access

to surplus resources in its EEZ.

The important provisions in Article 63 of the LOSC on shared and straddling fish

stocks are the obligations of coastal States to seek to agree on the measures

necessary to coordinate and ensure the conservation and development of

shared stocks and cooperate with high seas fishing nations on the conservation

and management of straddling fish stocks. Pursuant to Article 64(1), coastal

States and high seas fishing nations are required to cooperate directly or

through regional fisheries management organisations (RFMOs) to ensure the

conservation and management of highly migratory species.

Closely related to these provisions on transboundary fish stocks is Article 116 of

the LOSC which gives all States the right to provide their nationals to engage in

fishing activities on the high seas subject to the rights and duties as well as the

interests of other States under Articles 63(2) and 64. Articles 117 to 119 of the

LOSC impose an obligation on high seas fishing nations to cooperate in the

conservation and management of fisheries resources in the areas of the high

seas through RFMO.

10 Gordon R.Munro, “Extended Jurisdiction and the Management of Pacific Highly Migratory Species”, Ocean Development and International Law, Vol. 21, 1990, p.292.

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Two principal obligations arising from these LOSC provisions can be identified.

The first is the obligation of the coastal States to combat IUU fishing in areas

under national jurisdiction and shared waters. The second pertains to the

obligations of interested high seas fishing nations to ensure, by the adoption of

appropriate laws and regulations, that fishing vessels flying their flags act in a

manner consistent with international law and RFMO conservation and

management measures.

The above-mentioned provisions were directed to provide a sound basis for

effective RFMO cooperation in the conservation and management of high seas

fisheries resources, especially transboundary fish stocks. However, the LOSC

has failed to clearly define the scope of cooperation for shared stocks,

straddling stocks and highly migratory species. The LOSC is not adequate as a

legal framework to be used by the international community to reach sustainable

fisheries development goals.

Since the 1990s, the UN, through the FAO, has taken concerted actions to find

a global solution to the IUU fishing problem. Consequently, a number of

international fisheries instruments, both binding and non-binding, have been

negotiated to supplement the LOSC in order to effectively address IUU

fishing.11 The most significant of these instruments include the FAO Code of

Conduct for Responsible Fisheries (FAO Code of Conduct),12 the Agreement to

11 Michael Lodge and Frank Meere, “High Seas Governance”, Meeting of the High Seas Task Force Paris, 9 March 2005, Maritime Studies 141, March/April 2005, p.2. 12 Food and Agriculture Organization, Code of Conduct for Responsible Fisheries, Adopted at the 28th Session of the FAO Conference, Rome, Italy, 31 October 1995. See also New FAO Project to Tackle Illegal Fishing, Africa News Service, April 10, 2002, University of Wollongong Library Expanded Academic ASAP Plus, 25 November 2002, p.1.

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Promote Compliance with International Conservation and Management

Measures by Fishing Vessels (FAO Compliance Agreement),13 the Agreement

for the Implementation of the United Nations Convention on the Law of the Sea

of 10 December 1982 relating to the Conservation and Management of

Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks

Agreement),14 and the International Plan of Action to Deter, Prevent, and

Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).15

The objective of the FAO Code of Conduct is to provide guidance to States to

create or improve the legal and institutional framework for fisheries

management in order to achieve responsible fisheries.16 The FAO Compliance

Agreement addresses issues related to re-flagging and flag of convenience by

focusing in particular on flag state responsibility. Essentially, the FAO

Compliance Agreement obliges State Parties to control the activities of their

vessels on the high seas in order to ensure that such vessels do not undermine

international fishery conservation and management measures.17 The UN Fish

Stocks Agreement attempts to deal with the IUU fishing problem by providing a

13 FAO, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Adopted at the 27th Session of the FAO Conference, 24 November 1993. 14 UN, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 24 July-04 August 1995. See also Chris Hedley, Entry Into Force of the United Nations Fish Stocks Agreement: An Initial Assessment, Originally Published as (2001) International Fisheries Bulletin No.24, 2001, http://www.intfish.net/ops/papers/7.htm, p.1. 15 FAO, International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing, Adopted at the Twenty-fourth Session of COFI, Rome, Italy, 02 March 2001, p.iii. 16Western Central Atlantic Fishery Commission “Use of Monitoring Control and Surveillance (MCS) in Fishing As An Integral Part of Fisheries Management in the WECAFC Region”, Western Central Atlantic Fishery Commission, Eleventh Session, St. Georgia’s, Grenada, 21-24 October 2003, p. 3. 17 Duncan E.J. Currie, “Protecting the Deep Sea Under International Law: Legal Options for Addressing High Bottom Trawling”, Legal, Green Peace, October 4, 2004, p.12.

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framework for international cooperation, non-members of RFMOs, duties of the

flag state and compliance and enforcement.18

In recognition of the fact that not all States are parties to binding fisheries

instruments, the FAO has developed the IPOA-IUU as a non-legally binding

instrument to strengthen the binding agreements. The IPOA-IUU contains wide-

ranging provisions, including responsibilities of all States, coastal States, and

flag States, port State measures, internationally agreed market-related

measures, and special requirements of developing countries.19 It can be said

that the provisions of the IPOA-IUU set the international standard for the

regulation of IUU fishing at the national level. More significantly, the IPOA-IUU

requires all members of the FAO to develop and implement National Plans of

Action to Combat IUU fishing.20 The growing incident of IUU fishing, globally, is

of significance to Indonesia.

1.2 Objectives of the Thesis and its Rationale

Against the international background outlined above, the objective of this

thesis is to analyse the fisheries law and policy framework of Indonesia and to

assess its adequacy in effectively combating IUU fishing. The framework for

analysis will be based on the scope and content of international fisheries

instruments regulating IUU fishing, particularly the LOSC, FAO Code of

18 Moritaka Hayashi, “Global Governance of Deep-Sea Fisheries”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p. 296. 19 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p. 2. 20 Carl-Christian Schmidt, “Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing”, The International Journal of Marine and Coastal Law, Vol. 20, Nos. 3-4, 2005, p.479.

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Conduct, FAO Compliance Agreement, UN Fish Stocks Agreement, and the

IPOA-IUU.

Aside from the Indonesian waters, IUU fishing also takes place in waters,

shared with neighbouring States, waters under the jurisdiction of other States,

and on the high seas adjacent to the Indonesian exclusive economic zone

(IEEZ). As will be explained in chapter 6 of the thesis, IUU fishing in Indonesia

covers a range of activities, including the falsification of vessel information,

double-flagging of vessels, unregistered and unlicensed fishing activities, and

unreported and unregulated fishing. To illustrate the extent of IUU fishing in

Indonesia, the thesis will present three case studies, on Babel waters, the IEEZ

of the South China Sea, and the Sulawesi Sea. The real threat to the future of

Indonesian fisheries and neighbouring States comes from unregulated fishing

activities. From this perspective, the unregulated fishing of modified illegal

fishing gear and the Fish Aggregating Devices (FADs) in the Indonesian EEZ of

the South China Sea and the Sulawesi Sea, respectively, have an international

dimension as these IUU activities are characterised as threats to sustainable

fisheries development both within and beyond limits of national jurisdiction.

The thesis will examine the scope of international fisheries-related instruments

to address the IUU fishing problem and the extent to which such instruments

are implemented in Indonesia. The thesis will also identify gaps in the present

national legal and institutional frameworks to address IUU fishing. Five specific

research questions are addressed in the thesis. These are:

1. What is IUU fishing and what are its causes?

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2. What are the international laws applicable to combat IUU fishing?

3. What are the characteristics of IUU fishing in Indonesia?

4. How, and to what extent, have principles of international instruments

influenced fisheries legislative and institutional frameworks in Indonesia to

combat IUU fishing?

5. How adequate is the fisheries legislative framework in Indonesia to combat

IUU fishing?

The thesis will show that the there is a gap between the international fisheries

instruments and Indonesia’s domestic implementation of such instruments.

While a number of laws and regulations have been developed to address IUU

fishing, these are not able to deliver an effective regime for fisheries

management, fishing vessel registration, fishing license and monitoring, control

and surveillance (MCS). The Indonesian legislation on fisheries is inadequate to

deal with unregulated fishing activities that take place in the shared waters of

the IEEZ of the South China Sea and the Sulawesi Sea. It will be argued that

the failure of Indonesia to participate as a full member in existing and relevant

RFMOs is a critical gap in the effective implementation of its international

fisheries obligations to combat IUU fishing. The continuous IUU fishing by

Indonesian flagged vessels within RFMOs areas, especially for patagonian

toothfish and tuna, indicates a failure by Indonesia in regulating the activities of

its vessels on the high seas.

The thesis will also show that a major challenge facing Indonesia is the

inappropriate institutional framework to deal with the problems of IUU fishing.

8

The basic issue is that there is no comprehensive and coordinated national

approach in Indonesia to marine fisheries policy. Indonesia’s current system is

characterised by multiple institutions at the national and provincial levels, lack of

coordination and jurisdictional conflict. For example, the regulation of

ornamental fish continues to be a source of jurisdictional conflict between the

Department of Marine Affairs and Fisheries and the Department of Forestry.

Another issue relates to lack of clarity about enforcement authority within the

EEZ. The competences of the Navy and civilian agencies are not clearly

identified in the Law No. 31 on Fisheries. Indeed, Article 14 (1) of Law No. 5 on

the IEEZ recognizes that the officers qualified to investigate the violation of

fisheries law in the EEZ are the Navy, as designated by the Commander of the

Indonesian Armed Forces. On the other hand, under Article 66 of Law No. 31

on Fisheries, such power may also be exercised by civil servant fisheries

officers acting as principal investigators. This provides a possible source of

jurisdictional conflict relating to the agency that should be empowered to take

legal action against IUU fishing activities in the IEEZ.

Serious efforts must be made to eliminate IUU fishing including improved

enforcement.21 Law No. 31 on Fisheries should be the key legislation that

establishes the legislative framework for maritime enforcement and compliance.

The legal framework and the implementation of measures to combat IUU fishing

beyond the limits of national jurisdiction need to be improved and addressed

urgently by the Indonesian government. To combat IUU fishing, there is an

9

urgent need for Indonesia to reform its national fisheries legislation consistent

with the IPOA-IUU and other international fisheries instruments.

Any effective national legal framework in Indonesia which attempts to deal with

IUU fishing issues has to be consistent with international laws. Indonesia must

comply with its obligation as a coastal State and a distant water fishing nation

under the LOSC. As a State party of the LOSC, Indonesia is expected to ratify

and implement the FAO Compliance Agreement and the UN Fish Stocks

Agreement. The framework of binding international fisheries instruments

provides a basic obligation for Indonesia to cooperate with other States in

handling unregulated fishing in shared waters and participate in RFMOs to

combat IUU fishing. The RFMOs in which Indonesia would need to participate

include the Commission for the Conservation of Southern Bluefin Tuna

(CCSBT), the Indian Ocean Tuna Commission (IOTC) and the Western and

Central Pacific Fisheries Commission (WCPFC).

1.3 Methodology

The methodological approach used in the research is based on desktop

analysis combined with fieldwork to collect relevant data and information. The

desktop study focused on the identification of the current international legal

framework for IUU fishing in order to assess its limitations and strengths and

qualitative analysis of the extant literature on international fisheries law and IUU

fishing. The fieldwork component of the research which was undertaken in

Indonesia over a period of three months involved the collection of primary data

21 Kristina M. Gjerde and David Freestone, “Unfinished Business: Deep-Sea Fisheries and Conservation of Marine Biodiversity Beyond National Jurisdiction,” Editor’s Introduction, The

10

and literature, consultation with key stakeholders to collect and coordinate

departmental positions on IUU fishing issues, and participation in seminars and

internal departmental meetings on fisheries matters in Jakarta.

1.4 Contribution of the Thesis

This thesis is of international and national significance. The international

significance of the thesis arises from the global concerns on IUU fishing

outlined above. At the national level, successive Indonesian governments have

identified IUU fishing as a priority policy issue to be addressed. This is a

recognition of the significance of fisheries in Indonesia from social and

economic perspectives.22 The fisheries sector of Indonesia makes an important

contribution to food security and employment in Indonesia. More than 60 per

cent of animal protein consumed by Indonesians is derived from the fisheries

sector. It was estimated that Indonesians consumed per capita 21.7 kilograms

of fish per year in 2002. The primary fisheries sector also generated

approximately 1,805,470 jobs and contributed over US$1.6 billion in export

earnings in 2000.23 As a result of IUU fishing, it is estimated that Indonesia has

lost revenue in excess of US$4 billion annually.24 It is clear that failure to put in

place appropriate and adequate policy and regulatory frameworks to address

the IUU fishing in Indonesia will seriously affect the country’s economy and

jeopardize food security.

International Journal of Marine and Coastal Law, Vol. 19, No 3, 2004, p. 222. 22 Department of Marine Affairs and Fisheries of the Republic of Indonesia Combat Illegal Fishing, http://www.dkp.go.id/index.php (accessed on May 8 2006). 23 Dirhamsyah, “Maritime Law Enforcement and Compliance in Indonesia: Problems and Recommendations”, Maritime Studies, September/October 2005, p. 1. 24 Opening Remarks of Rokhim Dahuri, Former Minister of Marine Affairs and Fisheries at Law Enforcement Officer Technical Meeting, the Directorate General of Surveillance for Marine Affairs and Fisheries, the Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, Indonesia, 8-12 June 2003, p. 2.

11

http://www.dkp.go.id/index.php

The management of Indonesia’s fisheries is a complex matter, requiring a

balance between national and international interest and conflicting institutions. It

is complex because of the inappropriate laws and policies and lack of

enforcement effort at the national and provincial levels. There are therefore

challenging times ahead of Indonesia to develop a legal and policy framework

to combat IUU fishing, not only in its own waters, but also on the high seas and

in areas under the jurisdiction of neighbouring States. This makes the study

timely.

The thesis will make both academic and policy impact. To date, very little

scholarly attention has been paid to the issue of IUU fishing in Indonesia, with

the result that these issues have lagged well behind the attention given to other

law of the sea issues such as archipelagic sealanes passage through the

Indonesian archipelagic waters.25 Thus, this thesis fills a major vacuum in the

literature.

25 Literature on Law of the Sea Issues includes: Mochtar Kusumaatmadja, “The Problems of the Breadth of Territorial Waters in the Geneva Conventions of 1958-1960”, (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Bina Cipta Publisher, Bandung, Indonesia 1962; Mochtar Kusumaatmadja, “The Legal Regime of Archipelagos: Problems and Issues” and “Supplementary Remarks”, in LM. Alexander (ed), The Law of Sea : Needs and Interest of Developing Countries. Proceedings of the Seventh Annual Conference of the Law of the Sea Institute, 26-29 June 1972. at the University of Rhode Island, Kingston, University of Rhode Island, 1973; Komar Kantaatmadja, “International Compensation for Marine Oil Pollution” (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Alumni Publisher, Bandung, Indonesia, 1981); Daud Silalahi, “The Problems of Marine Environment Management National and Regional”, (A Doctoral Dissertation, School of Law, Padjadjaran University), Bandung, Indonesia, 1988. ; Atje Misbach Muhjiddin” Legal Status of the Indonesian Archipelagic Waters” (Published a Doctoral Dissertation, School of Law, Padjadjaran University, Bandung, Indonesia), Alumni Publisher, Bandung, Indonesia, 1993; Hasyim Djalal, “Indonesia and the Law of the Sea”, Centre for Strategic and International Studies, Jakarta, Indonesia, 1995; Barbara Kwiatkowska and Etty R.Agoes, “Archipelagic Waters: An Assessment of National Legislation” in R Wolfrum (Ed), Law of the Sea at the Crossroads: The Continuing Search for a University Accepted Regime, Proceedings of an Interdisciplinary Symposium of the Kiel Institute of International Law, 10-14 July 1990, Duncker and Humblot, Berlin, 1990; Etty R. Agoes, “Current Issues of Marine and Coastal Affairs in Indonesia”, The International Journal of Marine and Coastal Law, Vol. 12, No.

12

From a policy perspective, the thesis is timely and highly relevant in the current

context of national awareness of IUU fishing in Indonesia. Indonesia is currently

developing its laws and policies for the management for sustainable fisheries.

From a policy perspective, the research would have considerable benefits for

Indonesia in developing the needed policy and national legislative framework at

all levels of government to address the problem of IUU fishing.

1.5 Thesis Structure

This thesis is divided into ten chapters. Chapter 1 provides a brief

background of the contemporary problems of IUU fishing that cause the

unsustainability in world fisheries, objectives of international instruments to

address IUU fishing, and the key arguments highlighting the inadequacy of the

Indonesian fisheries legislative and institutional frameworks to respond to the

problem based on the requirements set out in the LOSC, FAO Code of

Conduct, FAO Compliance Agreement, and UN Fish Stocks Agreement.

Chapter 2 discusses the historical background to the IUU fishing concept. The

chapter traces the origins of the IUU fishing terminology and analyses the

definition of IUU fishing, the nature and extent of the problem, and factors

contributing to and impacts of IUU fishing. The chapter concludes that IUU

2, 1997; Etty R. Agoes, “Policing Offshore Zones: Indonesia’s Models and Experience”, Wollongong Papers on Maritime Policy No. 9, Centre for Maritime Policy, University of Wolongong, Wollongong, New South Wales, Australia, 1997; Hasjim Djalal, “The Law of the Sea Convention and Navigational Freedom” in Donanld Rothwell & Sam Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea, Martinus Nijhoff Publishers, The Hague, 2000; Dhiana Puspitawati, “The East/West Archipelagic Sea Lanes Passage Through the Indonesian Archipelago”, Maritime Studies, January/February 2005.

13

fishing is a global issue which requires international cooperation in order to

effectively address problem.

Chapter 3 examines the relevant provisions of the LOSC on fisheries and how

the legal framework under the Convention addresses IUU fishing. The chapter

analyzed the strengths and weaknesses of the LOSC provisions on fisheries. It

concludes that while the LOSC provides numerous rights and obligations of

coastal States in conserving and managing resources in the EEZ, it has not

clearly defined the scope of cooperation among States in managing shared,

straddling, and highly migratory fish stocks.

Chapter 4 discusses post-LOSC legally binding instruments and examines the

extent to which they address IUU fishing. The analysis in this chapter focuses

on two key agreements: the FAO Compliance Agreement and the UN Fish

Stocks Agreement. It is argued in this chapter that these two agreements made

significant contribution in supplementing and implementing the fisheries-related

provisions of the LOSC. However, there are still IUU fishing-related issues that

need to be addressed by these agreements such as control of fishing activities

by transport and support vessels and the rights and obligations of third parties

to regional fisheries management organizations.

Chapter 5 examines the non-legally binding instruments that support the

implementation of legally binding instruments discussed in chapters 3 and 4.

The instruments discussed in this chapter are the FAO Code of Conduct for

Responsible Fisheries and the IPOA-IUU. These voluntary instruments further

14

support and strengthen the adoption of the LOSC, FAO Compliance

Agreement, and the UN Fish Stocks Agreement, particularly with respect to

implementing port State measures. The chapter emphasized the need to

effectively implement these non-binding instruments for the long-term

sustainability of straddling and highly migratory fish stocks to be achieved.

Chapter 6 outlines the fisheries management framework in Indonesia and

provides a general background to IUU fishing in Indonesia. The chapter

demonstrates the enormity of the IUU fishing challenges in Indonesia and

raises the need for a holistic approach to addressing such challenges. The

analysis in this chapter provides the backdrop to the specific legislative analysis

in subsequent chapters.

Chapter 7 examines the fisheries legislative and institutional frameworks in

Indonesia. The chapter demonstrates clearly that the legislative and institutional

frameworks in Indonesia are not adequate to combat IUU fishing. Two major

issues that the legislative framework fails to adequately address are IUU fishing

by Indonesian vessels in areas outside national jurisdiction and Indonesia’s

obligations to the conservation and management of straddling and highly

migratory fish stocks. The chapter also highlighted the inadequacy in the

institutional framework to address IUU fishing. There is a lack of clear division

of responsibilities among government agencies and between the central and

local governments on fisheries matters.

15

To elaborate on the inadequacy of the national legislative framework to address

IUU fishing in Indonesia, two specific measures are analyzed: fishing vessel

registration and licensing system and monitoring, control, and surveillance.

Chapter 8 addresses the Indonesian regulatory framework for fishing vessel

registration and licensing. The chapter shows that the fishing vessel registration

and licensing framework in Indonesia are defective in many ways. The

inadequacies in the fishing vessel registration and licensing system involves the

verification of deletion certificates, tracking of history of fisheries compliance of

a fishing vessel, records of fishing vessels, fishing vessel licensing in local

governments, and licensing of Indonesian vessels fishing in RFMO areas and

on the high seas.

Chapter 9 analyses the Indonesian legislative framework for monitoring, control,

and surveillance for fishing vessels. The chapter concludes that the MCS

framework in Indonesia is inadequate to effectively address issues because it

fails to satisfy the requirements of post-LOSC instruments. The fisheries laws

and regulations of Indonesia do not adequately address issues such as the

mandatory use of VMS on the high seas by Indonesian vessels and

implementation of the logbook system and boarding and inspection scheme.

The chapter also posed the challenge for Indonesia to develop a suitable

system that will allow the admissibility of electronic evidence in Indonesian

courts.

Chapter 10, the conclusion, summarizes the key findings of the thesis. Overall,

the thesis has demonstrated that despite efforts to adopt fisheries laws and

16

regulations, the existing national legislative framework in Indonesia still does

not adequately implement the international legal requirements to combat IUU

fishing. The institutional framework for fisheries management in Indonesia is

also inadequate due to overlapping jurisdiction and lack of clearly defined

responsibilities among agencies and between the national and local

governments. The legal and institutional framework would need to be improved

and made consistent with international fisheries instruments in order to

effectively address IUU fishing and ensure the long-term sustainability of

fisheries resources in Indonesia.

17

CHAPTER 2

THE CONCEPT OF IUU FISHING

2.1 Introduction

The Introduction demonstrated that IUU fishing is a global problem which

undermines international fisheries conservation and management measures.

The purpose of this Chapter is to examine the concept of IUU fishing, its

historical origin, the factors contributing to IUU fishing, and its consequences.

The analysis also addresses the constraints being faced by many States in

fulfilling their obligations under international fisheries instruments. The Chapter

demonstrates that IUU fishing poses a threat to the sustainability and economic

viability of many fisheries resources and that global efforts are required to

address the problem.

2.2 Concept of IUU Fishing

There are three components of IUU fishing, namely, (a) illegal fishing, (b)

unregulated fishing, and (c) unreported fishing. The generally accepted

definition of each of the components of IUU fishing is provided by the

International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported

and Unregulated Fishing (IPOA-IUU).

2.2.1 Illegal Fishing

Paragraph 3.1 of the IPOA-IUU defines illegal fishing as fishing activities

3.1.1 conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

18

3.1.2 conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or 3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.

Illegal fishing occurs in marine capture areas both under the national jurisdiction

of coastal States, in areas under the competence of regional fisheries

management organisations (RFMOs), and on the high seas.1 Illegal fishing in

national waters covers two main activities. The first activity involves fishing

conducted by both domestic and foreign vessels without proper authorization.

The second encompasses fishing activities that contravene the terms and

conditions of a valid license.2 Illegal fishing involves a range of activities such

as incursions (poaching) into the exclusive economic zones (EEZs) and inshore

areas by foreign fishing vessels, non-compliance by fishers with the terms of

their fishing licenses; fishing by unlicensed vessels; and unlicensed fishing in

restricted areas.3 Another type of illegal fishing is the use of destructive fishing

methods such as explosives and poisons, small-meshed fishing nets, and highly

destructive fishing gears.4

1 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, page 1. 2 William Edeson, “Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing”, Australian Yearbook of International Law, Vol.20, 1999, pp. 14-15. 3 David J. Doulman, “ Global Overview of IUU Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for The Conclusions of the 2001 FAO International Plan of Action”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, p. 29. 4 Ousman K.l. Drammeh, “Illegal, Unreported and Unregulated Fishing in Small-Scale Marine and Inland Capture Fisheries”, Expert Consultation on Illegal, Unreported and Unregulated

19

At a regional level, illegal fishing also occurs when member states of RFMOs

fail to comply with the organization’s conservation and management measures.5

In this context, the term illegal fishing is used to refer to activities that

contravene either national or international laws. These practices often go

undeterred either because of the lack of political will or the lack of capacity of

national or regional bodies to enforce existing fisheries laws.6

2.2.2 Unregulated Fishing

Paragraph 3.3 of the IPOA-IUU defines unregulated fishing as fishing

activities

3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or 3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.

From the above definition, it is apparent that unregulated fishing is commonly

undertaken by vessels flying the flag of non-members of RFMOs. As a result,

these vessels do not consider themselves to be bound by the conservation and

Fishing Organized by the Government of Australia in Cooperation with FAO, AUS:IUU/2000/7, Sydney, Australia, 15-19 May 2000, p. 1. 5 Kevin Bray, “Illegal, Unreported and Unregulated Fishing, Current Fisheries Issues and the Food and Agriculture Organizations of the United Nations, Center for Oceans and Policies, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p.122. 6 Lawrence Juda, “Rio Plus the Evolution of International Marine Fisheries Governance”, Ocean Development and International Law, Vol. 33, No. 2, April-June 2002, p.119.

20

management measures adopted by RFMOs.7 These states and their fishing

vessels are often categorized as “free riders.” The term unregulated fishing also

refers to the harvesting of fish in areas where there are no management

measures.8 Unregulated fishing activities are also caused by the ineffective

application of international regulations at the national and regional levels.9

Thus, the concept of unregulated fishing is a narrow one. It mainly applies to

two circumstances, namely, fishing activities in areas covered by RFMOs by

vessels without nationality and by vessels whose flag States are not members

of RFMOs. The term unregulated fishing also applies to fishing on high seas

areas where there are no arrangements established to manage the resources

and activities in such areas. In this case, it can be said that unregulated fishing

results largely from the failure of the international community to establish

RFMOs or from the inability of flag States to discharge their responsibilities over

their vessels.

2.2.3 Unreported fishing

Unreported fishing is defined in paragraph 3.2 of the IPOA-IUU as fishing

activities:

3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

7 U.R. Sumaila, “The Cost of Being Apprehended Fishing Legally: Evidences and Policy Implications”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agricuture and Fisheries, Fisheries Committee of OECD, p. 3. 8 Lawrence Juda, loc. cit. 9 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 6.

21

3.2.2 undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.

Unreported fishing is thus a subset of the definition of illegal fishing and

unregulated fishing. Failure to report catches to the competent authorities by

fishing vessels or flag states may be illegal if it is done in contravention of

reporting regulations. Alternatively, unreported fishing may also be unregulated

if there are no rules requiring the reporting of catches.

2.3 The Development of the IUU Fishing Concept

The IUU concept developed through the activities of several international

and regional organizations. This section briefly surveys the historical

emergence of the IUU concept through these organizations.

2.3.1 Developments through CCAMLR

The origin of the IUU fishing concept can be traced to discussions within

the Commission for the Conservation of Antarctic Marine Living Resources

(CCAMLR)10 in 1997, in response to concerns related to fishing contrary to the

conservation and management measures of the organization by both members

and non-members. Following this discussion, the issue was included in the

agenda of the Seventh Session of the Standing Committee on Observation and

10 The Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) is an Intergovernmental Organization for the Rational Management of Living Resources on a Sustainable Basis in the Southern Ocean. For a general discussion, see Penelope Ridings, Compliance, Enforcement and the Southern Oceans: The Need for A New Approach in R.A.Herr (ed.), Sovereignty at Sea: From Westphalia to Madrid (Wollongong Papers on Maritime Policy No.11), Centre for Maritime Policy, University of Wollongong, 2000.

22

Inspection.11 The term IUU fishing was formally used at the Sixteenth Session

of CCAMLR in 1997.12 CCAMLR noted that one of the major problems faced by

the Commission was the IUU catches in the Convention Area which

substantially exceed reported catch.13 Additionally, more than half the vessels

presumed to engage in IUU fishing were CCAMLR Member States.14 The key

elements of the CCAMLR definition of IUU, developed at the Sixteenth Session

are as follows:

• Illegal fishing: vessels operating in breach of national regulations that apply within a coastal state EEZ, or CCAMLR party vessels operating in contravention of CCAMLR conservation measures in force, and vessels operating on the high seas in breach of the general obligations under the United Nations Convention on the Law of the Sea;

• Unreported fishing: fishing activities in the CCAMLR Convention Area that are reported, or misreported to the relevant national authority or the CCAMLR Secretariat, as required; and

• Unregulated fishing: vessels of CCAMLR non-Parties or un-flagged vessels operating on the high seas within the CCAMLR Convention Area.15

2.3.2 Developments through the FAO

Increasing global concerns over the prevalence of IUU fishing prompted

a number of calls for the establishment of an International Plan of Action to

11 David J.Doulman, “Global Overview of Illegal, Unreported and Unregulated Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for the Conclusion of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, op. cit, p. 24. 12 Annick Van Houtte, “Flag Responsibility and the Contribution of Recently Concluded International Instruments in Preventing, Deterring and Eliminating Illegal, Unreported and Unregulated Fishing”, Report of the Consultation of Fishing Vessels Operating Under Open Registers and Their Impact on Illegal, Unreported and Unregulated Fishing Vessels, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No.722, Global Partnership for Responsible Fisheries, Food and Agriculture Organization of the United Nations, Rome, p. 47. 13 William Edeson, “the International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument”, International Journal of Marine and Coastal Law 16 (2001), p. 605. 14 William Edeson, ibid. 15 Dean Bialek, “Sink or Swim: Measures under International for the Conservation of the

Patagonian Toothfish in the Southern Ocean”, Ocean Development and International Law, Vol. 34, No 2, April-June 2003, 2003, p.106.

23

address this problem.16 The FAO was given a mandate to develop the IPOA-

IUU at the 23rd Session of the Committee on Fisheries (COFI) in 1999.17 The

report of the Session stated that:

72. The Committee placed a high level of importance on the

implementation of the Code of Conduct for Responsible Fisheries. The Committee was concerned about information presented indicating increases in illegal, unreported and unregulated fishing, including fishing vessels flying “flags of convenience”. It urged, as a priority, those countries that had not yet ratified the Compliance Agreement to consider doing so as soon as possible.

73. The Committee took note that the issues related to re-flagging of fishing vessels and ship registration would be one of the subjects to be discussed by the IMO Sub Committee on Flag State Implementation. It was suggested that FAO inform IMO of the importance the Committee ascribed to the issue in time for the meeting in March 1999.18

Following the 1999 COFI Session, the Rome Declaration on the Code of

Conduct for Responsible Fisheries was adopted by the FAO Ministerial on

Fisheries in March 1999.19 The Declaration expressed concern about the

increasing number of IUU fishing incidents, including vessels flying flags of

convenience.20 In dealing with these problems, the operative paragraph 12(j) of

the Declaration noted that:

16 David A. Harcharik, “Introductory Remarks” at the Center’s Twenty-Fourth Annual Conference held at the Food and Agriculture Organization Headquarters in Rome from March 16-17, 2000 in Myron H. Nordquist and John Norton Moore, Current Fisheries Issues and the Food and Agriculture of the United Nations, Center for Oceans Law and Policy, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p. 3-4. 17 “Report of the Twenty-third of the Committee on Fisheries, 15-19 February 1999, FAO Fisheries Report No.595, FIPL/R595, para. 82. 18 David J. Doulman, “Illegal, Unreported and Unregulated Fishing: Mandate for An International Plan of Action,” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, pp. 5-6. 19 David J. Doulman, “2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing: Background and Progress Towards Implementation” (Appendix G), Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, Penang, Malaysia, 10-14 October 2004, FAO Fisheries Report No.757, Rome: FAO, 2005, p. 37. 20 Annick Van Houtte, loc. cit.

24

Without prejudice to the rights and obligations of states under international law, the FAO would develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying ‘flags of convenience’, as discussed in paragraph 33 of Annex G of the Report of the Consultation on the Management of Fishing Capacity, Shark Fisheries and Incidental Catch on Seabirds in Long-line Fisheries, which met in Rome in October 1998, through coordinated efforts by States, FAO, regional fishery management bodies and other relevant international agencies such as the International Maritime Organisation (IMO), as provided in Article IV of the Code of Conduct for Responsible Fisheries.21

The Rome Declaration proposed the establishment of a global plan of action to

address IUU fishing, and in particular, fishing by vessels flying flags of

convenience. It was also agreed to set up an integrated and inter-agency

mechanism to deal with these fisheries problems by involving other UN

agencies.

A report of COFI on “Illegal, Unauthorised and Unreported fishing” was

endorsed and agreed to by the Hundredth and Sixteenth Session of the FAO

Council in June 1999. The Council also noted that IUU fishing

…undermined conservation and management measures in fisheries. The Council urged that a global approach be taken by FAO to develop a strategy to address the problem of IUU, noting that this initiative should be carried out forward through the development of an International Plan of Action within the framework of the Code of Conduct. The Council also urged countries that had not yet accepted the Compliance Agreement to do as soon as possible.22

Although the FAO Council meeting focused on the establishment of an

International Plan of Action in accordance with the FAO Code of Conduct, the

importance of cooperation among States in the implementation of the 1993 FAO

21 David J. Doulman,” Illegal, Unreported and Unregulated Fishing: Mandate for An International Plan of Action”, op. cit, p. 6.

25

Compliance Agreement was also recognized. It is clear from the above

discussion that the FAO played a vital role in defining the scope of IUU fishing

activities. Indeed, the importance of IUU fishing to the FAO was clearly

demonstrated by the fact that a separate declaration in this regard was issued.

The FAO was motivated by its desire to protect fisheries resources in order to

achieve sustainable development.

In the effort to develop the IPOA-IUU, an Expert Consultation on Illegal,

Unreported and Unregulated Fishing was held in Sydney, Australia, from 15-19

May 2000. This was followed by a Technical Consultation on IUU fishing held in

Rome, Italy, from 2 to 6 October 2000.23 The Technical Consultation used the

preliminary draft IPOA-IUU that had been developed at the Expert Consultation

as a starting point and worked towards a final draft IPOA-IUU. A Second

Technical Consultation was held in Rome, 22-23 February 2001 to refine the

text, with a view to it being submitted to the twenty-fourth Session of the

Committee on Fisheries in February 2001 for “consideration and possible

acceptance”.24

2.3.3 Developments through other Organizations

The IUU terminology has also been used in the meeting reports of other

international organizations, including the UN Commission on Sustainable

Development (CSD), the International Maritime Organization (IMO), the

22 Chapter Two-“The Political Campaign”, http:://www. google.com.au, p. 2. (accessed on 15 October 2004) 23 “Report of the UN Secretary General on Oceans and the Law of the Sea”, United Nations General Assembly Fifty-fifth Session, 20 March 2000, p.25. . 24 http://www.fao.org/docrep/meeting/x8396e.htm (accessed on 15/01/01).

26

http://www.fao.org/docrep/meeting/x8396e.htm

International Labour Organization (ILO)25 and various RFMOs.26 The report of

the UN Commission on Sustainable Development provided that:

This Commission supports the Rome Declaration adopted by the FAO Ministerial Meeting on Fisheries (Rome, 10 and 11 March 1999), under which FAO will give priority to its works to develop a global plan of action to deal effectively with any forms of IUU fishing. This should include dealing with the problem of those States which do not fulfil their responsibilities under international law as flag States with respect to their fishing vessels, in particular those which do not exercise effectively their jurisdiction and control over their vessels which may operate in a manner that contravenes or undermines the relevant rules of international law and international conservation and management measures. It will also require coordinated efforts by States, FAO and regional fisheries management bodies and other relevant international agencies, such as the International Maritime Organisation (IMO), as provided in article IV of the Code of Conduct for Responsible Fisheries. The Commission further encourages IMO, in cooperation with FAO and the United Nations Secretariat, to consider the implications in relation to fishing vessels of the work requested in paragraph 35 (a).27

At the same time, the CSD also made a decision to invite the IMO to consider

the development of binding measures to ensure that ships of all flag States

comply with international rules, and therefore give full and complete effect to the

LOSC.28 A report of the UN Secretary General to the General Assembly

session in 1999 identified progress in the discussions of UN agencies. This

report noted:

(1) that, although the primary responsibility for the enforcement of rules and standards rests with the flag State, and port control has been developed as a means of completing the weakness or the unwillingness of the flag State to fulfil its obligations vis-à-vis vessels flying its flag (paragraph 191) and

25 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p. 5. 26 “Report of the Second Meeting of FAO and Non-FAO Regional Fishery Bodies Or Arrangements”, Rome, 20-21 February 2001, FAO Fisheries Report No. 645, Rome: FAO, 2001, p.6. 27 Report on the Seventh Session (1 May and 27 July 1998 and 19-30 April 1999), Commission on Sustainable Development, Law of the Sea Bulletin No. 41, Division for Ocean Affairs and the Law of the Sea Officer of Legal Affairs, United Nations New York, 1999, p. 66. 28 Committee on Fisheries Twenty-fourth Session, Rome, Italy, 26 February-2 March 2001, Illegal, Unreported and Unregulated Fishing: Proposal for Draft International Plan of Action, p.3. http://www.fao.org (accessed on May 17 2006).

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http://www.fao.org/

that port State control has been widely promoted by IMO, particularly through regional memoranda of understanding (paragraph 192).

(2) the emphasis by the CSD on the importance of further development of port State control (paragraph 194), and the goal of extending the coverage of regional port State control “to eventually create a global port State control network which would ban sub-standard and ships posing threats to the safety of navigation and the protection and preservation of the marine environment” (paragraph 199);

(3) the international community’s growing concern at the increasing incidence of fishing operations conducted outside agreed conservation and management as well as data collection schemes, recounts the steps being taken by United Nations (FAO and CSD). 29

In response to the above report, the United Nations General Assembly (UNGA)

Resolution 54/32 was adopted on November 24 1999. In its preambular

paragraph, the UNGA Resolution 54/32 referred to earlier resolutions30

regarding unauthorised fishing in zones of national jurisdiction31 and its impact

on living marine resources of the world’s oceans and seas. A number of

operative paragraphs of the UNGA Resolution 54/32 outlined key points. First, it

called upon States not to permit vessels flying their flags to engage in fishing on

29 Kevin Bray, “A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p. 19. 30 General Assembly Resolution on Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species, Law of the Sea Bulletin No.42, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations, New York, 2000, page 20. See also “ Short History of International Actions and Initiatives against IUU Fishing Activities”, http://www.oecd.org/document, page 2 (accessed on May 15, 2006). In this context it is noted that the General Assembly reaffirmed (1) its resolutions 50/25 of 5 December 1995 on Large-scale pelagic drift-net fishing and its impact on the living resources of the world’s oceans and seas; unauthorized fishing in zones of national jurisdiction and its impact on the living marine resources of the world’s oceans and seas; and fisheries by-catch and discards and their impact on the sustainable on the sustainable use of the world’s living marine resources in Law of the Sea Bulletin No. 30, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1996, page 46; (2) its resolutions 52/29 of 26 November 1997 on Large-scale pelagic drift-net fishing: unauthorized fishing in zones of national jurisdiction and on the high seas; fisheries by-catch and discards; and other developments in Law of the Sea Bulletin No. 36, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1998, page 43; (3) its resolution 53/33 of 24 November 1998 on Large-scale pelagic drift-net fishing, unauthorized fishing in zones of national jurisdiction and on the high seas, fisheries by-catch and discards, and other developments in Law of the Sea Bulletin No. 39, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations New York, 1999.

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the high seas without having effective control over their activities and to take

specific measures to control fishing operations by vessels flying their flags.

Second, it called on the IMO, in cooperation with FAO, RFMOs, and other

relevant international organisations, and in consultation with States and entities,

to define the concept of genuine link in relation to fishing vessel.32

2.4 Causes of IUU Fishing

Having outlined the concept of IUU fishing and its historical emergence,

this section provides an analysis of the major causes of IUU fishing. A number

of factors account for the emergence and increase in IUU fishing globally.

These factors include the increase in the demand for fisheries products globally,

subsidies in the fisheries sector and overcapacity, of lack of the flag State

control over fishing vessels, and ineffective fisheries monitoring, control and

surveillance. These factors are examined below.

2.4.1 Increasing Demand for Fishery Products

There is an increasing demand for fishery products globally brought

about by an increasing world population. However, commercial fish stocks

within EEZs are generally fully exploited. As a result of these factors, an

increasing number of fishers and fishing vessels are operating on the high

seas.33 In the absence of appropriate management practices, the competition

31 William Edeson, “Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing”, op.cit, p.95. 32 Law of the Sea Bulletin No.42, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, United Nations, New York, 2000, op. cit, p.22. 33 Rebecca Metzner, “Fishing Aspirations and Fishing Capacity: Two Key Management Issues”, The International Journal of Marine and Coastal Law, Vol. 20, No. 3-4, 2005, p. 459.

For such discussion see also “Introductory Remarks” of The Honorary Frank E. Loy at the Centre’s Twenty-Fourth Annual Conference held at the Food and Agriculture Organization

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amongst fishers continues to increase and intensify.34 The increasing demand

for fish, coupled with the decline of fisheries resources has contributed to the

growing incidence of IUU fishing.

2.4.2 Subsidies in the Fisheries Sector and Overcapacity

Subsidies in the fisheries sector have been identified as one of the

issues affecting the sustainability of global fisheries resources.35 The term

subsidies is broadly applied to a wide range of government interventions, or to

the absence of correcting interventions, that reduce costs and/or increase

revenues of producing and marketing fish and fish products in the short,

medium or long-terms. Government interventions include financial transfers or

the provision of goods or services at a cost below market prices. The “absence

of correcting interventions" includes failure by governments to impose measures

that correct external costs associated with fishing.36

Subsidies in the fisheries sector have an impact on IUU fishing, overcapacity

and trade in fish and fish products.37 Under the current legal regime, individual

fishermen or fleets do not receive any benefit from refraining from illegal fishing

because the regime established by the international community is designed to

Headquarters in Rome from March 16-17, 2000 in Myron H. Nordquist and John Norton Moore, op. cit, p. 9. 34 Ousman K.L. Drammeh, op.cit, p. 2. 35 Report and Documentation of the International Workshop on Factors Contributing to Un-sustainability and Overexploitation in Fisheries, Bangkok, Thailand, 4-8 February 2002, FAO/Japan Government Cooperative Programme, FAO Fisheries Report No.672, Rome: FAO, 2002, p. 15. 36 Guide for Identifying, Assessing and Reporting on Subsidies in the Fisheries Sector, FAO Fisheries Technical Paper 438, Rome: FAO, 2004, p. 7.

For a discussion of the effects of these fisheries subsidies on IUU fishing, see also “Report of the UN Secretary General on Oceans and the Law of the Sea at Fifty-Eight Session of the UN General Assembly A/58/65, 3 March 2003, p. 42.

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protect the economic interests of fishing industries. For instance, according to

the FAO, the world’s fishing fleets incur costs of approximately US$54 billion

annually. A major portion of these costs are paid through government

subsidies.38

According to various non-government organisations and interest groups, the

problem of overcapacity can be directly attributed to the payment of subsidies.

Some subsidies are particularly used to construct and modernize fishing

gears.39 Big fishing nations have fleet capacities that are able to catch a

considerable quantity of fish. Fishing vessels of these States are able to

conduct activities within their own national waters, on the high seas, and under

the jurisdiction of other States in accordance with bilateral fisheries

agreements.40 The use of purse seine and longlines enable the growing number

of international fleets to harvest an ever increasing number of target and non-

target stocks in all oceans.41

37 Report of the Technical Consultation on the Use of Subsidies in Fisheries Sector, FAO Fisheries Report No.752, Rome, 30 June-2 July 2004, Food and Agriculture Organization of the United Nations Rome, 2004, p. 1. 38 Patrick Shavloske, “The Canadian-Spanish Fishing Dispute: A Template For Assessing the Inadequacies of the United Nations Convention on the Law of the Sea and A Clarion Call for Ratification of the New Fish Stock Treaty”, Indiana International and Comparative Law, Indiana University School of Law, Indianapolis, USA, Vol. 7:1, 1996-1997, p. 230. 39 Sali Jayne Bache, Marcus Howard and Stephen Dovers, The Impact of Economic, Environment, and Trade Instruments Upon Fisheries Policy and Management, Report Prepared for Fisheries and Aquaculture Branch, Australian Department of Agriculture, Fisheries and Forestry, Centre for Resource and Environment Studies, School of Government, University of Tasmania, Centre for Maritime Policy, University of Wollongong, Agriculture, Fisheries and Forestry-Australia and Antarctic CRC, September 2000, p. 25. 40 Karen L. Smith, “Highly Migratory Fish Stocks: Can International and Domestic Law Save the North Atlantic Swordfish”, Western New England Law Review, Vol. 21, 1999, p. 22. 41 Elisabeth DeLone, “ Improving the Management of the Atlantic Tuna: The Duty to Strengthen the ICCAT in Light of the 1995 Straddling Stocks Agreement”, New York University Environmental Law Journal, Vol. 6, USA, 1997-1998, p. 659.

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From a fisheries management perspective, there is a close link between the

number of fishing vessels and IUU fishing. When a coastal State is faced with a

large number of fishing vessels, its fisheries resources are inevitably depleted.

Essentially, the excess fleet capacity encourages more fishing vessels to

engage in IUU fishing in order to maintain adequate return on fishing

activities.42 Much of this overcapacity can be traced to inadequate national

fisheries management, including a lack of incentives to combat IUU fishing and

the inappropriate allocation of fishing rights.43 Similarly, overfishing in the high

seas is caused by a lack of incentives for States to discharge their duties in

tackling the negative impacts of an overcapitalised fishing sector.44 Given the

fact that fisheries subsidies and overcapacity are interlinked, there is a need to

establish a comprehensive fishery management regime. Thus, in assessing the

impacts of fisheries subsidies, States must be aware of their negative impacts

on the sustainability of fisheries resources and how certain types of subsidies

contribute to IUU fishing.

2.4.3 Lack of Flag State Control Over Its Fishing Vessels

Over the past few decades, States whose vessels engage in fishing on

the high seas have established RFMOs to regulate those fishing activities. The

rules adopted by RFMOs are collectively referred to as conservation and

management measures. These include measures on catch quotas, seasonal

42 Dominique Greboval, “The International Plan of Action for the Management of Fishing Capacity and Selected Issues Pertaining to Illegal, Unreported and Unregulated Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p.1 43 Executive Summary of “Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing, OECD, Publishing, 04 October 2005, p. 14. 44 G.T. (Stan) Crothers and Lindie Nelson, “High Seas Fisheries Governance: A Framework for the Future”, Paper Presented at Sharing The Fish Conference 06 Perth Western Australia 26

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and area closures, and minimum mesh sizes.45 Members of RFMOs not only

include fishing nations, but also port States which have responsibilities to

combat IUU fishing.46

To evade internationally agreed conservation and management rules, the

owners of fishing vessels “re-flag” or register their vessels in, and fly the flags of

States which are not members of RFMOs. The States that offer their flags to

such vessels are generally referred to as “flags of convenience” (FOCs) or

“open registry” States.47 Despite not having genuine links with FOC States,

foreign fishing vessels are allowed to register under the flags of those States.

There are, at least, two motivations for foreign fishing vessels to register in FOC

States. First, open register States do not have the desire and capability to

exercise effective jurisdiction over fishing activities.48 This enables fishing

vessels to exploit low fees, tax exemption, lower crew costs and financial

savings by avoiding compliance with international safety standards. The second

motivation behind fishing vessels registering in FOC States is the freedom of

fishing due to the lack of effective control of FOC States. Even where an FOC

February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with the FAO, p. 2. 45 David A. Balton, “The Compliance Agreement“ in Helen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p.34. 46 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No.987, Rome: FAO, 2003, p. 6. 47 David A.Balton, “Dealing With the Bad Actor’s of Ocean Fisheries”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 2. 48 Annick Van Houtte, op.cit, p. 48.

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State is a party to international treaties or a member of an RFMO, such State

may be reluctant to implement any of its obligations.49

It should be noted that the vast majority of FOC States are not members of

RFMOs nor parties to international fisheries agreements. Consequently, fishing

vessels flying the flags of FOCs are not required to comply with agreed

conservation and management measures adopted by RFMOs.50 These fishing

vessels are essentially free riders who enjoy the benefits of conservation efforts

and scientific research established by member states of an RFMO, without

bearing any of the associated costs. This situation is not only grossly unfair, but

also compromises the integrity of the agreed measures.51 This also makes it

difficult for an RFMO to apply the conservation and management measures

against vessels flying the flags of non-member States.52

Important in this respect is a new approach discussed and agreed upon in the

2002 annual meeting of CCAMLR. CCAMLR endeavored to change the general

perceptions of IUU fishing and FOC States by employing the new term of “Flag

of Non Compliance” (FONC).53 The term also covers vessels fishing illegally

within the EEZs of States which have few resources available to conduct

49 Judith Swan, “Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Responsibilities Information and Options”, FAO Fisheries Circular No. 980, Rome, FAO, 2002, p. 23. 50 Messra David, J. Agnew and Collin T.Barnes, “ Economic Aspects and Drivers of IUU Fishing: Building A Framework”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, 2004, p. 8. 51 David A. Balton, “Making the New Rules Work: Implementation of the Global Fisheries Instruments in Myron H. Nordquist and John Norton Morton, op. cit. p. 110. 52 Judith Swan, “Regional Fishery Bodies and Governance: Issues, Actions and Future Directions”, FAO Fisheries Circular No.959, Rome: FAO, 2000, p. 10. 53 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No.987, Rome: FAO, 2003, p. 8.

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effective enforcement.54 The term FONC is used to emphasize the choice of an

IUU fishing vessel to be flagged under a certain State is determined by the lack

of regulatory control that a flag State will exercise over the vessel.

It can thus be seen that the effectiveness of RFMOs in controlling the incidence

of IUU fishing is entirely dependent on flag States being prepared to enforce

and monitor the activities of their fishing vessels. The enforcement and

monitoring of the activities of flag States is, in turn, dependant upon the

existence of an adequate legal framework to manage fisheries and the technical

capabilities of such States to implement such framework.

The International Commission for the Conservation of Atlantic Tunas (ICCAT)

provides an example of the need to enforce and monitor activities of fishing

vessels by flag States to control IUU fishing. In 1999, ICCAT listed 61 fishing

vessels flying the flags of its parties, in particular Ghana, Equatorial Guinea,

Guinea, and Trinidad and Tobago as conducting activities contrary to the

conservation and management measures of the Commission.55 In the view of

ICCAT, either these States have failed to realize that their vessels are engaging

in destructive fishing practices, or they are aware of these practices but have

failed to act effectively to end such illegal fishing practices.56 The failure of

these states to ensure that the conservation and management measures of

54 Aaron Hatcher, “Incentives for Investment in IUU Fishing”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture, and Fisheries, Fisheries Committee of OECD, p. 5. 55 Masayuki Komatsu, “The Importance of Taking Cooperative Action Against Specific Fishing Vessels That Are Diminishing Effectiveness of Tuna Conservation and Management Measures”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 2. 56 Komatsu, p. 2.

35

ICCAT are implemented contributed to the continuation of IUU fishing on the

high seas.

2.4.4 Ineffective Fisheries Monitoring, Control and Surveillance

Broadly speaking, monitoring, control and surveillance (MCS) is a vehicle

for implementing fisheries management plans and strategies. The goal of MCS

is the establishment of data collection systems, enactment of supporting

legislative instruments,57 and implementation of management plans through

participatory techniques and strategies.58

The increase in the incidence of IUU fishing can be attributed to ineffective

MCS.59 IUU fishing in developing countries is largely caused by the inability of

these countries to monitor and control fishing activities60 due to inadequacy of

MCS human and technical resources.61 In particular, local fisheries officers

experience difficulties in monitoring and controlling fishing activities due to the

limited number of trained personnel and means of transportation.62 Additionally,

ineffective MCS is exacerbated by insufficient capacities of member States of

57 P.Flewweling and Corman Culliman, David Balton, R.P, Sautter, and J.E, Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper 415, Rome: FAO, 2002, p. 7. 58 Blaise Kuemlengan, “Legal Aspects of Implementing the FFA Vessel Monitoring System” in Myron H. Nordquist and John Norton Moore, op. cit, p. 409. 59 Draft Chapter I – Economics of IUU Fishing Activities, Paper Submitted to the IUU Workshop, Directorate For Food, Agriculture and Fisheries, Fisheries Committee, 12 March 2004, p. 13. 60 John M. Davis, “Monitoring Control Surveillance and Vessels Monitoring Systems to Combat IUU Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 4. 61 Kelly Rigg, Remi Parmention and Duncan Currie, “Halting IUU Fishing: Enforcing International Fisheries Agreements”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.3. 62 Ousman K.L.Drammeh, loc. cit.

36

RFMOs, as well as the lack of international cooperation to promote exchange of

information about IUU fishers63 and MCS activities.

The provisions of the 1982 LOSC relating to fisheries have failed to fulfil the

high expectation for MCS.64 Considering the problems being faced by individual

countries, there is a need for concerted action to develop regional and sub-

regional cooperation against IUU fishing, which may include the harmonisation

of fisheries regulations and collaboration on MCS activities.65 In order to

achieve these objectives, it is crucial to formulate an adequate legal framework

to address IUU fishing and develop sufficient MCS capabilities. Thus, in dealing

with IUU fishing, attention must be given to the needs of developing countries in

terms financial and technical assistance, technology transfer, training and

technical cooperation.66

2.5 Impacts of IUU Fishing

To fully understand IUU fishing, one must look at some of the devastating

impacts of the problem. Taking place in all capture areas, IUU fishing affects the

sustainability of fisheries resources. It also has negative socio-economic and

environment impacts.

63 David J.Doulman, “Global Overview of IUU Fishing and Its Impacts on National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for The Conclusion of the 2001 FAO International Plan of Action”, op. cit, p. 26. 64 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p. 74. 65 Opening of the Workshop, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, op. cit, p. 4. 66 Kevin Bray, “Illegal, Unreported and Unregulated (IUU) Fishing”, International Conference on Fisheries Monitoring, Control and Surveillance, Brussels, Belgium, 24-27 October 2000, p. 4.

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2.5.1 Impact of IUU fishing on the Sustainability of Fisheries

Resources

IUU fishing has serious consequences on the sustainability of fisheries

resources.67 IUU fishing undermines conservation and management measures

established by national fisheries authorities within their EEZs and those of

RFMOs.68 Unreported fishing activities undermine the ability of coastal States to

determine the status of fish stocks in their EEZs, by making it difficult to compile

accurate data on fish stocks for setting the total allowable catch.69 This in turn

compromises the ability of coastal States to achieve maximum sustainable

yield.70 Moreover, the use of flags of convenience by foreign fishing vessels

undermines the ability of coastal State to conserve and manage fish stocks on

the high seas.71 As noted by the Environmental Justice Foundation:

In addition to negative effects on target stocks, IUU fishing can severely impact the wider marine ecosystem. As IUU fishermen flout rules designed to protect the marine environment, including restrictions on the harvest of juveniles, closed spawning grounds, and gear modifications designed to minimise the by-catch of non-target species, they inflict damage on seabirds, marine mammals, sea turtles, and marine biodiversity as a whole. For example, illegal long-line vessels in the Southern Ocean are estimated to kill 100,000 seabirds, including tens of thousands of endangered albatrosses, each year. Quantifying the ecosystem effects of IUU fishing and distinguishing from those of legitimate fishermen is often extremely difficult, not least because the environmental damage inflicted by legitimate fishing is often so great. However, one clear and striking example of the environmental damage that IUU fishing can inflict on marine ecosystems are driftnets, which despite being banned under both EU and international law continue

67 Similar to violation of RFMOs regime, IUU fishing on the high seas was also widely considered to pose a serious threat to the world marine biodiversity. See Christopher C.Joyner, “The International Ocean Regime at the New Millennium: A Survey of the Contemporary Legal Order”, Ocean and Coastal Management 43 (2000) 163-203, Elsevier, p.170. 68 David J.Doulman, loc. cit. 69 Lawrence Juda, loc. cit. 70 David Evans, “The Consequences of Illegal, Unreported and Unregulated Fishing for Fishery Data and Management”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 1. 71 Masayuki Komatsu, op.cit, p. 3.

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to be used across the Mediterranean basin by fleets from Italy, France, Morocco, Turkey and Algeria to target swordfish and tuna.72

Excess fleet capacity, which is an issue related to IUU fishing, also has negative

impacts on the sustainability of fisheries resources throughout the world,73 due

to the lack of parity between a vessel’s fishing capacity and its fishing

possibilities. Excess fleet capacity can have various structural impacts, such as

the prevalence of general overcapacity in the domestic fleet or inappropriate

allocation of fishing rights.74 Associated with the increased number of vessels

are the problems of overcapitalization and excessive fishing effort.75 Hence, the

excess fleet capacity as the root cause of many fisheries problems must be

addressed.

RFMOs are confronted with similar IUU fishing problems like those faced by

States in their EEZs.76 However, a far more serious threat to the world’s

management of high seas fisheries is the danger posed by IUU fishing

conducted by vessels flying flags of convenience.77 It estimated by the FAO that

72“Impact of IUU Fishing”, http://www.ejfoundation.org/page163.html.

For discussion of some of the issues involved see, eg, Donald R Rothwell and Tim Stephens, “Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Right and Interests”, International Comparative Law Quarterly Vol. 53, January 2004, p. 180. 73 Dominique Greboval, “The Measurement and Monitoring of Fishing Capacity: Introduction and Major Considerations”, in S. Pascoe and D. Greboval, (eds) “Measuring Capacity in Fisheries”, FAO Fisheries Technical Paper 445, Rome: FAO, 2003, p. 1. 74 Draft Chapter I – Economics of IUU Fishing Activities, op. cit, p.11. 75 Morton M. Miller, Paul J. Hooker and Peter H. Fricke, “Impression of Ocean Fisheries Management Under the Magnuson Act”, Ocean Development and International Law, Vol.21, 1990, p.284. 76 Rachel Baird, “Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence”, Melbourne Journal of International Law, Volume 5, 2004, p. 313. 77 Christopher J. Carr and Harry N. Cheiber, “Dealing with a Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries”, UCIAS Edited Volume 1, The University of California International and Area Studies Digital Collection, 2002, p. 11.

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http://www.ejfoundation.org/page163.html

nearly 70 per cent of the total world’s fisheries have been depleted.78 The FAO

has also expressed concern on the collapse of, and the difficulties in rebuilding

several high value fish stocks.79 Straddling stocks and highly migratory species

have particularly been exploited throughout the world and are in danger of

further depletion.80 In light of this, urgent conservation and management

measures are needed by the international community.

2.5.2 Economic Impact of IUU Fishing

From an economic perspective, IUU fishing poses a number of

problems.81 For instance, re-flagging of fishing vessels may result in the loss of

national income by coastal States from the higher fees that foreign fishing

vessels should ordinarily be subject to. At the same time, the economic

advantages of local fishing vessels having access to vast marine resources in

the EEZs are lost in case of illegal fishing by foreign fishing vessels.82 These

macroeconomic consequences are particularly problematic for low and middle-

income countries, which rely entirely on EEZ fisheries resources.83 In addition

78 Judith Swan, “Decision-Making in Regional Fishery Bodies or Arrangements: The Evolving Role of RBFS and International Agreement on Decision Making Process”, FAO Fisheries Circular No 995, Food and Agriculture Organization of the United Nations, Rome, 2004, p. 8. 79 Giselle Vigneron, “Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Fish Stocks Agreement”, The Georgetown International Environmental Review, Washington DC, 581, 1997-1998, page 584. An interesting discussion of the impacts of IUU fishing on sustainability can also be found in Vangelis Vitalis, “Casting the Net Trade Measures for Sustainable Fish Stocks”, Observer No.240/241, December 2003, p. 46. 80 Yahn-Huei Song, “The Canada-European Union Turbot Dispute in the Northwest Atlantic: An Application of the Incident Approach” Ocean Development and International Law, Vol. 28, No. 3, July-September 1997, p. 273. 81 David A Balton, “Global Review of Illegal, Unreported and Unregulated Fishing Issues: What’s the Problem ?”, Paper Presented at the IUU Workshop, 19-20 April 2000, Directorate for Food, Agriculture, and Fisheries, Fisheries Committee of OECD, 2000, p.2. 82 Transform Aqorau, “Illegal, Unreported and Unregulated Fishing: Considerations for Developing Countries”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p.3. 83 Messra David, J Agnew and Collin T.Barnes, op. cit, p. 10.

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to the degradation of fisheries resources,84 the existence of excessive fishing

capacity is also to blame for the dissipation of food production potential.85 This

is further manifested in the form of overfishing of valued fish stocks.86

It can thus be seen that IUU fishing has a number of serious negative effects on

the proper conservation and management of fisheries by coastal States and

RFMOs. The negative effects are more pronounced in the case of developing

coastal States because of their difficulties in accurately determining the total

allowable catch for their fisheries. The problems faced by many coastal States

are further complicated by the reduction of national income and available

resources. Viewed from an environmental perspective, marine environmental

degradation can be a major barrier for sustainable fisheries. The interplay

between management, economics, and environmental factors further

complicates the problem which needs to be addressed by governments through

the implementation of effective surveillance and fisheries law enforcement

strategies.

2.6 Conclusion

From the above discussion, it can be concluded that IUU fishing takes

different forms and occurs in areas under national jurisdiction, areas under the

competence of RFMOs, and on the high seas. The threats of IUU fishing and

the environmental and economic consequences flowing from the problem must

84 Thorir Ibsen, “Iceland’s Proposal About Fisheries Subsidies” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, op. cit, p. 459. 85 Ichiro Nomura, “Opening of the Consultation”, Report of the Technical Consultation on the Use of Subsides in the Fisheries Sector, Rome, 30 June-2 July 2004, FAO Fisheries Report No.752, Rome: FAO, 2004, p. 1.

41

be acknowledged. Among the dominant causes of this problem is the lack of

financial and human capacity by many States to undertake MCS over fishing

activities in vast marine areas. The problem is also exacerbated by inadequate

national legal framework of many states, especially FOC or FONC States, for

effectively addressing IUU fishing. Legal reform is needed to deal with this

problem. Where an appropriate national and international legal framework is

already in place, efforts must be made to effectively deal with IUU fishing. Law

enforcement officers must be equipped with the technical know-how and skills

in MCS, in order to protect fisheries resources and safeguard the economy and

the environment. The succeeding chapters provide an analysis of the

international legal framework to address IUU fishing, which will highlight the

measures that States would need to adopt to effectively address the problem.

86 Gordon R. Munro and Colin W. Clark, “Fishing Capacity and Resource Management Objectives”, in S. Pascoe and Dominique Greboval, op. cit, p.13.

42

CHAPTER 3

THE FISHERIES PROVISIONS OF THE 1982 UN CONVENTION ON THE LAW OF THE SEA AND IUU FISHING

3.1 Introduction

The United Nations Convention on the Law of the Sea (LOSC) is the

principal international legal instrument regulating most marine activities,

including fisheries, at the global level. Consequently, the starting point for any

analysis of the international legal framework to address IUU fishing must

necessarily be the LOSC. The aim of this chapter is to analyse the provisions of

the LOSC that apply to the management of fisheries in the exclusive economic

zone (EEZ) and on the high seas, as embodied in Parts V and VII of the LOSC.

The rationale for this Chapter is twofold. The first is to provide a general

background on the relevant provisions of the LOSC pertaining to the regimes of

the EEZ and the high seas to address IUU fishing while the second is to

illustrate the gaps in the LOSC fisheries regime to deal with the problem. The

Chapter concludes that the provisions of the LOSC with regard to fisheries are

not adequate to address global IUU fishing problems.

3.2 The Exclusive Economic Zone

The most significant transformation in the law of the sea and one of the

most fundamental results of the Third United Nations Conference on the Law of

the Sea (UNCLOS III)1 negotiations was the emergence of the EEZ concept,

found in Part V of the LOSC. Article 57 of the LOSC states that the EEZ shall

1 UNCLOS III was held in various sessions from 1973-1982. Its immediate precursor was the meetings of the United Nations Seabed Committee (1967-1972).

43

not extend beyond 200 nautical miles from the baselines from which the

breadth of the territorial sea is measured.

Under Article 56(1) of the LOSC, a coastal State has sovereign rights in the

EEZ, for the purpose of exploring, exploiting, conserving and managing the

natural resources of the water superjacent to the seabed and subsoil.2 The

sovereign rights under Article 56 may be divided into two categories: (a)

sovereign rights for the purposes of exploring, exploiting, conserving and

managing the natural resources of the seabed, subsoil and superjacent waters;

and (b) sovereign rights with regard to other activities for the economic

exploitation and exploration of the EEZ, such as production of energy from the

water, currents and winds. Within the EEZ, the coastal State is also given

jurisdiction with regard to three matters, namely the establishment and use of

artificial islands, installations and structures; marine scientific research; and the

protection and preservation of the marine environment.3

Sovereign rights in the EEZ should be differentiated from the concept of

sovereignty. From a legal point of view, there are two ways of describing the

concept of “sovereignty at sea”. In terms of maritime zones, a coastal State or

an archipelagic State has sovereignty over the internal waters, archipelagic

waters and the territorial sea. The second manner of describing sovereignty is

2 Gillian Triggs, “Legal and Commercial Risks of Investment in the Timor Gap”, Melbourne Journal of International Law, Vol. 1, Inaugural Issues I, University of Melbourne, 2001, p. 118. 3 United Nations Convention on the Law of the Sea (LOSC), Montego Bay, Jamaica, 10 December 1982, Art. 56.

Jurisdiction is defined as "the power of a State to affect under international law the conduct of other subjects (private or public) as well as the status of their property by measures of regulation, adjudication or (executive) enforcement." K. Hakapaa, Marine Pollution in International Law, Helsinki 1981, p. 151.

44

by linking it with the jurisdictional competence a State. In accordance with

sovereignty and the rights of innocent passage of ships in the territorial sea, a

coastal State has the power to adopt laws and regulations with respect to the

conservation of living resources of the territorial sea, prevention of infringement

of fisheries laws and regulations, and preservation of the environment of the

coastal State.4

In contrast to the sovereignty of coastal States in the internal waters, territorial

sea, and the archipelagic waters, the power of the coastal State over the

fisheries resources in the EEZ is provided instead as sovereign rights. The

concept of sovereign rights is applied in a maritime zone where the coastal

state does not have full sovereignty as a State would in its land territory or in the

territorial sea.5

The sovereign rights that a coastal State has in the EEZ are said to be residual6

because they are only applicable to living resources and do not cover the zone

itself or the airspace above it.7 What this means is that the EEZ has special

legal status. In short, the EEZ is seen as a zone sui generis and sui juris.8 This

4 LOSC, Art. 21(1)(d), (e) and (f); Marie Jacobsen, “Sovereignty at Sea – Illusion or Reality”, in R.A. Herr (ed): From Westphalia to Madrid , Wollongong Papers on Maritime Policy No.11, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia in collaboration with the Australian Institute of International Affairs (Tasmanian Branch), 2000, p.39. 5 Martin Tsamenyi and Transform Aqorau, “Fishing Rights and Responsibilities at Sea: Analysis of the Relevant Provisions of the United Nations Convention on the Law of the Sea”, in Martin Tsamenyi and Max Herriman (ed) “Rights and Responsibilities in the Maritime Environment: National International Dilemmas”, Wollongong Papers on Maritime Policy No 5, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, 1996, p. 68. 6 Ivan Shearer, “Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels”, International Comparative Law Quarterly, Vol. 35, 1986, p.333. 7 M.Damhari, The Fisheries Regime of the Exclusive Economic Zone, Martinus Nijhoff Publishers, 1987, p. 17. 8 Ivan Shearer, “Ocean Management Challenges for the Law of the Sea in the First Decade of the 21st Century” in Alex G. Oude Elferink and Donald Rothwell (eds), Oceans Management in

45

special zone is characterized first by the rights and duties which the LOSC

confers upon the coastal State and second, the rights and duties provided to

other States.9 This means that the EEZ is not part of the territory of the coastal

State and the coastal State does not have sovereignty over the zone. However,

in so far as the specific sovereign rights are concerned, the coastal State is

sovereign. It has the same prescriptive and enforcement powers over the

resources in the EEZ as if they were located within its sovereignty.

Prior to the LOSC, fisheries stocks within the EEZ were regulated by the high

seas fisheries regime. Coastal State claims over the EEZ under the LOSC

resulted in the transfer of the most important and lucrative fisheries resources

to the coastal States.10 Currently about 90 per cent of the world’s fish stocks

are located within the EEZs of coastal States.11

One of the inevitable consequences of the establishment of the EEZ and the

resulting expansion of coastal States’ rights is that the fishing activities of

distant water fishing States have been curtailed significantly.12 Although high

seas fishing activities take place just outside the EEZ, conservation and

management of fisheries resources are not unified. As a result, overexploitation

the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 69. 9 R.R.Churchill and A.V.Lowe, The Law of the Sea (Third Edition)”, Juris Publishing, Manchester University Press, 1999, p. 166. 10 Martin Tsamenyi, “Offshore Resources Development” in Martin Tsamenyi, Sam Batemen and John Delaney (eds) The United Nations Convention on the Law of the Sea: What It Means to Australia and Australia’s Marine Industries, Wollongong Paper on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, 1996, p. 144. 11 Christopher C. Joyner and Alejandro Alvarest von Gurdsted, Ferdinand J. Gallo, “The Turbot War of 1995: Lessons for the Law of the Sea”, The International Journal of Marine and Coastal Law, Vol.11, No.4, 1996, p.430. 12 Roland Rich, “Recent Developments in International Law With Implications for Australian Practitioners: Law, Politics and Politics Disguised Law”, in Ivan Sharer (ed), International Law

46

of high seas fish stocks has become one of the most serious fisheries problems

facing the international community. This is highlighted by increasing incidents of

illegal fishing in the EEZ and the fact that it is difficult for coastal States to

monitor whether fleets are fishing at 195 miles or at 201 miles.13

3.2.1 Coastal State Rights and Duties in the EEZ

Because the EEZ covers areas of the ocean previously regulated under

the freedom of the high seas regime, it is considered as an inheritance by the

coastal State from the rest of the world. According to the United Nations Food

and Agricultural Organization (FAO), "Under the new regime of the seas, the

world community has willed to the coastal States the bulk of living resources in

waters off their shores".14 Consequently, the LOSC outlines not only rights, but

also duties for coastal States with regard to the EEZ. These rights and duties

are couched in terms of conservation and optimum utilization of living

resources. These are briefly described below.

3.2.1.1 Conservation Obligations

The first obligation imposed on the coastal State with regard to the

fisheries resources in its EEZ is the "conservation of the living resources".15

According to Article 61:

and The Australian Practitioner, Martin Place Papers No.3, the International Law Association (Australian Branch), 2001, p. 38. 13 Frida Maria Armas Pfirter, “Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation: New Perspectives in Light of Current International Negotiations”, Ocean Development and International Law, Vol. 26, 1995, p. 133. 14 FAO, "Methodology and Guidelines for Fisheries Development Planning: With Special Reference to the Developing Countries in the African Region", FAO Fisheries Technical Paper No. 297, Extracts in Annual Review of Ocean Affairs Vol. III (1990), p. 1358. 15 LOSC, Art. 61.

47

(1) The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. (2) The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall cooperate to this end. (3) Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic need of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub-regional, regional or global. (4) In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. (5) Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether sub-regional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.

It is clear from the above provisions that a coastal State has the duty to take

conservation measures for the living resources within its EEZ16 by determining

the total allowable catch (TAC) of the fisheries resources. The TAC is "that

catch which when taken in any one year will best enable the objectives of

fisheries management (e.g. optimum long-term yield) to be achieved."17 To do

so, the coastal State is required to take into account the best scientific evidence

16 Greg Rose, “Protection and Conservation of the Marine Environment” in Martin Tsamenyi, Sam Bateman and John Delaney (eds), op. cit, p. 160. 17See UNCLOS III, Geneva Session, Doc. GE 76.64093.

48

available to ensure, through proper conservation and management measures,

that the living resources are not endangered by over-exploitation.18

Article 61(3) of the LOSC requires the coastal State to adopt a wide range of

policies to support the management of the fisheries resources in the EEZ. In

this respect, several factors influence the policy choices of the coastal State,

which include scientific, economic, social and political.19 Other relevant

environmental and economic factors as provided in Article 61(2) are the

economic needs of coastal fishing communities, the species requirements of

developing States and existing fishing patterns.

The most important point that must be understood is that the application of the

rights and duties of coastal States in their EEZs depend on the technical and

economic capabilities of that State. Conservation measures require

technological and financial capabilities to be effective. However, determining the

TAC is often difficult for many coastal States. For instance, coastal states must

balance the needs and interests of small-scale fishers against those of industrial

fishers. The problem that arises is that it is difficult to gain basic data and

information on the effects of industrial fishing on small scale fishers and in turn

establish comprehensive management measures that factor in those effects.

Because of the inadequate provisions of the LOSC to appropriately address the

issues of fisheries conservation and the implementation of management

18 Donat Pharad and Bob Applebaum, “Rights of the Coastal State Over Fisheries in the EEZ: Canadian Perspective” in Donat Pharad and Umberto Leanza (eds), The Continental Shelf/Exclusive Economic Zone Regime, Martinus Nijhoff, Doodrecht, Boston and London, 1993, p. 292.

49

measures, many coastal States have failed to properly manage the fisheries

resources within their EEZs, resulting in overexploitation.20

The conservation obligations of coastal States in the EEZ contain inherent

weaknesses which affect the sustainability of the fisheries resources. The use

of the word “shall” in Article 61 of the LOSC seems to be facilitative in the sense

that the national authority may conserve and manage fisheries without having

adequate data and scientific information. However, the obligation of the coastal

State to acquire fisheries data based on this provision is not mandatory

because of the use of the term “best scientific evidence available.”21

3.2.1.2 Optimum Utilization of Fisheries Resources

The second obligation imposed on coastal States with regard to fisheries

resources in their EEZ is that of the optimum utilization of the living resources.22

To meet this obligation, the coastal State is required to determine its capacity to

harvest the living resources of the EEZ.23 Where the coastal State does not

have the capacity to harvest the entire allowable catch, it is required, through

agreements or other arrangements to give other states access to the surplus of

the allowable catch.24

19 Donna R.Christie, ‘’The Conservation and Management of Stocks Located Solely Within the Exclusive Economic Zone ‘’, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, the Hague/London/Boston, 1999, p. 402. 20 Rosemary Rayfuse, “The Interrelationship between the Global Instruments of International Fisheries Law” in Elllen Hey (ed), op. cit, p.111. 21 Donna R.Christie, “The Conservation and Management of Stocks Located Solely Within the Exclusive Economic Zone” in Ellen Hey (ed), 1999,op.cit, pp. 400-401. 22 LOSC, Art. 62(1). 23 LOSC, Art. 62(2). 24 LOSC, Art. 62(2).

50

Although Article 62 of the LOSC imposes an obligation on the coastal State to

permit foreign fishing vessels access to its EEZ to exploit the surplus of the

TAC, the LOSC also allows the coastal State a substantial flexibility in this

respect. This is illustrated by Article 62(3) which provides as follows:

In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70,25 the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.

Article 297(3) of the LOSC provides additional policy flexibility by stating that:

Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations

A costal State that has declared an EEZ is obliged to put in place a

management regime to ensure the sustainable use of the fisheries resources.26

In line with this obligation, the LOSC gives power to the coastal State to

exercise its jurisdiction within its EEZ. Thus, consistent with sovereign rights

under Article 62(4), a coastal State may legislate and enforce fisheries

25Article 69 of the LOSC deals with the rights of Land-Locked States whilst Article 70 LOSC deals with the rights of geographically disadvantaged States. 26 Martin Tsamenyi and Alistar McIlgorm, International Environmental Instrument-Their Effect on the Fishing Industry (Second Edition), The Report of the FRDC (Fisheries Research and Development Corporation), Project 97/149, University of Wollongong and AMC Search LTD, January 1999, p.12

51

jurisdiction regarding those rights in its EEZ.27 Nationals of other States fishing

in the EEZ shall comply with the conservation measures and with the other

terms and conditions of fishing established in laws and regulations of the

coastal State.

According to Article 62(4) of the LOSC, coastal States may adopt laws to

regulate the activities of foreign fishing vessels in the EEZ. Sub-paragraph (a) of

Article 62(4) deals with power of coastal States to provide licenses to fishermen,

fishing vessels, and fishing gears. Sub-paragraph (b) sets out the power of

coastal States to determine the species that may be caught and fix the quota for

the catch. These provisions are supported in sub-paragraph (c) and (d) which

deal with the right of coastal States to regulate seasons, areas of fishing, fishing

gear and types, sizes and number of vessels that may be used, and the age

and size of fish and other species that may be caught by foreign fishing vessels

in the EEZ.

The requirements, as mentioned in these provisions, must be related to sub-

paragraph (e) of Article 62(4) on the obligation of fishing vessels to provide

information, particularly catch and effort statistics and vessel position. Further,

under sub-paragraph (f), the coastal States are empowered to prescribe rules

relating to fisheries research programmes, particularly with respect to the

sampling of catches, disposition of samples and reporting of associated

scientific data.

27 Kalam-Denn Ali, “Legal and Policy Dimensions of Coastal Zone Monitoring and Control: The Case in Ghana”, Ocean Development & International Law, Vol. 35, No.2, April-June 2004, p.

52

An important provision is found in sub-paragraph (g) of Article 62(4) which

provides the authority of the coastal States to place observers or trainees on

board the vessels. The coastal States, under sub-paragraph (h), are also

entitled to regulate the landing of all or any of the catch by such vessels in its

ports. The great emphasis placed on training of personnel and transfer of

technology is stipulated in sub-paragraphs (i) and (j). This is to help in

increasing technical expertise and management know-how of fishermen of the

costal State. The conservation and management laws and regulations become

meaningful when the fishermen have the capability of carrying out fishing

activities in their own EEZ. Coastal States also have the right to formulate

enforcement measures to implement these regulations.

The regulatory powers granted under Article 62(4) can be grouped into five

categories. First, sub-paragraphs (a), (b), (c) and (d) deal with the licensing

requirements for all fishing vessels, such as the method, time and areas of

fishing activities. The second group, dealt under sub-paragraph (e), is

concerned with information on catch and effort statistics and vessel position

reports.28 The provisions require costal States and governments of foreign

fishing vessels in any EEZ to submit to international organizations statistical

data on fishing vessels. By doing so, the international community will be

informed on the level of fisheries overexploitation in advance.29 One problem

associated with overexploitation concerns IUU fishing and overcapitalization,

189. 28 William T. Burke,” Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea”, The Georgetown International Environmental Law Review, Vol.3, 1990, p. 306. 29 Martin H. Belsky, “Management of Large Marine Ecosystems: Developing a New Rule of Customary International Law”, San Diego Law Review, Vol.32, 1985, p.756.

53

which lead to the collapse of fish stocks. Legal instruments must be developed

to control access to fisheries resources in the EEZ and regulate fishing efforts.

Sub-paragraphs (f) and (j) of Article 62(4) cover measures to enhance the

research capability of the coastal State, whilst sub-paragraph (g) is concerned

with the authority of the coastal State to monitor the fishing activities within the

EEZ by placing observers and inspectors on board vessel to confirm the

accuracy of reported fisheries data.30 The fifth subgroup of coastal State

powers according to Article 62(4) is provided in sub-paragraphs (h) and (k).

These are the primary means by which coastal States allow port inspection of

landed and transhipped catch, as well as fisheries law enforcement. The rules

laid down in sub-paragraph (h) are of very general character, and there is

clearly a need for them to be supplemented by more specific rules.

Subparagraph (a) of Article 62(4) is intended to prevent unlicensed fishing

activities while subparagraphs (e), (g) and (h) are of particular importance in

requiring the reporting of fishing activities by foreing fishing vessels. The

inclusion of these provisions in the LOSC is intended to address the concern of

unreported fishing.

Paragraph (e) of Article 62(4) of the LOSC allows the coastal State, as a

condition of permitting foreign fishing vessel in its EEZ, to impose conditions

concerning the submission of catch data. The coastal State can specify the

format, content, frequency of the catch data, and to whom the fish catch should

30 Stuart M.Kaye, International Fisheries Management, International Environmental Law and Policy Series, Kluwer Law International, The Hague/Boston/London, 2001, p. 109.

54

be reported.31 The purpose of requiring licensed fishing vessels to report the

fish catch and vessel position is to ensure that fish catch from the EEZ is

accurately recorded.

It is clear from the provisions of the LOSC that the access conditions for foreign

fishing vessels to fish in the EEZ are considerably limited.32 Licensed foreign

fishing vessels that are granted access to the EEZ must comply with the

conservation and management measures established by the coastal State.33

Even though Article 62(4) of the LOSC allows the coastal State to require

reporting of catch and effort statistics, as well as vessel position, it does not

mandate such obligation.34 It is the responsibility of the coastal State to

establish and maintain mechanisms for the effective implementation and

enforcement of fisheries regulations within its maritime jurisdiction.

3.2.2 Fisheries Law Enforcement in the EEZ

In addition to the right given to a coastal State to declare an EEZ, it also

has the competence to enforce fisheries laws and regulations in the zone.35 The

ability of coastal States to effectively enforce their laws within the EEZ is a

crucial step in the performance of their duties to conserve and manage the

fisheries resources. However, the effectiveness of these measures cannot be

31 William R. Edeson, “Legal Aspects of the Collection of Fisheries Data”, FAO Fisheries Circular No. 953, Rome: FAO, 2003, p. 3. 32 Grant Hewison, “Balancing the Freedom of Fishing and Coastal State Jurisdiction”, in Ellen Hey (ed), op. cit, p. 176. 33 M.G. Jennings, Surveillance, and Control on Marine Resources in OECD Documents on Fisheries Enforcement Issues, OECD, Paris, 1994, p. 217. 34 “The Footprint of Distant Water Fleets on World Fisheries, WWF’ s Endangered Seas Campaign”, Endangered Seas Campaign WWF, United Kingdom, 1999, p.119. 35 Transform Aqorau, “Ocean Governance in the South Pacific: Challenges and Constraints in the Implementation of the Law of the Sea”, Paper Presented at Fiji Attorney General’s Conference, Naviti Resort, 2001, p. 8.

55

determined in isolation; they must instead be examined within the wider context

of all activities that are designed to compel obedience to fisheries laws and

regulations of the coastal State.36 The existing international law recognises that

the right to enforce fisheries laws in the EEZ is a sovereign power exercised by

the coastal State. Consequently, coastal States, in seeking to enforce their own

power, will often be exercising such laws against foreign and domestic vessels.

However, in exercising their law enforcement capacity within the EEZ, coastal

States are confronted with a number of constraints. The first constraint is a legal

one, arising from the fact that the EEZ is neither the territorial sea nor the

contiguous zone where special enforcement power has been granted. The

coastal State does not have sovereignty over the EEZ, but only sovereign

rights. The second constraint relates to the jurisdiction of coastal States in the

EEZ. Coastal States cannot prevent navigation by others through the EEZ.37 As

provided under Article 58(1) and (2) of the LOSC:

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and over-flight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

36 Martin Tsamenyi and Kwame Mfodwo, “Enforcing Fisheries Jurisdiction in the EEZ: Some Legal and Policy Considerations”, in Doug MacKinnon and Dick Sherwood (eds), Policing Australia’s Offshore Zones : Problems and Prospects, Wollongong Papers on Maritime Policy No.9, Centre for Maritime University of Wollongong, Wollongong, Australia, 1997, p. 254. 37 Donald Rothwell, “International Legal Regimes for the Regulation and Enforcement of Criminal and Quasi Criminal Laws in Coastal State Maritime Zones”, Law of the Sea Short Course, 11-22 November 2002, Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, p. 165.

56

What is significant about the navigational freedoms in the EEZ is that this

freedom is recognized over the whole EEZ. However, notwithstanding the

general freedom allowing other vessels to navigate through the EEZ, a coastal

State does have general powers in relation to such vessels.38 Article 73(1) of

the LOSC provides:

The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

Therefore, where the coastal State has enacted laws and regulations in line with

the LOSC which allow foreign vessels to fish in its EEZ, it may enforce these

laws against foreign fishing vessels. The power to board, inspect, arrest and

institute judicial proceedings39 against foreign vessels in the EEZ is essential to

the coastal State’s ability to conserve and manage the EEZ. As seen under

Article 73(1) quoted above, a coastal State is allowed to conduct hot pursuit

against foreign fishing vessels that seek to escape law enforcement

measures.40

The power in Article 73(1) is complemented by Article 111 of the LOSC which

allows a coastal State to pursue a foreign ship that has violated the laws of the

coastal State within the internal waters, territorial sea or the EEZ of the coastal

38 David Attard, The Exclusive Economic Zone in International Law, Clarendon Press, Oxford 1987, p.179. 39 Transform Aqorau, “Illegal Fishing and Fisheries Law Enforcement in Small Island Developing States: The Pacific Islands Experience”, The International Journal of Marine and Coastal Law, Vo. 15, No1, 2000, p. 40. 40 R.R.Churchill and A.V.Lowe, op. cit, p.292

57

State and arrest it on the high seas.41 According to White and Knight (2003),

the arrest of vessels accused of fishing illegally is an important step designed to

protect coastal States against overfishing.42 Their views are particularly relevant

because the problem of illegal fishing has become more and more difficult for

coastal States to control.43

The LOSC attempts to strike a balance between coastal States and distant

water fishing nations (DWFNs) by imposing some restrictions on the

enforcement powers of coastal States with respect to foreign fishing activities.44

These are provided in Article 73 (2) (3) and (4) as follows:

(2) Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security. (3) Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. (4) In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action takes and of any penalties subsequently imposed.

Although Article 73 gives coastal States the power to detain and arrest illegal

fishing vessels, it also limits this power. The clear intention of the drafters of the

LOSC was to ensure that vessels would be neither detained indefinitely nor

41 Ivan Shearer, “Enforcement of Laws Against Delinquent Vessels in Australia’s Maritime Zones” in by Doug Mac Kinnon and Dick Sherwood, Policing Australia’s Offshore Zones: Problems and Prospects, Wollongong Papers on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, Wollongong, Australia, 1997, p. 247. 42 Michael White & Stephen Knight, “ITLOS and the Volga Case : The Russian Federation v Australia”, The Maritime Law Association of Australia & New Zealand Journal, Vol. 17, The Maritime Law Association of Australia and New Zealand Limited, 2003, p. 39. 43 Andrew Serdy and Michael Bliss, “Prompt Release of Fishing Vessels: State Practice in the Light of the Cases Before the International Tribunal for the Law of the Sea”, in Alex G.Oude Elfereink and Donald Rothwell (eds), op. cit, p.273. 44 Martin Tsamenyi and Transform Aqorau, op. cit, p.74.

58

subjected to unreasonable conditions for their release.45 When a foreign vessel

has been arrested, the flag State must be notified immediately and the vessel

and crew released upon the posting of reasonable bond or security.46 Article

73(2) is further supported by Article 292(1) which gives jurisdiction to the

International Tribunal for the Law of the Sea (ITLOS) over applications for the

prompt release of vessels and their crews in foreign ports unless the parties

otherwise agree.47

Article 73(3) further provides that unless there is an agreement with another

State in place, penalties for illegal fishing may not include imprisonment of the

crew.48 Despite this prohibition, 32 States which are parties to the LOSC allow

for imprisonment even in the absence of agreements with other States.49

However, legislation enacted by a majority of States which are parties to the

LOSC has followed Article 7350 and these provisions have generally been

accepted as being part of international customary law.51

45 Andrew Serdy and Michael Bliss, “Prompt Release of Fishing Vessels: State Practice in the Light of the Cases Before the International Tribunal for the Law of the Sea”, in Alex G.Oude Elfereink and Donald R.Rothwell (eds), op. cit, pp. 275-276. 46 Donald R Rothwell and ,Tim Stephens, “Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests”, International Comparative Law Quarterly, Vol. 53. January 2004, p. 292. 47 Michael White & Stephen Knight, op. cit, p. 41. Article 292 (1) provides: ‘Where the authorities of a State Party have detained a vessel flying the flag of another State and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 48 David H. Anderson, “Investigation, Detention and Release of Foreign Vessels Under the UN Convention on the Law of the Sea of 1982 and Other International Agreements”, The International Journal of Marine and Coastal Law, Vol. 11,1996, p. 170. 49 R.R.Churchill and A.V.Lowe, op. cit, p. 166. 50 Barbara Kwiatkowsa, The 200 Mile Exclusive Economic Zone in the Law of the Sea, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1989, p.87. 51 William T. Burke, “Fisheries Regulations Under Extended Jurisdiction and International Law,” FAO Fisheries Technical Paper No. 223, Rome: FAO, 1992, p.12.

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The implementation of the provision of Article 73 is illustrated by the decisions

of ITLOS. In August and September 1999, the Panamanian-flagged Camouco52

and the Seychelles-flagged Monte Confurco53 were arrested by French

authorities. Both vessels were believed to have engaged in illegal fishing in the

EEZ around French islands of the Kerguelen and Crozet. The arrests brought

about applications to ITLOS for the prompt release of the vessels under Articles

73 and 292 of the LOSC.54 In the December 2002 Volga case55 an Australian

patrol boat arrested a Russian-flagged vessel for fishing illegally in the

Australian EEZ near the Heard and McDonald Islands. This case was also

brought before ITLOS.

The key legal issue which arose in all the three cases and considered by ITLOS

was whether the bond set by the relevant arresting State for the release of

these vessels was a “reasonable bond or other security” under Articles 73 and

297 of the 1982 LOSC.56 In determining whether it was a “reasonable bond or

other security,” the Tribunal noted that it must give regard to the balance struck

in the LOSC between coastal State and flag State interests. Achieving an

appropriate balance has proven to be problematic.

52 Liza D. Fallon and Leorne K. Kriwoken, “International Influence of an Australian Non-Government Organization in the Protection of Patagonian Toothfish”, Ocean Development and International Law, Vol. 35, No.3, July-September 2004, p.241 53 The Monte Confurco Case Sychelles vs France, Application for Prompt Release Judgment International Tribunal for the Law of the Sea Year 18 December 2000, p.7. 54 Dean Bealik, op.cit, p. 116. 55 John Van Dyke, “Giving Teeth to the Environmental Obligations in the LOS Convention”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), p.171. 56 Donald R.Rothwell, “Building on the Strengths and Addressing the Challenges: The Role of Law of the Sea”, Ocean Development and International Law Vol. 35, No.2, April-June 2003, p. 138.

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A practical problem facing many countries, particularly developing countries, is

the prohibitive cost of enforcing their jurisdiction in their EEZs. As the High Seas

Task Force correctly notes:

Governments invest huge sums of money in physical surveillance of EEZs using conventional platforms such as patrol vessels and aircraft. Australia, for example, which has the third largest exclusive economic zone in the world, recently allocated USD 163 million over five years for a full-time armed patrol boat presence – the Oceanic Viking – which is used, amongst other things, to patrol the waters around the remote Sub-Antarctic possessions of Heard Island and McDonald Island. It is estimated that it costs Canada approximately USD 26 million annually to deliver the operational monitoring, control and surveillance programmes associated with the NAFO Regulatory Area. The overall cost of monitoring fishing activities in the EU and its member states amounts to some USD 362 million, which is about 5 per cent of total landings. The cost of monitoring EU vessels in the NAFO Regulatory Area alone amounts to some USD 4.8 million, or 7 per cent of total landings.57

Such huge amounts of money spent on infrastructure to monitor the fishing

activities within areas of national jurisdiction are most often not available to

developing countries.

The final report of the High Seas Task Force identifies a number of key

measures to expose and deter IUU fishing and improve the enforcement

capabilities of developing countries. These measures include those designed to,

first, commit resources to the International Monitoring Control and Surveillance

Network in order to have analytical capacity and be able to provide training to

developing countries; and second, address some of the needs of developing

countries with the intent to improve their capability in MCS and as flag States.58

57 High Seas Task Force, Closing the Net, Final Report of the High Seas Task Force on IUU Fishing, 2006, p.27. 58 High Seas Task Force on Illegal, Unreported and Unregulated Fishing Report, Fisheries and Oceans Canada, March 2006, http://www.dfo.gc.ca/media/backgrou/2006/hq-acO2a_e.htm, accessed on 12 December 2006, p.1.

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http://www.dfo.gc.ca/media/backgrou/2006/hq-acO2a_e.htm

The above discussion shows that the enforcement of fisheries law in the EEZs

and RFMO regulatory areas require a huge budget in order to ensure the

effective implementation of international obligations. This is realized through the

implementation of monitoring, control and surveillance as a method of fisheries

enforcement. Limited financial capacity and high cost of enforcing fisheries law

in the EEZ have encouraged developed countries to ensure a priority focus on

developing countries needs by providing assistance in the education and

training associated with implementing MCS systems. This is due to a bigger

problem posed by developing countries which do not have the financial and

human resources to carry out enforcement tasks in the EEZ. It would be helpful

if the governments of developing countries could have a primary budget to

finance main activities for combating IUU fishing.

3.3 Management of Stocks in the EEZ and on the High Seas

The LOSC contains provisions that deal with certain fish stocks in the

EEZ and on the high seas. These stocks fall under three categories, based on

their mobility across maritime zones, namely shared stocks, straddling stocks,

and highly migratory species.

3.3.1 Shared Stocks

Shared stocks are stocks that generally travel between marine areas

under national jurisdiction (internal waters, archipelagic waters, territorial sea

and EEZ). Recognising this fact, the LOSC imposes a specific obligation on

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States who share such stocks to cooperate in managing the resources.59 This

duty to cooperate is enshrined in Article 63(1) which provides:

Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.

It should be noted that under Article 63(1), coastal States are to cooperate

directly or through appropriate sub-regional or regional organizations and adopt

measures to ensure the conservation and sustainable use of such stocks.

These measures are to be agreed upon by the coastal States subject to the

other provisions of Part V of the LOSC.60

In E.D. Brown’s opinion (1994), although a coastal State under Article 56 retains

sovereign rights over the portion of the shared stocks found in its EEZ, it is

obligated to discharge the conservation and management obligations as

stipulated in Articles 61 and 62. As Ellen Hey (1991) has also pointed out, the

coastal State has the right to regulate and the duty to ensure the conservation

of the shared stocks from which it derives benefits.61

Douglas M. Johnston (1992) argues that cooperative fishery management

arrangements of straddling fish stocks cannot be negotiated until EEZ

boundaries have been agreed upon between or among the neighbouring

59 Martin Tsamenyi and Transform Aqorau, op. cit, p. 72. 60 Ellen Hey, “The Provisions of the United Nations Law of the Sea Convention on Fisheries Resources and Current International Fisheries Management Needs”, in Ellen Hey, William T. Burke, Doris Ponzoni and Kazuo Sumi (eds), FAO Legislative Study No. 47, Rome: FAO, 1991, p. 5. 61 Ellen Hey, “The Fisheries Provisions of the LOS Convention”, in Ellen Hey (ed), op. cit, p. 24.

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States. Based on the Southeast Asian Nations experience, linear settlement of

maritime boundaries should not be separated from the problem of cooperative

management in regional waters.62 Examples of this can be seen in the

archipelagic States in Southeast Asia, namely Indonesia and the Philippines,

which are facing considerable difficulties in determining EEZ boundaries.63 The

lack of agreed conservation and management measures has resulted in major

problems for the conservation of these fish species. These problems

encompass overexploitation of the resources, environmental degradation of

coastal zones, continued demographic growth in fishing communities, and

incursion of commercial boats into areas allocated to small-scale fishing

vessels. These problems have led to decreasing yields and lower total

catches.64

In the opinion of Churchill and Lowe (1999), the absence of any treaty will

require each coastal State to manage the shared stocks which live in its EEZ

according to the general rights and duties applied in its own zone.65 In order to

combat IUU fishing, increasing attention is now being paid to the formulation of

joint conservation and management measures. In Michelle Kuruc’s (2003)

62 Douglas M. Johnston, “A Postcript”, in Kathleen I.Matics and Ted L. McDorman (eds), Seapol International Workshop On Challenges To Fishery Policy And Diplomacy In Southeast Asia, Rayong, Thailand, 6-9 December 1992, Southeast Asian Programme in Ocean Law, Policy And Management, Bangkok, Thailand, pp. 149-150. 63 Merrilyn Wasson, Excerpts of the Report of the Symposium on Sustainable Use of National Exclusive Economic Zones in the Seas of the Asia Pacific Regional, Institutional Dimensions of Global Environmental Change (IDGEC), Issue 5, August 2002, p. 2. 64 Andre Tahindro, “Conservation and Management of Trans-boundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species”, Ocean Development and International Law. Vol. 28, No.1, January-March 1997, p.42. 65 R.R. Churchill and A.V. Lowe, op. cit, p. 294.

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opinion, international cooperation in fisheries MCS will provide benefits for the

long-term development of sustainable worldwide marine fisheries resources.66

3.3.2 Straddling Fish Stocks

In contrast to shared stocks discussed above, straddling stocks occur

between the EEZ and the adjacent high seas. According to Article 63(2) of the

LOSC,

Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.

The above provision obligates the coastal State and States fishing for straddling

stocks to seek agreement where the stocks being fished on the high seas are

also found within the EEZ.67 Where such stocks exist, States are obligated to

seek agreement on measures necessary for their conservation.68 The

agreement is to be arrived at either directly or through appropriate regional or

sub-regional organizations. However, such obligations exist only if the

measures have been agreed upon as a result of negotiations.69

66 Michelle Kuruc, “International Network for the Cooperation and Coordination of Fisheries-Related Monitoring, Control and Surveillance Activities”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No.722, Rome: FAO, 2004, p.1. 67 William T.Burke, “The Law of the Sea Concerning Coastal State Authority Over Driftnets on the High Seas” in Ellen Hey, William T. Burke, Doris Ponzoni and Kazuo Sumi (eds), 1991, op.cit, p. 25. 68 Moritaka Hayashi, ‘’The 1995 UN Fish Stocks Agreement and the Law of the Sea’’, in Davor Vidas and Willy Strong (eds), Order for the Turn of the Century, Kluwer Law International, the Hague, London and Boston, 1999, p 37.

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Although coastal States have an interest in the conservation of straddling stocks

in the adjacent area, this interest is not equivalent to sovereign rights or special

jurisdiction. Article 116(b) of the LOSC is primarily concerned with the rights,

duties, and interests of coastal States in relation to high seas fisheries. This

specifically refers to Article 63(2) which requires distant water fishing States to

respect the interests of coastal States if negotiations fail to establish the needed

conservation measures.70

In the absence of the agreed conservation measures, the provisions of Article

63(2) become problematic. In fact, the exact nature and extent of the coastal

State’s rights against those of the competing distant water fishing nations

(DWFNs) are not clearly prescribed in the article. Further, the extent of the high

seas fishing nation’s rights subject to the coastal State’s undefined interests

provided for under Article 63(2) is not spelled out in Article 116.71

In the context of the Association of Southeast Asian Nations (ASEAN) region,

there is a growing recognition of the urgent need to ensure sustainable

management of fisheries due to the fact that there are numerous complaints

about illegal fishing by foreign vessels from neighbouring States or DWFNs.

Furthermore, commercial important pelagic and demersal fish stocks are

usually harvested by more than two countries in the region and straddle

69 E.D.Brown, The International Law of the Sea (Vol. I Introductory Manual), Dartmouth Aldershot Brook USA, Singapore, Sydney, 1994, p. 228. 70 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p.63. 71 Michael Sean Sullivan, op.cit, pp.209-210.

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adjacent EEZs.72 At the same time, it should be noted that the majority of

fisheries in Southeast Asia are of small-scale and multi-species/multi-gear

character. As a result of these characteristics, the Southeast Asian region faces

fisheries management issues which are rather different from other regions in the

world.73 However. in promoting fisheries conservation and sustainable fisheries

management, the ASEAN regional cooperation has been limited to the

exchange of information, data gathering, and analysis, consultation, facilitation

and coordination of programmes, and joint planning activities.74 It is apparent

that the ASEAN cooperation does not cover the agreed conservation and

management measures and effective fisheries MCS programmes.

Difficulties in MCS cooperation are caused by the varying interests among

coastal States in the region, particularly with respect to enforcement and

ongoing maritime territorial disputes.75 For this reason, the maritime boundary

agreements in many areas of Southeast Asia are rather difficult to reach as they

are commonly bordered by several countries. There are only a few high seas

pockets within a maze of EEZs in the Southeast Asia subregion. The largest

high seas areas lying on the west is in the Bay of Bengal and to the east in the

Western Pacific Ocean.76 Given the problem, it is not surprising that addressing

72 Annick Van Houtte, “Legal Aspects of Regional Cooperation in Monitoring, Control and Surveillance Matters”, Technical Papers at the Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kuala Terengganu, Malaysia, 29 June – 3 July 1998, FAO/Norway Government Cooperation Programme, p.35. 73 Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Southeast Asia Subregion, Penang, Malasyia, 10-14 October 2004, FAO Fisheries Report No. 757, Rome: FAO, 205, p.6. 74 Moctar Kusumaatmadja and Tommy H.Purwaka, “Legal and Institutional Aspects of Coastal Zone Management in Indonesia”, Marine Policy Vol. 20, 1996, p.18. 75 Annick Van Houtte, loc.cit. 76 Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, loc.cit.

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IUU fishing in the ASEAN region has not been subjected to any agreement. In

terms of substance, the ASEAN organization has not yet taken any initiative in

tackling IUU fishing problems.

The ASEAN member States are expected to agree on joint arrangement issues

on optimum utilization quotas for shared stocks, determination and allocation of

TAC, and determination of surplus stocks for foreign fishing.77 To reach this

goal, programs of fisheries cooperation among the ASEAN member States

need to concentrate on three priority programs. First, the sustainable fisheries

development must be integrated into national and regional fisheries policies so

that sustainable fisheries development can be carried out. Second, national and

regional institutions must be strengthened to enable ASEAN cooperation in

combating IUU fishing. Third, there is a need for cooperation with other RFMOs

with a view of exchanging experiences on the management of transboundary

fish stocks and deterring IUU fishing.

Annick Van Houtte (2003) argues that Article 63(2) of the LOSC should be read

in conjunction with Article 116(b). She further states that “(T)he right to fish

straddling stocks on the high seas should be viewed in the light of the coastal

State’s sovereign rights over the living resources within its EEZ under Article 56

of the LOSC.”78 States fishing straddling stocks on the high seas are obligated

to conserve these stocks and to cooperate with the adjacent coastal States to

77 Mochtar Kusumaatmadja, loc.cit. 78 Annick Van Houtte, “Legal Aspects in the Management of Shared Fish Stocks- A Review”, Paper Presented at the Norway-FAO Experts Consultation on the Management of Shared Fish Stocks, Bergen, Norway, 7-10 October 2002, FAO Fisheries Report No. 695, Supplement, Rome: FAO, 2003, p. 36.

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this end.”79 This opinion is shared by Alex G. Oude Elferink (1995) who stated

that both Articles 63(2) and 116 do in fact make high seas fishing subject to the

rights, duties, and interests of the coastal States.80

As a result of the growing need to conserve straddling fish stocks and highly

migratory species in the high seas adjacent to their EEZ, coastal States have

acted unilaterally to regulate fishing activities in the adjacent high seas areas.

Based on the freedom of fishing on the high seas, distant water fishing States

have argued that the LOSC does not authorise coastal States to exercise extra-

territorial jurisdiction in protecting those stocks in high seas areas adjacent to

their EEZ.

An illustration of these conflicting positions is the Canada-EU Turbot Dispute.

The Northwest Atlantic Fisheries Organization (NAFO) Agreement contains

provisions for the management of, inter alia, seven fish stocks which straddle

the 200-mile line separating Canada’s EEZ from its adjacent high seas. The

Convention came into force on 1 January 1979. Until 1985, the EEC strongly

supported the application of a conservative conservation policy.81 However,

problems arose after 1986 when Spain and Portugal, two major distant-water

fishing States were about to join the EEC. From 1986 onwards, the European

Economic Community (EEC), now the European Commission, under pressure

79 Wiliam T. Burke, ‘’Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea‘’, Georgetown International Environmental Law Review, Vol. 3, 1990, p. 274. 80 Alex G. Oude Elferink, “Fisheries in the Sea of Okhotsk High Seas Enclave- The Russian Federation’s Attempts at Coastal State Control”, The International Journal of Marine and Coastal Law, Vol. 10, No.1, 1995, p. 12. 81 E.D.Brown, op. cit, p. 228.

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from Spain, objected to the quotas allocated to it by NAFO.82 A greater share of

EU’s NAFO quotas or the quotas the EU set unilaterally had been given to

Spain and Portugal.83 Canada, on the other hand, argued that this unilateral

action, together with the lack of NAFO controls over an increasing number of

flag of convenience fishing vessels registered in non-member States of NAFO

was undermining its own conservation measures established in its EEZ. It was

also reducing the amount of fish available for harvesting by its own vessels and

threatening the long-term sustainability of the stocks concerned. By the early

1990s, these stocks were in a severely depleted state.84 The dispute between

Canada and the EU over quotas and allocation rights in the Northwest Atlantic

Fishing Areas demonstrates the difficulties of structuring a satisfactory

management regime for the high seas.85

3.3.3 Highly Migratory Species

Article 64 of the LOSC deals with highly migratory species. These are

species listed in Annex 1 of the LOSC and include tuna and tuna-like species.

Article 64 provides as follows:

1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.

82 R.R.Churchill, “The European Community and Its Role in Some Issues of International Fisheries Law” in Ellen Hey. (eds), op. cit, p. 551. 83 Yann-Huei Song, ‘’The Canada-European Union Turbot Dsipute in the Northwest Atlantic : An Application of the Incident Approach ‘’, Ocean Development and International Law, Vol. 28, No.3, July-September 1997, p. 277. 84 R.R.Churchill and A.V.Lowe, op. cit, p.306. 85 Martin Tsamenyi and Transform Aqorau, op. cit, p. 76.

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2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.

It is clear from this article that international law requires cooperation between

distant water fishing States and coastal States with regard to highly migratory

species to ensure long-term conservation and management of such species.

Cooperation is to be achieved directly or through appropriate international

organizations to promote the optimum utilization of such species through the

region, both within and outside the EEZ. In regions where there are no

appropriate international organizations, these States are obliged to cooperate in

establishing such organizations and participating in its work.

In contrast to Article 63(2), Article 64 of the LOSC imposes on States the

obligation to promote the objective of optimum utilization.86 Particularly, coastal

States are obliged to cooperate in the determination of TAC for highly migratory

species that are in their EEZs. The objective of Article 64 is to provide for the

consistent and coordinated management of highly migratory species. The article

creates a pactum de contrahendo, which forces coastal States to conclude

agreements with distant water fishing nations for the management of highly

migratory species.87

In interpreting Articles 64 and 116(b), one may argue that distant water fishing

States are prohibited from unilaterally adopting measures on the high seas

fishery without cooperating with coastal States in the region since such

unilateral measures would undermine conservation measures of the highly

86 Ellen Hey, The Regime for the Exploitation of Trans-boundary Marine Fisheries Resources, Martinus Nijhoff Publisher, The Hague, 1989, p. 57.

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migratory species both within and outside the EEZ.88 As a follow up, it could be

argued that if negotiations on conservation and management measures of

highly migratory species fail to reach an agreement, Articles 6489 and 116(b)

can be interpreted as authorizing coastal States to establish such measures.90

In contrast, distant water fishing States argue that the LOSC does not contain

any provisions permitting coastal States to apply management measures over

highly migratory species stocks outside their EEZ.91 They have also argued

that, although fishing activities in certain areas of the high seas require a tighter

control and more effective management, they would resist unilateral

conservation measures imposed by coastal States beyond their EEZ.92

The ITLOS cases shows that most IUU fishing is conducted by large

commercial fisheries companies which capitalise on the inadequacies of

international law, domestic legal loopholes and weak law enforcement

mechanisms to enable them to conduct illegal fishing activities in remote parts

of the world’s oceans.93 There is an urgent need to reconcile conservation and

management measures adopted in the EEZ and those adopted for the same

87 Stuart M.Kaye, op.cit, p. 126. 88 Barbara Kwiatkowska, “Creeping Jurisdiction Beyond 200 Miles in the Light of 1982 Law of the Sea Convention and State Practice” in ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development (Proceedings), Bandung, Indonesia, 24-26 January, 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Vor Jurisdische Samenwerking met Indonesia, 1993, p.178. 89 Barbara Kwiatkowska, “The High Seas Fisheries Regime: at a Point of No Return?”, The International Journal of Marine and Coastal Law, Vol. 8, No 3, 1993, p. 330. 90 Jeremi Faith, ‘’Enforcement of Fishing Regulations in International Waters : Piracy or Protection, Is Gunboat Diplomacy the Only Means Left ?’’, Loyola of Los Angeles International and Comparative Law Journal, Vol. 19, No.199, 1996-1997, p. 212. 91 Gordon Munro, Annick Van Houtte and Rolf William, “The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects, FAO Fisheries Technical Paper No.465, Rome: FAO, 2004, p. 36. 92 Andre Tahindro, op.cit, page 18.

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stocks in the high seas. The objective is to avoid the over-exploitation and

depletion of stocks.94

3.4 Freedom of Fishing on the High Seas

The freedom to fish on the high seas is generally regarded as being part

of customary international law.95 However, international law provides rules to

ensure that the exercise of this freedom does not result in unlimited access and

an abuse of this right. The regulation of high seas fisheries is largely through

the flag States exercising their jurisdiction over their vessels.96 In this regard,

flag State responsibility is an important element of the high seas fisheries

regime.97

Article 87 of the LOSC recognises the freedom of fishing as one of the

freedoms of the high seas. This freedom is, however, subject to specific

conditions laid down in Section 2 of Part VIII of the LOSC. Article 116 of the

LOSC reinforces article 87 by stating that “All States have the right for their

nationals to engage in fishing on the high seas”. This right is subject to three

limitations. These include the treaty obligations of States; the rights and duties

93 Donald R. Rothwell, Oceans Management and the Law of the Sea in the Twenty-First Century in Alex G.Oude Elferink and Donald R.Rothwell (eds), op. cit, p. 334 94 Satya Nandan, “An Introduction to the 1982 United Nations Convention on the Law of the Sea”, in Davor Vidas and Willy Ostrength (eds), op. cit, p.12. 95 Grant James Hewison, “High Seas Driftnet Fishing in the South Pacific and the Law of the Sea”, The Georgetown International Environmental Law Review, Vol. 5, No. 313, 1993, p. 335. 96 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 3. 97 Max Collett, “Achieving Effective International Fishery Management: A Critical Analysis of the UN Conference on Straddling Fish Stocks”, Dalhousie Journal of Legal Studies, Vol. 4, No.8, 1995, p. 20.

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as well as the interests of other States under Article 63(2),98 Article 6499 and

Article 67;100 and the provisions of Section 2 of Part VIII.

Article 117 imposes a duty on all States whose vessels fish on the high seas to

adopt measures for the conservation of the living resources on the high seas.”

The article provides that “(A)ll States have the duty to take, or to cooperate with

other States in taking, such measures for their respective nationals as may be

necessary for the conservation of the living resources of the high seas.” One

problem in implementing Article 117 involves the definition of the term

“nationals”. The question is whether this term covers activities undertaken by

individuals and corporations engaged in IUU fishing that undermines the

98 This Article provides as follows: “Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area”. 99 This Article provides as follows:

“1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.”

100 This Article deals with catadromous species and provides that: “1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species.”

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effectiveness of conservation and management measures.101 A key issue has

arisen in relation to the operation of chartered boats. International law is unclear

as to the question of which State has jurisdiction to control the fishing activities

of chartered vessels.

The substantive provisions of the LOSC on flag State responsibilities are

contained in Articles 91, 92, 94 and 110. Article 91 (1) deals with the nationality

of vessels and provides that:

Every State shall fix the conditions for the grant of its nationality to ships for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to it. There must be a genuine link between the State and the ship.

Although the LOSC does not define what a “genuine link” is, it has been

interpreted as being a strong economic tie between nationals of the flag State

and the ownership, management, and manning of the vessel.102 The need for a

“genuine link” between a State and its vessels means that flag States can only

exercise effective jurisdiction and control over the activities of their own

vessels.103 In the high seas fisheries context, the requirement for a genuine link

under Article 91 means that a flag State must exercise effective control over its

vessels. The flag State must ensure that its vessels do not undermine

international conservation and management measures. Under Article 91(2),

when the flag State gives a ship the right to fly its flag, it must issue documents

101 Dean Bialek, “Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Sothern Ocean”, Ocean Development and International Law, Vol. 34, No.2, 2003, pp. 119-120. 102 Michael Julian, “International Conventions and Agreements Relating to Marine Pollution: Issues Relevant to the Asia-Pacific Region”, Maritime Studies, March/April 2000, The Australian Centre for Maritime Studies, Australia, p. 15.

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to that effect.104 This is because under the Article 92(1) of the LOSC, ships on

the high seas are, in principle, subject to the exclusive jurisdiction of their flag

States.105

3.5 Conclusion

This chapter analysed the key provisions of the LOSC dealing with the

sustainable use of fisheries in the EEZ and on the high seas. It demonstrated

that despite the creation of the EEZ which has given substantial powers to

coastal States with regard to the bulk of fisheries resources in areas within

national jurisdiction, this has not produced a legal regime supporting the

conservation of such resources. The key issues emerging from the analysis

which explain this situation include the failure of many coastal States,

particularly developing States to implement their obligations under the LOSC

and the failure of the LOSC to clearly define the scope of cooperation for shared

stocks, straddling stocks and highly migratory species. More significantly, the

high seas fisheries regime under the LOSC which continues to support freedom

of fishing, although with some qualifications, continues to be a problem. The

next chapter continues the analysis of the international legal framework to

address IUU fishing by discussing relevant post-LOSC binding instruments on

fisheries.

103 Erik Jaap Molenaar, “ The Concept of “Real Interest” and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms”, The International Journal of Marine and Coastal Law, Vol. 15, No 4, 2000, p. 531. 104 Judith Swan, ‘’Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Resppnsibilities, FAO Fisheries Circular No.980, Rome: FAO, 2002, p. 9. 105 Brian Opeskin and Martin Tsamenyi, ‘’ The Law of the Sea’’, in Sam Blay, Ryzard Piotrowicz, and Martin Tsamenyi’’ (eds), Public International Law: An Australian Perspective (Second Edition), Oxford University Press, 2005, p. 324.

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CHAPTER 4

POST LAW OF THE SEA LEGALLY BINDING INSTRUMENTS AND MEASURES TO ADDRESS IUU FlSHING

4.1 Introduction

The purpose of this chapter is to provide an analysis of the post LOSC

international legal framework for fisheries management to address the problems

of IUU fishing. The analysis in the chapter focuses on two key agreements: the

1993 Agreement to Promote Compliance with International Conservation and

Management Measures by Fishing Vessels on the High Seas (FAO Compliance

Agreement) and the 1995 Agreement for the Implementation of the Provisions

of the United Nations Convention on the Law of the Sea of 10 December 1982

Relating to the Conservation and Management of Straddling Fish Stocks and

Highly Migratory Fish Stocks (UN Fish Stocks Agreement). In particular, the

analysis addresses the ways in which these agreements attempt to improve on

the LOSC framework to combat IUU fishing.

4.2 Background to the FAO Compliance and UN Fish Stocks

Agreements

Chapter 17 of Agenda 211 deals with the sustainable use and

conservation of marine living resources of the high seas as well as those under

national jurisdiction.2 From 1982 to 1992, fisheries on the high seas

considerably expanded to represent approximately five per cent of the total

1 Lawrence Yuda, “Changing National Approaches to Ocean Governance: The United States, Canada, and Australia, Ocean Development and International Law, Vol. 34, No.2, April-June 2003, p.163.

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world landings. This expansion led to the need for more effective fisheries

management. As Brown (1994) aptly notes in relation to the situation in the

early 1990s,

the management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are over-utilized. There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessels re-flagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States.3

To address these problems, Paragraph 17.49 of Agenda 21 calls upon States to

take effective action at both regional and global levels to ensure that high seas

fisheries are managed in accordance with the LOSC and, in particular, to give

full effect to the provisions of the Convention on straddling stocks and highly

migratory species; negotiate international agreements for the effective

management and conservation of fish stocks; and define and identify

appropriate management units.4

Paragraph 17.49(e) of Agenda 21 explicitly calls upon the United Nations to

convene an international conference to address the problems of straddling and

highly migratory stocks and to do so in a manner fully consistent with the

provisions of the LOSC and, in particular, the rights and obligations of coastal

2 Martin Tsamenyi and Felicity Woodhill, “Sustainable Use of Large Migratory Fish in the Southern and Indian Oceans: Gaps in the International Legal Framework”, Centre for Maritime Policy University of Wollongong, Australia for Traffic Oceania and WWF October 1999, p. 17. 3 E. D. Brown, The International Law of the Sea (Vol. I Introductory Manual), Dartmouth Aldershot Brook USA, Singapore, Sydney, 1994, p. 321. 4 Current Legal Development on United Nations Conference on Environment and Development, Agenda 2, Chapter 17 “Protection of the Oceans, all Kinds of Seas, including Enclosed and Semi-Enclosed Areas and the Protection, Rational Use and Development of their Living Resources”, International Journal of Estuarine and Coastal Law, Vol.7, 1992, p.310.

78

States and States fishing on the high seas.5 In addition, Agenda 21 urged

States to:

• ensure that fishing activities by vessels flying their flags on the high seas

were conducted so as to minimise incidental catch;6

• take effective action consistent with international law to monitor and control

fishing activities by their vessels to ensure compliance with applicable

conservation and management rules;7

• take effective action consistent with international law to deter re-flagging of

vessels as a means of avoiding compliance with applicable conservation

and management rules for fishing activities on the high seas;8

• cooperate within regional and global fisheries bodies and, where they do not

exist, establish such organisations;9 and

• join regional high seas fisheries management organisations in situations

where the State has an interest in a high seas fishery regulated by that

organisation.10

As in the case of high seas fisheries, a number of threats to the sustainable use

of living resources were identified. These threats include: local over-fishing;

overcapitalization and excessive fleet size; unreliable data; under-valuation of

catch; unauthorised fishing by foreign fleets; and competition between artisanal

and large-scale fishing and between fishing and other types of activities. A final

5 Lawrence Juda, “Rio Plus the Evolution of International Marine Fisheries Governance”, Ocean Development and International Law, Vol. 33, No. 2, April-June 2002, p. 113. 6 Agenda 21, Chapter 17, Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources, Rio de Janeiro, Brazil, 03-14 June 1992, para. 17.50. 7 Agenda 21, para. 17.51. 8 Agenda 21, para. 17.52. 9 Agenda 21, para. 17.58.

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threat to note is ecosystem degradation and insufficiently selective fishing

gear.11

In relation to fisheries under national jurisdiction, Agenda 21 further urges

States to cooperate through bilateral and multilateral agreements to: develop

technical and financial cooperation to enhance the capacities of developing

countries and develop agreed criteria for the use of selective fishing gear and

practices to minimize waste in the catch of target species and non-target

species.12 States are also urged to enhance capacity building in areas of data

and information, scientific and technological measures, and human resource

development, so as to enable them to participate effectively in the conservation

and sustainable use of marine living resources under national jurisdiction.

The high seas fisheries issues embodied in Agenda 21 were also discussed in

various other international meetings held in conjunction with the UN Conference

on Environment and Development (UNCED) negotiations or immediately

thereafter. The most relevant meeting was the Conference on Responsible

Fishing convened by the FAO, held in Cancun, Mexico on 6-8 May 1992. This

meeting led to the development of the FAO Code of Conduct on Responsible

Fisheries, following the “Cancun Declaration”.13

10 Lawrence Juda, ibid. See Agenda 21, para. 17.59. 11 Jean-Pierre and Gunnar G. Schram (eds), United Nations Confernce on Straddling Fish Stocks and Highly Migratory Species (Selected Documents), Kluwer Law International, Martinus Nijhoff Publishers, The Hague/Boston/London, 1996, p. 4. 12 Agenda 21, para. 17.87. 13 Francisco Orrego Vicuna, The Changing of International Law of High Seas Fisheries, Cambridge University Press, 1999, p.129.

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In a response to the Cancun Declaration and the concerns expressed in

Agenda 21, the FAO held a Technical Consultation on the High Seas in

September 1992. The meeting produced two international instruments, namely

the FAO Compliance Agreement and the FAO 1995 Code of Conduct for

Responsible Fisheries.14 In another development, based on the UNCED

recommendation, Resolution No.47/1992 was adopted by the UN General

Assembly in December 1992 convening the Conference on Straddling Fish

Stocks and Highly Migratory Species.15

4.3 The FAO Compliance Agreement

The FAO Compliance Agreement came into force on 24 April 2003. This

Agreement was concluded as an integral part of the FAO Code of Conduct for

Responsible Fisheries16 to support the implementation of the LOSC concerning

flag State control over fishing vessels operating on the high seas.17 Although

the original impetus behind the FAO Compliance Agreement was to deal with

the problems of activities by vessels flying flags of convenience, it subsequently

developed into an instrument setting out the responsibilities of all flag States.18

14 David A. Balton and Dorothy C. Zbicz, “Managing Deep- Sea Fisheries: Some Threshold Questions”, The International Journal of Marine and Coastal Law, Vol. 19, No.3, 2004, pp. 248-249. 15 Moritaka Hayashi, “The Straddling and Highly Migratory Fish Stocks Agreement”, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, op, p. 57. 16 David J. Doulman, “Code of Conduct for Responsible Fisheries: Development and Implementation Considerations” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Center for Oceans Law and Policy, Martinus Nijhoff Publishers, 2000, p. 314. 17 CP. Flewwelling, Corman Culliman, David A. Balton, R.P. Sautter, and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p. 17. 18 Deirdre M. Warmer-Kramer and Krista Canty, “Stateless Fishing Vessels: The Current International Regime and A New Approach”, Ocean and Coastal Law Journal Vol. 5, No. 220, 2000, p. 232.

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There are two primary objectives of the FAO Compliance Agreement. The first

is to encourage States to ensure that the activities of their fishing vessels

operating on the high seas comply with international conservation and

management needs. The second objective is to promote international

cooperation for achieving sustainability of high seas fisheries management,

through the collection and dissemination of data on the activities of high seas

fishing vessels.19

4.3.1 Definition and Application of the 1993 FAO Compliance

Agreement

Article I(b) of the FAO Compliance Agreement defines “international

conservation and management measures” to mean

measures to conserve or manage one or more species of living marine resources that are adopted and applied in accordance with the relevant rules of international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Such measures may be adopted either by global, regional or sub-regional fisheries organizations, subject to the right and obligations of their members, or by treaties or other international agreements.

The above definition covers not only fish, but all living marine resources. In this

regard, agreed measures for whales and other cetaceans, corals and other

marine living organisms all fall within the scope of the FAO Compliance

Agreement. These provisions reinforce the provisions of Articles 63(2)-67 and

116-119 of the LOSC. These provisions require cooperation among States

whose vessels carry out fishing activities on the high seas20 and address the

19 Gerald Moore, “The Food and Agriculture Organization of the United Nations Compliance Agreement”, The International Journal of Marine and Coastal Law , Vol. 10, 1995, pp. 413-414. 20 David A Balton, “The Compliance Agreement”, in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p. 47.

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role of RFMOs in achieving the purposes and objectives of the international

conservation and management measures in relation to high seas fisheries.

Article I(a) of the FAO Compliance Agreement defines a “fishing vessel” as any

vessel used or intended for the purposes of the commercial exploitation of living

resources. This definition includes mother ships and any vessels directly

engaged in such fishing activities.

Article II(1) applies the FAO Compliance Agreement to all fishing vessels that

are used or intended for fishing on the high seas.21 More importantly, Article

II(2) provides that States may exempt fishing vessels of less than 24 metres in

length from complying with the Agreement,22 unless the exemption would

undermine the purposes and objectives of the Agreement. In this regard,

Paragraph 3 of the same article allows riparian coastal States which have not

yet declared EEZs to agree, either directly or through appropriate RFMOs, to

establish a minimum length of fishing vessels below which the Agreement will

not apply.

An example of a region to which Article II(3) may apply is the Mediterranean

Sea. In this region, coastal States are yet to declare EEZs. As a result, the

region includes significant areas of high seas close to shore. It follows that the

coastal States in this region may establish a minimum length for fishing vessels

21 M. Johanne Picard, “International Law of Fisheries and Small Developing States: A Call for the Recognition of Regional Hegemony”, Texas International Law Journal, Vol. 31, 1996, p. 338. 22 William Edeson, “Implementing the 1982 UN Convention, the FAO Compliance Agreement and the UN Fish Stocks Agreement”, in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations,

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below which the FAO Compliance Agreement will not apply that differs from that

provided in the agreement,23 but they must nevertheless take effective

measures to ensure that they are not undermining international conservation

and management measures.24

4.3.2 Flag State Responsibilities

The FAO Compliance Agreement is primarily concerned with the

responsibility of flag States to authorise vessels to fish on the high seas and

promote increased transparency through exchange of information. The main

provision of the Agreement in this regard is stipulated in Article III, which

enumerates a number of obligations for flag States over their fishing vessels

operating on the high seas.25 This article is seen as the most significant

provision of the FAO Compliance Agreement in terms of achieving monitoring,

control and surveillance (MCS) goals26 and is examined in more detail in the

following paragraphs.

Broadly, Article III(1)(a) imposes a duty on each State to take necessary

measures to ensure that vessels flying its flag do not engage in any activity

undermining the effectiveness of conservation and management measures.

Moreover, Article III(2)(a) provides that a flag State cannot allow fishing vessels

Center for Oceans Law and Policy, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p.162. 23 Gerald Moore, “The Food and Agriculture Organization of the United Nations Compliance Agreement”, The International Journal of Marine and Coastal Law, Vol. 10, 1995, p. 415. 24 Gerald Moore, “The FAO Compliance Agreement”, in Myron H. Nordquist and John Norton Moore (eds), op. cit, p. 82. See also FAO Compliance Agreement, Art. III.1 (b). 25 Robin Churchill, “The Meaning of the Genuine Link Requirement in Relation to the Nationality of Ships”, A Study Prepared for the International Transport Workers’ Federation, October 2000, p. 66.

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entitled to fly its flag to be used for fishing on the high seas unless the vessel

has been authorised by the appropriate authority or authorities of that flag State.

An important follow-up to these provisions is Article III(3) which requires States

to authorise any fishing vessels entitled to fly its flag to fish on the high seas

only when the State is able to exercise its responsibilities effectively. The FAO

Compliance Agreement further imposes an obligation upon State parties to

implement a licensing system and some other form of authorisation for their

vessels to fish on the high seas. The agreement also establishes exclusive flag

state jurisdiction and the right of freedom of fishing on the high seas.27

The above provisions cover three fundamental rules associated with

implementing flag State responsibilities. First, a flag State has an obligation to

control its vessels which undermine the effectiveness of international

conservation and management measures.28 Second, a flag State is required to

prevent unauthorised fishing on the high seas. Third, and most importantly, a

flag State must ensure that it can effectively control its vessels fishing on the

high seas prior to issuing any licenses to be used for fishing in the area.29

These fundamental rules are a reflection of the basic requirement that a State

may only authorise the use of its flag if it can effectively exercise its

responsibilities under the FAO Compliance Agreement. Significantly, these

26 P. Flewweling, C. Culliman, David A.Balton, R.P.Sauter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p.17. 27 Christopher J Carr and Harry N Scheiber, “Dealing with a Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries”, UCIAS Edited Volume 1, Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies, 2002, p. 20. 28 David J. Bederdman, “CCAMLR in Crisis: A Case Study of Marine Management in the Southern Ocean”, in Harry N. Scheiber (ed), Law of the Sea: The Common Heritage and Emerging Challenges, Martinus Nijhoff Publishers, The Hague/Boston/Boston, 2000, p.190. 29 Christopher J. Carr, “Recent Developments in Compliance and Enforcement for International Fisheries”, Ecology Law Quarterly, Vol. 24, 1997, p. 851.

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requirements constitute a response to problems associated with the re-flagging

of fishing vessels to States which are not willing or are unable to enforce

international conservation and management measures.30

The FAO Compliance Agreement enumerates the responsibilities of flag States

in more detail than those in the LOSC.31 Notably, the FAO Compliance

Agreement requires that there be a “genuine link” between the right to fly the

flag of a State and the right to fish on the high seas. This is an important

development as it provides a means for States to control vessels flying their

flags.32 Over time, the “genuine link” requirement may become a rule of

customary international law, which will make it more difficult for vessel owners

to re-flag to countries that are either unable or unwilling to enforce international

fisheries regulations.33

The FAO Compliance Agreement created a direct linkage between fishing

vessel registration and licensing systems. Specifically, Article III(4) provides that

the authorisation to fish on the high seas will be deemed to have been

cancelled if a vessel ceases to be entitled to fly the flag of that Party.

30 Lawrence Juda, “Rio Plus Ten: The Evolution of International Marine Fisheries Governance”, op. cit, p. 121. 31 SEE LOSC Article 91. See generally Martin Tsamenyi and Lara Manarangi-Trott, “The Implications of the WCPFC for Australia’s Maritime Regulation and Enforcement”, Papers in Australian Maritime Affairs No.11, in Rachael Heath and Barry Snushall, Protecting Marine Resources: Boundary Delimitation, Resource Conflicts and Constabulary Responsibilities., Centre for Maritime Policy, University of Wollongong and Australian Navy, 2003, p.92.

32 Judith Swan, “Fishing Vessels Operating Under Open Registers and the Exercise of Flag State Responsibilities: Information and Options”, FAO Fisheries Circular No. 980, Rome: FAO, 2002, p. 11. 33 Deirde M.Warner-Kramer and Krista Canty, op. cit, p. 233.

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Article III(5) of the FAO Compliance Agreement deals with the problem of non-

compliant vessels. Paragraph (a) of this article prevents a flag State from

authorizing an IUU fishing vessel previously registered in another State Party to

the FAO Compliance Agreement, unless the flag State is satisfied that any

period of suspension by another State Party of an authorisation for such fishing

vessel to fish on the high seas has expired; and that no authorization has been

withdrawn by another State Party within the last three years. This provision is

also applied to fishing vessels previously registered in a non-State Party to the

FAO Compliance Agreement in order to ensure that sufficient information is

available to the Party concerned on the circumstances in which the

authorization to fish was suspended or withdrawn.

According to Judith Swan (2002), the FAO Compliance Agreement is an

effective means of restricting the freedom of vessels with a poor compliance

record from re-flagging to another State. She draws particular attention to the

fact that a State may only authorise the “non-compliant” vessels to fish if it is

satisfied that the vessel will observe agreed conservation and management

measures.34 Balton (1999) notes that while the FAO Compliance Agreement

does not regulate the act of re-flagging directly, the agreement prohibits the new

flag State from authorizing a re-flagged vessel to fish on the high seas in

circumstances where the vessel has a record of non-compliance with

international conservation and management measures.35 The underlying aim of

Article III(5) of the FAO Compliance Agreement is to ensure that vessels

34 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibilities: Information and Options, op. cit, p.12 35 David A Balton, “The Compliance Agreement”, in Ellen Hey (ed), op. cit, p.50.

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operating on the high seas act in a manner consistent with the objective and

purpose of international conservation and management measures.

Article III(6) of the FAO Compliance Agreement obligates flag States to ensure

that their fishing vessels are marked in accordance with internationally

recognised standards, such as the FAO Standard Specifications for the Marking

and Identification of Fishing Vessels. In addition, Article III(7) requires flag

States to ensure that vessels authorised to fish on the high seas provide

relevant information on their activities, including their fishing activities; their

catches; and landings of fish. This provision is intended to ensure that the

fishing activities, areas of fishing and fish catches are properly documented,

monitored and verified.

Article III(8) of the FAO Compliance Agreement requires flag States to take

enforcement action against any of their fishing vessel which violate the

provisions of the FAO Compliance Agreement. This provision contains

sanctions that may be undertaken against fishing vessels committing serious

violations such as the “refusal, suspension or withdrawal of the authorisation to

fish on the high seas.”36 To this end, the flag State has to adopt, enforce and

publicise relevant municipal laws and regulations adopted consistently with the

FAO Compliance Agreement. This will become a basis for each State Party to

impose sanctions against illegal fishers on the high seas.

36 Rosemary Rayfuse, “Countermeasures and High Seas Fisheries Enforcement”, Netherlands International Law Review, 2004, p. 60.

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4.3.3 Exchange of Information Concerning Records of Fishing

Vessels

One of the significance of the FAO Compliance Agreement is that it

applies to all high seas fishing activities where international and conservation

measures are applicable.37 The FAO Compliance Agreement imposes a

number of obligations upon States in relation to the collection and dissemination

of information from fishing vessels operating on the high seas in order to

combat unreported fishing. These obligations are examined in more detail in

this section.

Article IV of the FAO Compliance Agreement requires States to take measures

as may be necessary to ensure that the activities of vessels flying their flags

and fishing on the high seas are recorded.38 Article IV should be read in

conjunction with Article VI concerning the exchange of information, particularly

on fishing activities, areas of fishing, catches, and landing of fish catch.

Exchange of information also includes records of fishing vessels authorized to

fish on the high seas, any addition to and any deletion from the record, and

activities of fishing vessels that engaged in IUU fishing.

Article VI(1) requires States to make certain information available to the FAO

pertaining to the records of vessels authorised to fish on the high seas. These

include: (a) the name of the fishing vessel, registration number, previous names

(if known), and port of registry; (b) previous flag (if any); (c) International Radio

37 Peter Orebech, Ketil Sigurjohnsson and Ted L. McDorman, “The United Nations Straddling and Highly Migratory Species Agreement: Management, Enforcement and Dispute Settlement”, The International Journal of Marine and Coastal Law, Vol. 13, No. 2, 1998, p.113.

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Call Sign (if any); (d) name and address of owner or owners; (e) where and

when built; (f) type of vessel; and (g) length. Further, Article VI(2) requires

States to make additional information available to the FAO for the purpose of

recording information on the same vessels, including: (a) the name and address

of operator (manager) or operators (managers) (if any); (b) type of fishing

methods; (c) moulded depth; (d) beam; (e) gross register tonnage; and (f)

power of main engine or engines.

Under Article VI(3) of the FAO Compliance Agreement, States are obligated to

promptly notify the FAO of any modifications to the information listed in

paragraphs 1 and 2. Further, Article VI(5) requires States to promptly inform the

FAO of any additions to or any deletions from the record. The reasons for such

additions or deletions may include non-renewal of the fishing authorisation by

the fishing vessel owner or operator, the withdrawal of the fishing authorisation

issued regarding the fishing vessel under paragraph 8 of Article III where the

fishing vessel concerned is no longer flying the flag of a State, and the

scrapping, decommissioning or loss of the fishing vessel concerned.

Article VI(7) provides that a flag State has the duty to inform the FAO if the

State intends to exempt fishing vessels of less than 24 metres in length from

complying with the FAO Compliance Agreement under Article II(2). In this case,

the State is to provide relevant information on the number and type of fishing

vessels covered by the exemption and the geographical areas in which these

fishing vessels operate.

38 Ichiro Nomura, “Distant Water State Perspectives” in Myron H. Nordquist and John Norton Moore (eds), op. cit, p.186.

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Of particular importance is Article VI(8)(a) which requires a flag State to report

promptly to the FAO all relevant information of the activities of its vessels that

undermine international conservation and management measures. The

information is to include the identity of the fishing vessel or vessels involved and

measures imposed by the flag State regarding these activities. Under Article

VI(8), if a Party to the Agreement has a strong belief that any of its vessels are

engaged in activities that undermine international conservation and

management measures, the Party must draw this to the attention of both the

flag State concerned and the FAO. To this end, the Party must provide the flag

State concerned with full supporting evidence and provide the FAO with

summary information. The FAO need not disseminate this information until the

flag State has had an opportunity to comment on the allegation and evidence

submitted.

The obligations of the FAO under Article VI(8) noted above must be read in light

of Articles VI(4) and 10, which impose a duty upon the FAO to disseminate the

above information regarding fishing vessels to all the State Parties, and

particularly to a State Party which requests such information. The FAO must

also provide such information promptly on request to RFMOs. However, this

provision of information is subject to any restrictions that may be imposed by

the State Party concerned on the dissemination of information.

Article VI(11) provides that RFMOs are to play a significant role in the exchange

of information relating to the implementation of the FAO Compliance

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Agreement. As Applebaum and Donohue note (1999), Article VI(II) would

suggest that RFMOs are required to take an active role in monitoring the

implementation of the FAO Compliance Agreement against their members that

are Parties to the FAO Compliance Agreement and other Parties whose vessels

undermining their conservation and management measures.39

4.3.4 International Cooperation to Combat IUU Fishing by Non-

Parties

This section examines the ways in which the FAO Compliance

Agreement provides for international cooperation to combat IUU fishing on the

high seas. The mandate of international cooperation is to help a flag State

identify any of its fishing vessels undertaking activities which undermine

international conservation and management measures.40

Article VI of the FAO Compliance Agreement requires all State Parties to assist

the flag State in identifying vessels that undermine international conservation

and management measures through active cooperation. Under Article V(2), a

port State is required to promptly notify the flag State when a vessel is

voluntarily in its port and there are reasonable grounds to believe that the

vessel has undermined international conservation and management measures.

The flag State and port State may make arrangements regarding the authority

of the latter State to undertake investigation. Such investigative arrangements

would require the States to enter into international agreements. This may be

39 Bob Applebaum and Amos Donohue, “The Role of Regional Fisheries Management Organizations”, in Elen Hey (ed), op. cit, p.240. 40 Christopher C. Joyner, “Compliance and Enforcement in New International Fisheries Law”, Temple International and Comparative Law Journal, Vol.12, No. 2, 1998, p. 284.

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achieved through a mutual assistance agreement on a global, regional, sub-

regional or bilateral basis.

Article VIII(1) pertains to the application of the FAO Compliance Agreement to

vessels of non-State Parties. This provision is revolutionary, given that under

international law, a treaty is not binding on third States.41 Specifically, State

Parties are to encourage non-Parties to accept the FAO Compliance Agreement

and adopt laws and regulations consistent with the agreement. All State Parties

are also bound by paragraph 2 to cooperate in a manner consistent with the

FAO Compliance Agreement and international law. These provisions are

designed to ensure that vessels of non-Party flag States do not engage in

activities that undermine the effectiveness of international conservation and

management measures.42 Paragraph 3 further requires State Parties to

exchange information with each other, either directly or through the FAO,

regarding activities of vessels that undermine the effectiveness of international

conservation and management measures. Non-Parties are also encouraged to

adopt fisheries legislation to deal with IUU fishing on the high seas.

4.3.5 Gaps in the FAO Compliance Agreement

Despite the seemingly comprehensive nature of the FAO Compliance

Agreement, it has only answered one part of UNCED’s call to address the

problems of high seas fishing. As David Balton (1996) notes, the Agreement

fails to resolve the need to establish better conservation rules. The Agreement

also fails to ensure compatibility of measures on the high seas and in their

41 See Article 34 of the Vienna Convention of 1969 on the Law of Treaties.

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EEZs.43 Rather than regulating port State measures, the Agreement focuses

on actions taken by flag States.

Orrego Vicuna (1999) also notes a number of other shortcomings of the FAO

Compliance Agreement.44 The first is the inadequate definition of fishing

vessels. It is not clear whether Article I(a) of the FAO Compliance Agreement

applies to factory ships or transportation vessels which are often used for

fishing activities on the high seas. Further, it may be questioned whether the

provisions of the FAO Compliance Agreement would apply to support and

charter vessels undermining international conservation and management

measures, as such action would be considered contrary to the objectives and

purpose of the Agreement. There is a clear need to develop a more

comprehensive definition of fishing vessels in Article I(a) in order to provide an

adequate framework for monitoring the activities undertaken by factory ships or

transhipment vessels.

4.4 The UN Fish Stocks Agreement

The Agreement for the Implementation of the Provisions of the United

Nations Convention on the Law of the Sea of 10 December 1982 Relating to the

Conservation and Management of Straddling Fish Stocks and Highly Migratory

Fish Stocks (UN Fish Stocks Agreement) was concluded in 1995 in response to

global concerns on the conservation and sustainable use of straddling fish

42 John M. Van Dyke, “Sharing Ocean Resources in A Time of Scarcity and Selfishness”, in Harry N. Scheiber (ed), op cit, p. 15. 43 David A. Balton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Species”, Ocean Development and International Law, Vol. 27, 1996, p. 132.

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stocks and highly migratory fish stocks. The objective of the UN Fish Stocks

Agreement is to ensure the long-term conservation and sustainable use of

straddling fish stocks and highly migratory fish stocks in their entirety through

effective implementation of the relevant provisions of the LOSC.45 Although the

UN Fish Stocks Agreement applies principally to the conservation and

management of straddling fish stocks and highly migratory fish stocks beyond

areas under national jurisdiction (that is on the high seas),46 key conservation

obligations under the Agreement also apply in the EEZ of Parties to ensure that

there is compatibility between high seas and in-zone conservation and

management measures.47

Article 5 of the UN Fish Stocks Agreement sets forth the broad conservation

measures to be taken by coastal States and States fishing on the high seas to

achieve the objectives of the Convention. These general principles of

conservation and management adopted under Article 5 are set out as follows:

• adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization;

• ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield.;

• adopt where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened;

• promote the development and use of selective, environmentally safe and cost effective fishing gears and techniques in order to minimize pollution, waste, discards, catch by lost or abandoned

44 Orrego Vicuna, The Changing of International Law of High Seas Fisheries, Cambridge University Press, 1999, p.133. 45 UN Fish Stocks Agreement, Art. 2. 46 UN Fish Stocks Agreement, Art. 3(1). 47 UN Fish Stocks Agreement, Art. 5, 6 and 7.

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gear, catch of non-target species (both fish and non-fish species) and impacts on ecologically related species, in particular endangered species;48

• take measures to prevent or eliminate over-fishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources;

• take into account the interests of artisanal and subsistence fishers;

• collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as set in Annex I, as well as information from national and international research programmes; and

• implement and enforce conservation and management measures through effective monitoring, control and surveillance.

The above provisions are intended to implement Articles 63, 64 and 118 of the

LOSC, already discussed in Chapter 3. To this extent, the UN Fish Stocks

Agreement represents a significant step forward in detailing the manner in

which fishing States and coastal States are to give effect to their duty to

cooperate in conservation and management of straddling and highly migratory

fish stocks under the LOSC. The key requirement to achieve the objectives of

the UN Fish Stocks Agreement is cooperation at the bilateral, multilateral or

global levels.49

4.4.1 Compatibility of Conservation Measures

A key aspect of the UN Fish Stocks Agreement to achieve international

cooperation is the requirement for compatibility between management

measures in the EEZ and on the high seas.50 This is in recognition of the

48 Martin Tsamenyi and Alistair McIlgorm, op,cit, p. 16. 49 Davor Vidas, “Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century”, Ocean Development & International Law, Vol. 31, Nos. 1-2, January-June 2000, p.202. 50 For a more extensive analysis, see A.E. Boyle, “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks”, The International Journal of Coastal

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inappropriate artificial boundaries under the LOSC. The compatibility of

conservation and management measures is contained in Article 7(1) which

states that:

(a) with respect to straddling fish stocks, the relevant coastal States and the States whose nationals fish for such stocks in the adjacent high seas area shall seek, either directly or through the appropriate mechanisms for cooperation provided in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area; (b) with respect to highly migratory species, the relevant coastal States and other States whose nationals fish for such stocks in the region shall cooperate, either directly or through the appropriate mechanisms for cooperation provided in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.

Article 7(1) of the UN Fish Stocks Agreement is an elucidation of the rights and

duties of States prescribed in Articles 63(2) and 64 of the LOSC.51 In

determining compatible conservation and management measures, Article 7(2)

provides that States are required to take into account a wide variety of factors,

including: (a) the management measures adopted by coastal States in their

EEZs and in accordance with Article 61 of the LOSC;52 (b) previously agreed

measures for the high seas with respect to the same stocks which are in

accordance with the LOSC or with sub-regional or regional fisheries

management organizations or arrangements; (c) previously agreed measures

established and applied for the high seas in accordance with the LOSC in

respect of the same stocks by a sub-regional or regional fisheries management

Law, Vo. 14, No.1, 1999, p.20; see also Vilonda Botet, “Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean”, Virginia Journal of International Law, Vol. 41, No. 4, 2000-2001, p.800; 51 Peter Rowe and Michael A. Meyer, “The Straddling Stocks Agreement: An Initial Assessment”, International and Comparative Law Quarterly, Vol. 45, 1996, p.468. 52 John M. Van Dyke, “The Straddling and Migratory Stocks Agreement and the Pacific”, The International Journal of Marine and Coastal Law, Vol. 11, No. 3, 1996, p.407.

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organisation or arrangement; (d) the respective dependence of coastal and

other States fishing on the high seas on stocks in question; and (e) the need to

ensure that measures taken do not have a harmful impact on marine living

resources as a whole.53 Under Article 7(7), coastal States must also regularly

inform other States about such measures. Moreover, distant water fishing

States are obligated to regularly inform other States about the conservation and

management measures adopted for the high seas. These obligations are

intended to regulate the activities of fishing vessels on the high seas.54 The

author supports Michael W. Lodge and Satya N. Nandan’s (2005) opinion that

the provisions of the UN Fish Stocks Agreement are adequate to provide a

satisfactory solution to the problem of the compatibility between the

conservation and management measures for the EEZ and the adjacent high

seas areas.55

4.4.2 International Cooperation

The UN Fish Stocks Agreement requires States to give effect to their

duty to co-operate to conserve and manage highly migratory stocks and

straddling stocks as required by the LOSC, by adopting conservation and

management measures, including implementing and enforcing conservation

and management measures through effective monitoring, control and

surveillance.56 Co-operation is also required under Article 7 to ensure that

53 Lawrence Juda, “The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique”, Ocean Development and International Law, Vol. 28, No. 2, April-June 1997, p. 155. 54 Erik Jaap Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries”, The International Journal of Marine and Coastal Law, Vol. 20, Nos. 3-4, 2005, p. 565. 55 Michael W. Lodge and Satya N. Nandan, “Some Suggestions Towards Better Implementation of the United Nations, The International Journal of Marine and Coastal Law, Vol. 20, Nos.3-4, 2005, p. 350. 56 UN Fish Stocks Agreement, Art. 5(1).

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measures adopted for the high seas are compatible with those adopted by

States within the EEZ.57

The mechanisms for cooperation are set out in Article 8 of the UN Fish Stocks

Agreement. Under this Article, States must co-operate, either directly or through

regional or sub-regional fisheries management organizations or arrangements,

to ensure the effective management of straddling and highly migratory fish

stocks. States are to enter into consultations without delay to establish

appropriate conservation and management measures for these stocks. If there

is no existing regional or subregional management organization competent to

establish appropriate measures, States are to form a new organization or to co-

operate to establish arrangements.58 If a competent organization or

arrangement already exists, then States are urged to become members or

participants.59 States are only entitled to have access to a fishery if they are

members of or participants in the relevant organization or arrangement or if they

apply the conservation and management measures developed by the relevant

organization or arrangement for that fishery.60 The main functions of RFMOs as

stipulated in Article 10 are, inter alia, to (a) agree and comply with conservation

and management measures to ensure the long-term sustainability of straddling

fish stocks and highly migratory species; (b) agree on participatory rights such

as allocations of allowable catch or levels of fishing effort; (c) adopt and apply

any generally recommended international minimum standards for the

57 See discussion in William T. Burke, “Compatibility and Precaution in the 1995 Straddling Stock Agreement”, in Harry N. Scheiber (ed), op. cit, pp. 114-117. 58 UN Fish Stocks Agreement, Art. 8(5). 59 UN Fish Stocks Agreement, Art. 8(3). 60 UN Fish Stocks Agreement, Art. 8(4).

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responsible conduct of fishing operations; and (d) establish appropriate

cooperative mechanisms for effective monitoring, control and surveillance and

enforcement.

A State Party to the UN Fish Stocks Agreement that is not a member of an

organization and does not participate in an arrangement is still required to co-

operate in the conservation and management of straddling fish stocks and

highly migratory fish stocks. Such a State cannot authorise vessels flying its flag

to engage in fishing operations for the straddling fish stocks or highly migratory

fish stocks61 which are subject to the conservation and management measures

established by a relevant organization or arrangement.62 States that are

members or participants in the organization are to exchange information on,

and take measures against, vessels that are engaged in fishing activities that

undermine the conservation and management measures.63

Article 8(2) imposes an obligation on States with an interest in conservation and

management measures to consult and cooperate towards a mutually

satisfactory outcome for straddling and highly migratory fish stocks.64 It is

contemplated that such consultation and cooperation will be undertaken where

For discussion of such issue, see Robin R Churchill, “The Barents Sea Loophole

Agreement: A “Coastal State” Solution to Straddling Stock Agreement”, The International Journal of Marine and Coastal Law, Vol.14, 1999, p.475. 61 UN Fish Stocks Agreement, Art. 17.

See also John M. Van Dyke, “Modifying the 1982 Law of the Sea Convention: New Initiatives on Governance of High Seas Fisheries Resources: the Straddling Stocks Negotiations”, The International Journal of Marine and Coastal Law, Vol. 10, 1995, p. 224. 62 UN Fish Stocks Agreement, Art. 17. 63 UN Fish Stocks Agreement, Art. 17.4. 64 Julia Green and David Agnew, “Catch Document Schemes to Combat Illegal, Unreported and Unregulated Fishing: CCAMLR’ s Experience with Southern Ocean Tooth-fish” in Elisabeth Mann Borgese, Aldo Chircop, and Maria McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, p.178.

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there is evidence that straddling and highly migratory fish stocks may be under

threat of over-exploitation or where a new fishery is being developed for such

stocks.

Although Article 8(3) obligates an RFMO to allow a State with “a real interest in

the fisheries concerned” to become a member of that RFMO,65 neither the

LOSC nor the UN Fish Stocks Agreement defines the concept of “real

interest”.66 Some commentators argue that a “real interest” is restricted to flag

States whose vessels are engaged in fishing on the high seas. However, other

commentators argue that there are clear provisions that coastal States are not

allowed to discriminate against interested new entrants.67

Under Article 119(3) of the LOSC, States with an interest in high seas fisheries

must ensure that the implementation of conservation measures do not

discriminate in form or in fact against the fishermen of any State.68

Nevertheless, it is unclear whether or not new entrants are considered as

having a real interest. Essentially, States interested in engaging in such fishing

activity or States interested in joining RFMOs to ensure sustainable

management or safeguard biodiversity may not be regarded as having a “real

65 Erik Jaap Molenaar, “The South Tasman Rise Agreement of 2000 and Other Initiatives on Management and Conservation of Orange Roughy”, The International Journal of Marine and Coastal Law, Vo. 16, No.1, 2001, p.96. 66 Rosemary Rayfuse, “ The Interrelationship Between The Global Instruments of International Fisheries Law” in Ellen Hey (ed) Developments in International Fisheries Law, Kluwer Law International Law, The Hague/London/Boston, 1999, p.138. 67 Olav Schram Stokke, op .cit, p.166. 68 Grant James Hewison, “High Seas Driftnet Fishing in the South Pacific and the Law of the Sea”, The Georgetown International Environmental Law Review, Vol. 5, No. 313, 1992-1993, p. 370.

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interest” in the fisheries concerned.69 There are two key issues which must be

considered by RFMOs in the case of new entrants, especially in relation to fully

exploited fisheries. These issues are resource allocation and freedom of fishing.

In relation to the first issue, the RFMO must determine how resources are to be

allocated amongst the new entrants and existing members. The new entrants

can increase pressure on a fishery and reduce catch allocation to the existing

members. As a consequence of their entry into a fishery, the new entrant may

undermine the effectiveness of existing management efforts.70 If the allocations

provided to new entrants are perceived as unfair distributions, the new entrants

may be tempted to operate outside RFMOs by maintaining or increasing their

catch. From the perspective of the IPOA-IUU, such fishing activity will be

considered as “unregulated fishing”.71 There is also the possibility of vessels re-

flagging in order to avoid agreed management measures by contracting parties

concerned with quota allocations.72

The second issue to consider is the right of freedom of fishing on the high seas

under traditional international law. Article 11 of the UN Fish Stocks Agreement

grants RFMOs the power to determine the “nature and extent of participatory

69 Erik Jaap Molenaar, “Regional Fisheries Management Organizations: Issues of Participation, Allocation and Unregulated”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 73. For the importance of this subject, see Jean- Pierre Ple, “Responding to Non-Member Fishing in the Atlantic: The ICCAT and NAFO Experiences”, in Harry N. Scheiber (ed), op.cit, p.206. 70 Rosemary Rayfuse, “Regional Allocation Issues or Zen and the Art of Pie Cutting”, A Paper Presented at the Sharing the Fish Conference 06:Allocation Issues in Fisheries Management, Perth Western Australia 26 February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation the FAO, p. 6. 71 Erik Jaap Molenaar, “Regional Fisheries Management Organization: Issues of Participation, Allocation and Unregulated Fishing”, op. cit, p. 71.

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rights” for new entrants in accordance with a variety of general criteria.73 There

is thus a clear conflict between traditional international law and the Agreement

in relation to the extent to which an RFMO may restrict the activities of non-

parties to the UN Fish Stocks Agreement.74

4.4.3 Deterring IUU Fishing Within the Jurisdiction of RFMOs

Article 8(4) of the UN Fish Stocks Agreement is primarily designed to

prohibit States from fishing within RFMO regulatory areas unless they become a

member of the RFMO or arrangement.75 Article 8(4) restricts access to certain

fisheries resources to those States which are members of relevant RFMOs or

participants in relevant arrangements, or which agree to apply the conservation

and management measures established by such RFMOs or under such

arrangements. This article is of particular importance for States fishing in areas

72 Opening Statement by the Representative of the Director-General of FAO in Jean-Pierre Levy and Gunnar G. Schram (eds), United Nations Conference on Straddling Fish Stocks and Highly Migratory Species, Martinus Nijhoff Publishers, The Hague/Boston/London, 1996, p. 356. 73 Ted L. Mc. Dorman, “Implementing Existing Tools: Turning Words Into Actions – Decision- Making Processes of Regional Fisheries Management Organizations (RFMOs), “The International Journal of Marine and Coastal Law, Vol. 20, No 3-4, 2005, p. 438.

See also Article 11 of the 1995 UN Fish Stocks Agreement which states that: In determining the nature and extent of participatory rights for new members of a sub-regional or regional fisheries management organization, or for new participants in a sub-regional or regional fisheries management, States shall take into account, inter alia: (a) the status of straddling fish stocks and highly migratory fish stocks and the existing level of fishing effort in the fishery; (b) the respective interests, fishing patters and fishing practices of new and existing members or participants (c) the respective contributions of new and existing members or participants to conservation and management of the stocks, to the collection and provision of accurate data and to the conduct of scientific research on the stocks; (d) the needs of coastal fishing communities which are dependent mainly on fishing for the stocks; (e) the needs of coastal States whose economics are overwhelmingly dependent on the exploitation of the exploitation of living marine resources; (f) the interests of developing States from the sub-region or region in whose areas of national jurisdiction the stocks also occur. 74 Julie R. Mack, “International Fisheries Management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks Changes the Law of the Sea Fishing on the High Seas”, California Western International Law Journal, Vol. 26, No. 313, 1995-1996, p. 326. 75 Erick Jaap Molenaar, “Unregulated Deep- Sea Fisheries: A Need for a Multi-Level Approach”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p.226.

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where there are fish stocks that straddle one or more EEZs, or migrate in and

out EEZs to the high seas, or are highly migratory.76 Rayfuse aptly notes that:

…membership- or at least agreeing to play by the rules- is the sine qua non of access to a fishery. Were this not the case, all the conservatory and managerial efforts of member and participating states would continue to be rendered nugatory by the unregulated fishing activities of non-members and non-participants and one of the major reasons for negotiating the FSA would be defeated.77

Article 17(1) of the UN Fish Stocks Agreement specifically deals with third

parties who are non-members of RFMOs and non-participants in relevant

arrangements. This article provides that a non-party State of a RFMO which

does not agree to apply the conservation and management measures provided

for in the Agreement is not discharged from fulfilling its obligation to cooperate

in accordance with the LOSC and the UN Fish Stocks Agreement, in the

conservation and management of the relevant straddling fish stocks and highly

migratory species. Accordingly, under paragraph 2 of the same provision, a

non-party State cannot authorise vessels flying its flag to engage in fishing

operations for straddling fish stocks and highly migratory species within the area

of competence of an RFMO.

Article 17 of the UN Fish Stocks Agreement essentially provides a legal basis

for cooperation by non-member States of RFMOs and establishes the legal

76 Robert L.Friedheim, “A Proper Order for the Oceans: An Agenda for the New Century” in Davor Vidas and Willy Ostreng (eds), Order for the Turn of the Century, Kluwer Law International, The Hague/London/Boston, 1999, p. 544. 77 Rosemary Gail Rayfuse, Non-Flag State Enforcement in High Seas Fisheries, Martinus Nijhoff Publishers, Leiden/Boston, 2004, p. 44.

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conditions for non-member States to fish in areas of the high seas.78 This issue

was not addressed by the LOSC.

There are two important points to note about third party State obligations. First,

the provisions in the Agreement transform already existing discretionary powers

under general international law into a mandatory treaty obligation for States

parties to the Agreement. Second, Article 17(4) grants two types of powers to

States parties to the Agreement that are not regulated by general international

law.79 Thus, it is necessary to consider whether the provisions of the UN Fish

Stocks Agreement violate the pacta tertiis rule 80 of international law by seeking

to bind non-members of RFMOs to rules established by RFMOs and to the

Agreement itself.81 A further issue in this regard is whether the RFMO

conservation and management measures are applicable to fishing vessels of

third States Parties.

Although it is common to think of treaties in terms of parties or non-parties, the

present issue is whether the provisions of the UN Fish Stocks Agreement are

legally binding from the perspective of international law. The general rule,

encapsulated in Article 34 of the 1969 Vienna Convention on the Law of

Treaties, is that a treaty can only create rights and obligations for those parties

78 Chris Hedley, “Entry Into Force of the United Nations Fish Stocks Agreement: An Initial Assessment”, Internet Guide to International Fisheries Law, Originally Published as (2001) International Fisheries Bulletin No. 24, p. 6. http://www.intfish.net/ops/papers/7.htm (accessed on May 17, 2006). . 79 Erik Jaap Molenaar, “Regional Fishereis Management Organizations: Issues of Participation, Allocation and Unregulated Fishing”, loc.cit. 80 This rule simply means that a treaty is not binding on third States without their express concern. 81 Erik Franckx, “Pacta Tertiis and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the

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http://www.intfish.net/ops/papers/7.htm

that have consented to be bound.82 The exception to the general rule is to be

found in Article 35 of the Vienna Convention on the Law of Treaties, which

provides that an obligation arises for a third State from a provision of a treaty if

the parties to the treaty intend to confer obligations on a third State and the third

State expressly accepts that obligation in writing. There is, however, an

important exception to this principle in the case of dispositive treaties.83

Dispositive treaties create law that is legally binding upon all States.84

In commenting on the substance of its Draft Article 63 regarding obligation,

which became Article 35 of the 1969 Vienna Convention, the International Law

Commission (ILC) recognized that the requirements are very strict. When they

are met, in fact, there is a second collateral agreement between the member

States of the treaty, on the one hand, and the third party on the other. The legal

basis of the latter’s obligation is not the treaty itself but the collateral

agreement.85 As to obligations, it has been confirmed by the Permanent Court

of International Justice in the cases of the Free Zones and the River Order

concerning treaty law. The rule acknowledge that there is not any exception in

matter of obligation, despite this is, of course, without prejudice to the principle

Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks”, FAO Legal Papers Online 8, June 2000, p. 20. 82 Ian Brownlie, Principles of Public International Law (Sixth Edition), Oxford University Press, 2003, p. 598. 83 Ian Brownlie, op. cit, p. 599. For more on this issue see Erik Jaap Molenaar, “Southern Ocean Fisheries and the CCAMLR Regime”, in Alex G. Oude Elferink and Donald R. Rothwell (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Martinus Nijhoff Publishers, The Hague/New York/London, 2001, p. 309. 84 Martin Dixon, Textbook on International Law (Fifth), Oxford University Press, 2005, p. 70. 85 D.J. Harris, Cases and Materials on International Law (Second Edition), Sweet and Maxwell, London, 1979, p.631.

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that certain obligations stated in a treaty may become binding on non-State

Party as it has become international customary law.86

The juridical basis of this international customary law is to be found in Article 38,

which provides that nothing in Articles 34 to 37 prevent a rule stipulated in a

treaty from binding upon a third State as a customary rule of international law.

In the light of current State practice, it can be argued that certain provisions on

the UN Fish Stocks Agreement such as the precautionary principle, cooperation

duty in conservation and management measures of transboundary fish stocks

and compliance and enforcement, are emerging as a rule of international

customary law. The three most highly developed fisheries regimes are those

established to complement and affirm the LOSC and Chapter 17 of Agenda 21.

Applying these principles and rules to the IUU fishing case, the practice of

states referred to the above instruments may be taken as sufficient of the

existence of any necessary opinio juris. The UN Fish Stocks Agreement falls

within this category. Essentially, this means that a flag State which has

accepted the LOSC is bound by the provisions of the UN Fish Stocks

Agreement.

4.4.4 Duties of the Flag State

The duties of flag States under the UN Fish Stocks Agreement are set

out at Articles 18, 19 and 20 and 22. Article 18 covers general principles as well

as specific measures to be undertaken by the Flag State. Article 19 addresses

compliance and enforcement responsibilities whilst Article 20 deals with

86 I.M. Sinclair, C. M.G, The Vienna Convention on the Law of Treaties, Manchester University Press, U.S.A, Oceania Publications Inc., 1973, pp.76-77.

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international co-operation in enforcement. Article 22 regulates flag State

obligations when vessels flying their flag are subject to boarding and

enforcement by other States. Articles 18(1) and 18(2) establish the following

general obligations for all flag States which are party to the Agreement:

• Flag States must ensure that vessels flying their flags comply with all

applicable conservation and management measures for straddling stocks

and highly migratory species at the regional and sub-regional levels;

• Flag States must ensure that vessels flying their flag do not engage in any

activities which undermine the effectiveness of such measures;

• Flag States must ensure that vessels flying their flags are only authorized to

fish when the flag State is certain that it is able to effectively exercise its

responsibilities in respect of such vessels under the UN Fish Stocks

Agreement and the LOSC.87

Each Flag State also agrees to the following more specific obligations:

• to control its flagged vessels through licences or authorizations, the terms of

which must reflect agreed global, regional or sub-regional measures;

• to promulgate regulations to enforce authorizations or permits on the High

Seas and in the EEZ of other States;

• to establish a national record or register of fishing vessels authorised to fish

on the High Seas;

87 David R. Teece, “Global Fishing and the Spanish-Canadian Turbot War: Can International Law Protect the High – Seas Environment”, Colorado Journal International Environmental Law and Policy, Vol. 8, No.1, 1997, p. 120.

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• to establish arrangements for sharing national register information with

directly affected States at their request, whilst respecting confidentiality

requirements;

• to ensure that flagged vessels undertake the proper marking of fishing

vessels and fishing gear;

• to ensure that flagged vessels undertake timely, accurate and effective

reporting of vessel position, target and non-target catches, catch landed,

catch trans-shipped, fishing effort and other relevant fisheries data;

• to ensure that catch is properly verified through “best practice” procedures

like observer programmes, inspection schemes and cross-matching of

different types of data

• to regulate high seas transhipment so that effectiveness of conservation and

management measures is not undermined; and

• to require the use of VMS on flagged vessels whilst taking into account any

sub-regional, regional and global VMS schemes amongst concerned States.

An important aspect of the flag State responsibility requirements is the control of

nationals fishing on the high seas and in waters under the jurisdiction of other

States. The concept of “control of nationals” is a broad one and extends to

regulating flagged vessels, citizens and business entities. In essence, the UN

Fish Stocks Agreement contains the primary obligations of flag States to

prevent and deter IUU fishing by their fishing vessels on the high seas.

Consequently, the Agreement fills the gaps left by the provisions of the LOSC

on flag State control by setting out detailed and specific provisions regarding

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fishing licenses, monitoring, control and surveillance and other important

aspects.

4.4.5 Compliance and Enforcement

Under Articles 19 to 23 of the UN Fish Stocks Agreement, States are obliged to

enforce conservation and management measures.88 As far as enforcement is

concerned, the Agreement goes much further than the LOSC or customary

international law. There are four different types of enforcement regimes under

the Agreement: (a) enforcement by the flag State; (b) enforcement through

international cooperation; (c) enforcement through regional agreement; and (d)

enforcement by the port State.89

Article 19(1) requires a flag State to ensure that any vessel flying its flag and

fishing on the high seas complies with the conservation and management

measures established by RFMOs. The article also provides the obligation of a

flag State to enforce measures irrespective of where violations occur and

investigate immediately and fully any alleged violation.90 In addition, a flag State

has a duty to require their vessels to provide information to the investigating

authority regarding vessel position, catches, fishing gear, fishing operations,

and related activities in the area of alleged violation. If there is sufficient

evidence relating to the violation, the flag State authorities must institute

88 Martin Tsamenyi and Felicity Woodhill, Sustainable Use of Large Migratory Fish in the Southern and Indian Oceans: Gaps in the International Legal Framework, Centre for Maritime Policy University of Wollongong, Australia, 1999, p.21. 89 Patrick E. Moran, “High Fisheries Management Agreement adopted by UN Conference: the Final Session of the United Nations Conference on Straddling and Highly Migratory Fish Stocks”, New York, 24 July-4 August 1995, Ocean and Coastal Management, Vol.27, No.3, Ellsevier Science Ltd, 1996, p. 223. 90 Ronald Barston, “The Law of the Sea and Regional Fisheries Organizations”, The International Journal of Marine and Coastal Law, Vol.14, 1999, p.340.

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proceedings in accordance with their laws, and where appropriate, detain the

vessel concerned. If the vessel is proven to have committed a serious violation

of RFMO conservation measures, the flag state must prevent the vessel from

engaging in fishing operations on the high seas until all outstanding sanctions

have been complied with.

Under Article 19(2) of the UN Fish Stocks Agreement, any investigations and

judicial proceedings is to be conducted expeditiously. Sanctions are to be

adequately severe so as to effectively secure compliance and discourage

subsequent violations. Additionally, the sanctions are to be imposed so as to

deprive offenders of the benefits accruing from their illegal fishing activities.

Sanctions imposed upon masters and other officers of fishing vessels are to

include provisions which may permit refusal or suspension of authorisations to

serve as master or officer of these vessels.

The provisions of the UN Fish Stocks Agreement examined above thus far

indicate that the flag State is regarded as the main enforcement authority in the

implementation of conservation and management measures under Agreement.

However, history has shown that there are inherent difficulties in requiring flag

States to ensure compliance with international agreements because of

competing national interests. As a result, flag States will need to improve their

compliance records to ensure that their fishing vessels are to comply with

various conservation and management measures wherever the vessels carry

out fishing activities.91

91 Grant Hewison, “Balancing the Freedom of Fishing and Coastal State Jurisdiction”, op. cit, p. 188.

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In enforcing conservation and management measures adopted by RFMOs,

Article 20(1) of the 1995 UN Fish Stocks Agreement requires States to

cooperate with each other92 either directly or through sub-regional or regional

fisheries management organisations or arrangements. For the purpose of

investigating an alleged violation of conservation and management measures,

Article 20(2) provides that flag States are entitled to request any assistance

from non-flag States. Once a request is made, the non-flag States are obligated

to endeavour to meet reasonable requests of the flag States. Information on the

progress and outcome of the investigations should be provided to all States

having an interest in, or States affected by the alleged violation.

Significantly, under Article 20(4) and (5), States are obligated to offer assistance

to each other in identifying rogue fishing vessels and are required to provide

evidence to prosecutors in other States by giving information about alleged

violations by fishing vessels.93 Under Article 20(6), at the request of coastal

States, the flag States are also required to conduct an investigation against their

fishing vessels on the high seas, if the vessels are believed to engage in illegal

fishing in marine areas under national jurisdiction of a coastal State.

Apart from the power of investigation, flag States must cooperate with coastal

States in taking appropriate law enforcement action. Flag States may authorise

coastal States to board and inspect their vessel on the high seas. More

importantly, under Article 20(7) of the UN Fish Stocks Agreement, a non-flag

92 Lawrence Juda, “The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Stocks: A Critique”, op. cit, p. 157.

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State which is not a member of an RFMO could take action against vessels that

undermine the effectiveness of the conservation and management measures

established by that organisation until the flag States take appropriate action.94

A number of comments can be made about the enforcement provisions of the

UN Fish Stocks Agreement. First, in terms of inspection and detention, the

Agreement significantly modifies the international law regime dealing with the

traditional high seas compliance, which gives sole responsibility for enforcement

to the flag States. Second, the Agreement imposes more onerous

responsibilities on flag States to monitor and enforce conservation and

management measures. Third, the Agreement provides procedures for

involvement of non-flag States in fisheries law enforcement activities.95 This

would seem to include coastal States, which may potentially be affected by the

illegal fishing activities occurring in areas under their national jurisdiction.

The UN Fish Stocks Agreement establishes a far-reaching new exception to the

principle of the flag State exclusive jurisdiction.96 The Agreement provides an

elaborate system of regional cooperation for the enforcement of regionally

agreed measures against vessels that are suspected of violating these

93 Grant Hewison, op.cit, p. 189. 94 Rosemary Rayfuse, “Canada and Regional Fisheries Organizations: Implementing the UN Fish Stocks Agreement”, Ocean Development and International Law, Vol. 34, No. 2, April-June 2003, p.217. 95 Olav Schram Stokke, “Managing Fisheries in the Barents Sea Loophole: Interplay with the UN Fish Stocks Agreement”, Ocean Development and International Law, Vol. 32, No 3, July-September 2001, p. 255. 96 Jose A. de Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea, Martinus Nijhoff Publishers, The Hague/Boston/London, 1997, p.213.

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measures.97 According to Article 21(1) of the UN Fish Stocks Agreement, a

State party of the Agreement which is also a member of a RFMO or a

participant in any fisheries arrangement may board and inspect fishing vessels

flying the flag of another State party to the Agreement regardless of whether the

flag State is a member or non-member of that regional organization or

participant in the arrangement.98 This power is to be used to ensure that

vessels comply with conservation and management measures adopted by the

relevant regional organisation or arrangement.

Especially noteworthy is Hayashi’s view (1996) that a State party’s RFMO

official can take certain fisheries law enforcement measures within the

regulatory area covered by RFMO against the vessels of either member or non-

member States. He argues that these enforcement measures are allowed

where a vessel is flying the flag of another State party to the UN Fish Stocks

Agreement. Although the State is not a member of the relevant RFMO, it has to

comply with the conservation and management measures of the RFMO as a

part of its commitment to applicable global international agreements, as

contained in the UN Fish Stocks Agreement.99

The key provision in respect of the duties of member States of a RFMO is the

obligation under Article 21(2) of the UN Fish Stocks Agreement to establish

97 Moritaka Hayashi, “Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks”, Georgetown International Environmental Law Review, Vol. 9, No.1, 1996, p. 27. 98 Olav Schram Stokke, “Managing Straddling Stocks: The Interplay of Global and Regional Regimes”, Ocean and Coastal Management, 43 (2000) 204-234, 2000, p.220. 99 Moritaka Hayashi, “The 1995 UN Fish Stocks Agreement and the Law of the Sea”, in Davor Vidas and Willy Ostrength (eds), Order for the Turn of Century, Kluwer Law International, The Hague/Boston/London, 1999, p.43.

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procedures for boarding and inspection of vessels.100 Boarding and inspection

must be done in accordance with the procedures established in Article 22 and

published by member States which provide for non-discrimination against

fishing vessels of a RFMO and non-members States of a RFMO.

Under Article 21(3) of the UN Fish Stocks Agreement, if within two years of the

adoption of the Agreement any organisation or arrangement has not established

procedures for boarding and inspection, the basic procedures set out in Article

22 apply until such procedures have been established.101 Of particular

importance is the approach taken in Article 21(5) which authorises the

inspecting States to secure evidence and notify the flag States of the vessels

allegedly engaging in IUU fishing. Such notification is allowed where, following a

boarding and inspection, the State has clear grounds for believing that the

vessel has engaged in IUU fishing contrary to regional conservation and

management measures.102

Article 21(6) of the UN Fish Stocks Agreement requires the flag State to

respond within three working days by either taking enforcement actions or

authorizing the inspecting States to initiate an investigation into the matter. In

the latter case, under Article 21(7), the inspecting States are required to

communicate the results of the investigation to the flag States, which then must,

100 Rosemary Rayfuse, “Enforcement of High Seas Fisheries Agreements: Observations and Inspection Under the Convention on the Conservation of Antarctic Marine Living Resources”, The International Journal of Marine and Coastal Law, Vol.13, 1998, p. 580. 101 Rosemary Rayfuse, “The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?”, Australian Year Book of International Law, Vol. 20, 1999, p. 267. 102 Derrick M. Kedziora, “Gunboat Diplomacy in the Northwest Atlantic: The Canada-EU Fishing Dispute and the United Nations Agreement on Straddling and High Migratory Fish Stocks”, Northwestern Journal of International Law and Business, Vol. 17, 1996-1997, p. 1154.

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if evidence so warrants, take enforcement action themselves, or authorise the

inspecting States to take such enforcement action as the flag States may

specify.103

To tackle serious violations of conservation and management measures, Article

21(8) of the UN Fish Stocks Agreement provides that inspectors may remain on

board and secure evidence by requiring the master to bring the vessel to the

nearest port.104 This is allowed where the flag State has not responded or not

taken any action to investigate the case. The inspecting States must notify the

flag States immediately of the name of the port. The inspecting States, the flag

States and the port States are to take all necessary steps to ensure the well-

being of the vessels’ crews regardless of their nationality.

John Van Dyke (2006) has observed that the serious violations to which Article

21(8) applies are detailed in Article 21(11) and include fishing without a valid

authorisation from the flag States; failure to maintain accurate records of the

catch and catch-related data as required by RFMOs; fishing in a closed area,

fishing during a closed season, or without a quota established by RFMOs;

fishing for a stock which is prohibited or subject to a moratorium; using

prohibited fishing gear; falsification or concealment of markings, identity or

registration of a fishing vessel; concealment, tampering or disposal of evidence

relating to an investigation; multiple violations which together constitute a

103 Ellen Hey, “Global Fisheries Regulations in the First Half of the 1990’s”, The International Journal of Marine and Coastal Law, Vol. 11, No. 4, 1996, p. 479. 104 Alison Rieser, “International Fisheries Law, Over-fishing and Marine Biodiversity”, The Georgetown International Environmental Law Review, Vol. 9, 1996-1996, p. 271.

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serious disregard of conservation and management measures; and other

violations specified by the RFMOs.105

From the foregoing discussion, it can be seen that the UN Fish Stocks

Agreement establishes a new precedent for fisheries law enforcement on the

high seas. This new precedent is evidenced by Article 21(8), which allows non-

flag States to board and inspect fishing vessels on the high seas regardless of

whether these vessels belong to member States of RFMOs. This is to ensure

compliance with conservation and management measures established by the

particular organisation.106

4.4.6 Fisheries Law Enforcement by Port States

Article 23(1) of the UN Fish Stocks Agreement gives a port State the

right, and imposes a duty, to take measures, in accordance with international

law, to promote the effectiveness of sub-regional, regional and global

conservation and management measures. In doing so, the State cannot

discriminate either in form or in fact against the vessels of all States. Paragraph

2 of Article 23 further provides that when vessels are voluntarily within its ports,

the port State may, inter alia, inspect documents, fishing gear, and fish catches

on board fishing vessels. Paragraph 3 of the same provision gives the power to

port States to adopt regulations to prohibit landings and transhipments where it

has been established that the catch has been taken in a manner which

105 John M Van Dyke, “Allocation Fish Across Jurisdictions” Paper Presented at the Sharing the Fish Conference 06:Allocation Issues In Fisheries Management, Perth Western Australia 26 February–2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with FAO, p.6. 106 Derde M.Warmer-Kramer and Krista Canty, op .cit, p.234.

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undermines the effectiveness of sub-regional, regional or global conservation

and management measures.107

The application of these provisions is dependent upon the ability of port States

to undertake surveillance of vessels carrying out fishing for straddling and highly

migratory species.108 A difference between the power of port States under the

FAO Compliance Agreement and the UN Fish Stocks Agreement is clearly

evident. Under Article 23 of the UN Fish Stocks Agreement, the inclusion of the

right of port States to take measures to prevent IUU fishing seems to be aimed

at giving the enforcement power to a flag State. In contrast, the similar right

under Article V(2) of the FAO Compliance Agreement requires an international

arrangement.

4.5 Conclusion

It is evident from the discussion in this chapter that the FAO Compliance

Agreement and the UN Fish Stocks Agreement have made significant

contributions to promoting the implementation of fisheries-related provisions of

the LOSC. The main contribution of the FAO Compliance Agreement is the

strengthening of flag State responsibilities to combat IUU fishing, particularly the

re-flagging of fishing vessels to avoid compliance with conservation and

management measures. The UN Fish Stocks Agreement has filled the gaps and

dealt with the ambiguity evident in the LOSC in relation to conservation and

107 Louise de La Fayette, “Access to Ports in International Law”, The International Journal of Marine and Coastal Law, Vol.11, No.1, 1998, p.5 108 Dean Bialek, “Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Southern Ocean”, Ocean Development and International Law, Viol. 34, No. 2, 2003, p. 121.

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management of straddling and highly migratory fish stocks and regional

cooperation.

The issues examined in this chapter demonstrate that the FAO Compliance

Agreement and the UN Fish Stocks Agreement play a critical role in addressing

the problems of IUU fishing. However, the discussion in the chapter has also

highlighted issues related to the implementation of these agreements. First, this

chapter has argued that the substantive scope of Article 1(a) of the FAO

Compliance Agreement on fishing vessels must be clarified so as to include

transport and support vessels. Second, there is a need to clarify whether

international fisheries instruments are binding upon the fishing vessels flying the

flags of non-members of RFMOs. So far as the vessels of third-party States are

concerned, it would appear that these States are bound to follow international

agreements. The succeeding chapter wraps up the analysis of the international

legal framework to address IUU fishing by discussing the measures adopted in

relevant non-binding international fisheries instruments to address the problem.

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CHAPTER 5

NON-BINDING GLOBAL INSTRUMENTS TO COMBAT IUU FISHING

5.1 Introduction

In addition to the legally binding instruments developed at the global level

to combat IUU fishing outlined and analysed in chapters 3 and 4, the

international community, through the Food and Agriculture Organization (FAO),

has also developed non-binding instruments to support the implementation of

the multilateral fisheries-related agreements. Non-binding instruments, often

referred to as “soft law”, provide policy guidance for States to support national

efforts to combat IUU fishing. This chapter is concerned with two instruments,

namely the FAO Code of Conduct for Responsible Fisheries and the FAO

International Plan of Action to Prevent, Deter, and Eliminate IUU Fishing (IPOA-

IUU). This chapter considers the extent to which these non-binding instruments

build on the frameworks under the LOSC, FAO Compliance Agreement, and UN

Fish Stocks Agreement analysed in chapters 3 and 4 to combat IUU fishing at

the global and national levels.

5.2 The FAO Code of Conduct for Responsible Fisheries

The FAO Code of Conduct was developed in response to a number of

international calls for action to halt the growing depletion of global fish stocks. It

was established in chapter 1 that the uncontrolled exploitation of global fisheries

resources and rapid expansion of the fishing industry worldwide became

matters of global attention. The increasing problem of unregulated fishing on the

high seas, including the practice of re-flagging of vessels or registering vessels

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in countries which operate open registries are contributory factors to the

depletion of marine fisheries resources.

5.2.1 Scope of Application of the FAO Code of Conduct

The FAO Code of Conduct was developed in 1993 by FAO and

unanimously adopted on 31 October 1995.1 The FAO Code of Conduct is a

non-mandatory instrument that establishes principles and standards of

behaviour applicable to the conservation, management and development of all

fisheries.2 Article 1(2) of the FAO Code of Conduct states that the Code is

intended to be global in scope.3 This means that it applies to fishing activities

both in zones of national jurisdiction and on the high seas and is therefore well

suited to address the problem of IUU fishing. Further, the FAO Code of Conduct

is intended to apply to both members and non-members of FAO as well as

fishing entities,4 sub-regional, regional and global organisations (whether

governmental or non-governmental), and all persons concerned with the

conservation, management and development of fisheries resources.5

While not legally binding, the FAO Code of Conduct provides a necessary

framework for national and international efforts to ensure sustainable

1 Annick Van Houtte, “Legal Aspects of Regional Cooperation in Monitoring, Control and Surveillance”, FAO/Norway Government Cooperative Programme- GCP/INT/648/NOR Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kuala Terengganu, Malaysia, 29 June – 3 July 1998, p. 35. 2 Lee A. Kimball, “Deep-Sea Fisheries of the High Seas: The Management Impasse”, The International Journal of Marine and Coastal Law, Vol. 19, No. 3, 2004, p. 278. 3 Hasyim Djalal, “The Emergency of the Concept of Fishing Entities”, Ocean Development and International Law, Vol. 37, No. 2, April-June 2006, p. 119. 4 Martin Tsamenyi, “The Legal Substance and Status of Fishing Entities in International Law: A Note”, Ocean Development and International Law, Vo. 37, No. 2, April-June 2006, p. 129. 5 Blaise Kuemlengan, “Legal Considerations for the 1995 FAO Code of Conduct for Responsible Fisheries and Related International Plans of Action,” (Appendix H), Report of the Workshop on the Implementation of the 1995 Code of Conduct for Responsible Fisheries in the Pacific

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exploitation of aquatic living resources in harmony with the environment.6 In

broad terms, the FAO Code of Conduct emphasizes the need for all

stakeholders in marine fisheries to adopt a broader approach to conservation

and management of fisheries. Its provisions are directed not only at States but

also to industry, non-governmental organizations, and other stakeholders.

The FAO Code of Conduct also complements existing international obligations

dealing with the sustainable management of fisheries.7 Although the FAO Code

of Conduct itself is not legally binding, some of its provisions are based on

binding international instruments, such as the LOSC, the UN Fish Stocks

Agreement, and the FAO Compliance Agreement 8 which have been discussed

in previous chapters. Therefore, the FAO Code of Conduct supports the

implementation of the international agreements to effectively address IUU

fishing.

5.2.2 General Principles of the FAO Code of Conduct

The FAO Code of Conduct is an instrument covering a wide range of

issues on fisheries management and operations, aquaculture development,

Islands: A Call to Action, Naidi, Fiji, 27- 30 October 2003, FAO Fisheries Report No. 731, Rome: FAO, 2004, p. 63. 6 David A.Balton and Dorothy C. Zbics, “Managing Deep-Sea Fisheries: Some Threshold Questions”, The International Journal of Marine and Coastal Law, Vol. 19, No. 31, 2004, p. 254. 7 David J. Doulman, “1995 FAO Code of Conduct for Responsible Fisheries: Development Considerations and Implementation Challenges”, Report of the FAO Regional Workshop on Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix F), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October 2004, FAO Fisheries Report No. 757, Rome: FAO, 2005, p. 35. 8 Rudiger Wolfrum, “The Role of the International Tribunal for the Law of the Sea” in Myron H. Nordquist and John Norton Moore (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Center for Oceans Law and Policy, University of Virginia School of Law, Martinus Nijhoff Publishers, The Hague/Boston/London, 2000, p. 377.

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coastal area management, trade, and research.9 Of particular significance in

combating IUU fishing is Article 6(1) which provides that the right to fish carries

with it the obligation to do so in a responsible manner so as to ensure effective

conservation and management.10 Under Article 6(2) of the FAO Code of

Conduct, fisheries management should promote the maintenance of the quality,

diversity and availability of fisheries resources in sufficient quantities for the

benefit of present and future generations in the context of food security,11

poverty and sustainable development. The article further provides that

management measures should not only be adopted ensure the conservation of

target species but also of species associated with or dependent upon the target

species.12

Article 6(3) of the FAO Code of Conduct contains provisions relevant to the

prevention of IUU fishing. The provision requires States to prevent over-fishing

and excess fishing capacity by implementing management measures to ensure

that fishing effort is commensurate with the productive capacity of the fishery

resources and their sustainable utilization. Article 6(3) should be read in

conjunction with Article 6(6) which deals with the development of

environmentally safe fishing gears and practices. Pursuant to these provisions,

States are required to develop and apply selective and environmentally safe

fishing gears and practices so as to maintain biodiversity, as well as to conserve

9 Penelope D.Dalton, “Implementing the International Code of Conduct for Responsible Fisheries” in Myron H.Nordquist and John Norton Moore (eds), op.cit, p. 332. 10 Martin A. Hall, Dayton L. Alverson and Kaija I. Metuzals, “By-Catch: Problems and Solutions”, Marine Pollution Bulletin Vol. 41, Nos. 1-6, 2000, p. 206. 11 Ichiro Nomura, “IIFET 2004 Japan: What are Responsible Fisheries? State of World Fisheries and Future Sustainability Issues”, The Twelfth Biennial Conference of the International Institute of Fisheries and Trade, July 2004, p.7.

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the population structure, aquatic ecosystems and fish quality. States and users

of aquatic ecosystems are to minimise waste, catch of non-target species (both

fish and non-fish), and impacts on associated or dependent species.

Article 6(4) further reinforces Articles 6(3) and 6(6) by providing that

conservation and management decisions for fisheries should be based on best

scientific evidence available and take into account traditional knowledge of the

resources and their habitat, as well as relevant environmental, economic and

social factors. States must give priority to measures which increase their ability

to do research and collect fisheries data so as to improve scientific and

technical knowledge of fisheries including their interaction with the ecosystem.

Article 6(5) of the FAO Code of Conduct requires States and RFMOs to apply a

precautionary approach widely to conservation, management and exploitation of

living aquatic resources. The intention of Article 6(5) is to protect and preserve

the aquatic environment by taking into account best scientific evidence

available. States must adopt a precautionary approach and must not use the

absence of adequate scientific information as a reason to postpone or fail to

take measures to conserve target species and associated or dependent

species.

The precautionary approach emphasises the importance of policies that are

designed to ensure the long-term sustainability of fisheries, rather than policies

12 Transform Aqorau, “Obligations to Protect Marine Ecosystems Under International Conventions and Other Legal Instruments”, Rejkjavik Conference on Responsible Fisheries in the Marine Ecosystems Rejkjavik, Iceland, 1-4 October 2001, p.5.

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which are only a response to short-term considerations.13 In relation to Articles

6(3) and 6(6) of the FAO Code of Conduct, the practical implication of applying

the precautionary approach to fisheries management includes prohibiting or

regulating destructive fishing techniques. Prohibitive regulations on destructive

fishing techniques would need to be adopted to promote selective,

environmentally friendly fishing technologies and methods.14 In applying the

precautionary approach, States and RFMOs are required to evaluate properly

the impacts of the introduction of new fishing gear, methods and operations on

a commercial scale before being used.15

5.2.3 International Cooperation

The FAO Code of Conduct reinforces the provisions of the LOSC

regarding international cooperation through RFMOs.16 This provision requires

States to cooperate with RFMOs to promote conservation and management

measures and to ensure responsible fishing. Article 6(14) requires that

international trade in fish and fishery products to be conducted in accordance

with the principles, rights and obligations established in the World Trade

Organization (WTO) and other relevant international agreements. To this effect,

States are to ensure that their policies, programs and practices concerning

trade in fish and fishery products do not result in obstacles to fisheries trade.

13 Gerald Moore, “The Code of Conduct for Responsible Fisheries” in Ellen Hey (ed), Developments in International Fisheries Law, Kluwer Law International, The Hague/London/Boston, 1999, p. 97. 14 David Vanderzwaag, “The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative”, Ocean Development & International Law, Vol. 33, No. 2, April-June 2002, p. 168.

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5.2.4 Fisheries Management

Article 7(1)(1) of the FAO Code of Conduct addresses broader fisheries

management issues. States and all those engaged in fisheries management are

to adopt measures for the long-term conservation and sustainable use of

fisheries resources. These measures can be implemented through the adoption

of appropriate policy, legal, and institutional frameworks.17

For the purpose of implementing sustainable management principles, Article

7(1)(7) requires States to establish effective mechanisms for fisheries MCS to

ensure compliance with their conservation and management measures. In

Article 7(1)(8), States are to take measures to prevent or eliminate excess

fishing capacity and to ensure that levels of fishing effort are commensurate

with the sustainable use of fishery resources.18

Article 7(1)(8) of the FAO Code of Conduct provides the means to ensure the

effectiveness of conservation and management measures. Article 8(1)(1)

provides the duty of all States to ensure that only fishing authorised by the State

occurs within their jurisdiction and that this fishing is done in a responsible

manner. Under Article 8(1), States are to maintain a record of all authorizations

to fish and statistical data of fishing operations. This obligation is further

15 Gerald Moore, “The Code of Conduct for Responsible Fisheries”, op.cit, p. 99. 16 See LOSC, Art. 61, 64 and 119. 17 Barbara Hanchrad , “The Implementation of the 1995 FAO Code of Conduct for Responsible Fisheries in the Pacific Islands” (Appendix I), in Report of the Implementation of the 1995 FAO Code of Conduct for Responsible Fisheries in the Pacific Islands: A Call to Action, Nadi, Fiji, 27-31 October 2003, FAO Fisheries Report No. 731, Rome: FAO, 2004, p.76. 18 For discussion of these measures, see Report of the Twenty-sixth Session of Committee on Fisheries on “Progress in the Implementation of the Code of Conduct for Responsible Fisheries and Related International Plans of Action”, Rome, Italy, 7-11 March 2005, p. 7.

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elaborated in paragraph 2.2.7 of the FAO Technical Guidelines for Responsible

Fisheries.

There are two primary objectives of the FAO Technical Guidelines for

Responsible Fisheries. The first is to ensure the long-term sustainability of living

resources that can be harvested by the next generation in order to make a

substantial contribution to world food security and employment opportunities.

The second objective is to provide practical advice for implementing the

provisions of Article 8 of the FAO Code of Conduct that would ensure that all

fishing operations are conducted responsibly.19 The Guidelines are to be

applied by States on a voluntary basis, inter alia to (a) all fishing operations on

all marine areas; (b) fishers, owners, managers, and competent authorities for

the purpose of fisheries management; and (c) all fishing vessels and fishing

vessels engaged in transhipment.20

Paragraph 2.2.7 of the FAO Technical Guidelines for Responsible Fisheries

requires authorizations to fish to contain details of the fishing activities of the

authorised vessel as well as information regarding the names and addresses of

those vessels. The authorization should also contain the relevant technical

information on any fishing vessel involved.21 The authorization to fish must also

contain a condition that the recipient(s) will abide by the provisions of the FAO

Code of Conduct. The authorization may also contain conditions concerning the

area to be fished, species to be fished and quota for the vessel or fisher, type of

19 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, Rome: FAO, 1996, p. 1. 20 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, op.cit, p.2. 21 FAO Technical Guidelines for Responsible Fisheries: Fishing Operations, op.cit, p. 5.

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fishing gear or fishing implements so authorized, and time or seasonal

limitations.22

5.2.5 Monitoring, Control and Surveillance

The FAO Code of Conduct deals with monitoring, control and

enforcement (MCS).23 Article 6(10) provides that States are to ensure

compliance with, and the enforcement of, conservation and management

measures. States must also establish effective mechanisms to monitor and

control the activities of fishing vessels and fishing support vessels. Under Article

6(11), States are to exercise an effective control over those vessels flying their

flags. They must also ensure that the fishing activities of their vessels do not

undermine the effectiveness of conservation and management measures.

States must also collect and provide data relating to their fishing activities.

With regard to the issues of implementation and enforcement procedures,

Article 7(7)(1) of the FAO Code of Conduct provides that States are to ensure

that an effective local and national legal and administrative frameworks are

established. In addition, Article 7(7)(2) requires States to ensure that laws and

regulations stipulate the sanctions that will be imposed for violations and that

these sanctions are adequate in severity to be effective. States are also

required to implement sanctions which allow for the refusal, withdrawal or

suspension of an authorisation to fish in the event of non-compliance with

conservation and management measures in force.

22 FAO Technical Guidelines for Responsible Fisheries on Fishing Operations, op.cit, p. 6. 23 See Elisabeth Mann Borgese, “Integrating Sustainable Development and Regional Security”, Paper Prepared for the Seminar (Attachment 6), in Report on Leadership Seminar on

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Furthermore, according to Article 7(6)(2), States must adopt measures to

ensure that no vessel is allowed to fish unless so authorized, in a manner

consistent with international law for the high seas or in conformity with national

legislation within areas of national jurisdiction. States are required under Article

7(7)(3) to implement effective fisheries law enforcement measures including

observer programmes, inspection schemes and vessel monitoring systems.

These measures are to be promoted and implemented by RFMOs in

accordance with agreed regional procedures.24

The requirement for flag State authorization to fish on the high seas is

consistent with the FAO Compliance Agreement and the UN Fish Stocks

Agreement.25 Article 7(8)(1) also indirectly refers to the re-flagging problem,

addressed in legally binding agreements.26 According to Article 7(8)(1), without

prejudice to relevant international agreements, States are to encourage banks

and financial institutions to require, as a condition of a loan or mortgage, fishing

vessels or fishing support vessels not to be flagged in a jurisdiction other than

that of the State of beneficial ownership. This requirement is intended to avoid

the likelihood of non-compliance with international conservation and


Mediterranean Basin Wide Co-development and Security, Malta, 21-24 September, International Ocean Institute, Malta, p. 9. 24 For this discussion, see Judith Swan, “Decision-Making in Regional Fishery Bodies or Arrangements: The Evolving Role of RFBS and International Agreement on Decision-Making Processes”, FAO Fisheries Circular No. 995, Rome: FAO, 2004, p.29. 25 Francisco Orrego Vicuna, The Changing International Law of High Seas Fisheries, Cambridge University Press, 1999, p. 232. 26 Annick Van Houtte, “Flag State Responsibility and the Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, in Report of the Expert Consultation Under Open Registries and Their Impact on Illegal, Unreported and Unregulated

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The FAO Code of Conduct also addresses flag State responsibilities

through Article 8(2).27 Flag States are required to maintain records of fishing

vessels entitled to fly their flags and which are authorized to fish. Records of

fishing vessels should contain details of the vessels, their ownership and the

authorizations to fish. Articles 8(2) and 8(2)(1) should be read with Article

8(2)(2) which provides that flag States should ensure that fishing vessels

entitled to fly their flags do not fish on the high seas or in waters under the

jurisdiction of other States unless they have been issued a Certificate of

Registry and have been authorized to fish by the competent authorities.

According to Article 8(2)(3) of the FAO Code of Conduct, authorized fishing

vessels should be marked in accordance with uniform and internationally

recognisable vessel marking systems such as the FAO Standard Specifications

and Guidelines for Marking and Identification of Fishing Vessels.28 Under Article

8(2)(4), fishing gears should be marked in order to identify the owner of the

gear. National gear marking requirements should be consistent with

internationally recognizable gear marking systems. With regards to non-Parties

to the FAO Compliance Agreement, Article 8(2)(6) encourages States to accept

the agreement and to enact implementing laws and regulations.

Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, Rome: FAO, 2004, p. 55. 27 See also William Edeson, “The Code of Conduct for Responsible Fisheries: An Introduction”, The International Journal of Marine and Coastal Law, 1996, p. 237. 28 Andrew R. Smith, “1995 FAO Code of Conduct for Responsible Fisheries: Article 8 – Fishing Operations” (Appendix J), in Report of the Workshop on the Implementation of the 1995 FAO

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Article 8(2)(7) of the FAO Code of Conduct requires flag States to take

enforcement measures against their fishing vessels that have contravened

applicable conservation and management measures. States can make the

contravention of such measures an offence in their national legislation. The

sanctions that are imposed are required to be suitably severe in order to be

effective in securing compliance and to discourage violations. Sanctions should

also deprive offenders of the benefits accruing from their illegal activities. For

serious violations, the sanctions may include the refusal, withdrawal or

suspension of the authorisation to fish.

5.2.7 Port State Measures

In addition to the above provisions, special provisions concerning the

duties of port States are provided in the FAO Code of Conduct. To this end,

Article 8(3)(1) requires port States to take measures that are necessary to

achieve, and to assist other States, in achieving the objectives of the Code. Port

States are required to implement these measures by establishing procedures in

their domestic legislation which are in accordance with international law and any

applicable international agreements. Port States must also provide other States

with details of any regulations and measures that they have established.

In implementing the above measures, a port State cannot discriminate either in

form or in fact between the vessels of any other State. Further, Article 8(3)(2) of

the FAO Code of Conduct states the obligation of port States to provide

appropriate assistance to flag States in accordance with national and

Code of Conduct for Responsible Fisheries in the Pacific Islands: A Call to Action, Nadi, Fiji, 27-31 October 2003, op.cit, p. 96.

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international laws. Where a fishing vessel is voluntarily in a port or at an

offshore terminal of the port State and the flag State of the vessel requests the

assistance of the port State in respect of non-compliance with agreed

conservation and management measures, Article 8(3)(2) requires port States to

provide such assistance to the flag State.

5.3 The IPOA-IUU

As noted in the Introduction, the International Plan of Action to Prevent,

Deter, and Eliminate Illegal, Unreported and Unregulated Fishing was adopted

by the FAO Committee on Fisheries (COFI) on 2 March 2001.29 The IPOA-IUU

provides a more comprehensive framework to combat IUU fishing than the FAO

Code of Conduct. It does so by strengthening the basic provisions of the LOSC,

the FAO Compliance Agreement, the UN Fish Stocks Agreement, and the FAO

Code of Conduct.30

The objective of the IPOA-IUU as set out in Part III is to prevent, deter and

eliminate IUU fishing by providing all States with comprehensive, effective and

transparent measures by which to act, including through appropriate RFMOs

established in accordance with international law. The IPOA-IUU is therefore a

comprehensive instrument or ‘toolbox’ which allows States to accept the

measures contained in the IPOA-IUU and to meet their particular IUU fishing

needs and challenges.31

29 Erik Jaap Molenaar, “CCAMLR and Southern Ocean Fisheries”, The International Journal of Marine and Coastal Law, Vol. 16, No. 3, 2001, p. 482. 30 Annick Van Houtte, “Flag State Responsibility and the Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, op.cit, p. 56. 31 David J. Doulman, “2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing: Background and Progress Towards

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The IPOA-IUU clearly sets out the responsibilities of all States, flag States,

coastal States, port States and market States to effectively address IUU fishing.

The IPOA-IUU Fishing also deals with responsibilities and measures of States

acting32 through RFMOs,33 and non-member States of RFMOs. The measures

should be integrated and applied in accordance with applicable international

law.34 The key aspects of the IPOA-IUU Fishing are outlined below.


The basic flag States responsibilities are provided in paragraphs 34-50 of

the IPOA-IUU. These responsibilities pertain to fishing vessels registration,

record of fishing vessels, and authorisation to fish.

5.3.1.1 Fishing Vessel Registration

Paragraph 34 of the IPOA-IUU requires States to ensure that fishing

vessels flying their flags do not engage in or support IUU fishing activities. For

this purpose, prior to registering a fishing vessel, flag States should ensure that

they could exercise their responsibilities over their flag vessels. In line with

Article III(5) of the FAO Compliance Agreement, paragraph 36 of the IPOA-IUU

requires flag States to avoid flagging vessels with a history of IUU fishing.

Implementation”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix G), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October 2004, op.cit, p. 40. 32 Seventeenth Session of Fishery Committee for the Central Atlantic, Dakar, Senegal, 24- 27 May 2004 on “Main Thrust of the Technical Consultations on IUU Fishing and Fishing Capacity and Subsidies in the Fisheries Sector”, Rome, Italy, 24 June- 2 July 2004, p.2. 33 Reports of the Regional Vessel Monitoring Systems Workshops: Southwest Indian Ocean, the Caribbean, Central America and Southeast Asia, FAO/Fish Code Review No.14, Global Partnerships for Responsible Fisheries (Fish Code), Rome: FAO, 2005, p.4.

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The difference between the FAO Compliance Agreement and the IPOA-IUU is

that the latter instrument has a wider scope in application35 in the sense that it

encourages all States involved in a chartering arrangement, including flag

States and other States, to take measures to ensure that chartered vessels do

not engage in IUU fishing.36

The legal exception to this rule relates to circumstances where the ownership of

the vessel has changed, and the flag State can ensure that the change in

ownership would not result in IUU fishing.37 In this regard, it is important to note

paragraphs 38 and 39 of the IPOA-IUU which deal with the matters of

deterrence of re-flagging and flag hopping.38 Under paragraph 38, flag States

are required to deter their vessels from re-flagging for the purpose of avoiding

the application of conservation and management measures that are adopted at

the national, regional or global levels. Paragraph 38 also requires flag States to

take actions and adopt rules that do not provide incentives for vessel owners to

re-flag their vessels to other States.39 At the same time, under paragraph 39,

States are required to take all necessary steps such as the denial to issue an

34 Judith Swan, “International Action and Responses By Regional Fishery Bodies or Arrangements to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, FAO Fisheries Circular No. 996, Rome: FAO, 2004, p.2. 35 Kelly Rigg, “Halting IUU Fishing: Enforcing International Fisheries Agreements”, Paper Presented at the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 6. 36 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibles: Information and Options”, FAO Fisheries Circular No. 980, Rome: FAO, 2000, p.17. 37 See paragraphs 36 (1) and (2) of the IPOA-IUU. 38 Australian National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Agriculture, Fisheries and Forestry, the Australian Government, July 2005, p.28. 39 David A. Balton, “IUU Fishing and State Control Over Nationals”, Paper Presented at the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.5.

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authorization to fish and the entitlement to fly that State’s flag to prevent “flag

hopping”.

The objective of these provisions is to tackle the problem caused by vessels

that change their names and registration, whilst continuing to engage in IUU

fishing.40 Where there are two different agencies handling the functions of

registration and fishing authorisation, problems also arise with respect to the

ability of flag States to monitor the activities of their fishing vessels. The

difficulty faced by States to address such problems is caused by unlicensed but

registered vessels engaging in IUU fishing.41 To overcome this problem,

paragraph 40 of the IPOA-IUU encourages flag States to ensure that

appropriate links exist between the operation of their vessel registries and the

records those vessels keep for their fishing vessels. Where such functions are

undertaken by more than one agency, States should ensure that sufficient

cooperation and information sharing exists between the agencies responsible

for this function.

5.3.1.2 Record of Fishing Vessels

Consistent with other international fisheries instruments such as the FAO

Compliance Agreement42 and the UN Fish Stocks Agreement,43 paragraph 42

of the IPOA-IUU imposes obligations on flag States to maintain a record of

fishing vessels entitled to fly their flags. For vessels authorized to fish on the

40 Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries No. 9, Rome: FAO, 2002, p. 23. 41 Judith Swan, “Fishing Vessels Operating Under Open Registers and The Exercise of Flag State Responsibilities”, op.cit, p.18. 42 FAO Compliance Agreement, Art. VI (1) and 2.

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high seas, the record of fishing vessels must include the information set out in

Article VI(1) and (2) of the FAO Compliance Agreement. These include:

• the previous names of the vessels;

• name, address and nationality of the natural or legal person in whose name

the vessel is registered;

• name, street address, mailing address and nationality of the natural or legal

persons responsible for managing the operations of the vessel;

• name, street address, mailing address and nationality of natural or legal

persons with beneficial ownership of the vessel;

• name and ownership history of the vessel; and

• the history of IUU fishing vessel dimensions.

5.3.1.3 Authorization to Fish

Authorization to fish is an important part of fisheries management.44 The

requirement to issue authorizations to fish in order to combat IUU fishing is

stated in paragraphs 44-50 of the IPOA-IUU. An authorization to fish can take

the form of licensing or permission for a vessel to fish in a particular area.45

Paragraph 44 of the IPOA-IUU urges States to adopt measures to ensure that

no vessel is allowed to fish without proper authorization.46 The issuance of

licences to fish must be consistent with international law for the conservation

and management of living resources on the high seas as provided under

43 UN Fish Stocks Agreement, Art. 18 (3C). 44 John Fitzpatrick, “Measures to Enhance the Capability of A Flag State to Exercise Effectiveness Control Over A Fishing”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 6. 45 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing” Organized by the Government of Australia in Cooperation FAO, Sydney, Australia, 15-19 May 2000, p. 3.

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Articles 116 and 117 of the LOSC, as well as national legislation on the

conservation and management of living resources in the EEZ.

Unlike the LOSC, the IPOA-IUU also regulates fishing in waters under the

jurisdiction of other States. Paragraph 45 of the IPOA-IUU provides that flag

States are to ensure that their vessels fishing in waters beyond national

jurisdiction have valid authorizations to fish. Where a coastal State issues the

same document, it should ensure that the vessels fishing in its waters are

required to obtain an authorization to fish issued by the flag State of the vessel.

Judith Swan (2000) has argued that these provisions provide a system of

checks and balances by obligating coastal and flag States to ensure that their

vessels and vessels fishing under their jurisdiction hold valid authorizations to

fish.47 Paragraph 46 of the IPOA-IUU provides that the authorization, which

include specific information such as the name of the vessel, area of fishing,

species to be fished and gear to be used, need to be carried on board the

vessel.

Additionally, paragraph 47 of the IPOA-IUU allows flag and coastal States to

impose conditions on any authorization to fish. These conditions may include

vessel monitoring system (VMS), catch and transhipment, reporting conditions,

observer coverage, maintenance of fishing and related log books, and

navigational equipment. Such conditions must comply with international and

national laws regarding conservation and management measures and the

marking and identification of fishing vessels and gears. Paragraph 47 also

46 Duncan E.J. Currie, “Protecting the Deep Sea Under International Law: Legal Options for Addressing High Seas Bottom Trawling”, Greenpeace, 2004, p. 22.

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requires that flag and coastal States honour their obligations under international

law to require their fishing vessels to obtain authorizations to fish on the high

seas or national waters. To this end, States must also ensure that their fishing

vessels comply with applicable MCS measures.48 These rules are designed to

improve the abilities of coastal and flag States to closely monitor the activities of

their vessels.49

One of the difficulties that may be faced by States in implementing paragraph

47 of the IPOA-IUU relates to fishing by transport and support vessels. This is a

major problem because many fishing vessels need the assistance of transport

and other support vessels when engaging in IUU fishing. Thus, transhipment at

sea by support vessels is one of the most common and difficult unreported

fishing activities to deal with.50 To address this problem, paragraph 48 of the

IPOA-IUU imposes an obligation on flag States to ensure that their fishing,

transport and support vessels do not support or engage in IUU fishing. They are

to ensure that none of their vessels re-supply fishing vessels engaged in such

activities or tranship fish to or from these vessels. Exception to this rule is only

recognised for humanitarian reasons such as the safety of crew members,

among other things. In this respect, the IPOA-IUU fills the lacuna in the

definition of fishing vessels under the FAO Compliance Agreement.51

47 Judith Swan, op.cit, p. 19 48 Lawrence Yuda, Rio Plus Ten: The Evolution of International Marine Fisheries Governance, op.cit, p.120. 49 Judith Swan, loc.cit. 50 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p. 29. 51 See Article 1(a) of the FAO Compliance Agreement which defines a “fishing vessel” as any vessel used or intended for the purposes of the commercial exploitation of living resources”.

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The IPOA-IUU gives power to flag States to control the fishing activities of

transport and support vessels operating on the high seas. For this purpose,

under paragraph 49, flag States are to ensure that all vessels conducting

transhipment at sea have prior authorization to conduct such activities issued by

their authorities. In addition, flag States must also report to the national fisheries

administration or other designated institutions on transshipment activities.

Transhipment reports are to contain records of the date and location of the

transhipments; the weight by species and catch area of the fish transhipped; the

name, registration, flag and other information of the vessels; and the port of

landing. Paragraph 50 of the IPOA-IUU also requires flag States to make catch

and transhipment reports available to relevant national, regional, and

international organisations, including the FAO, subject to confidentiality

requirements.

From the above discussion, it can be seen that the IPOA-IUU provides detailed

requirements concerning chartering, transhipment, flag hopping, and the

registration of vessels.52 There are a number of additional measures that may

be undertaken to ensure that the activities of all types of fishing vessels are

conducted in accordance with fisheries conservation and management

measures. First, States may establish specific rules and procedures in their

national laws to prevent re-flagging of vessels engaged in IUU fishing. Second,

States may place independent observers onboard vessels who can monitor the

position of the vessels as well as observe fishing operations.53 Third, flag States

52 Rt. Hon Simon Upton and Vangelis Vitalis, “Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing, Paper for the Round Table on Sustainable Development, 6 June 2003, p. 6. 53 FAO Technical Guidelines for Responsible Fisheries No. 9, p. 30.

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are encouraged to develop the capacity to conduct regular patrols at sea in

areas where vessels are known to fish.54

There is a further need for flag State measures in preventing, deterring and

eliminating IUU fishing to be complemented by actions by coastal States and

port States. Coastal and port States are to coordinate their activities and

cooperate directly or through relevant RFMOs in a range of specified areas,

such as in implementing an MCS system and in exchanging information on IUU

fishing activities.55 Cooperation in these areas is needed to achieve the

objective of sustainable fisheries . The relevant RFMO is expected to serve as a

forum in which cooperation to combat IUU fishing would take place, and help

formulate acceptable international standards.

5.3.2 Coastal State Measures

Paragraph 51 of the IPOA-IUU requires coastal States to meet their

obligations under the LOSC and other international agreements, to prevent,

deter and eliminate IUU fishing in their EEZs. For this purpose, coastal States

are required to:

• consider the implementation of effective MCS programmes;

• enter into cooperation and exchange arrangements for data and

information with other States;

54 FAO Technical Guidelines for Responsible Fisheries No. 9, p. 31. 55 Annick Van Houtte, “Flag State Responsibility and The Contribution of Recent International Instruments in Preventing, Deterring and Eliminating IUU Fishing”, op cit, p. 57.

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• ensure that vessels are authorised to fish and that they maintain catch

logs;56

• ensure that at-sea transhipment and processing of fish are authorized or

conducted in conformity with management regulations; and

• avoid licensing vessel if they have a history of non-compliance and IUU

fishing.57

5.3.3 Port State Measures

IUU fishers must eventually bring their catch to port for landing or

transhipment.58 State control of ports under international fisheries laws and

regional fisheries agreements makes such a control an important part of fishery

conservation and management measures.59 The IPOA-IUU strengthens the

FAO Compliance Agreement, the UN Fish Stocks Agreement and the FAO

Code of Conduct by requiring port States to develop and apply control

measures to combat IUU fishing.60 Port State control measures consist of the

inspection of documents, fishing gears, and fish catches on board fishing

vessels and the establishment of procedures for prior notification by vessels.

56 Chris Hedley, “FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing”, Internet Guide to International Fisheries Law (Originally Published in (2001) International Fisheries Bulletin No.5), http://www.intfish.net/ops/papers/1.htm, p.4 (accessed on 17 May 2006) 57 David J. Doulman, “Global Overview of IUU Fishing and Its Impacts of National and Regional Efforts to Manage Fisheries Sustainability: The Rationale for the Conclusion of the 2001 FAO International Plan of Action”, Report of the Expert Consultation on Fishing Vessels Operating Under Open Registries and Their Impact on Illegal, Unreported and Unregulated Fishing, Miami, Florida, United States of America, 23-25 September 2003, FAO Fisheries Report No. 722, Rome: FAO, 2004, p.32. 58 “Stopping Illegal, Unreported and Unregulated Fishing”, Rome: FAO, 2002, p.15. 59 Terje Lobach, “Port State Measures”, Paper Submitted as A Draft Paper to the IUU Worskhop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committe of OECD, p. 4. 60 Canada’s National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Government of Canada, 2005, p.2.

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http://www.intfish.net/ops/papers/1.htm

Port State control is an example of a “new” tool that could be used to address

IUU fishing. In this respect, the obligation of the flag State needs to be

supplemented and strengthened by port State control.61 Thus, the failure of the

flag State to fulfil its duty entitles the port State to take legal action to combat

IUU fishing.

Under paragraph 52 of the IPOA-IUU, port States are required to take

measures, in accordance with international law, to prevent, deter and eliminate

IUU fishing. Port State measures should be implemented in a fair, transparent

and non-discriminatory manner. Parallel to paragraph 52, paragraph 55 of the

IPOA-IUU states the need for port States to require all foreign fishing vessels

engaged in fishing activities or transporting fish and fishery products to provide

notice of an intention to use a port and its landing or transhipment facilities.

As part of their responsibilities, States are also required to establish procedures

for prior notification by vessels so as to ascertain whether the vessel might have

engaged in, or supported IUU fishing. Some of the information that must be

gathered by port authorities includes a copy of the vessels’ authorisation to fish,

details of their fishing trip, and quantities of fish on board.62

Another power conferred upon port States under paragraph 56 of the IPOA-IUU

is the duty to deny access to foreign vessels to land or transship fish in their

61 Christopher Hedley and Louvirjanakul Kengran, “International Fisheries Law and Policy Review”, FAO Expert Consultation on Port State Measures to Combat IUU Fishing, IFLPR (Special Issue), Ocean Law and Contributors, 2003, p. 32. 62 Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome, 31 August – 2 September 2004, Model Scheme on

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ports. Any action taken by a port State to deny the landing of fish under

paragraph 56 must be based on clear evidence that the vessel has engaged in

IUU fishing.63 Under paragraph 57, port States are required to publicize the

ports where foreign flagged vessels may be permitted to enter as well as ensure

that these nominated ports have the capacity to inspect such vessels.

Paragraph 58 of the IPOA-IUU provides that in the exercise of their right to

inspect fishing vessels, port States should collect and remit specified

information to relevant flag States and RFMOs. Information that must be

remitted to flag States and RFMOs include the identification details of the vessel

including name, nationality, and qualifications of the master and the fishing

master; fishing gear, catch on board, including origin, species, form, and

quantity; and other information required by relevant RFMO or international

agreements, particularly on total landings and transhipped catch.

The information collected during a vessel inspection will give port States

stronger legal basis to determine whether the vessel has engaged in or

supported IUU fishing.64 To this effect, paragraph 59 provides that if, in the

course of an inspection, it is found that there are reasonable grounds to believe

that the vessel has engaged in or supported IUU fishing in areas beyond the

jurisdiction of the port State, the port State shall immediately report the matter to

the flag State of the vessel. Port States may take additional action with the

consent of, or at the request of flag States. Furthermore, port States are

Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Appendix E), FAO Fisheries Report No. 759, Rome: FAO, 2004, p.24. 63 M. Lack and G. Sant, “Patagonian Toothfish Are Conservation and Trade Measures Working”, Traffic Bulletin, Vol. 19, No. 1, 2001, p.16.

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required to give the report on IUU fishing to relevant coastal States and

RFMOs. This rule will be applicable if the suspected IUU fishing has occurred in

waters under the jurisdiction of another State or in areas under the jurisdiction

of an RFMO.65

In practice, port State requirements under paragraph 57 of the IPOA-IUU are

difficult to implement for two reasons. First, some States have so many ports

that it would be difficult to inspect them 24 hours a day during the year.66

Second, most developing State ports are faced with constraints due to the lack

of trained and qualified personnel to detect violations of fisheries laws.67

5.3.4 Internationally Agreed Market-Related Measures

Over the recent decade, the international trade in fish and fisheries

products has increased significantly. According to FAO statistics, virtually all

States exported part of their fisheries products, while almost as many States

reported fisheries products. However, globally, there is no reliable data to show

the exact amount of fish and fisheries products traded internationally that are

derived from IUU fishing.68 Although 40 per cent of the total world fish products

are traded internationally, the existing import regulation relating to trade related

measures is not adequate to deal with IUU fishing.69 The inadequacy of import

64 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p. 40. 65 FAO Technical Guidelines for Responsible Fisheries No. 9, loc.cit. 66 Terje Lobach, “Port State Control of Foreign Fishing Vessels”, FAO Fisheries Circular No. 987, Rome: FAO, 2003, p.12. 67 Transform Aqorau, “Illegal Unreported and Unregulated Fishing: Considerations for Developing Countries”. Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia with FAO, Sydney, Australia, 15-19 May 2000, p.2. 68 FAO Technical Guidelines for Responsible Fisheries No. 9, op.cit, p.47. 69 Linda A Chaves, “Illegal, Unreported and Unregulated Fishing: WTO-Consistent Trade Related Measures”, Expert Consultation on Illegal, Unreported and Unregulated Fishing

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regulations with regards to trade in fish and fisheries products is seen as a

contributing factor in the continuation of IUU fishing. Increasingly, it is

recognised that fisheries trade measures would be dealt with more effectively

and with greater consistency if they were harmonized with international law.

Accordingly, paragraph 65 of the IPOA-IUU recognizes the right of States to

trade in fish and fishery products harvested in a sustainable manner. Under

paragraph 66 of the IPOA-IUU, States are urged to take all necessary

measures, consistent with international law, to prevent trade in fish and fishery

products harvested by IUU fishing vessels. Thus, the use of trade-related

measures has become one of the most effective measures to combat IUU

fishing. These measures are to be taken in accordance with the principles,

rights and obligations established under the General Agreement on Tariffs and

Trade (GATT) and other relevant agreements of the World Trade Organization

(WTO) such as the Agreements on Technical Barriers to Trade, Pre-shipment

Inspection, Rules of Origin, Import Licensing Procedures, and Subsidies and

Countervailing Measures. These rules must also be implemented in a fair,

transparent and non-discriminatory manner.

In order to meet their fisheries trade commitments, States are required to collect

adequate data about vessels harvesting a particular fish. RFMOs can assist

States in this regard by developing and adopting catch certification and trade

Organized by the Australian Government in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p.3.

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documentation schemes.70 International trade measures cannot be established

by a single State, but rather through the cooperative efforts of those States

party to existing RFMOs. This is in accordance with the LOSC and the UN Fish

Stocks Agreement.71 Paragraph 68 of the IPOA-IUU also requires that trade-

related measures be used to support cooperative efforts by States to ensure

that trade in fish and fish products does not in any way encourage IUU fishing.

Paragraph 68 emphasises the role of RFMOs in the establishment of such

multilateral trade related measures which do not undermine the effectiveness of

conservation and management measures in accordance with the LOSC.72

Likewise, paragraph 69 of the IPOA-IUU encourages States to adopt

multilateral catch documentation and certification schemes so as to reduce

trade in fish and fish products derived from IUU fishing. Such measures also

include the adoption of appropriate multilaterally agreed measures for

controlling and prohibiting import.

In fact, trade documents have been issued for tuna and swordfish by the

Commission for the Conservation of Southern Bluefin Tuna (CCSBT) and the

70 Anna Willock, “Using Trade and Market Information to Assess IUU Fishing Activities”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate For Food, Agriculture and Fisheries, Fisheries Committee of OECD, p. 2. 71 Sali Yayne Bache, Marcus Howard and Stephen Dovers, The Impact of Economic, Environment, and Trade Measures Instruments Upon Fisheries Policy and Management (Report Prepared for Fisheries and Aquaculture Branch, Australian Department of Agriculture, Fisheries and Forestry, Centre for Resource and Environment Studies, School of Government, University of Tasmania, Centre for Maritime Policy, University of Wollongong, Agriculture, Fisheries and Forestry-Australia and Antarctic CRC, September 2000, p. 75.

For more comprehensive descriptions of the role of RFMOs in this subject, see Judith Swan, “The Role of National Fisheries Administrations and Regional Fishery Bodies in Adopting and Implementing Measures to Combat Illegal, Unreported and Unregulated (IUU) Fishing”, in Elisabeth Mann Borgese, Aldo Chircop, and Moira McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, p.237. 72 Marcus Howard, “IUU Fishing: Contemporary Practice”, in Alex G. Oude Elferink and Donald R. Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Lediden/Boston, 2004, p. 94.

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Indian Ocean Tuna Commission (IOTC)73, and for toothfish by the Commission

for the Conservation of Antarctic Marine Living Resources (CCAMLR).74

Member States of these RFMOs agree to deny the landing in their ports of any

fish caught outside their areas of competence or those fish and fishery products

lacking appropriate documentation.75

In the context of trade restrictions, the main issue has been the impact of such

measures on WTO obligations relating to non-discrimination in international

trade. Articles XI and XIII of the WTO Agreements provide that import bans on

fish and fish products may not be allowed unless there is proof that such

imports have detrimental impact on fishery resource conservation and

management.76 Restrictive trade measures impact on members and non-

members of RFMOs and create import restrictions against non-member States

that are also members of the WTO.77 A question therefore may be raised as to

whether these trade measures are consistent with WTO Obligations.78 A similar

For an interesting discussion, see Carl-Christian Schmidt, “Globalization, Industry

Structure, Market Power and Impact on Fish Trade”, Paper Prepared for the FAO Industry and Expert Consultation on International Trade, Rio de Janeiro, Brazil, 3-5 December 2003, p.12. 73 Messra David, J. Agnew and Collin T. Barrents, “Economic Aspects and Drivers of IUU Fishing: Building A Framework”, Paper Submitted to the IUU Workshop, 19-20 April 2004, Directorate for Food, Agriculture and Fisheries, Fisheries Committee of OECD, p.15. 74 D.J Agnew, “The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch Documentation Scheme”, Marine Policy, Vol. 24, No. 5, September 2000, p. 368. 75 Rt. Hon Simon Upton and Vangelis, “Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fishing on the High Seas”, op.cit, p.9. 76 Ruangrai Tokrisna, “WTO-Consistent Trade-Related Measures to Address IUU Fishing, Developing Country Issues”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 4. 77 Julia Green and David Agnew, “Catch Document Schemes to Combat Illegal, Unreported and Unregulated Fishing: CCAMLR’s Experience with Southern Ocean Toothfish”, in Elisabeth Mann Borgese, Aldo Circop, and Moira McConnel (eds), Ocean Yearbook 16, The University of Chicago Press, Chicago and London, 2002, pp. 189-190. 78 Bertrand Le Gallic, “Using Trade Measures in the Fight Against IUU Fishing: Opportunities and Challenges”, IIFET 2004 Japan Proceedings, p.6, For useful discussion see Christopher C. Joyner and Zacahry Tyler, “Marine Conservation Versus International Free Trade: Reconciling

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question could also be raised in regards to catch documentation schemes

issued by CCSBT and IOTC.

Exchange of information at the global level is essential for any multilateral trade

measure to work. Accordingly, paragraph 76 of the IPOA-IUU recognises that

these measures are only effective if the information can be shared and

understood quickly. To this effect, paragraph 76 encourages the use of

standardized trade documentation and catch certification. These multilateral

measures ensure the effectiveness of the conservation and management

measures by eliminating unscrupulous practices and avoiding unnecessary

burdens on trade. The availability of globally shared databases is therefore a

very important step in the successful implementation of these provisions to

combat IUU fishing.

5.4 Conclusion

This chapter analysed two important non-binding international

instruments to combat IUU fishing, namely the FAO Code of Conduct for

Responsible Fisheries and the IPOA-IUU. These instruments, although not

legally binding, provide adequate policy guidance to States to combat IUU

fishing. Cumulatively, the two instruments fill the gaps in the LOSC framework

discussed in chapter 3. The FAO Code of Conduct has filled the lacuna and

strengthened the LOSC dealing with sustainable fisheries management and

international cooperation. The IPOA-IUU has filled the gap in the LOSC relating

to fishing in EEZ of other countries and the role of RFMOs in the establishment

Dolphins with Tuna and Sea Turtles with Shrimp”, Ocean Development and International Law, Vol. 31, Nos. 1-2, January- June 2000, p. 140.

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of multilateral trade related measures. These policy instruments also

supplement post-LOSC legally binding instruments discussed in chapter 4. The

IPOA-IUU has filled the gap and complemented the FAO Compliance

Agreement in relation to the definition of fishing vessel and chartered vessels. It

has also strengthened and complemented the FAO Compliance Agreement, UN

Fish Stocks Agreement and the FAO Code of Conduct with regard to port State

control measures. Accordingly, if these international instruments are effectively

implemented, they would significantly enhance the long-term sustainability of

straddling fish stocks and highly migratory species.79

79 See David. J. Doulman, “1995 FAO Code of Conduct for Responsible Fisheries: Development Considerations and Implementation Challenges”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Appendix F), Southeast Asia Sub-Region, Penang, Malaysia, 10-14 October, op.cit, p.30.

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CHAPTER 6

INDONESIAN FISHERIES AND IUU FISHING

6.1 Introduction

The previous chapters addressed the international legal framework to

combat IUU fishing. The main objectives of this chapter are to examine the IUU

fishing issues in Indonesia and illustrate the need for adequate legislative and

policy measures to address the problem. The chapter begins this process by

providing a background to Indonesia’s fisheries management. It also describes

and analyzes how Indonesia manages its fisheries jurisdiction and examines

the problems and impacts of IUU fishing in Indonesian fisheries using three

case studies.

6.2 Indonesia’s Fisheries Jurisdiction

Indonesia is an archipelagic State, consisting of 17,508 islands

occupying a total land area of 1,826,440 square kilometers.1 A country of

216,198,345 inhabitants, Indonesia has 5.8 million square kilometers of marine

area.2 Of this area, about 300,000 square kilometers comprise the territorial sea

while the total area of its exclusive economic zone (EEZ) is about 2,707,092

square kilometers. The archipelagic waters of Indonesia is composed of about

1 Etty R. Agoes, “Policing Offshore Zones: Indonesia’s Model and Experiences “, in Doug Mac Kinnon and Dick Sherwoods (eds), Policing Australia’s Offshore Zones: Problems and Prospects ,Wollongong Papers on Maritime Policy No. 9, Centre for Maritime Policy, University of Wollongong, Wollongong, New South Wales, Australia, 1997, p.176. 2 Martin Tsamenyi, (Proponent), “Management and Policy Frameworks for Illegal, Unreported and Unregulated Fishing in Indonesian and Philippine Waters”, Project Pro-Forma, Australian Centre for International Agricultural Research, FIS/2002/019, University of Wollongong, New South Wales, Australia, 2002, p. 6.

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2,905,43 square kilometers.3 With a huge expanse of marine waters, Indonesia

is believed to have the richest and diverse biodiversity in the world.4

For fishing management purposes, the Indonesian waters is divided into nine

fishing management areas: (1) Strait of Malacca; (2) South China Sea; (3) Java

Sea; (4) the Strait of Makassar and the Flores Sea; (5) the Banda Sea; (6) the

Seram Sea and the Tomini Bay; (7) the Sulawesi Sea and the Pacific Ocean;

(8) Arafura Sea; and (9) the Indian Ocean.

N

E W

S

IX

II I

III IV V

VI

VII

VIII

I. Mallacca strait II. South China Sea III. Java Sea IV. Makasar Strait & Flores Sea V. Banda Sea VI. Tomini & Ceram Sea VII. Sulawesi & Pacific Ocean VIII. Arafura Sea IX. Indian Ocean

Figure 6.2 Indonesia’s Fisheries Management Areas

3 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: The Indonesian Case”, Proceeding in ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Voor Jurisdische Samenwerking met Indonesia, 1993, p.3. 4 Etty R. Agoes, “Indonesia’s Approach to Coastal and Ocean Management within the Department of Marine Affairs”, Indonesia Center for the Law of the Sea (ICLOS), Padjadjaran University, Bandung, Indonesia, December 2000, p. 5.

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6.3 Indonesian Fisheries Resources

The Indonesian jurisdiction, comprising the archipelagic waters, the

territorial sea, and the Indonesian EEZ, has two distinct characteristics from a

fisheries management perspective. The Weber Line5 which goes down from the

Makassar Strait in the north through the Lombok Strait in the south, marks two

arbitrary zones. The western part of the Indonesian waters may be

characterized as having a multi-species fishery and a shallow fishery

ecosystem. On the other hand, the eastern part of the Weber Line has larger

deep-water fisheries.6 The shallow waters of the Indonesian jurisdiction are very

productive in pelagic and demersal species due to favorable oceanographic

conditions and the exposure of the upper layers of the water column to sunlight

for most of the year.7

The fisheries resources in the Indonesian waters consist of inshore and offshore

fisheries. Pelagic and demersal species are the predominant coastal fisheries in

certain parts of western Indonesian fisheries waters. Most commercial fisheries

are found in the eastern part of Indonesian fisheries waters. Among the most

important species from an economic perspective are large pelagic species.

Whereas most of the western part of Indonesian fisheries waters supports the

5 The Weber Line is hypothetical line lying approximately along the Australia-Papuan Shelf which separates the islands that have a majority of Oriental animals from those which have a majority of Australian ones, a line of faunal balance sometimes preferred to Wallace’s line as the boundary between the Oriental and Australian realms, Glossary Search Term, p.1, http//www.filaman.ifm-geomar.de/Glossary/Glossary.cfm?TermEnglish=Weber”s%… (accessed on 4 July 2006). 6 Suparman A.Diraputra, “Indonesian Fisheries Legislation: An Overview”, in Proceedings ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s: Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic Indonesia and Nederlandse Raad Voor Juridische Samenwerking met Indonesia, 1993, p. 209. 7 Mochtar Kusumaatmadja, “Rights Over Natural Resources in the Southeast Asia: The Indonesian Case”, op. cit, p. 5.

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livelihood of small-scale fishermen, the eastern part supports offshore

commercial fisheries.8 In accordance with the LOSC, Indonesia has sovereignty

and sovereign rights to explore and exploit, conserve and manage the marine

living resources, including fishery resources within its territorial sea, archipelagic

waters and EEZ.9

It is estimated that Indonesia’s EEZ has a potential yield of 1.9 million tons of

fish per year, whereas the rest of the national waters (comprising the internal

waters, archipelagic waters and territorial sea) has a potential yield of 4.5 million

tons of fish per year.10 The estimated production of fish species group in each

fisheries management area in 2001 is provided in Table 6.3.111

8 Suparman A.Diraputra, “Indonesian Fisheries Legislation: An Overview”, op. cit, 209. 9 See discussions in chapter 3. 10 Department of Marine Affairs and Fisheries, Directorate General of Capture Fisheries, Bali, Indonesia, August 2002, p. 2. 11 “Fish Stock Assessment in Indonesian Waters”, Research Centre for Capture Fisheries, Research Agency for Marine and Fisheries Research, Department of Marine Affairs and

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Table 6.3.1 Estimated potential production and actual exploitation of fish species group in each fisheries management area in Indonesia, 2001

Source: “Fish Stock Assessment in Indonesian Waters”, Research Centre for Capture Fisheries Agency for Marine Fisheries and Fisheries Research and Indonesian Institute for Science, Jakarta, Indonesia, 2001. Note; (1) Strait of Malacca; (2) South China Sea; (3) Java Sea; (4) Strait of Makassar and Flores Sea; (5) Banda Sea; (6) Seram Sea and Tomini Bay; (7) Celebes Sea and Pacific Ocean; (8) Arafura Sea; and (9) Indian Ocean.

Fisheries of the Republic of Indonesia and Oceanology Development and Research Centre, Indonesian Institute For Science, Jakarta, Indonesia, 2001, p.102.

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knewton

Text Box

Please see print copy for Table 6.3.1

Indonesia is facing a problem of over-exploitation of its principal fish species in

most of the major fishing areas. One of the causes of over-exploitation is the

large number of traditional fishing boats, especially non-powered boats

operating in coastal areas.12 In contrast to the concentration of fishing vessels

in the archipelagic waters and the territorial sea, Indonesian fishery resources in

the EEZ are not fully utilized by national fishing fleets, but by licensed and

unlicensed foreign vessels.13 This is largely because the national fleet lacks the

necessary gear and resources to compete with foreign fishing vessels operating

in the Indonesian EEZ.14

Hence, fisheries management must be seen in two related perspectives. One is

the utilization of marine resources within the framework of national economic

development. The other significant aspect of national fisheries management is

the protection of the fishery resources based on the principles of sustainability.

With increasing incidents of IUU fishing in all marine areas, coupled with

overexploitation of fisheries resources, sustainable fisheries management has

become more and more important for Indonesia.

12 Rokhmin Dahuri, “Potential and Utilization Level of Marine Resources and Fisheries”, in Rohmin Dahuri, Utilization of Marine Natural Resources for the People Prosperity (A Compilation of Rokhmin Dahuri’ View), Indonesian Development and Study Information Institute, and Directorate General for Coastal, Beaches and Small Islands Affairs, Department of Sea Exploration and Fisheries of the Republic of Indonesia, December 2000, p.67. For discussion of this issue, see also Etty R.Agoes, “Policy on Sustainability Marine Resources Management: A Juridical View”, in Hendarmin Djarab, Rudi M. Rizki and Lili Irahi (eds), Some Legal Thought Toward 21 Century, Angkasa Publisher Bandung Indonesia, 1998, p.374. 13 Rokhmin Dahuri, “Economy Rebuilding Through Fisheries Reform”, in Rokhmin Dahuri, Potential, Utilization of Marine Natural Resources for the People Prosperity, op. cit, pp.84-85. 14 Daniel R. Monintja, “Utilization of Indonesian Exclusive Economic Zone and its Problem”, Paper Presented at Short Course on Advanced International Law of the Sea, Faculty of Law, Padjadjaran University, Bandung, Indonesia, 19-31 August 1996, p. 14.

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The prevailing policy direction for Indonesian fisheries seems to focus more on

the exploitation rather than conservation of fisheries resources. In order to

achieve sustainability, it is important that management objectives meet the

following requirements: first, Indonesia must be capable of promoting the

development of fisheries, both artisanal and commercial; second, Indonesia

must be able to regulate the activities of its fishermen and fishing vessels,

including those of foreign fishing vessels; and third, Indonesia must be capable

of preventing overcapitalization in the fishing sector.15

6.4 Indonesian Fishing Industry

The two important and distinct fisheries sectors in Indonesia are the

artisanal and commercial fisheries sectors. These sectors of the fishing industry

are described briefly below.

6.4.1 Artisanal Fisheries Sector

Artisanal fishing is practiced along the entire eastern coast of Sumatra,

including the Riau archipelago and the entire north coast of Java and Madura

island. Artisanal fisheries is also undertaken in the whole coastal area of

western, southern and eastern Kalimantan, the whole coastal area of western

and southern Sulawesi, parts of northern Sulawesi, the Moluccas and west

Papua.16

15 Suparman A. Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I and Ted L. Mc Dorman (eds), Seapol International Workshop on Challenges to Fishery Policy and Diplomacy in South-East Asia, Rayong, Thailand, South-East Asian Programme in Ocean Law Policy and Management, Bangkok, Thailand, 6-9 December 2002, p.22.

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There is a considerable degree of homogeneity in the artisanal fisheries sector

of Indonesia in terms of fishing gears. Most of the fishermen use a combination

of traditional hook and line and gill net techniques17 and the vessels range from

coastal sailing craft to small motorized vessels of limited capacity.18 Most of the

vessels are not more than 10 gross registered tons (GRT).19 Non-powered or

outboard powered vessels have the capacity for short fishing trips of one to two

days. These vessels operate in coastal waters in close proximity to fish landing

areas. There are also a number of landing places for larger inboard powered

vessels up to 25 GRT. The fishing trips for larger vessels are generally between

one to three weeks.20

A substantial component of the artisanal sector consists of subsistence fishers

who fish largely to sustain the needs of their families. Like in many developing

countries, the subsistence fisheries sector is very important for the food security

of the majority of the Indonesian population.21 The artisanal fisheries sector

provides a source of income for about one to two million fishing families in the

coastal areas of the Indonesian archipelago.22

16 Mochtar Kusumaatmadja and Tommy H.Purwaka, “Legal and Institutional Aspects of Coastal Zone Management in Indonesia”, Marine Policy, Vol.20, No.1, Pergamon, 1996, p. 67. 17 Julian Clifton, “Prospects for Co-management in Indonesia’s Marine Protected Areas”, Marine Policy, Vol. 27, No 5, September 2003, p. 394. 18 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management” (Occasional Papers Series No.2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.5. 19 Craig H. Proctor, I.Gede S. Merta, M. Fedi A. Sondita, Ronny I. Wahyu, Tim L.O. Davis, John S. Gunn and Andamari Retno, “A Review of Indonesia’s Indian Ocean Tuna Fisheries”, CSIRO Marine Research, Research Institute of Marine Fisheries and Bogor Agricultural University, Bogor, Indonesia, ACIAR Project FIS/2001/079, December 2003, p. 43 20 Craig H. Proctor, I Gede S.Merta, M.Fedi A.Sondita, Ronny I.Wahyu, Tim L.O.Davis, John S.Gunn and Retno, Andamari, op. cit, p. 2. 21 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesia Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op. cit, p. 15. 22 Mochtar Kusumaatmadja, “Sovereign Rights Over Natural Resources in Southeast Asia: The Indonesian Case”, op. cit, p. 15.

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6.4.2 Commercial Fisheries Sector

The Indonesian commercial fisheries sector has increased significantly

since the Five Year Development II Programme commenced at the beginning of

the 1970s. The Indonesian marine capture fisheries production increased from

700,000 tons in 197023 to 3,966,480 tons in 2001.24 However, most of the

marine fisheries production of Indonesia comes from small-scale commercial

fishing activities. In general, the capture fisheries industry is faced with the lack

of commercial fishing vessels using modern technology.25

Since the 1980s, the major commercial fisheries in Indonesian waters have

been mainly managed through legislation and policies based on the LOSC

framework.26 The enactment of the Indonesian EEZ Law No. 5 of 1983 provided

a new framework for the government to develop a modern fishing industry.27

Indonesia’s practice since 2001 to conclude fisheries cooperation agreements

with foreign countries should be seen in this light. These agreements are

intended to enhance cooperation between Indonesia and distant water fishing

nations in the development of fishery resources in some parts of the Indonesian

EEZ. These include the Indonesian EEZ of the Arafura Sea, the Celebes Sea,

23 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries Republic of Indonesia, 2004, p. 3. 24 Statistics of Capture Fisheries of Indonesia, 2001, Directorate General of Capture Fisheries Department of Marine and Fisheries of the Republic of Indonesia, p.2. 25 Aji Sularso, “Problems of Illegal, Unreported and Unregulated (IUU) Fishing”, Science Philosophy Paper, Postgraduate Program/S3, Bogor Agricultural Institute, Indonesia, November 2002,p.2,http://216.239.57.104/custom?q=cache:A8LtUYNw6oJ:rudyct.com/sem1_23/aji_sularso.htm+peraturan+daerah+tentang+++illegal+fishing&hl=en&=UTF-8 (accessed on 15 July 2003). 26 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: Managing Fisheries in Indonesia”, Short-Course on Advanced International Law of the Sea, Faculty of Law, Padjadjaran University, Bandung, Indonesia, 19-31 August 1996, p.115.

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http://216.239.57.104/custom?q=cache:A8LtUYNw6oJ:rudyct.com/sem1_23/aji_sularso.htm+peraturan+daerah+tentang+++illegal+fishing&hl=en&=UTF-8

http://216.239.57.104/custom?q=cache:A8LtUYNw6oJ:rudyct.com/sem1_23/aji_sularso.htm+peraturan+daerah+tentang+++illegal+fishing&hl=en&=UTF-8

the South China Sea, the Indian Ocean and the Pacific Ocean. In recent times,

three international agreements have been concluded with China, Philippines

and Thailand. Pursuant to these arrangements, foreign fishing vessels are

currently allowed to fish in the Indonesian EEZ.

There are at least two things that should be taken into account in assessing the

granting of access to foreign fishing fleets in the Indonesian EEZ. The first

consideration is the level of fisheries resource exploitation and the second is the

development of domestic fishing fleets. The Indonesian policy on foreign fishing

access is that fisheries within Indonesian jurisdiction cannot be granted if a fish

stock is fully or over-exploited or if there is a need to support the development

of the domestic fishing fleet.28 In the case of national vessels, priority access is

provided to small-scale fishers with appropriate gears to prevent the danger

over-exploitation of fisheries resources.29

In terms of its contribution to employment, the total number of marine capture

fishermen in Indonesia was 2,562,945 in 2001. Approximately 1,250,200 were

full-time fishermen, 945,081 worked as major part-time fishermen, and another

358,664 worked as minor part-time fishermen.30 In 2003, the number of

fishermen increased to 3,265,569. From this number, 1,391,489 were full-time

fishermen, 1,374,649 were employed as major part-time fishermen, and another

27 Mochtar Kusumaatmadja, “Rights Over Natural Resources in Southeast Asia: Managing Fisheries in Indonesia”, ibid. 28 Rizal Max Rompas (Special Advisor to the Minister for Marine Resources Management) “Opening Marks in The First Joint Committee on Fisheries Meeting Between Indonesia and Philippines”, Manado, Indonesia, 14 October 2003, p. 2. 29 Mochtar Kusumaatmadja and Tommy H.Purwaka, op. cit, p.68. 30 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p.3.

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499,413 were employed as part-time fishermen. About 83,402 were employed

in the commercial fishing industry.31

6.5 IUU Fishing in Indonesia

The following section elaborates on the IUU fishing problems in

Indonesia, including the problems related to fishing by Indonesian-flagged

vessels in waters under the jurisdiction of other States and on the high seas.

6.5.1 Illegal Fishing in Indonesia

As indicated in chapter 2, IUU fishing covers different unacceptable

fishing activities and practices. Within the Indonesian context, the term illegal

fishing is described as fishing activities without a valid authorization and non-

compliance with the terms and conditions stipulated in a valid authorization.

Although it is difficult to identify and assess the degree of illegal fishing in

Indonesian waters, most of these activities are believed to take place in the

EEZ,32 and are carried out largely by foreign fishing vessels.33

In general, there are two different types of illegal foreign fishing activities that

coastal States face. The first is the operation of foreign fishing vessels in

coastal waters rather than in the EEZ as stipulated by the conditions of

31 Evaluation of Allocation and Realization for Fish Catching Service License (up to 23 October 2003), op. cit, p.2. 32 Philippe Cacaud, “Indonesia Review of Legal Issues and Revised Draft Fisheries Law”, Food and Agriculture Organization of the United Nations Rome, October 2001, p.20. 33 Tommi H. Purwaka and Badia Sibeau, “Foreign Access to Indonesian 200-Mile EEZ”, Proceedings ICLOS-NILOS Seminar on the Law of the Sea in the 1990’s:Offshore Resources Development, Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nedelandse Raad Voor Juridische Samenwerking met Indonesia, 1993, p. 231.

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access.34 In the case of Indonesia, there have been many situations where

licensed foreign fishing vessels fish in the archipelagic waters that are reserved

for traditional fishermen.35 The second type of illegal fishing by foreign fishing

vessels is where the foreign vessels fish in the waters of the coastal State in the

absence of a bilateral agreement allowing them to fish there.36 This situation

also happens in Indonesia.

Illegal fishing in Indonesian waters is also caused by domestic fishing vessels

that fish without authorization or in breach of conditions of their licenses. There

have been many situations where domestic fishing vessels have been arrested

for illegal fishing.37 There is also a concern in Indonesia about domestic vessels

which provide false information, such as tonnage, dimensions, previous owners

and registered name in contravention of national legislation.38

There are two typical forms of non-compliance with license conditions by

Indonesian fishing vessels. The first form is fishing using gears or methods

prohibited by the existing regulation39 such as small mesh sized nets.40 The

34 Ted. L. McDorman, “Foreign Fishing and Compliance with Coastal State Laws”, in Kathleen I. Maticts and Ted L.McDorman (eds), op. cit, p.56. 35 Didin S. Damanhuri, “Highlight Foreign Fishing Vessels”, Republican Newspaper, October 16, 2001, Jakarta, p.4 36 Ted L. McDorman, ibid. 37 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op.cit, p. 7. See also Purwanto, “Monitoring, Control and Surveillance”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, RI-Philippines Meeting on IUU Fishing, Manila, Philippines June 14 2006, p. 17. 38“Actual Information on Civil Servant Investigation Officer is Ready to be Armed with Fire Arms”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 3 August 2005, http://www.dkp.go.id/content.php?c=2081 (accessed on 7 November 2005). 39 “Vessel Monitoring System (VMS) As Controlling Mean for the Surveillance in the Utilization of Marine and Fisheries Resources”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 4 January 2005, http://www.dkp.go.id/content.php”c=1687 (accessed on January 5 2005).

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http://www.dkp.go.id/content.php?c=2081

http://www.dkp.go.id/content.php%E2%80%9Dc=1687

second form is employing destructive fishing methods such as dynamite and

poison.41 Despite the fact that Indonesian fishing regulations prohibit the use of

these illegal fishing practices, many fishermen utilize these destructive fishing

methods throughout the Indonesian waters.42

6.5.2 Unregulated Fishing in Indonesia

As noted in chapter 2, unregulated fishing is a broad term which

describes (a) fishing activities in the area of application of a relevant regional

fisheries management organization that are conducted by vessels without

nationality, or by those flying the flag of a State not party to that organization, or

by a fishing entity, in a manner that is not consistent with or contravenes the

conservation and management measures of that organization; or (b) fishing in

areas or for fish stocks in relation to which there are no applicable conservation

or management measures and where such fishing activities are conducted in a

manner inconsistent with State responsibilities for the conservation of living

marine resources under international law. Unregulated fishing in Indonesia

takes several forms and include the lack of regulation of the subsistence

fisheries sector; absence of legislation on fisheries data reporting; and absence

of regulation of particular species.43 Chapter 7 will demonstrate the

40 Regional Statistical Analysis of Responses by FAO Members to the 2003 Questionnaire on Action Taken by FAO Members to Implement the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), loc.cit. 41 Admiral Indroko Sastrowiryono (Indonesian Navy Chief of Staff), Seminar and Workshop on Maritime Affairs in Regional Autonomy Era, Organized by Indonesian Journalist Association, East Java, Surabaya, Indonesia, 14 November 2000, p.5. For more discussion of these issues see Suparman A. Diraputra, “Institutional and Legal System in the Framework of Coastal Area Empowerment”, Paper Presented at Dissemination of Ocean and Coastal Area Management, Study Centre for Ocean and Coastal Management, Bogor Agricultural Institute, Agency for Regional Development of West Jawa, Bandung, 3 April 2000, p.3. 42 Philippe Cacaud, ibid. 43 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 4.

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inadequacies of the Indonesian legislative framework to address unregulated

fishing.

6.5.3 Unreported Fishing in Indonesia

We have seen in chapter 2 that unreported fishing is used to describe

two situations, namely, fishing activities that have not been reported, or have

been misreported to the relevant national authority, in contravention of national

laws and regulations; or fishing activities undertaken in the area of competence

of a relevant regional fisheries management organization which have not been

reported or have been misreported, in contravention of the reporting procedures

of that organization.44

Unreported fishing is a significant problem in Indonesia. Much of the fisheries

data from Indonesian waters is not correctly reported and recorded, 45 resulting

in unreliable data on which management decisions are based.46 There are two

types of unreported fishing in Indonesia. First, there is failure on the part of

commercial fishermen to report fish catch. Fishing vessels arriving in port often

fail to land their catches at designated fish auction places. These catches are

often sold to commercial fish operators or exported, without proper

44 See paragraph 3.2 of the IPOA-IUU. 45 Daniel R. Monintja, op.cit, p. 7. 46 Tridoyo Kusumastanto, Ocean Policy in Developing Maritime State in Regional Autonomy Era, PT Gramedia Pustaka Utama Publisher, Jakarta, Indonesia, 2003, p. 40.

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documentation.47 The motive for this practice is to avoid the payment of tax and

resource rent.48

The second major form of unreported fishing is transhipment of fish at sea and

illegal fishery export.49 In many cases, foreign fishing vessels do not report

their catches in designated fishing ports. There is a large number of licensed

foreign vessels landing their catch at sea through illegal transhipment.50

Consequently, the Directorate General of Capture Fisheries lacks adequate

data to make sound management decisions.51 It will be shown in the next

chapter that in both cases, the legislative framework in Indonesia is inadequate

to address unreported fishing. It will be argued that there is urgent need for

legislative reform in this respect.

6.5.4 IUU Fishing by Indonesian Flagged Vessels in Waters Under

the Jurisdiction of Other States and on the High Seas

IUU fishing by Indonesian vessels is not only limited within Indonesian

waters, but also in waters within the jurisdiction of other countries, especially

neighboring countries such as Australia, the Philippines and Malaysia and also

47 Subhat Nurhakim and Martin Tsamenyi, “A Policy Management Framework to Combat IUU Fishing Activities’’, Australia and Indonesia, Twenty Years of Collaborative Fisheries Research, Australian Centre for International Agricultural Research of the Australian Government and Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.17. 48 National Plan of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op cit, p. 8. 49 “An Overview of Fishery Sea Inspection System”, Research Centre for Marine Technology Agency for Marine and Fisheries Research, Department of Marine Affairs and Research of the Republic of Indonesia, 2003, p.5. 50 Final Research Report on “Development and Management of Marine Natural Resources Under Archipelago Principles”, Project for Research and Foreign Policy Development Agency for Foreign Affairs Research, Department of Foreign Affairs of the Republic of Indonesia in Cooperation with Center for Archipelago, Law and Development Studies, 1993-1994, p.14. 51 Subhat Nurhakim and Martin Tsamenyi, loc.cit.

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on the high seas adjacent to the Indonesian EEZ.52 In recent years, a growing

number of Indonesian nationals have engaged in IUU fishing in the waters of

other States. For example, in February 2000, one Indonesian fishing vessel was

arrested by the Malaysian Navy for illegal fishing within Malaysia’s territorial

sea. 53 In 2001, another Indonesian fishing vessel was arrested and prosecuted

for operating illegally within the Malaysian territorial sea. Another significant

case was the arrest of two Indonesian fishermen in Myanmar and Port Blair,

India for fishing illegally in their waters.54 In subsequent developments, 22

illegal Indonesian fishermen were arrested by the Malaysian Marine Police.55

The underlying issue in all these cases is the absence of Indonesian regulations

prohibiting Indonesian nationals from engaging in IUU fishing in waters under

the jurisdiction of other States, despite the requirements of the IPOA-IUU.

52 See “The Strategic Importance of Sea Borne Trade and Stopping Conference” 3-4 April 2001, “Unlawful Activities – An Australian Perspective”, 13 April 2001, p. 3 ; Derek Woolner, “Australia’s Maritime Border Protection Regime”, in Martin Tsamenyi and Chris Rahman (eds), Protecting Australia;s Maritime Borders: The MV TAMPA and Beyond, Wollongong Papers on Maritime Policy No 13, Centre for Maritime Policy University of Wollongong Wollongong Australia, 2002, p.20. ; Cameroon Moore, “ADF on the Beat: A Legal Analysis of Offshore Enforcement by the Australian Defence Force”, Ocean Publications Centre for Maritime Policy University of Wollongong, New South Wales Australia, 2004, p. 3 ; Dato Junaidi bin Che Ayubd, “Opening Statement”, Report of the FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, Penang, Malasyia, 10-14 October 2004, Food and Agriculture Organization of the United Nations Rome, 2004 ; Quentin Hanich and Martin Tsamenyi, “Exclusive Economic Zones, Distant Water Fishing Nations and Pacific Small Island Developing States: Who Really Gets All the Fish ?” A Paper Presented at Sharing The Fish Conference 06, Perth, Western Australia 26 February-2 March 2006, the Department of Fisheries of the Australian Government in Cooperation with FAO, p.4. 53 “Information Data on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters 2000-2001”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.1. 54 “Recapitulation on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters 2001”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2001, p.1. 55 “Recapitulation on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters (from January to December 2002)”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2002, p.1.

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In addition to IUU fishing in waters under the jurisdiction of other States, a

significant form of IUU fishing by Indonesian fishing vessels takes place on the

high seas adjacent to the Indonesian EEZ. At present a number of Indonesian

fishing vessels are operating on the high seas areas under the competence of

RFMOs, including the Indian Ocean Tuna Commission (IOTC), Commission for

the Conservation of Southern Bluefin Tuna (CCSBT) and the Western and

Central Pacific Fisheries Commission (WCPFC).56

Much of the cause of this high seas IUU fishing by Indonesian vessels is the

failure by Indonesia to participate in these RFMOs. Indonesia only has an

observer status in the CCSBT, IOTC and WCPFC.57 Approximately 355

Indonesian fishing vessels have been identified through the CCSBT’s trade

information scheme to be catching southern bluefin tuna since 2000. Similarly,

there has been a concern that IUU fishing by 75 Indonesian large-scale long

line vessels took place in the Convention Area of the International Commission

for the Conservation of Atlantic Tunas (ICCAT). 58 Illegal fishing in the Southern

Ocean is also conducted by Indonesian flagged vessels, in collaboration with

well-organized foreign syndicates based in Indonesia and using “dummy

companies.’’59

56 National Plan of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 25. 57 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p. 26. 58 List of Large-Scale Longline Vessels Believed to be Engaged in Illegal, Unreported and Unregulated Fishing Activies in the ICCAT Convention Area and Other Areas (for Approval by the Commission in 2003), PWG-021C, 23 November 2003, p. 1. 59 Jessica K. Farrel, “Controlling Flags of Convenience: One Measures to stop Over-fishing of Collapsing Fish Stocks”, Lewis and Clerk Law Environmental School, USA, Spring, 2005, p. 101.

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In dealing with these IUU fishing problems, the Indonesian Government has

drafted a National Plan of Action to Prevent, Deter, and Eliminate IUU Fishing

(NPOA-IUU). The draft NPOA-IUU is Indonesia’s initial response to this serious

fisheries problem. The main parts of this draft closely follow the structure of the

IPOA-IUU. Parts I and II briefly describe Indonesia’s fisheries profile while Parts

III and IV deal with the main concerns of Indonesia on IUU fishing and the

ongoing activities to combat the problem. Part V of the draft NPOA-IUU details

Indonesia’s obligations as a flag, coastal, and port State.

The draft NPOA-IUU reflects Indonesia’s determination to address this serious

problem using all available means. Many of the measures provided in the draft

NPOA-IUU seek to identify and take effective action against IUU fishers who

currently take advantage of the loopholes in the current fisheries legislative

framework.60 The need to implement international fisheries instruments,

cooperate with other States, and become member of relevant RFMOs has been

emphasized in the draft NPOA-IUU. Priorities set by the draft NPOA-IUU are:

(1) Indonesia’s plan to accede to the FAO Compliance Agreement and the UN

Fish Stocks Agreement; (2) Indonesia’s plan to adopt laws and regulations on

fishing on the high seas by Indonesian flagged vessels; and (3) the

establishment of evidentiary standards and admissibility of electronic evidence

and new technologies in courts.

The draft NPOA-IUU is a compilation of measures that have already been

undertaken by Indonesia; however, such measures may be criticized as not

60 These loopholes are discussed in the succeeding chapters.

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going far enough to effectively address all unregulated fishing concerns and

IUU fishing in shared waters. Another weakness is that law enforcement is

restricted within the Indonesian EEZ. The draft national plan does not cover

relevant internationally agreed boarding and inspection schemes on the high

seas consistent with international law.

6.6 Causes of IUU Fishing in Indonesia

A number of studies have been carried out on various aspects of

Indonesia’s fisheries over the last decade.61 The studies concur on the factors

contributing to the failure of national the fisheries management system. These

include:

• Fishing practices with respect to reef fish and inshore fish (dynamite and

cyanide in particular) carried out by both licensed and unlicensed vessels;

61 See e.g Agrodev (1994). Fisheries Management. Working Paper No.1, Fisheries Sector Project Indonesia, Asian Development Bank , T.A. No.1791-INO; Badrudin, M. and R. Gillett (1996). Translations of Indonesia Fisheries Laws Relevant to Fisheries Management in the Extended Economic Zone. Technical Paper Number 9, FAO Project TCP/INS/4553, “Strengthening Marine Fisheries Development in Indonesia”, 26 pages; Bettencourt, S. and C. Lundin (1994). Indonesia: Eastern Islands Rural Strategy Study – Fisheries and Coastal Resources Background Paper. World Bank, 99 pages; COREMAP ACIL (1999). Constitutional Law and Derivatives Related to Coral Reef Fisheries. COREMAP Secretariat, 34 pages.; CRIFI (1999). Potential Estimation and Utilization Level of Indonesian Marine Fisheries Resources, 1967. Central Research Institute for Fisheries, Jakarta, 7 pages. Gillett, R. (1996). Marine Fisheries Resources and Management In Indonesia With Emphasis on the Extended Economic Zone. Workshop Presentation Paper Number 1, FAO Project TCP/INS/4553, “Strengthening Marine Fisheries Development in Indonesia”, 35 pages; Greenwald, C. (2000). Indonesian Fisheries Licensing Practices – National and Provincial Levels. ADB Co-Fish Project; Lang, S. (1992). Rules and Regulations in the Republic of Indonesia Regarding the Impact of Tourism, Fisheries, and Marine Pollution on the Marine Environment. Project ID-0095, World Wide Fund for Nature, 65 pages; Martosubroto (1995). Notes on Resources Management in Indonesia. In: S.Venema (1996). Report on Indonesia/FAO/DANIDA Workshop on the Assessment of the Potential of the Marine Fishery Resources in Indonesia. Report of Activity No.15, GCP/INT/575/DEN, Food and Agriculture Organization of the United Nations, Rome; enema, S. (Ed.) (1996). Report on Indonesia/FAO/DANIDA Workshop on the Assessment of the Potential of the Marine Fishery Resources in Indonesia. Report of Activity No.15, GCP/INT/575/DEN, Food and Agriculture Organization of the United Nations, Rome.

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• Illegal fishing by foreign vessels using normal but high impact fishing

methods, such as drift-netting, small mesh sized nets, scare nets, and fish

aggregating devices (FADs);

• Lack of adequate fisheries data and statistics;

• Fishing by Philippine- and Indonesian-flagged fishing vessels in distant

waters; and

• Lack of adequate legislative, administrative and enforcement frameworks.

The prevalence of IUU fishing in Indonesia arises directly from four main

factors. The first is the absence of clearly defined maritime boundaries between

Indonesia and its neighbors, including Thailand, Philippine, Timor-Leste and

Papua New Guinea. The lack of defined maritime boundaries results in illegal

foreign fishing in marine areas adjacent to Indonesian waters.62 This is

particularly the case between Indonesia and the Philippines in the Celebes Sea

where the competing claims by both countries has been a major cause of the

IUU fishing problem.

The second factor is the large maritime zone under the jurisdiction of

Indonesia.63 As an archipelagic state, Indonesia is not only located between the

Asian and Australian continents, but also between the Indian and Pacific

62 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op.cit, p. 7. See also Abdul Malik (Bureau Head of Marine, Environment, Science and Technology, Agency for Planning and Development of the Republic of Indonesia), “Management Strategy for Marine Living Resources”, Paper Presented at National Working Meeting of Agency for Marine Research, 19-20 April 1999, p.5. 63 “Actual Information on Strategic Measures to Combat Illegal Fishing”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 31 May 2005, p.1. http//www.dkp.go.id/content.php?c=1985 (accessed 7 November 2005).

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Oceans.64 Clearly, Indonesia occupies a strategic position, connecting the

Pacific and the Indian oceans. However, the large ocean area under its

jurisdiction and the fact that most of Indonesia’s EEZ is opened to the high

seas, attracts a large number of IUU fishing activities, both from foreign vessels

and local vessels. Thus the geographical location of Indonesia is both an asset

in terms of rich marine biodiversity and a liability in terms of enforcement

challenges.65

Third, there are limited numbers of trained enforcement staff who have the

capability to control IUU fishing activities.66 Currently Indonesia only has 534

fisheries observers and 458 fisheries investigators in the Department of Marine

Affairs and Fisheries.67 The problem is worsened by the lack of enforcement

assets and platforms such as patrol vessels and aircraft. At present the

Indonesian Navy only has 114 warships and 63 aircrafts. Technologically

speaking, most of these vessels are in poor condition,68 making it difficult for

law enforcement agencies to capture and detain IUU fishing vessels.69

64 Mochtar Kusumaatmadja, “Sustainable Developments and the Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21”, Center for Archipelago, Law and Development Studies, Bandung, Indonesia, 1996, p. 56. 65 “Basic Strategy for Ocean Development in Indonesia”, Cooperation Between Research Centre for Coastal and Marine Affairs, Bogor Agricultural Institute and Coral Rehabilitation and Management Project, Centre for Research and Development-Oceanology, Indonesian Science Institute, 1998, p.V.6. 66 Martin Tsamenyi (Proponent), loc cit. 67 National Plan Draft of Action of Indonesia to Prevent to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, op. cit, p.27. 68 Admiral Indroko Sastorwiyono, op. cit, p. 9. 69 Bernard Kent Sondakh (Indonesian Navy Chief of Staff), “Law and Security Enforcement at Sea”, Paper Presented at Technical Meeting of Law Enforcement Officer at Sea, Directorate General of Marine and Fishery Resources Surveillance, Ministry of Marine Affairs and Fishery of the Republic of Indonesia, Jakarta, 11 June 2003, p.11.

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The fourth cause of IUU fishing in Indonesia is the inadequate enforcement 70 of

the fisheries laws and regulations.71 This problem is caused by the loopholes

and inconsistencies in the current legislation governing fisheries

management.72 As will be identified and discussed in chapters 7 to 9, the laws

and regulations in Indonesia are inadequate to meet the standards set out in

post-LOSC instruments relating to the conservation and management of

fisheries resources. The absence of regulations prohibiting Indonesian nationals

from engaging in IUU fishing in the waters of other countries is a significant

factor in promoting the problem. The author is also concerned about the lack of

laws and regulations on vessel registration and authorization to fish on the high

seas. The main fisheries concern is that Indonesia’s legislative framework and

policy on fishing vessel registration and authorization to fish are inappropriate to

combat IUU fishing. This problem will be discussed in detail in chapter 8.

6.7 Consequences of IUU Fishing

IUU fishing has three main impacts on Indonesia. The first impact is on

the sustainability of fisheries resources; the second relates to the economic

impact of IUU fishing; and the third is diplomatic embarrassment.

70 “Actual Information on Department of Marine Affairs and Fisheries of the Republic of Indonesia Combating Illegal Fishing”, 14 January 2005, p.1,http://www.dkp.go.id/content.php?c=1726 (accessed on 22 March 2006). 71 Etty R. Agoes, “Adequacy of Indonesian Laws and Regulations to Combat IUU Fishing: An Evaluation of the New Law on Fisheries”, Working Paper (Annex K), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy, University of Wollongong, New South Wales, Australia, p.9. 72 See discussions in chapter 6.

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In terms of impacts on the sustainability of fisheries resouces, several illegal

practices, such as the use of cyanides, have serious consequences not only for

the coral reef ecosystem and human health in general but also on other fish

species. More than 75 per cent the total area of Indonesia’s coral reefs or about

60,000 square kilometers has been subjected to major and minor damages

caused by destructive fishing methods.73 This has undoubtedly been the result

of dynamite fishing, use of poisonous substances to fish and other illegal fishing

methods.74 These destructive fishing practices affect the biodiversity of the

marine environment and result in the depletion and eventually the collapse of

fish stocks.

IUU fishing also has economic consequences for Indonesia. In August 2002,

the Minister for Marine Affairs and Fisheries estimated that illegal fish catch in

Indonesian waters by foreign fishing vessels is between 1 million to 1.5 million

tons per year. The Minister identified the causes of the problem to include

ineffective enforcement of fisheries laws and regulations, limited enforcement

capacity and the large ocean space under the jurisdiction of Indonesia. It is

further estimated by Indonesian officials that the loss in revenue to the country’s

economy as a result of illegal foreign fishing is in excess of US$2 to 4 billion per

73 “Working Program and Surveillance Basic Activity for Marine and Fishery Resources”, Directorate General of Surveillance and Control of Marine and Fisheries Resources, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 3. For some background see Husni Mangga Barani (Director General of Capture Fisheries), “Policy and Investment Problems on Capture Fisheries Sector”, Paper Presented at Planning Consolidation and Implementation of Regional Investment in Indonesian Eastern Part Area, Organized by Coordinating Agency for Investment, Papua, 22 September 2003, p.19. 74 Rokhmin Dahuri, “Policies and Strategic for Coastal and Marine Resources Development As A New Source of Indonesia Sustainable Economic Development” (Invited Paper), Science and Technology Policy, ISTECS Journal Vo.1/2000, p. 2.

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annum (A$3,546,728,143).75 The breakdown of this economic impact can be

seen from Table 6.7 below.

Table 6.7 Economic Impacts of IUU Fishing in Indonesia

Source: Directorate General of Surveillance and Control of Marine and Fishery Resources, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.

IUU fishing by Indonesia vessels has also resulted in diplomatic embarrassment

for Indonesia. Failure by Indonesia to control IUU fishing by Indonesian flagged

vessels has often led to international accusation of irresponsible fishing.76

Consequently, Indonesia faces international protest which may lead to the

imposition of sanctions and trade embargos.77

75 “Illegal Fishing still Rampant in RI Waters”, Jakarta Post, 20 August 2002. 76 “Technical Policy on Marine Resources and Fisheries Surveillance”, Technical Meeting of Law Enforcement Officer, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, 8-12 June 2003, p. 4. 77 Martin Tsamenyi, “International Requirements to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing”, Power Point Presentation (Annex B), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Organized by Research Agency for Capture Fisheries Agency for Marine and Fisheries Research Department

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6.8 Case Study of IUU Fishing in Three Fishing Areas

Having established the general situation with regard to IUU fishing in

Indonesian waters, this section presents three case studies on IUU fishing. The

case studies are based on the Babel waters, the South China Sea and the

Sulawesi Sea.

6.8.1 IUU Fishing in Babel Waters

The Babel waters are connected to the Strait of Bangka in the west and

the Strait of Karimata in the east. Atolls and coral reefs are the predominant

ecosystems in Babel waters.78 Coastal fishing in the Babel waters is the main

fishing activity for many fishing families. In 2001, the number of marine

fishermen in Bangka was 22,795. Most of the fishing boats were small boats

less than 5 GT in size (1,937 boats); outboard motors (1,246 boats) and non-

powered boats (651). On the other hand, there were less powered boats

between 5 to 10 GT in size (36 units), 10 to 20 GT in size (113 units), and 20 to

30 GT in size (7 units).79 The types of fishing gear used in Bangka are

presented in Table 6.8.1(A) below.

of Marine Affairs and Fisheries of the Republic of Indonesian in Cooperation with Centre for Maritime Policy University of Wollongong, Jakarta, Indonesia, 28 April 2005, p.9. 78 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, “Some Indications of Illegal, Unreported and Unregulated”, Research Centre for Capture Fisheries Agency for Capture Fisheries Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 1

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Table 6.8.1(A). Types of Fishing Gear Used in Bangka in 2001

Source: Report of the Fisheries Service Office of Bangka Regency, 2002.

The number of fishermen in the Regency of Belitung in 2001 comprised 16,731.

The types of fishing boats used consisting of powered boats (2,098 units),

outboard motors (203 units) and non-powered boats (945 units).80 The types of

fishing gears used in Belitung is presented in Table 6.8.1(B) while the types of

fishing gears and targeted fish species in the Bangka-Belitung Province in 2001

is presented in Table 6.8.1(C).

79 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktiviani, op. cit, p. 3. 80 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, op.cit, p.6.

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Table 6.8.1(B) Types of fishing gear used and targeted fish species in the Belitung Regency in 2001

Source: Report of the Fisheries Service Office of Belitung Regency, 2001.

Table 6.8.1(C) Types of fishing gear used and targeted fish species in the Bangka-Belitung Province in 2001

Source: Sarjana and Budi Iskandar, “Elementary Study on Socio-Economics Factors of IUU Fishing”, Research Centre for Capture Fisheries Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.

The types of illegal fishing identified in the Babel waters include: (a)

discrepancies in the number and country of origin of the crew of foreign fishing

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vessels contrary to permit conditions; (b) fishing without a permit;81 (c) use of

prohibited gears;82 and (d) use of explosives by local fishing boats and foreign

fishing vessels. Unreported fishing is also a major problem in the Babel waters.

This is conducted mainly by local fishermen and typically takes the form of

directly selling fish on the fishing boats and failure to report fish catch to local

fisheries authorities.83

There are three forms of unregulated fishing activities in Babel waters. The first

involves fishing activities for fish species such as swimmer crab and other

crustaceans which are not covered by a management plan. The second is

fishing activities not requiring licenses under the Babel provincial/district

regulatory framework for small vessels less than 5 GT in size and outboard

powered vessels. The third is fishing activities using bagan apung fishing gear

and other pole and line, which have no governing regulations.84 These

unregulated fishing activities pose serious threats to the sustainable

management of the fisheries. There is an urgent need for managing these fish

species by determining and restricting the number of catch and by regulating

the use of fishing gears.

81 Vessels from Indonesia, Thailand and Vietnam have been charged with these illegal fishing activities. See Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktiviani, op.cit, p. 9. 82 Sarjana and Budi Iskandar, Elementary Study of Socio-Economic Factors of IUU Fishing, Research Centre for Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 9. 83 Maria M. Wahyono, Kusno Susanto, Rubiana P, and Dian Oktaviani, op. cit, p. 11.

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6.8.2 IUU Fishing in Indonesian Waters of the South China Sea

The South China Sea is part of the Sunda shelf, having a relatively

shallow water in the southern and northern parts.85 Most coastal ecosystems in

these waters comprise coral reefs and mangroves which support many valuable

but vulnerable fish species.86 Under the LOSC, the South China Sea is

classified as a semi-enclosed sea.87 The South China Sea is bordered by

Brunei Darussalam, Indonesia, Cambodia, Malaysia, the Philippines,

Singapore, Thailand, Vietnam, China and Taiwan.88 The South China Sea is

also the main area where Indonesia, Malaysia, Thailand and Vietnam have

shared stocks.

Today the most caught and consumed fish in the South China Sea are small

pelagic species. These species can be divided into three fish groups, namely

coastal species, neritic species, and oceanic species. 89 The Indonesian part of

the South China Sea currently has a potential fisheries yield of 1,057,050 tons

of fish per year with utilization level of 36 per cent.90 Fishing gear used in the

South China Sea, according to the 2002 Fishery Statistics issued by the Riau

and West-Kalimantan Provinces, are presented below.

84 Sarjana and Budi Iskandar, op. cit, p.13. 85 Agustinus Anung and Kusno Susanto, “Indication of IUU Fishing in the South China Sea Waters” ( A Case Study of West Kalimantan Area and Riau Island), Research Centre for Marine Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 3. 86 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op cit, p. 2. 87 Article 123.of Law of the Sea Convention. See Hasjim Djalal, Potential Conflicts in the South China Sea: In Search of Cooperation in Hasjim Djalal, Indonesia and the Law of the Sea, Centre for Strategic and International Studies, Jakarta, 1995, p.384. 88 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources: An Archipelagic Concept of Rational and Sustainable Resources Management”, op cit, p. 1. 89 Suherman Banon Atmaja and Duto Nugroho, “Identification of Illegal, Unreported and Unregulated Fishing in Natuna Waters and South China Sea: An Overview from Fishery Bio-Exploitation”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, Research Centre for Capture Fisheries, 2003, p. 3.

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Table 6.8.2 Fishing gears used in the South China Sea

Source: Agustinus Anung and Kusno Susanto, “Indication of IUU Fishing Practice in Indonesian Waters of the South-China Sea” (A Case Study of West Kalimantan Area and Riau Island), Research Centre for Marine Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003.

IUU fishing in the South China Sea takes four distinct forms. The first is fishing

activities by foreign fishing vessels without a valid authorization. The second is

the operation of illegal gears and trawling by Indonesian vessels and foreign

fishing vessel, notably Thai vessels and Vietnamese vessels in prohibited

areas. The third is the use of explosives for fishing and the fourth is the false

documentation of fishing vessels.91

The consequence of these bad fishing practices is the continued degradation of

regionally significant fish stocks. While it is absolutely essential that Indonesia

develop its capacity to control IUU fishing, it is believed that international

cooperation among the governments of the Association of Southeast Asian

90 Agustinus Anung and Kusno Susanto, ibid. 91 Agustinus Anung and Kusno Susanto, op. cit, p. 2

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Nations (ASEAN) countries will be more helpful. The presence of foreign fishing

vessels, especially Thai vessels who have been able to modify illegal fishing

gears illustrates the importance of such cooperation.

Unreported fishing is also a major problem in Indonesian waters of the South

China Sea. This is conducted by foreign and national vessels, especially

western Kalimantan local fishermen. It has been estimated that national trawl

vessels around 70 GT in size do not report 1,200 to 2,400 tons of fish catches

per year to any national fisheries authority. Foreign vessels, especially Thai

fishing vessels are also believed to be responsible for not reporting between

200 to 350 tons of fish and shrimp per year.92 There is also a practice of

modifying legal gear into illegal gear without authorization. Illegally modified

gear includes what is known as danish seine in the South China Sea. This gear

has been modified by adding otter board as a fish mouth device.93 It may be

argued that such modification constitutes unregulated fishing gear from a legal

point of view.

Additionally, there is evidence of significant use of unregulated lamp in purse

seining in the Indonesian waters of the South China Sea. The power of these

lamps is between 12 to 20 kWh. The lamp raises the water temperature,

enabling a conducive environment for the catching of young and small fish.94

92 Agustinus Anung and Kusno Susanto, op. cit, p.13 For more information on this issue, see also “Indonesian Navy Challenges Thailand”, Indo Pos Newspaper, 19 November 2003, p.14. 93 Agustinus Anung and Kusno Susanto, op. cit, p.9. 94 Agustinus Anung and Kusno Susanto, ibid.

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6.8.3 IUU Fishing in the Celebes Sea

The Celebes Sea is a semi-enclosed sea bordered by Indonesia and

Philippines. The Celebes Sea is a major fishing area for two reasons. First, it

supports a complex mixture of traditional, small-scale and large-scale fisheries

by targeting varieties of fish products.95 During the period between 1997 and

2000, the dominant fish caught were demersal, and shark/rays (small pelagic),

shellfishes, tuna skipjack and small tuna.96 Second, from sustenance and

employment viewpoint, the Celebes Sea provides food and livelihood for a large

number of people.97 In 2001, the number of marine capture fishermen in the

North Celebes Province was 161,123. From this number, 49,330 were full-time

fishermen. The rest, numbering 71,646, worked as major part time and minor

part time fishermen.98 Again, in 2001, there were 32,160 fishing vessels

engaged in fishing activities in the North Celebes Province of Indonesia. The

majority of the fishing vessels consisted of 26,610 non-powered boats.99 The

types of fishing gear registered in the Celebes Sea are listed in Table 6.8.3 .

Table 6.8.3 Types of fishing gears registered in the Celebes Sea

Source: Statistical of Capture Fisheries of Indonesia, 2001, Directorate General of Capture Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia Jakarta, 2003.

95 Martin Tsamenyi (Proponent), op. cit, p. 8. 96 I Gede Sedana Merta, “The Current Status of Marine Fisheries in the Celebes Sea, Research Centre for Marine Capture Fisheries”, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 7. 97 Martin Tsamenyi (Proponent), ibid. 98 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p.15. 99 Statistics of Capture Fisheries of Indonesia, 2001, op. cit, p. 16.

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In 2002, there were 15 reported incidents of unlicensed fishing activities by

foreign and national fishing vessels in the Celebes Sea.100 Of particular concern

is the large number of pump boats from the Philippines operating in Indonesian

waters without proper documentation.101 Another form of illegal fishing in the

Celebes sea is non-compliance with fisheries regulations, including foreign

fishing vessels using normal but high impact fishing methods such as drift-

netting, small mesh sized nets, scare nets, and FADs. Illegal fishing in the

Celebes Sea also takes the form of dynamite and cyanide fishing by both

licensed and unlicensed vessels.102

Unreported fishing activities in the Indonesian EEZ of the Celebes Sea are

conducted mostly by the Philippine flagged vessels. Most of the fish catches

caught by Philippine purse seiners are not recorded.103 It is estimated that

approximately 70 per cent of all tuna catches by Philippines vessels in the

Indonesian EEZ are landed in the Philippines without being reported to

designated Indonesian ports.104

There are several types of unregulated fishing activities in the Celebes Sea.

The first is unregulated fishing activities in coastal areas. Like in the Babel

waters, major fish species such as lobsters, crabs, aquarium fish and live (coral)

fish are not managed under the North Celebes provincial/regent regulations.

100 “Information Data on Fisheries Criminal Act and Fishermen Disturbance in Indonesian Waters”, Directorate General of Marine Resources and Fisheries Surveillance, Department of Marine Affairs and Fisheries Surveillance, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2002, pp.1-4. 101 Republic of the Philippines-Republic of Indonesia Fisheries Bilateral Meeting, Gran Puri Hotel, Manado, Indonesia, 14-15 October 2003, p.1. 102 Martin Tsamenyi (Proponent), op. cit, p. 7. 103 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 24 104 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 43.

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The second type of unregulated fishing in the Celebes Sea is fishing activities

by small vessels less than 5 GT in size without valid licenses.105 The third type

of unregulated fishing in the Celebes Sea arises from the fact that no national

law has been promulgated to regulate and control seasons, age and the size of

commercially targeted species in the Celebes Sea.106

The fourth issue in the Celebes Sea relates to the use of FADs. Under

Ministerial Decision No. 30 of 2004, there are three categories of FADs, namely

bottom, shallow water and deep sea. Installation of bottom and shallow FADs is

governed by the district government and regional government regulations. The

installation of deep sea FADs is subject to the prior written authorization of the

Department of Marine Affairs and Fisheries. Despite the existence of a

regulatory framework, FADs have been deployed in the Celebes Sea. However,

because of the absence of a maritime boundary between Indonesia and the

Philippines, most of the FADs are not regulated in practice because it is often

not clear which country has jurisdiction over them.107

6.9 Conclusion

This chapter has demonstrated the enormity of the IUU challenge facing

Indonesia. It is clear that Indonesia is faced with a daunting task of combating

IUU fishing. Despite this fact, a sustainable fishery resource management may

still be implemented in Indonesian fishing management areas. However, an

adequate law and policy framework will be needed to achieve the best results.

In the implementation of such framework, the availability of accurate data and

105 Martin Tsamenyi (Proponent), op. cit, p.18. 106 Bachtiar Gafa, I Gede Sedana Merta and Kusno Susanto, op. cit, p. 98

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information will be very important. This will provide a basis for the fisheries

agency to take a rational decision, for example on whether a fishing license will

be suspended or extended.

A holistic approach to combating IUU fishing is therefore needed. Such

approach would require increased monitoring, surveillance and enforcement

efforts, formulation and implementation of adequate and enforceable fisheries

legislation, cooperation among various national agencies, and above all,

regional cooperation. Indonesia would further need to cooperate with other

States to combat IUU fishing in shared waters. The succeeding chapters will

assess the adequacy of the Indonesian legal, policy, and institutional

frameworks to address IUU fishing and provide recommendations on how such

frameworks may be improved to comply with the requirements of international

fisheries-related instruments.

107 Subhat Nurhakim and Martin Tsamenyi, loc. cit.

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CHAPTER 7

THE INDONESIAN FISHERIES LEGISLATIVE AND INSTITUTIONAL FRAMEWORK TO ADDRESS IUU FISHING

7.1 Introduction

This chapter outlines the fisheries legislative and institutional frameworks in

Indonesia and examines the adequacy of these frameworks to combat IUU fishing

within and beyond Indonesian waters. The adequacy of the legal framework will be

examined against the international legal framework set out in chapters 3 to 5. As

shown in chapter 6, IUU fishing within Indonesia’s EEZ remains a significant

problem and would need to be addressed through an effective legal and

institutional framework.

This chapter demonstrates that the Indonesian fisheries legal framework and

institutional framework for combating IUU fishing is fundamentally flawed and does

not meet the requirements of international fisheries instruments. The chapter

concludes by providing specific ways in which Indonesia can improve existing

regulations so that they remain consistent with international requirements in

preventing, deterring and eliminating IUU fishing.

7.2 The Indonesian Domestic Legal Framework

Indonesia’s international obligations to combat IUU fishing arise from a

number of international instruments which have been analysed in Chapters 3 to 5.

Specifically, it was shown in chapter 5 that the IPOA-IUU has been formulated

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within the framework of the FAO Code of Conduct for Responsible Fisheries, in

which a number of provisions also describe the relationship between the IPOA-IUU

and other relevant international instruments. The IPOA-IUU is to be interpreted and

applied in a manner consistent with the LOSC, the FAO Compliance Agreement,

and the UN Fish Stocks Agreement. The provisions of the IPOA-IUU that relate to

international trade-related measures are also to be interpreted and applied in

accordance with the rules of the World Trade Organisation. At the national level,

Indonesia is under an obligation to develop and implement a National Plan of

Action to combat IUU fishing.1

To address the threats posed by IUU fishing to the sustainability of Indonesian

fisheries, the Indonesian government has adopted and implemented a number of

policies in accordance with its international obligations. The 1982 LOSC is being

implemented in Indonesia through Law No.17 of 1985 which establishes maritime

zones and provides the framework by which Indonesia implements laws and

regulations to address various marine-related activities, including fisheries

conservation and management. These laws and regulations include Law No. 6 of

1996 on the Indonesian Territorial Waters and Government Regulation No. 61 of

1998, which was replaced by Government Regulation No. 38 of 2002 on the

Indonesian Basepoints.

1 Etty R. Agoes, “Research in Preparation for the Establishment for the Establishment of a National Plan of Action to Combat IUU Fishing” (A Preliminary Study for Further Research by Relevant Working Groups), Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p.6.

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7.2.1 Laws and Regulations Relating to the Limits of National

Jurisdiction

As pointed out in Chapter 3, the LOSC grants coastal States and

archipelagic States sovereignty over their internal waters, archipelagic waters, and

territorial waters.2 Therefore, before the fisheries legislation of Indonesia is

analyzed, it is important to first outline the Indonesian legal framework for the limits

of maritime jurisdiction, especially the legislation setting out the determination of

baselines. In the context of this thesis, the importance of this preliminary

background lies in the fact that a State’s rights to maritime jurisdiction are

measured from the baselines, with the outer limits of each of its maritime zones

being at a specific distance from the baseline.3 In the fisheries context, the drawing

of the Indonesian archipelagic baselines is essential for the determination of the

limits of national jurisdiction and the establishment of Indonesia’s fishing zones.

Indonesia implements Articles 2(1)4 47(1)5 and 486 of the LOSC through two basic

instruments, namely the Indonesian Waters Act No. 6 of 1996; and the

Government Regulation No. 38 of 2002 on the Geographical Coordinates of Base

2 See Articles 2 and 49 of the LOSC. 3 Clive Schofield and Chris Carleton, “Technical Considerations in Law of the Sea Dispute Resolution”, in Alex G.Oude Elferink and Donald Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Martinus Nijhoff Publishers, Lediden/Boston, 2004, p. 232. 4 Article 2 (1) provides that the sovereignty of a coastal State extends, beyond its land territory and internal waters, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 5 Article 47 (1) states that ‘an archipelago State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines included the main islands in which the ration of the area of the water to the area of water, including atolls, is between 1 to 1 and 9 to 1.

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Points of the Baselines of the Indonesian archipelago. The Indonesian Waters Act

No. 6 of 1996 replaced Law No. 4 of 1960 on Indonesian Territorial Waters. As

stated in the Preamble to Law No. 6 of 1996, the driving force behind the

enactment of The Indonesian Territorial Waters Act No. 6 of 1996 was the

recognition of the archipelagic State principle under Part IV of the LOSC.7

The Indonesian Territorial Waters Act No. 6 of 1996 provides the legal basis for the

implementation of sovereignty derived from the LOSC. The Act takes into account

the interests of Indonesia, including its jurisdiction, rights and obligations, as well

as activities within Indonesia’s territorial waters. Sovereignty over Indonesian

maritime areas is provided under Article 4 which covers the internal waters,

archipelagic waters, and the territorial sea. Article 5 of the Indonesian Territorial

Waters Act No. 6 of 1996 provides that Indonesia may determine straight baselines

and normal baselines. Article 5 further provides that sovereignty over these waters

include the water column, airspace, seabed, subsoil, and all natural resources

contained therein.8

Under Article 5(5) of the Indonesian Territorial Waters Act No. 6, the normal

baseline for measuring the breadth of the territorial sea is the low water line along

6 According to Article 48 these lines used as the baseline from which the breadth of the archipelagic State’s territorial sea, contiguous zone, exclusive economic zone and continental shelf is measured in accordance with Article 47. 7 The 1960 Act did not contain provisions which dealt with straight archipelagic baselines as stipulated under Part IV of the LOSC. For a discussion of this issue, see Etty R. Agoes, “Current Issues of Marine and Coastal Affairs in Indonesia”, The International Journal of Marine and Coastal Law, Vol. 12, No. 2, 1997, p.203. 8 Etty R. Agoes, “Where are Boundaries of Our Territory at Sea?,” Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta, 2000, p.15.

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the coast as marked on large-scale charts recognised by the Indonesian

government. Straight baselines may only be used in localities where the coastline

is deeply indented and cut into, or if there is a fringe of islands along the coast in

the immediate vicinity of the coast. The Indonesian Territorial Waters Act No. 6 of

1996 provides that baselines are to be shown on large-scale nautical charts,

officially recognised by Indonesia. Alternatively, the government must provide a list

of geographic coordinates specifying the geodetic datum. Additionally, this list is

required to be deposited with the Secretary General of the United Nations.9 Article

7 provides another method of determining the archipelagic baselines. Closing lines

of an archipelagic baseline can be drawn at the mouth of rivers, estuaries, bays,

inland seas, and ports.

Government Regulation No. 38 of 2002 was enacted to implement Article 6(2) of

Law No. 6 on the Indonesian Territorial Waters. This regulation establishes the six

methods used to draw the Indonesian baselines, namely the straight archipelagic

baselines, normal baselines, straight baselines, closing lines of bays, closing lines

of the mouth of the rivers, estuaries and inland sea, and closing line of ports.10

As stated earlier, Indonesia’s fisheries management is faced with serious problem

due to the lack of defined maritime boundaries that encourages IUU fishing by

foreign fishing vessels in marine areas adjacent to Indonesian waters. Indonesia

9 Article 6. See also Hasjim Djalal, “ Implementation of the 1982 LOSC”, Paper Presented for Training of Indonesian Naval Command and Staff College at Agency for Legal Development of Indonesian Army, 30 January 1996, p.6. 10 Article 2 (2).

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would need to conclude treaties to delimit its boundaries with its neighbouring

countries to prevent or minimize jurisdictional disputes.

7.2.2 Indonesian Legislation Concerning Fisheries

Having outlined the Indonesian law dealing with baselines which is in

accordance with international law, the following section will analyze the adequacy

of the Indonesian law with regard to the management of fisheries resources in the

maritime zones of Indonesia. The analysis will adopt a historical approach by

examining the successive changes in legislation that address fisheries

management issues. This will enable analysis to be done on the effectiveness of

the legislative framework to address IUU fishing.

7.2.2.1 Law No. 5 of 1983 on the Indonesian Exclusive

Economic Zone

As provided under Article 56(1) of the LOSC, coastal States are entitled to

have sovereign rights in the EEZ for the purpose of exploring, exploiting,

conserving and managing living resources. In exercising their sovereign rights,

coastal States are obliged under Article 61 to determine the allowable catch of the

living resources in their EEZ. Article 62(4)(c) of the LOSC further provides that in

regulating foreign vessels fishing in the EEZ, coastal States have the power to

regulate the types of fishing gear and number of fishing vessels.

The first substantive modern fisheries legislation enacted by Indonesia was Law

No. 5 of 1983 on the Indonesian Exclusive Economic Zone, in accordance with the

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provisions of Part V of the LOSC. Under Article 4 paragraph 1 of Law No.5 of 1983

on the Indonesian Exclusive Economic Zone, Indonesia claimed sovereign rights

for the purpose of exploring, exploiting, conserving and managing the living and

non-living resources of the seabed, subsoil and superjacent waters of its EEZ.11

Article 4 (2 ) of Law No. 5 of 1983 must be read in conjunction with Law No.1 of

1973 on the Indonesian Continental Shelf. This is because in regards to the

seabed and subsoil, the continental shelf regime prevails and therefore Law No. 5

of 1983 must be read in a manner consistent with the provisions of the LOSC on

the continental shelf.

Government Regulation No.15 gave the Minister for Marine Affairs and Fisheries

(Formerly the Minister of Agriculture) the right to determine the total allowable

catch according to species or group of species either in the whole or parts of the

Indonesian EEZ. The total allowable catch was to be based on data derived from

research, survey, evaluation, or as a result of fishing activities.12 In addition, the

Minister of Marine Affairs and Fisheries could determine the allocation of the total

number of fishing vessels and types of fishing gear for each vessel on the basis of

the total allowable catch.13 To enable the living resources to be managed

sustainably, Regulation No.15 of 1984 prohibited the use of explosives, poisonous

substances, electrical current and other hazardous materials or equipment.

11 H.A.S Natabaya (Project Leader), “Final Report on an Overview and Evaluation of International Agreements on Marine and Coastal Management”, Cooperation Between Agency for National Law Development, Department of Justice and Directorate General of Regional Development Department of Home Affairs of the Republic of Indonesia, 1993-1994, p.52.

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Indonesia has clearly fulfilled its obligation as a coastal State with respect to

regulating foreign access in the EEZ. Admittedly, however, there are still other

issues that need to be resolved, such as IUU fishing incidents targeting shared,

straddling, and highly migratory fish stocks. Law No. 5 of 1983 merely deals with

fisheries conservation and management measures within the IEEZ. Since this law

was enacted prior to the entry into force of the UN Fish Stocks Agreement, the

relevant provisions of this law will have to be restudied and readjusted to conform

to Articles 5, 6 and 7 of the UN Fish Stocks Agreement. These provisions are

concerned with the compatibility between the management measures in the IEEZ

and on the high seas.

7.2.2.2 Presidential Decree No. 39 of 1980 on the Elimination of

the Use of Trawls

The first substantive modern fisheries enactment by Indonesia was the

Presidential Decree No. 39 of 1980 on the Elimination of the Use of Trawls. This

Presidential Decree was intended as an interim measure to eliminate the use of

trawls pending the enactment of substantive fisheries legislation. Article 2 of the

Presidential Decree banned the use of trawling as of 1 July 1980 until 1 July 1981.

Further, Article 3 banned the use of trawlers in waters off Java and Sumatra until

30 September 1980. This provision has further imposed a ban on the use of

trawlers along the coast of Sumatra as of 1 January 1981. Subsequently,

Presidential Letter of Instruction No. 11 of 1981 extended the ban on trawling

12 Article 4 13 Article 5

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nationwide. The Arafura Sea, where large foreign operated joint-venture trawlers

operated, was exempted from the application of this Presidential Letter, because of

local opposition to the ban.14.

The ban was particularly important due to the fact that trawlers, at that time, made

up a large proportion of the Indonesian fishing fleet. This could be gauged by local

landings and by contributions to foreign exchange earnings. Currently, trawling is

only allowed to operate in the Indian Ocean and some parts of the eastern

Indonesian waters with specially designed trawls approved by the Department of

Marine Affairs and Fisheries.15

The Presidential Decree applied to all Indonesian marine areas, but excluded the

coastal waters of the Indian Ocean and the Arafura Sea. Significantly, under

Article 5(1) of Presidential Decree No. 39, the trawlers which were affected could

continue fishing after replacing their gears with non-trawling fishing gears.

Paragraph 2 of the Decree allowed a person who was owner of a vessel to transfer

his or her vessel to change their status from trawl to non-trawl.

A number of problems were encountered in relation to the implementation of the

trawl ban. Not only was there local industry opposition to the ban, but also certain

unscrupulous actors who had access to the fisheries management authorities

14 Conner Bailey, “Lessons from Indonesia’s 1980 Trawler Ban”, Marine Policy, Vol. 21 No. 3, May 1997, p.225. 15 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resource Management: An Archipelagic Concept of Rational and Sustainable Resource Management” (Occasional Paper

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obtained trawl operation licenses contrary to the legislation. Another difficulty was

related to the fact that Articles 6 and 7 allowed the creation of regulations which

became inconsistent with the Presidential Decree.16 The same provisions created

loopholes with respect to modifying fishing gears, which may be associated with

unregulated fishing. At this point, it would be appropriate to revoke Presidential

Decree No. 39 which contradicts the Fisheries Law No.31 of 2004 as will be

discussed later. The use of trawls would need to be regulated in a fisheries

legislation.

7.2.2.3 The Decision of the Minister of Agriculture No. 392 of 1999 Concerning Fishing Zones

Article 62 (4)(c) of the LOSC on the regulation of the EEZ is implemented in

Indonesia through the decision of the Minister of Agriculture No. 392 of 1999.

Article 2 of this decision establishes three different fishing areas namely, Fishing

Zone I, Fishing Zone II, and Fishing Zone III.

Fishing Zone I covers the coastal fishing belt measured from the seaward low-

water line of each island up to a limit not exceeding 6 nautical miles toward the

sea.17 This fishing zone is sub-divided into two belts. The first encompasses the

coastal fishing belt measured from the seaward low-water line up to 3 nautical

miles and the second comprises the coastal fishing belt outside 3 miles up to 6

Series No 2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.11. 16 Tridoyo Kusumastanto, Ocean Policy in the Maritime State Development in Regional Autonomy Era, Gramedia Pustaka Utama Ltd Publisher, Jakarta, 2003, p.88. 17 Article 3 (1)

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nautical miles.18 Two types of fishing gears are allowed to be used within 3 nautical

miles of Fishing Zone I. These are permanent fishing gears19 and non-modified

permanent fishing gears.20 Non-motorized fishing vessels of not more than 10

metres in length are permitted to operate within this part of the zone.21

Fishing gears and vessels allowed to operate within the coastal fishing belt outside

3 nautical miles and up to 6 nautical miles include: (a) modified non-permanent

fishing gear; (b) fishing vessels using non-powered boats and/or outboard motor

boats of not more than 10 metres in length; (c) outboard powered and inboard

powered motors of not more than 12 metres in length or 5 gross tonnage in size;

(d) purse seiners of not more than 150 metres in length; and (e) drift gill net of not

more than 1000 metres in length.22

Fishing Zone II covers the coastal fishing belt outside Fishing Zone I up to 12

nautical miles seaward.23 Fishing vessels allowed to operate in this zone include

(a) fishing vessels using outboard powered motors of not more than 60 gross

tonnage in size; (b) fishing vessels using purse seine nets of not more than 600

metres in length operating from one non-group single vessels or not more than

1,000 metres by using two non-group double vessel; (c) tuna longline of not more

18 Article 3 ( 2) 19 The legislation does not define this fishing gear. 20 The legislation does not define this fishing gear. 21 Article 3 (3) 22 Article 3 (4) 23 Article 4 (1). See also Samekto, ‘’Final Report on Legal Planning Team in the Framework of Re-arrangement of Marine and Coastal Development of Riau Province ‘’, Agency for National Legal Development, Department of Justice of the Republic of Indonesia, 1999/2000, p.85.

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than 1,200 metres; and (d) squid jigging and drift gillnet of not more than 2,500

metres in length.24

The problems with Fishing Zones I and II relate mainly to the regulation concerning

regional autonomy in marine fisheries. If this regulation is read in conjunction with

the provision contained in Article 18 of Law No. 32 of 2004 on Regional

Government, it may be argued that the boundaries of these fishing zones need to

be revised. This is because the establishment of these fishing zones does not

conform to the new national division of ocean space under the provincial

jurisdiction (12 nautical miles) and the jurisdiction of the regencies or municipalities

(4 nautical miles).

Fishing Zone III covers the coastal fishing belt outside Fishing Zone II and up to the

outer limit of the Indonesian EEZ. Fishing vessels flying the Indonesian flag which

are not greater than 200 GT are allowed to operate in Indonesian waters.

However, fishing vessels using big pelagic purse seine nets of all sizes are

prohibited from operating in Tomini Bay, Maluku Sea, Seram Sea, Banda Sea,

Flores Sea and Sawu Sea. These fishing vessels are also allowed to operate in the

Indonesian EEZ of the Strait of Malacca, with the exception of vessels using fishing

nets of at least 60 GT.

The fishing activities permitted in the Indonesian EEZ outside the Malacca Strait

are Indonesian- and foreign-flagged vessels not greater than 350 GT using all

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TP

24 Article 4(2)

types of fishing gears. Fishing vessels of more than 350 GT but less than 800 GT

using purse seine nets can only operate in areas outside 100 nautical miles from

the baselines of the Indonesian archipelagoes. Fishing vessels using purse seine

nets under a group system are only allowed to operate in areas outside 100

nautical miles from the baselines of the Indonesian archipelago. Foreign- flagged

fishing vessels are permitted to operate in Fishing Zone III in accordance with the

prevailing law and regulations.25

It is worth noting that the fishing activities of Indonesian flagged vessels that fall

under the competence of regional fisheries management organisations are not

covered by the regulations on Indonesian fishing zones. Hence, any conflict that

may result in the absence of clear rules on fishing zones may lead to unregulated

fishing. A major impediment to conserving and managing fish stocks on the high

seas lies with Indonesian-flagged vessels that fish outside the scope of the RFMO

regulations and Indonesian domestic laws. Similar to the regulations on Indonesian

fishing zones, there is a need to establish regulations on fisheries access of

Indonesian nationals on the high seas.

7.2.2.4 Decision of the Minister of Marine Affairs and Fisheries concerning the Regulation of Fishing Vessels Operations in the Indonesian Exclusive Economic Zone

This Ministerial Decision was designed to implement Government

Regulation No. 15 of 1984 concerning the Management of Living Resources in the

25 Article 5 (3)

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Indonesian EEZ. It also aims to implement Article 62(4)(l) of the LOSC which

entitles coastal States to establish requirements relating to joint ventures or other

cooperative arrangements in the exploitation of resources in the EEZ.

One of the main objectives of the Ministerial Decision is to utilise the fishery

resources within the Indonesian EEZ in a responsible, optimal, and sustainable

manner. The Decision provides three types of schemes for the operation of fishing

vessels for catching fish in the Indonesian EEZ, namely joint ventures, purchase on

instalments,and licensing.

7.2.2.4.1 Joint ventures

Arrangements for operating fishing boats through joint ventures are carried

out by using foreign fishing boats as a capital share of a joint venture fishing

company in accordance with regulations on foreign investment.26 The joint venture

company is allowed to procure fishing vessels through purchase in instalments.27

Such procurement requires obtaining prior approval from the Director General of

Capture Fisheries.28 The application for this approval must be submitted to the

Director General of Capture Fisheries and accompanied by a copy of the written

approval for foreign capital investment.29 Joint venture companies established

under Article 4 paragraph 1 of the Ministerial Decision which operate a total of 20

or more fishing vessels have an obligation to construct a fish processing unit on

26 Article 4 ( 1) 27 Article 4 ( 2) 28 Article 5 ( 1 ) 29 Article 5 (2 )

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land, at a minimum value of 20 per cent of the total value of vessels in operation.30

The fishing vessels engaged in fishing within the Indonesian EEZ as part of a joint

venture fishing company are required to obtain fishing permits.31 This fisheries

policy lays down detailed requirements of joint venture arrangement for both the

national and foreign investors of the foreign fishing vessel.

Under this scheme, a domestic investor who wants to cooperate with the owner of

foreign fishing vessels is required to have a fishing vessel. When this requirement

is met, a domestic fishing investor will obtain a license to enter into a partnership

with the owner of the foreign fishing vessel. A major concern with this scheme is

that if the domestic investor does not have a vessel, they could use the fishing

vessel of another person in order to obtain a fishing license.32

7.2.2.4.2 Purchase on Instalments

The purchase on instalment system provides fishing companies the

opportunity to obtain foreign fishing vessels through a purchase system.33 Similar

to joint venture arrangements, Article 11 paragraph 2 provides that fishing

companies who wish to take advantage of this scheme are required to obtain prior

approval from the Director General of Capture Fisheries. The application for

approval must be submitted to the Director General and accompanied by an

30 Article 6 ( 1 ) 31 Article 8 (1) 32 Tridoyo Kusumastanto, op.cit, pp. 44-45. 33 Article 11 (1)

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original copy of the fishing business license, a vessel operation plan, and an

instalment payment plan.

There are several types of fishing vessels that can be procured through this

arrangement. These include (a) fishing vessels using longline gears between 100

GT and 350 GT with steel or fibreglass construction and not more than 15 years in

age; (b) fishing vessels using purse seine fishing gears between 100 GT and 800

GT of steel construction with one vessel system and not more than 15 years in

age; (c) fishing vessels using fishnets between 100 GT and 400 GT of steel

construction of not more than 15 years in age; (d) fishing vessels using shrimp nets

between 100 GT and 300 GT of steel construction and not more than 15 years in

age; (e) fishing vessels using gill nets between 100 GT and 300 GT of steel

constructed and not more than 15 years in age; and (f) other fishing vessels using

bouke-ami34 and squid jigging between 100 gross tonnage and 300 GT of steel

construction and not more than 15 years in age.35 In addition, these fishing vessels

must have fishing licenses issued by the Directorate General of Capture

Fisheries.36

There are several concerns related to the use of specific types of fishing vessels

and gears under the purchase on instalments scheme of the Indonesian

Government. Some fishing gears have negative effects on both target and non-

34 Bouke ami is a gear that uses a stick-held lift net which is operated at night with an attracting lamp. 35 Article 12 36 Article 15 (1)

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target fish species and the marine environment. Tuna longline vessels catch at

least one sea turtle per month.37 Tuna purse seine vessels have the most

devastating direct human impact on the tropical epipelagic ecosystem in all

oceans.38 Fishing vessels using fish nets pose massive environmental degradation

and decrease the quality of economic life in many coastal fisheries villages in

Indonesia.39 Fishing vessels capturing shrimp incidentally catch sea turtles,

including hawksbill, green turtles, log ridley and leatherback turtles.40 Fishing

vessels using gill nets also catch large amounts of mammals, sea turtles and

occasionally sea birds.41 Vessels that conduct bouke ami impact on the marine

environment negatively while those conducting squid jigging contribute to the

incidental capture of seabirds.42

Most of the fishing gears described above are unregulated. As indicated earlier, the

problem is particularly evident in respect of unregulated use of lamp in purse

seining in the IEEZ of the South China Sea. Purse seines have a negative impact

on the sustainability of fisheries resources within and beyond national jurisdiction. It

37 International Sea Turtle Activities, NOAA National Marine Fisheries Service, NOAA Pacific Islands Regional Office, 2002, p.3, http://www.72.14.253.104/search?q=cache:TKYBoSDOyQk:www.fpir.noaa.gov/I (accessed on 31/1/2007). 38 Evgeny V. Romanov, “Bycatch in the Tuna Purse Seine Fisheries of the Western Indian Ocean”, Southern Scientific Research Institute of Marine Fisheries and Oceanography, Ukraine, 2002, p.1. 39 Mark V Erdmann, “Leave Indonesia’s Fisheries to Indonesians”, Inside Indonesia Journal No.63, July-September 2000, p.2, http://72.14.253.104/search?q= cache:KFN4uLPihY4J:www. inside Indonesia. o… (accessed on 31/1/2007). 40 International Sea Turtle Activities, op.cit, p.2. 41 Fishing Technique Fact Sheet, Fisheries Global Information System Fishing Technique Sheets FAO, 2003, p.1. http://www.fao.org/figis/servlet/fishtech?fid=1011. 42 Final Report on IUU Fishing on the High Seas: Impacts on Ecosystems and Future Science Needs, Marine Resources Assessment Group LtD 18 Queen Street London, United Kingdom, August 2005, p.19.

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http://www.72.14.253.104/search?q=cache:TKYBoSDOyQk:www.fpir.noaa.gov/I

http://72.14.253.104/search?q

http://www.fao.org/figis/servlet/fishtech?fid=1011

would therefore be necessary for Indonesian fisheries management authorities to

address the use of unregulated fishing gears.

7.2.2.4.3 Licensing

The last scheme to be discussed on the operation of foreign fishing vessels

is the licensing system, which is regulated by Article 18 of the Decision of the

Minister of Marine Affairs and Fisheries Concerning the Regulation of Fishing

Vessels Operation in the Indonesian Exclusive Economic Zone. This regulation

provides opportunities for foreign persons or legal entities to use their vessels to

undertake fishing activities in the Indonesian EEZ. Licenses are granted by the

Director General of Capture Fisheries upon the fulfilment of three requirements.

First, there needs to be a bilateral agreement between the Indonesian government

and the national government of the foreign person or legal entity. Second, the

nationality of the foreign fishing vessel must be the same as that of the foreign

person or legal entity. Third, there needs to be a surplus of the total allowable

catch, which must be separately determined through a Ministerial Decree.43

Another important requirement that must be fulfilled under the licensing system is

the obligation of foreign fishing companies to obtain an allocation from the

Department of Marine Affairs and Fisheries.44 Licensing arrangements are based

on specific international agreements. What Article 18 of the Ministerial Decision

implies is that unless there is an agreement in place, fishing licenses cannot be

43 Article 18 44 Article 19 (1)

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issued to foreign fishing vessels. Based on this scheme, licenses have been given

to foreign fishing vessels of different nationalities.45 Rather than partner with

foreign investors, the current policy in Indonesia is to enter into access agreements

with foreign countries allowing licensed foreign fishing vessels to fish in the

Indonesian EEZ. Some of these access arrangements which are based on

previous agreements on fisheries cooperation include:

• Bilateral Arrangement between the Department of Marine Affairs and

Fisheries of the Republic of Indonesia and the Ministry of Agriculture of the

People’ Republic of China on the Utilisation of Part of the Total Allowable

Catch in the Indonesian Exclusive Economic Zone. This agreement is a

follow-up to the Memorandum of Understanding between the two parties on

fisheries cooperation, signed in Beijing on 23 April 2001.

• Arrangement between the Department of Marine Affairs and Fisheries of the

Republic of Indonesia and the Department of Agriculture of the Republic of

the Philippines on the Utilisation of Part of the Total Allowable Catch in the

Indonesian Exclusive Economic Zone, which was preceded by a

Memorandum of Understanding between the two parties, signed in Jakarta

on 12 November 2001.

• Arrangement between the Department of Marine Affairs and Fisheries of the

Republic of Indonesia and the Ministry of Agriculture and Cooperatives of

the Kingdom of Thailand on the Utilisation of Part of the Total Allowable

45 Mochtar Kusumaatmadja, “Sovereign Rights Over Indonesian Natural Resources : An Archipelagic Concept of Rational and Sustainable Resource Management”, (Occasional Paper Series No.2), Centre for Archipelago, Law and Development Studies, Bandung, Indonesia, 1995, p.17.

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Catch in the Indonesian Exclusive Economic Zone, which was based on the

Memorandum of Understanding between the Indonesian and Thai

Governments on Fisheries Cooperation, signed in Jakarta on 17 January

2002.

Based on these arrangements, only Thai, Philippine and Chinese fishing vessels

are presently allowed to catch fish in designated areas of the Indonesian EEZ.

Such a policy is in line with the provision of Article 62(2) of the LOSC which permits

foreign access through agreements or arrangements subject to the availability of a

surplus in fisheries resources.

Under Article 2 of the Arrangement between Indonesia and China, the fishing

vessels of the People’s Republic of China are permitted to take tuna and billfish

stocks in the Indonesian EEZ off the Pacific Ocean within the coordinates 128E

and 140E, and in the Indonesian EEZ off the Indian Ocean, within the coordinates

92E and 102E. fishing vessels flying the flag of the People’s Republic of China are

also allowed to carry out fishing activities in the Indonesian EEZ off the north of

Riau Province and the Arafura Sea.46 The fishing vessels flying the flag of the

Philippines operating under the Indonesia-Philippine Arrangement can fish tuna

and billfish stocks in areas of the Indonesian EEZ and Pacific Ocean between

120E and 140E and in the Indonesian EEZ off the Indian Ocean between 92E and

102E;47 whilst under the Indonesian-Thai Arrangement, Thai fishing vessels are

46 Article 2 of this Arrangement 47 Article 2 of this Arrangement

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permitted to fish demersal fish species in the Indonesia EEZ off the South-China

Sea and the Arafura Sea.48

One of the shortcomings of these arrangements is that they do not describe the

compliance obligation of flag States as required in paragraphs 1 and 2 of Article 18

of the UN Fish Stocks Agreement. These provisions state that flag States like

China, Philippines, and Thailand have the primary responsibility for the regulation

and control of the activities of vessels carrying their flags in the IEEZ. Thailand and

the Philippines have been criticized for their growing fleet of distant water fishing

vessels, which continue to engage in IUU activities in fishing areas provided under

the bilateral arrangements. In order to improve the effectiveness of flag State

control, the arrangements would need to contain provisions that would ensure that

flag States would enforce proper control and jurisdiction over vessels conducting

fishing activities in the IEEZ.

7.2.2.5 Law of the Republic of Indonesia No. 31 of 2004

Concerning Fisheries

As highlighted earlier, the main objective of the UN Fish Stocks Agreement is

to ensure the long-term conservation and sustainable use of straddling fish stocks

and highly migratory fish stocks in their entirety through effective implementation of

the relevant provisions of the LOSC.49 Even though the UN Fish Stocks Agreement

applies mainly to the conservation and management of these fish stocks on the

48 Article 2 of this Arrangement. 49 Article 2 of the UN Fish Stocks Agreement.

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high seas,50 the key conservation and management principle also apply in EEZs in

order to ensure compatibility of management measures between the EEZ and the

high seas.51 The principle of compatibility of measures provides coastal States with

the appropriate legal support for measures designed to monitor fishing activities in

order to prevent vessels from undermining conservation and management

measures.

Indonesia has recently implemented a new fisheries law which incorporates the

fisheries management requirements of the FAO Code of Conduct for Responsible

Fisheries, instead of acceding to the UN Fish Stocks Agreement. The new law,

Republic of Indonesia No. 31 of 2004 Concerning Fisheries, encourages

development in fisheries whilst emphasizing the need to achieve long term

conservation of fish species and the sustainable use of the fisheries resources. 52

Article 7 of Law No. 31 on Fisheries gives power to the Minister to establish

fisheries management plans and implement a number of fisheries management

measures, including the: (a) allocation of fisheries resources within fisheries

management areas; (b) determination of the total allowable catch for fisheries

resources in the management areas; (c) determination of the types, quantity, sizes,

and positions of fishing gears and supporting gears, as well as zones and period or

seasons of fishing; (d) requirements or standard operating procedures for capture

fisheries; and (e) implementation of fishing vessel monitoring system.

50 Article 3 (1) 51 Articles 5, 6 and 7

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Article 7 of Law No. 31 on Fisheries also grants power to the Minister to determine

protected fish species and protected sea areas. Additionally, for the benefit of

science, culture, tourism, and the preservation of fisheries resources and its

environment, the Minister has the power to declare national marine protected areas

where restrictions may be imposed on fishing activities or other related activities.

However, the crucial issue is whether or not this special area can be declared as a

fishery ecosystem in which specific provisions prohibiting the catching of fish would

apply. A question may arise whether fishing in such an area is regarded as illegal

fishing, so that the catching of fish is totally prohibited.53 Similarly, Article 9 of Law

No. 31 on Fisheries prohibits all persons from possessing, controlling, carrying,

and using certain types of fishing gears within the fisheries management areas of

the Republic of Indonesia. These include all fishing gears and/or supporting fishing

gears that do not conform to the prescribed sizes or prescribed requirements or

standards and all other fishing gears which are prohibited.

Articles 8 and 9 of Law No. 31 on Fisheries have two main intentions, namely: the

prohibition of the use of destructive methods and the prohibition of illegal fishing

gears and supporting fishing gears. These provisions address the problem of

degradation or depletion of fish stocks in the long-term.

52 Article 13 53 Mochtar Kusumatmadja and Tommy H. Purwaka, “Legal and Institutional Aspects of Coastal Aspects of Coastal Zone Management in Indonesia”, Marine Policy, Vol. 20, No 1, Elsevier Science Ltd, Great Britain, 1996, p.79.

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The implementation of the new Fisheries Law has not been without difficulty.

Arguably, serious fisheries problems exist because large scale unregulated fishing

occur in the Indonesian EEZ of the South China Sea. The concern expressed over

the use of illegally modified fishing gear such as the danish seine has highlighted

significance deficiencies in the existing regime. Inclusion of provisions on banning

the use of this fishing gear into the Indonesian fisheries law would certainly

enhance Indonesia’s commitment to the long- term conservation and sustainable

use of shared fish stocks in the Indonesian EEZ and the adjacent high seas.

For the first time in Indonesia, Law No. 31 on Fisheries also introduced a

substantial change to the actors who can be held responsible for violating fisheries

regulations. To ensure that all persons fish responsibly, Article 8(1) of Law No. 31

on Fisheries prohibits all persons from using chemical substances or biological

substances such as explosives when fishing. Under Article 8(2) and 8(3), the same

prohibitions are applied to the vessel master or commander of a fishing vessel,

fishing expert, and all crews of a fishing vessel, as well as the proprietor of a

fishing company, and any person in charge of a fishing company, and/or operator

of a fishing vessel.

Consistent with the IPOA-IUU,54 Articles 84 and 85 of Law No. 31 on Fisheries

also endeavour to deter fisheries-related offences through the application of

54 Paragraph 21 requires States to ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

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stringent penalties. The penalty for using illegal fishing gear under the Law No. 31

on Fisheries is contained in Article 85. This provision sets a 5 year maximum

imprisonment for possessing, controlling, carrying, employing illegal fishing gear

and/or supporting fishing gears on a fishing vessel. Article 84(1) imposes a strict

liability offence on all persons who use destructive fishing methods in Indonesian

fishing areas. Penalties for these fisheries-related offences include up to ten years

maximum imprisonment and a fine of up to 1.2 billion rupiahs. Further, under

paragraph 2, the vessel master and crew, would be equally liable if they are found

guilty for committing an offence under the Law No. 31 on Fisheries. In case where

the proprietor of a fishing vessel, owner of a fishing company and any person in

charge of a fishing company fail to observe Article 8(3), they would be liable up to a

fine of up to two penalties which is increased for those who use destructive fishing

methods. Fines for individuals and companies who use destructive fishing methods

are significantly increased from 1.2 billion rupiahs to two billion rupiahs.

Obviously, the imposition of criminal sanctions and heavy penalties as deterrent to

IUU fishing activities has gained widespread acceptance. Penalties also

demonstrate the seriousness of offences as viewed by enforcement agencies.55

However, penalties for heavier criminal offences under the Law No. 31 on

Fisheries have yet to be imposed by Indonesian courts since the enactment of the

law in 2004.

55 Diane Erceg, “Deterring IUU Fishing Through State Control Over Nationals”, Marine Policy, 2005, Elsevier, p. 4.

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Despite its bold efforts, it could still be argued that Law No.31 on Fisheries is

inadequate in enabling Indonesia to fully comply with its international fisheries

obligations to combat IUU fishing. Law No. 31 on Fisheries only prescribes a range

of conservation and management measures to be applied within the Indonesia’s

EEZ and does not deal with the conservation and management of transboundary

fish stocks as provided in the UN Fish Stocks Agreement.56 The intention of

adopting conservation and management measures for such stocks is to reduce,

eliminate or prevent the use of destructive methods and excess fleet capacity.

There is also a general duty for States to prohibit fishing activities which undermine

conservation and management measures.57

Indonesia is considered to be among the most important tuna fishing States in the

Indian Ocean. The annual catch of tuna and tuna like species in the Indian Ocean

waters of Indonesia was estimated to be 177,384 tonnes in 2002. This represented

10.09 per cent of the nominal catch of these fish stocks in the Indian Ocean Tuna

Commission (IOTC) area.58 This tuna catch is taken by both small and big

Indonesian long line vessels. Southern bluefin tuna (SBT), yellowfin, and bigeye

tuna are also targeted by Indonesian fishing vessels off south of Java and the

Lesser Sunda Islands.59 There are also a number of transboundary fish stocks in

Indonesian fishing management areas of the South China Sea, the Indian Ocean

56 Article 5 (h) 57 Article 5(h) 58 Craig H. Proctor, I. Gede S.Merta, M.Fedi A.Sondita, Ronny I. Wahyu, Tim L.O. Davis, John S.Gunn and Retno Andamari, op. cit, p. 5. 59 T.L.O. Davis and R.Andamari, “The CSIRO/RIMF Monitoring Systems Used to Determine the Catch of SBT by the Indonesian Long-line Fishery”, Prepared for the CCSBT Indonesian Catch Monitoring Review, 10-11 April 2003, Queenstown, New Zealand, C S I R O Marine Research, p. 1.

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and the Arafura Sea. Further, the Philippines and Indonesia have the largest

annual catch of pelagic tuna taken from the Philippines and the Pacific Ocean

waters of Indonesia. In 2002, both countries had an combined estimated catch of

599,612 tonnes, which is 29.9 per cent of the total catch of pelagic tuna in the

Western and Central Pacific Ocean.60

Article 10(b) of Law No. 31 on Fisheries provides the requirement for Indonesia to

cooperate with other States for the purposes of conservation and management of

fisheries resources on the high seas and in enclosed or semi enclosed seas. Under

Article 10(2) of Law No. 31 on Fisheries, Indonesia is obligated to actively

participate in RFMOs. However, to date, Indonesia has not yet become a full

member of any of the RFMOs in whose areas jurisdiction Indonesian nationals and

vessels fish. These include the IOTC, the Commission for the Conservation of

Southern Blue-fin Tuna (CCSBT) and the Western and Central Pacific Fisheries

Commission (WCPFC). Instead, Indonesia has chosen to remain as a cooperating

non-contracting party to these RFMOs.61

To effectively combat IUU fishing, Indonesia must participate actively in RFMOs.

This is because the exploitation of the resources in Indonesia’s EEZs can

adversely affect similar activities in neighbouring countries or areas under the

60 “Proposal for Monitoring the Catches of Highly Migratory Species in the Philippines and the Pacific Ocean Waters of Indonesia”, Secretariat of the Pacific Community, Neomea Cedex New Caledonia, 2003, p.1. 61 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2004, p. 38.

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jurisdiction of RFMOs.62 Given Indonesia’s geo-strategic position between the

Pacific and the Indian Oceans and between the Australian and the Asian

continents, lack of cooperation will be counter-productive.63 Apart from

membership in RFMOs, Indonesia would need to develop comprehensive rules at

the national level to address IUU fishing problems, particularly to ensure that its

vessels comply with conservation and management measures inside and outside

its areas of national jurisdiction.

7.3. Challenges in Institutional Framework to Combat IUU Fishing

There are several challenges confronted by Indonesian government

agencies in combating IUU fishing. These challenges may be categorised into

problems of management and problems of enforcement.

7.3.1 Problems in Management

Indonesia is faced with the inadequacy of fisheries-related management,

institutional framework, and laws. It must be pointed out that inadequate

management controls, institutions and law are the main factors contributing to

unsustainable fisheries development. Inadequate management and institution may

lead to ineffective monitoring, control and surveillance (MCS) and undefined

powers of each agency.64 Inadequacy in management can also be in the form of

62 Hasjim Djalal, “The Law of the Sea Convention and Indonesian Responses”. in Hasyim Djalal, The Indonesia and the Law of the Sea, Centre for Strategic and International Studies, Jakarta, 1995, p. 221. 63 Hasjim Djalal, “Indonesian Foreign Policy at the Advent of the 21ST Century”, Department of Education and Culture, Padjadjaran University, Bandung, Indonesia, 1996, p. 40. 64 Report of the International Workshop on the Implementation of International Fisheries Instruments and Factors of Unsustainability and Overexploitation in Fisheries, Mauritius, 3-7

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conflicting objectives, lack of will and authority, and the inability to implement

required management measures by fisheries authorities.65 The failure to deliver an

effective institution and management reflects the inadequacy in the law. The author

argues that the national framework established for the conservation and

management of fisheries in Indonesia is inadequate in the current context of

sustainable development.

The Department of Marine Affairs and Fisheries has the responsibility for the

management and protection of particular fish species and protected sea areas.

Law No. 5 of 1990 on Conservation of Living Resources and their Ecosystems

recognizes the need to protect particular fish species. Article 8 of Law No. 5 of

1990 provides power to the Minister for Forestry to establish nature conservation

areas on land or at sea for the purpose of preserving biological diversity and

national parks. The aim of the establishment of nature conservation areas under

this law is to ensure the global conservation of both terrestrial and aquatic fauna

and flora and their ecosystems in Indonesia. Based on this law, the Department of

Forestry also has the responsibility for marine conservation, planning and

management of marine protected areas.66 This shows that two agencies have the

same responsibilities for the regulation of fish stocks.

February 2003, FAO Fisheries Report No.700, Food and Agriculture Organization of the United Nations, 2004, p.19. 65 Report of the International Workshop on the Implementation of International Fisheries Instruments and Factors of Un-sustainability and Overexploitation in Fisheries, op.cit, p.21. 66 Etty R. Agoes, Policing Offshore Zones: Indonesia’s Model and Experiences in Doug Mac Kinnon, and Dick Sherwood (Editors), Policing Australia’s Offshore Zones (Problems and

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Another critical issue with respect to fisheries management relates to the lack of

regulation in the exploitation and conduct of commercial activities for ornamental

fish.67 A major problem in this area is the lack of fisheries policy to clearly identify

and define the scope of each department competence. Unregulated ornamental

fishing activities highlight a gap in the current fisheries management.

In dealing with the growing number of unregulated ornamental fishing activities, it is

suggested that a joint fisheries policy between the Department of Marine Affairs

and Fisheries and the Department of Forestry be adopted. Rather than focusing

exclusively on a department agency, it is suggested that both departments

determine total allowable catch and that measures on reporting, vessel number

limitation, fishing gears and licensing be applied with the discretion of the

Department of Marine Affairs and Fisheries. Fishing permits must contain terms

and conditions necessary to protect and control ornamental fish development. A

system of joint surveillance to enforce the policy is also needed.

7.4.2 Problems of Enforcement

As stated in Article 73 of the LOSC, coastal States have the right to enforce

national fisheries laws and regulations on vessels engaged in fishing in the EEZs.

The powers of enforcement of coastal States with respect to foreign vessels fishing

in their EEZ include boarding, inspection, arrest, and conduct of judicial

Prospects), Wollongong Papers on Maritime Policy No.9, Centre for Maritime Policy, University of Wollongong, Wollongong, New South Wales, Australia, 1997, p.183.

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proceedings. In the context of transboundary fish stocks, Article 5(h) of the UN Fish

Stocks Agreement lays down further extension of a coastal State’s power to

implement and enforce the conservation and management measures of straddling

fish stocks and highly migratory fish stocks through effective MCS systems. The

UN Fish Stocks Agreement provides four types of enforcement, namely through (a)

the flag States; (b) international cooperation; (c) RFMOs; and (d) the port States.

The ability to effectively enforce fisheries legislation is also a crucial factor in

combating IUU fishing. Three major gaps can be identified in the enforcement of

Indonesia’s legal and institutional framework. These gaps must be solved if

Indonesia wishes to effectively combat IUU fishing. The first is an institutional gap

whereby the responsibility for enforcement of fisheries laws and regulations is

divided between two institutions, namely: the Department of Marine Affairs and

Fisheries, which is responsible for the licensing of fishing vessels and the

monitoring of all fishery-related activities; and the Indonesian Navy, which has the

general responsibility for fisheries enforcement, particularly in addressing illegal

fishing activities. The central problem with respect to the conflict of jurisdiction

between these two agencies partly results from the unclear division of functions in

fisheries law enforcement in the IEEZ. According to the current laws, there are two

types of officers having the primary power to enforce fisheries regulations in the

IEEZ. The first are officers of the Navy designated by the Commander in Chief of

the Indonesian Armed Forces, who, under Article 14(1) of Law No. 5 of 1983 on

67 Interview with Subhat Nurhakim, who is Director of Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research of the Department of Marine Affairs and Fisheries of the

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the IEEZ are competent to enforce the fisheries law in the IEEZ.68 The second are

fisheries control officers, who, under Article 66(1) of the Law No. 31 on Fisheries

have the power to enforce fisheries laws and regulations in the Indonesian waters.

Two types of fisheries control officers, pursuant to paragraph 2 of this article, can

be distinguished--civil servant fisheries investigators and non-civil servant fisheries

investigators.

Interestingly, Article 66 of Law No. 31 on Fisheries emphasizes that the Minister of

Marine Affairs and Fisheries has the power to designate fisheries control officers

recruited from civil servant investigators of the Department of Marine Affairs and

Fisheries, the Navy officers or the Marine Police or officers of other agencies such

as the Department of Forestry.69 This means that the policy guidelines and

directives on the enforcement of fisheries laws and regulations are provided by the

Minister of Marine Affairs and Fisheries.

The boarding and inspection powers provided to fisheries control officers according

to Article 73(4) of the Law No. 31 on Fisheries include searching, seizure, arrest

and deterrence of vessels and persons suspected of violating fisheries laws and

regulations in the Indonesian waters. The article goes on to emphasize that civil

servant investigation officers of the Department of Marine Affairs and Fisheries

who are designated to be principal investigators have the primary responsibility of

Republic of Indonesia, 14 January 2003. 68 Philippe Cacaud, “Indonesia Review of Legal Issues and Revised Fisheries Law”, Food and Agriculture Organization of the United Nations, Rome, October 2001, p.43. 69 Philippe Cacaud, op.cit, p.44.

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enforcing fisheries laws and regulations. The question is whether these powers

cover the fisheries law enforcement in the IEEZ, which overlap with the Navy

officers’ competence as sole investigators of fisheries violations in the EEZ

provided by Law No. 5 of 1983 on the IEEZ. The problem is that Law No. 31 on

Fisheries is unclear as to whether or not Navy officers have the primary

responsibility in investigating IUU fishing cases in the IEEZ.

Broadly speaking, Indonesia has not yet established a comprehensive ocean policy

on marine resources management under the jurisdiction of a coordinating agency.

Even though the Department of Marine Affairs and Fisheries is responsible for the

formulation of ocean policy, it has no specific function to coordinate all marine-

related affairs.70 Meanwhile, the existing agencies have a variety of functions and

often act on their own. As a result, the present institutional framework lacks the

integrative capacity that is required to effectively enforce fisheries laws and

regulations71 and effectively combat IUU fishing.

Hence, inadequate legal and institutional frameworks have contributed to the

deterioration of fisheries law compliance. The fact that IUU fishing in Indonesian

waters has increased during the last few years is prima facie evidence that law and

institutional frameworks are inadequate to deter the growing number of fisheries

violations.

70 M. Husseyn Umar, “Development Problem and Maritime Enforcement in Indonesia”, A Paper Presented at Seminar on Sea Communication Empowerment, Jakarta, 2003, p.6 71 Interview with Nur Zuhri, who is Head of Law Division, the Indonesian Navy Office, Jakarta, 5 January 2004.

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The second gap in the existing legal and institutional framework is Indonesia’s lack

of adequate legislation and enforcement measures to combat IUU fishing on the

high seas. The inadequacy of legislation and enforcement measures is caused by

the inability to implement required management measures and the existence of

loopholes and ambiguities in the legislation. This problem is magnified at the

regional level as shown by Indonesia’s lack of initiative to participate actively in

RFMOs. The slow progress in Indonesia’s implementation of international fisheries

instruments has contributed significantly to Indonesia’s lack of appropriate fisheries

laws and regulations to combat IUU fishing. Gaps in the current Indonesian

fisheries legal framework allow some Indonesian vessels to conduct unregulated

fishing on the high seas beyond the reach of national and international laws.

The lack of adequate controls over fishing activities on the high seas can be

regarded as one of the factors of non-compliance72 with international fisheries

instruments by Indonesian fishing vessels. As concerns over IUU fishing grow, the

Indonesian Government will be increasingly faced with two legal problems: first, the

establishment of adequate institutional arrangements and regulatory measures;

and second, the high seas fisheries management. A major issue that Indonesia will

have to consider is the development of an effective fisheries law enforcement in

accordance with the UN Fish Stocks Agreement. A coordinating minister for ocean

72 John G. Sutinen, Alison Rieser, and John R. Gauven, “Measuring and Explaining Noncompliance in Federally Managed Fisheries”, Ocean Development and International Law , Vol.21, 1990, p.362.

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affairs and other relevant sectors is needed to implement and enforce the modern

international fisheries instruments in a comprehensive and integrative manner.

The third problem affecting the effectiveness of Indonesia’s laws to address IUU

fishing relates to regional autonomy. Article 3 of the Law No. 32 of 2004 on

Regional Governments divides the territory of the Republic of Indonesia into

autonomous provinces, regencies and municipalities. Under Article 18(1) of Law

No. 32, regional governments are granted jurisdiction to manage natural resources

within their marine areas. Such jurisdiction includes the exploration, exploitation,

conservation and management of marine natural resources within assigned

territories, as well as the enforcement of relevant laws and regulations. Under

paragraph 4 of the same article, the management of marine natural resources

within 12 nautical miles is the responsibility of provincial governments. One third of

the jurisdiction assigned to the provinces comes under the jurisdiction of the

regency government. Regional governments are entitled to apply and enforce their

fisheries conservation and management measures and those adopted by the

central government within and beyond 12 nautical miles. The latter jurisdiction has

to be linked with Article 65(2) of the Law No. 31 on Fisheries which deals with the

delegation of fisheries functions from the central government to regional

governments.

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The main underlying legal and policy issue for Indonesia’s regional government

system is the lack of sufficient legislative authority for fisheries activities.73 Without

a legislation defining the role and powers of local government, the effectiveness of

the regional government will remain at risk. The lack of a clear policy on this issue

affects the ability of Indonesia to effectively control IUU fishing. Although issues

between the central and provincial governments are basically domestic in nature,

the problems which arise influence the implementation of international fisheries

instruments.

Indonesia not only needs a clear legislative mandate, but also a clear division of

functions and responsibilities between central and provincials agencies to achieve

the above goals. 74 The threat of IUU fishing raises important issues of jurisdiction

and fisheries resources protection in municipal and national marine fisheries

areas.75 An adequate legislative basis for regional government would give regional

governments the authority to develop and manage its fisheries resources in an

effective manner.

73 For discussion for the significance of this area see Suparman A.Diraputra, “Guideline for the Establishment of Jurisdiction Zone Determination of Regional Government at Sea”, Directorate General of Capacity Development and Institution, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2000, p.2; See also Abdul Malik, “Policy Approach in the Arrangement of Marine Area”, Paper Presented at Seminar and Exhibition of the Indonesian Mariculture Development Supporting National Employment Project 2003, Jakarta, Indonesia, 26 August 1999, p.9 ; See also Mochtar Kusumaatmadja, “Defence Jurisdiction at Sea and on Air Beyond Limits of Province and Regency”, Center for Archipelago, Law and Development Studies”, Bandung, Indonesia, 1995, p.13. 74 Mochtar Kusumaatmadja, Rights Over Natural Resources in Southeast Asia : Managing Fisheries in Indonesia, op.cit, p. 122. 75 See also Raefuddin Hamurunny (Director General of Regional Development, Department of Home Affairs of the Republic of Indonesia, ”Regional Autonomy and Coastal Area Development

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7.4 Conclusion

This chapter analysed the adequacy of the Indonesian fisheries legislation

and institutional framework to combat IUU fishing. The chapter has demonstrated

Indonesia’s commitment to implementing effective international fisheries law in the

battle against IUU fishing. Unfortunately, Indonesia’s fisheries laws and regulations

with respect to fisheries conservation and management are inadequate to address

the problems of IUU fishing. The legal framework provisions fail to adequately

address a range of issues, including straddling fish stocks and highly migratory

species and IUU fishing within and beyond national waters. The recent enactment

of the Law No. 31 on Fisheries has helped fill some of the gaps in earlier

legislation; however, much more remains to be achieved. Protection of world

fisheries resources has grown in importance, as the levels of IUU fishing have

increased. Therefore Indonesia would need to revise its current laws by ratifying,

and adopting international rules and principles of conservation and management

measures, as well as enforcement regimes contained in the UN Fish Stocks

Agreement.

This chapter also argued that the institutions created under existing laws and

regulations do not successfully address the problems of IUU fishing. They have

involved a range of Indonesian Ministries with unclear division of fisheries-related

functions including the Departments of Marine Affairs and Fisheries, Department of

Forestry and the Navy. There are also conflicts of jurisdiction between the central

Funding”, A Keynote Speech at Marine Seminar, Jakarta 15 April 1999, The Nature Conservancy, p.10.

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and provincial governments. There is an urgent need for legislative and institutional

reform to respond to IUU fishing challenges.

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CHAPTER 8

THE INDONESIAN REGULATORY FRAMEWORK FOR VESSEL REGISTRATION AND FISHING VESSEL LICENSING

8. 1 Introduction

In an attempt to combat IUU fishing, international fisheries instruments

impose a range of obligations on States to exercise effective control over fishing

vessels flying their flags.1 As discussed in chapter 6, Indonesia is faced with a

problem of IUU fishing in various forms, including the falsification of vessel

information by vessel owners, the double flagging of vessels and unregistered and

unlicensed fishing activities. Most of these IUU fishing activities are caused by the

absence of effective legislation with respect to fishing vessel registration and

vessel licensing. Accordingly, the purpose of this chapter is to assess the

adequacy of the laws and regulations of Indonesia dealing with fishing vessel

registration and licensing, including the licensing of the use of fish aggregating

devices (FADs). The chapter argues that the current Indonesian regulatory

framework for vessel registration and licensing is not adequate to implement

Indonesia’s obligations under international fisheries instruments to combat IUU

fishing. The chapter concludes by providing some suggestions on how Indonesia

can improve the existing regulatory framework for fishing vessel registration and

licensing.

1 Articles 18, 19 and 20 and 22 of UN Fish Stocks Agreement.

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8.2 Legal Framework for Fishing Vessel Registration The legal framework for fishing vessel registration in Indonesia consists of

three instruments, namely (a) the Law No. 31 on Fisheries; (b) the Law No. 21 on

Shipping; and (c) Government Regulation No. 51 of 2002 on Shipping. Each of

these instruments will be examined in turn.

8.2.1 Law No. 31 of 2004 on Fisheries

Article 35(1) of the Law No. 31 on Fisheries requires all persons who

construct, import or modify fishing vessels to obtain prior approval from the Minister

of Marine Affairs and Fisheries. Article 35(2) the Law No. 31 on Fisheries further

provides that fishing vessels may be constructed or modified either in Indonesia or

abroad, after obtaining approval from the Minister for Sea Communication in

respect of the technical capabilities and seaworthiness of the vessel. Additionally,

pursuant to Article 36(1) of the Law No. 31 on Fisheries, all Indonesian citizens

who own fishing vessels operating in Indonesian waters are required to register

their vessels as Indonesian fishing vessels prior to applying for fishing licenses.

The Minister for Sea Communication may issue a provisional registration certificate

to a vessel.2 This certificate expires upon delivery of the vessel.3 Penalties for

constructing, importing, or modifying fishing vessels without an approval pursuant

to Article 95 of the Law No. 31 on Fisheries include imprisonment for up to one

2 Article 25 of the Government Regulation No. 51 of 2002 on Shipping. 3 Article 27(1) of the Government Regulation No. 51 of 2002 on Shipping.

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year and a fine of up to 800 million rupiahs. Article 96 of the Law No. 31 on

Fisheries imposes identical penalties in relation to unregistered fishing vessels.

8.2.2 Shipping Law No. 21 of 1992

Turning now to the Law No. 21 on Shipping, Article 45(1) provides that

vessels must be measured prior to engaging in any shipping activity.4 Article 45(2)

further provides that once a ship has been measured, a letter of measurement will

be issued to vessels which are not less than 20 meters in length or 7 gross

tonnage (GT). Pursuant to Article 46(2), vessels may be registered in Indonesia by

the Registrar of Indonesian Ships when the gross length of the vessel is not less

than 20 meters or 7 GT, and the vessel is owned by an Indonesian citizen or legal

entity under Indonesian law and having its operation in Indonesia.

8.2.3 Government Regulation No. 51 of 2002

Under Government Regulation No. 51 of 2002, an application for registration

of a ship under the Indonesian flag must be submitted to the Director General of

Sea Communication and accompanied by supporting items of documentation,

including (a) proof of ownership in the form of a letter of agreement for the

construction of the vessel; (b) identity of the owner; (c) specification of the stage of

construction of the vessel; and (d) information regarding size and tonnage of

vessel.5 Notification of approval must be issued within 14 days from receipt of the

4 Article 45(1) of the Act No.21 of 1992 on Shipping. 5 Article 27(3) of the Government Regulation No. 51 of 2002 on Shipping.

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completed application.6 If the application is rejected, written reasons must be given

by the competent authority.7

Government Regulation No. 51 of 2002 further requires that all vessels operating in

Indonesian waters must be registered in the Indonesian Ships Register regardless

of their size. Certificates issued are valid for 5 years and are granted by the

Director General of Sea Communication upon the completion of the following

requirements: photocopy of the certificate of registry; photocopy of certificate of

measurement; and a letter of statement from the vessel owner on data and

designed vessel.8 Once issued with a certificate entitling the vessel to fly the

Indonesian flag,9 the vessel is required to carry the certificate at all times.10 Article

43(2) of the Government Regulation prohibits the use of the same name for two

different vessels.

According to Article 44(1) of Government Regulation No. 51 of 2002, a provisional

certificate may be granted to a vessel which has not met the requirements as

prescribed in Article 41(4)(a) of the Regulation. Where a vessel has met the

requirements under Articles 41(b) and (c), a provisional certificate may be granted.

Under Article 44(3) of Government Regulation No. 51 of 2002, this certificate is

issued in the form of provisional certificate which is valid for three months. Vessels

6 Article 5(2) of Decision of the Minister of Communication No.14 of 1996 on Procedure of Availability and Vessel Registration 7 Article 5(3) of Decision of the Minister of Communication No.14 of 1996 on Procedure of Availability and Vessel Registration. 8 Article 41(3) and (4) of the Government Regulation No. 51 of 2002 on Shipping. 9 Article 42(1) of the Government Regulation No. 51 of 2002 on Shipping. 10 Article 42(2) of the Government Regulation No. 51 of 2002 on Shipping.

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operating under a provisional certificate are required to adhere to the same

conditions as vessels operating under a full certificate. Article 21 of Government

Regulation No. 51 of 2002 prohibits a vessel from being registered simultaneously

in two different places.

Article 23(4) of Government Regulation No. 51 of 2002 gives the Registrar of

Indonesian Shipping the power to register fishing vessels by issuing of a certificate

of registry. Under Articles 24(1) and (2) of Government Regulation No. 51 of 2002,

before the Registrar of Indonesian Shipping can register a ship, there must be

proof of ownership, the identity of the owner and a certificate of measurement. For

vessels purchased or obtained outside Indonesia that are already registered in the

country of origin, the Registrar of Indonesian Shipping shall also be provided with a

deletion certificate.

The Decision of the Minister of Sea Communication No. 14 of 1996 on Procedure

of Availability and Vessel Registration implements Government Regulation No. 51

of 2002. Article 4(d) of this regulation further stipulates that certificates of

ownership and encumbrances are required as additional documents for fishing

vessel registration.11

11 Article 36(2) of the Fisheries Law No. 31 of 2004 stipulates similar conditions with regard to the documentation required. Similarly, Article 36(3) of the Fisheries Law No. 31 of 2004 provides that any fishing vessel whose registration was purchased or obtained abroad, and which is already registered in its country of origin, must be re-registered as an Indonesian fishing vessels and must follow these same conditions. Lastly, submission of the certification of deletion from the vessels’ current flag of registry is a perquisite to fly the Indonesian flag.

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8.2.4 Gaps in the Fishing Vessel Registration Framework

A number of weaknesses inhibit the effectiveness of the fishing vessel

registration system in Indonesia. The greatest weakness relates to the provisions

for deletion certificates. There are practical difficulties in applying the regulation

that would permit the registrar to investigate the formal truth of deletion certificate

in case of false documentation. This is detrimental to the discharge by Indonesia of

its flag State responsibilities to combat IUU fishing. There have been cases of

fraudulent re-flagging by some foreign-flagged vessels. For example, many

Taiwanese tuna long-liners fishing in Indonesian EEZ were registered

simultaneously both in Indonesia and Taiwan.12 Fraudulent change to the vessel

nationality rules is a problem which Indonesia must deal with. Indonesia must

undertake investigations into the ownership and real nationality of foreign fishing

vessels that also fly the Indonesian flag.13 This is necessary because foreign

fishing vessels have shown the ability to avoid specified requirements in order to

obtain necessary documents when operating in the Indonesian EEZ.14

Another weakness in the vessel registration system relates to the provisional

certificate for the registration of vessels built in Indonesia or abroad.15 The

provision on the issuance of a provisional certificate for registration has been

12 Philippe Cacaud, ‘’Indonesian Review of Legal Issues and Revised Draft Fisheries Law ‘’, Food and Agriculture Organization of the United Nations Rome, October 2001, p.19. 13 Opening Remarks by Husni Mangga Barani (Director General of Capture Fisheries of the Department of Marine Affairs and Fisheries of the Republic of Indonesia), The First Meeting of the Sino-Indonesian Joint Committee on Fisheries Cooperation, Jakarta, 6-7 August 2003, p. 2. 14 A Working Paper Presented by the Indonesian Police Chief of Staff in the Law Enforcement Officer Technical Meeting on Law Enforcement Over Fisheries Criminal Act Pertaining to False Document, the Directorate General of Surveillance and Control of Marine Resources and Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 10 June 2003, p. 4.

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subject to misuse. Foreign fishing vessels have been reported to be built by

Indonesian docks. This is done by issuing a fraudulent letter of dock statement

which is a requirement for obtaining a license. The presentation of fraudulent

documentation is also a concern in the provision of other documents such as

calculation letters, annual passes, vessel worthiness and certificates of registry.16

An additional problem is that when processing an application to a flagged vessel,

there is no process for identifying vessels with a history of non-compliance.

Consequently, Indonesia does not have the capacity to avoid flagging a vessel on

the basis of a previous or existing owner with a history of non-compliance with

conservation and management measures.

To correct the above-mentioned defects, it will be necessary for Indonesia to ratify

the UN Fish Stocks Agreement and the FAO Compliance Agreement and

implement their provisions in domestic law. Ratification of these instruments will

give power to Indonesia as a flag State to exercise more control and enforcement

over fishing vessels flying its flag. Without implementation of these agreements,

Indonesia will have difficulty exercising control over fishing vessels in the adjacent

high seas and the fishing areas of RFMOs.17 Of particular significance is the

ratification of the FAO Compliance Agreement which would give Indonesia the

jurisdiction to impose stringent requirements on Indonesian fishing vessels

15 Article 44(3) of the Government Regulation No. 51 of 2002 on Shipping. 16 A Working Paper Presented by the Indonesian Police Chief of Staff in op. cit, p. 5. 17 Hasjim Djalal, “Recent Developments in the Law of the Sea”, Paper Presented at the 29th Annual Conference, the Law of the Sea Institute, Denpasar, Bali, Indonesia, June 1996, p. 12.

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operating on the high seas. The FAO Compliance Agreement, which Indonesia has

not yet accepted, requires State parties to maintain a record of all fishing vessels

carrying their flag and fishing on the high seas. In order to deter and prevent IUU

fishing, Indonesia will need to maintain specific records of the vessels that are

authorized to fish on the high seas.

Under international law, Indonesia has an obligation to take appropriate measures

to deter and prevent Indonesian nationals from engaging in IUU fishing within and

outside its waters. For this reason, it is important that Indonesia accepts the FAO

Compliance Agreement and implement the IPOA-IUU. The ability to control

Indonesian tuna long line fishing vessels which conduct fishing on the high seas is

an important factor in the ability of Indonesia to combat IUU fishing.

The success or failure of efforts to combat IUU fishing is dependent upon

regulating vessel registration.18 The registration of a fishing vessel should be

accompanied by a requirement to provide information on any previous registrations

including any previous names if they are different from the present.19 In

accordance with the FAO Compliance Agreement, the fishing vessel registration

process should include the name of the vessel, a registration number, the port of

18 Etty R. Agoes, Annex L Power Point Presentation on “Adequacy of Indonesian Laws and Regulation to Combat IUU Fishing: An Evaluation of Indonesian New Law on Fisheries”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing in Indonesia”, Jakarta 28 April, 2005, Organized by Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wollongong, Australia, p. 6. 19 Etty R. Agoes, “Research in Preparation for the Establishment of a National Plan of Action to Combat IUU Fishing” (A Preliminary Study for Further Research by Relevant Working Groups),

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registration, the previous flag, the vessel’s International Radio Call Sign, the name

and address of the vessel’s owner or owners and where and when the vessel was

built. Other information that should be recorded when the vessel is registered

include the length and material of build, the method of fishing that the vessel will

employ, the type of fishing gear used, the fish hold capacity in cubic metres, the

number of crew, the horse power of the vessel’s main engine, and details of any

mortgages, maritime liens and other encumbrances.20 These requirements must

be linked with the authorisation to fish. By recording such information, it is hoped

that Indonesian vessels would be unable to fish in the high seas unless they were

registered.

The challenges Indonesia faces in reforming the vessel registration system lie with

the Indonesian administrative system which regulates fishing vessels. In the past,

vessel registration has been dealt with by the Directorate General of Sea

Communication as part of the Department of Communication. Whilst this

arrangement may have been adequate to deal with vessel registration, it is clearly

not adequate to handle the changes in fisheries law to combat IUU fishing. The

Department of Marine Affairs and Fisheries should be given power over fishing

vessel registration.

Research Centre for Capture Fisheries, Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of the Republic of Indonesia, August 2003, p. 5. 20 FAO Technical Guidelines for Responsible Fisheries on Fishing Operations, FAO of the United Nations, Rome, 1996, p. 8.

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8.3 Authorization to Fish

The provision of fishing licenses is one of the most important management

tools available to fisheries management authorities because it gives vessels the

legal rights, privileges and obligations in relation to fisheries.21 Within the

Indonesian context, the licensing system has three purposes. First, it is a

preventive system to control exploitation of the fisheries resources in order to

protect the rate of exploitation at a sustainable level. Second, it is an instrument for

data collection which can be used as a basis for planning for fisheries resources

development and management. Third, it is also a revenue generating mechanism

whereby fisheries management authorities collect a fee from licensees.22

An authorization to fish may be given by the central government, the provincial

government, and the district government. The central government is responsible

for issuing authorizations to fish for fishing vessels greater than 30 GT and/or

vessels with an engine size less than 90 horse power (HP) or vessels which use

foreign employees and capital.23 The central government is responsible for issuing

such authorisations for vessels in Fishing Zone III as prescribed in the Decision of

the Agriculture Minister No. 392 of 1999.

21 P. Flewwelling and Corman Culliman, David A Balton, R.P. Saunter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Fisheries Technical Paper No. 415, Rome: FAO, 2002, p. 69. 22 “Fishing Vessel Registration System and Authorization to Fish”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing ”, Jakarta, Indonesia 28 April 2005, Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia, p. 13. 23 Fishing Vessel Registration System and Authorization to Fish, op. cit, p. 21.

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Government Regulation No. 54 of 2002 on Fisheries Business regulates

Indonesia’s decentralized fisheries management policy. Article 13(1) of this

Regulation delegates provincial governors or appointed officers to issue fisheries

business licenses; fishing licenses; and license for fish transporting vessels to

companies engaged in fishing activities in provincial marine areas. Licenses issued

under Article 13(1) are intended to cover fishing activities in provincial areas which

use non-motorized vessels, vessels with an outboard engine, vessels with an

inboard engines of between 10 to 30 GT, and/or Indonesian vessels that have an

engine size of less than 90 HP which do not use foreign capital and/or

employees.24 Similarly, under Article 13(2a) of Government Regulation No. 54 of

2002 on Fisheries Business, regency chiefs or city majors or appointed officers can

issue the same licenses to fishing companies that engage in fishing activities in the

regency/city marine area. Licenses issued under Article 13(2a) are limited to non-

motorized vessels, vessels with an outboard engine, vessels with an inboard

engine of no more than 10 GT, and/or vessels that have engine of less than 30 GT

which do not use foreign capital and/or employees.

Pursuant to Article 12 of Government Regulation No. 15 of 1984, a fishing license

is valid for one year and may be extended for another year. A new application must

be submitted 30 days before the expiry date of the current licence. 25 It should be

emphasized that a fishing license is granted in the name of the applicant for each

24 Arif Satria and Yoshaiki Matsuda, Decentralization of Fisheries Management in Indonesia, Marine Policy Vol.28 (2004) 437-450, Elsevier Science Ltd Printed in Great Britain, 2004, p. 444. 25 Article 12 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ.

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of the vessels and the law prohibits the transfer of the fishing licence from one

person to another person.26

Through Law No. 31 on Fisheries and associated regulations, stringent controls

are provided against illegal fishing activities within Indonesian fisheries

management areas. Penalties for unauthorized fishing activities can include fines

and imprisonment. Under Article 92 of Law No. 31 on Fisheries, the penalties for all

persons conducting fisheries business without a license within the Indonesian

fisheries management areas may include imprisonment for up to 8 years and a fine

of up to 1.5 billion rupiahs. Furthermore, under Article 93(1), imprisonment of up to

6 years and a fine of up to two billion rupiahs may be imposed on all persons who

undertake unauthorized fishing in Indonesian fisheries management areas. Article

94 also provides that all persons who conduct unauthorized transportation in these

same areas can be punished by imprisonment for up 5 years and a fine of up 1.5

billion rupiahs. However, these stringent penalties are yet to be imposed on those

who have conducted unauthorized fishing.

8.3.1 Types of Fishing Licenses

Three types of fishing licenses are required under Indonesian law, namely

the fisheries business license (SIUP), fishing license (SIPI) and finally a license for

fish transporting vessels (SIKPI). The operations of, and defects in each of these

26 Article 13 of the Government Regulation No.15 of 1984 on the Management of Living Resources in the Indonesian EEZ.

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licenses are analyzed below. The licensing system for foreign fishing vessels is

also discussed in this section.

8.3.1.1 Fisheries Business License (Surat Izin Usaha Perikanan)

Article 26 (1) of the Law No. 31 on Fisheries requires any person who

operates a fisheries business which captures fish, undertakes aquaculture,

transports fish, undertakes the processing of fish or markets fish within the

Indonesian fishing management areas to obtain a fisheries business license

(SIUP). An exemption is recognised in Article 26(2) of the Law No. 31 on Fisheries

in the case of small-scale fishermen. A fishing business license can also be

granted to foreign fishing companies only where there is a surplus of the total

allowable catch; when there is a bilateral agreement between the Indonesian

government and the government of the country of the applicant; and when the

business has met the requirements as prescribed in Article 4(4) of Law No. 31 on

Fisheries.27

A fishing business license may be granted by the provincial governor or an

appointed officer in cases where the fishing activity is outside the authority of the

Director General of Capture Fisheries. The permit is granted by the provincial

governor or appointed officer only when there is a surplus of the total allowable

27 Article 5(4) of Decision of the Minster of Marine Affairs and Fisheries No.10 of 2003 on Fish Catching Business Licensing Article 4(4) provides that for fisheries business license granted by the Director General of Capture Fisheries, the application submitted by foreign fishing company must include: a recommendation issued by the authorized officer of the country of the applicant; a designated letter of an Indonesian company to represent its interest in Indonesia; one coloured photograph with size 4 x 6 of vessel owner or the designated company; an operation planning of foreign- flagged fishing vessel.

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catch and the business has met all requirements established by the concerned

provincial government.28 A fisheries business license can be granted by the

provincial governor or appointed officer in cases involving Indonesian fishing

companies under the following circumstances: the applicant is domiciled in the

province concerned; the applicant uses a non-motorized boat or an outboard

engine boat, inboard engine sizes of more than 10 GT, but not exceeding 30 GT or

90 HP; the base of operation of the business is within the province concerned; and

no foreign capital and or foreign employees are involved in the operations.29 In

cases outside the authority of the provincial governor, an application for a fisheries

business license can be granted by the regency chief/city major or appointed

officer.

For Indonesian fishing companies, a fisheries business permit is valid for as long

as the concerned company carries out fishing business activities and continues to

transport fish.30 In contrast, for foreign fishing companies, the permit is valid for the

duration of the special agreement between the Indonesian government and the

foreign State.31

The implementation of the fisheries business licensing system faces major

problems. The first problem is related to the issuance of a fisheries business

28 Article 5(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 29 Article 13 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 30 Article 39(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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license before a vessel can be physically inspected by the regulatory agency. The

second problem is that a large number of fishing vessels, both domestic and

foreign, operate in the Indonesian fishing areas without proper authorization. The

third problem is the growing demand by certain provinces/regencies to issue

licenses for vessels greater than 30 GT operating in their marine areas.32 In the

Papua Province, for example, the Sorong regent demands the power to issue

licenses to vessels more than 30 GT to engage in fishing activities in the Pacific

Ocean.33 In many cases, the reality is that many licenses for vessels greater than

30 GT or equipped with an engine exceeding 90 HP are issued locally by the

governors of the provinces and the regent authorities.34 Such actions are contrary

to national fisheries legislation and has potential to create tensions and conflict

between small-scale artisanal type fisheries on the one hand and commercial

fishermen on the other, resulting in overfishing and excess fleet capacity.

8.3.1.2 Fishing License (Surat Izin Penangkapan Ikan)

According to Article 27(1) of Law No. 31 on Fisheries, any person who

possesses and operates an Indonesian flagged vessel within the Indonesian

31 Article 39(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 32 This is based on the author’s interview with Bambang Aryadi, Head of Fishing Enterprise, Monitoring and Evaluation Division, Directorate of Fishing Enterprise, the Directorate General of Capture Fisheries, the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 20 November 2003. 33 This is based on the author’s interview with Suparman A.Diraputra, who was Director of Institution Affairs of the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 17 December 2003. 34 This is based on the author’s interview with Parlin Tambunan, who is Director of Fisheries Resources, Directorate General of Capture Fisheries of the Department of Marine Affairs and Fisheries of the Republic of Indonesia, 21 January 2004. For detailed discussion of such issues see Emil Salim “Ocean and Development”, Paper Presented at Marine Seminar, 15 April 1999, Jakarta, Indonesia, The Nature Conservancy, pp.1-2.

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fisheries management area and/or the high seas is required to obtain a fishing

license (SIPI). A fishing license must be obtained by fishing vessels intending to

operate as units of a fishing fleet, whether they are flying the Indonesian flag or a

foreign flag. A fishing license may be granted to Indonesian fishing companies

upon submission of an application annexing the required documentation. The

required documentation varies depending on the type of license that the fishing

company is applying for. In general, the application must include a photocopy of

the vessel’s fishing license or letter of investment approval/fishing company permit;

a photocopy of the vessel’s certificate of registration legalized by the authorities;

and a recommendation issued by an officer appointed by the Director General of

Capture Fisheries following an examination of the physical condition and

documentation of the vessel.35

A fishing license must be obtained by fishing vessels intending to operate as units

of a fishing fleet, whether they are flying the Indonesian flag or a foreign flag. A

fishing license for Indonesian vessels is granted by the following officers:

(a) The Director General of Capture Fisheries for a fishing vessel operated as a

single member of a fishing fleet;

(b) The Director General of Capture Fisheries for fishing vessel operated as units

of a fishing fleet;

(c) The Provincial Governor or appointed officer; or

35 Article 14(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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(d) The Regent/Major City or appointed officer. 36

For foreign fishing vessels operating either singly or in a group, a fishing license is

issued by the Director General of Capture Fisheries.37

A fishing license may be granted to Indonesian fishing companies upon submission

of an application annexing the required documentation, which vary depending on

the type of license that the fishing company is applying for. The application must

contain (a) a photocopy of the vessel’s fishing license or letter of investment

approval/fishing company permit; (b) a photocopy of the vessel’s certificate of

registration legalized by the authorities; and (c) a recommendation issued by an

officer appointed by the Director General of Capture Fisheries following an

examination of the physical condition and documentation of the vessel.38 This type

of fishing license is granted by the Director General of Capture Fisheries upon the

fishing vessel having met the above requirements and having paid the fishing

fee.39

For a fishing license granted by the provincial governor, the application must

include a photocopy of the vessel’s fisheries business license; a photocopy of the

vessel’s certificate of registry legalized by the authorities; a recommendation

issued by the chief of province for marine and fisheries service or appointed officer

36 Article 13(2) of Decision of the Minister of Marine Affairs and Fisheries No.10 of 2003 on Fish Catching Business Licensing. 37 Article 13(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 38 Article 14(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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following and examination of the physical condition and documentation of the

vessel.40 A fishing license is granted by the provincial governor or appointed officer

upon the vessel having met the above requirements and having met any other

requirements which may be established by the provincial government from time to

time.41

For a fishing license granted by the regency chief, the application must include a

photocopy of the vessel’s fisheries business license; a photocopy of the vessel’s

certificate of registry or blueprint legalized by the authorities; an original certificate

issued by the chief of regency marine and fisheries service following an

examination of the physical condition of the vessel.42 This type of license is

granted by the regency chief or city major upon the vessel having met the above

requirements and having met any other requirements which may be established by

the particular regency or city government from time to time.43

Finally, a fishing license may be granted to foreign fishing companies upon

submission of an application, including a photocopy of the vessel’s fisheries

business license; a photocopy of the vessel’s captain’s passport or seaman book

and list of boat crew; and a recommendation by the Director General following an

39 Article 16 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 40 Article 14 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 41 Article 18(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 42 Article 14(3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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examination of the physical condition of the vessel.44 This license is granted by the

Director General of Capture Fisheries upon the vessel having met the above

requirements and having paid the foreign fishing fee.45

A number of important conditions must be observed by fish catching and fish

transporting vessels holding a fishing license for Indonesian waters. First, fishing

vessels are prohibited from carrying out the transhipment of fish caught in

Indonesian fishing management areas by non-single fleet unit transporting vessels.

The second condition is that fish transporting vessels carrying fish to foreign

countries must enter and report to the designated Indonesian landing port in

compliance with the relevant procedures on fisheries product exports. The third

condition is that the transhipment of fish caught from a fishing vessel to a fish

transporting vessel or from one fish transporting vessel to another must be

conducted in the designated landing port under the supervision of an appointed

officer. Finally, in the case of fishing vessels operating beyond the Indonesian

fishing management area, transhipment must be carried out under the existing

international or regional rules in the fishing area concerned.46

A change in fishing license is allowed under the Decision of the Minister of Marine

Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. An

43 Article 17(3) of Decision of the Minister of Marine affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 44 Article 15 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 45 Article 18 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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application for a change in license must be submitted by the fishing company

concerned 47 within at lease six months from the date of issue of the initial fishing

permit.48 Where an application is submitted to modify the type of fishing gear,

physical specifications or function of the vessel, the vessel must undergo a

physical examination.49

A fundamental requirement with respect to transhipment is that the fishing vessels

must report fish catches to a management authority. Specific information that must

be recorded and submitted to the Department of Marine Affairs and Fisheries

include data on the location of transhipment, the weight of the fish catch by

species, details of the vessels involved in the transhipment, and the port of

landing.50

8.3.1.3 License for Fish Transporting Vessels (Surat Izin Kapal

Pengangkut Ikan)

The third type of license required under Indonesian fisheries law is the

license for fish transporting vessel. Under the Law No. 31 on Fisheries, any fishing

vessel intending to collect and transport fish must obtain a license for fish

transportation. This requirement applies to fishing vessels flying the Indonesian

46 Article 19 of Decision of the Minster of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 47 Article 20 (1) of Decision of the Minster of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 48 Article 20 (2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 of Fish Catching Business Licensing. 49 Article 20 (3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 50 See Article 19

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flag or a foreign flag.51 This license cannot be separated from the fisheries

business license.52

A fish transportation license for Indonesian flagged fish transporting vessels is

issued by a number of authorities, including the Director General, for Indonesian

vessels operated as a single member of a fishing fleet; the Director General, for

Indonesian vessels operated as units of a fishing fleet; the provincial governor or

appointed officer; and the regency chief/city major or appointed officer.53 A fish

transportation license for foreign flagged transporting vessels is issued by the

Director General for foreign vessels operated as either a single member or units of

a fishing fleet.54

A fish transportation license for Indonesian flagged fish transporting vessels is

issued by the Director General for Capture Fisheries, the provincial governor or

appointed officer; and the regency chief/city major or appointed officer.55 A fish

transportation license for foreign flagged transporting vessels is issued by the

Director General for foreign vessels operating as a single unit or a group of units in

a fishing fleet.56

51 Article 23(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 52 Fishing Vessel Registration System and Authorization to Fish, op. cit, p.15. 53 Article 23(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 54 Article 23(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 55 Article 23(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 56 Article 23(4) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

243

A fish transportation license is granted by the Director General of Capture

Fisheries to Indonesian fishing companies who have submitted the following

documents in their applications: a photocopy of the vessel’s fisheries business

license authorised by the relevant authority; a list of boat crew; a photocopy of the

passport of the vessel’s captain or seaman book; and a recommendation by an

officer appointed by the Director General following an examination of the physical

condition and documentation of the vessel; a letter of cooperation between the fish

transporting company and the vessel owner; and a photocopy of the vessel leasing

agreement. This permit may be granted to a foreign fish transporting vessel

operated as a single member of a fishing fleet.57

A fish transportation license is granted by the Director General to foreign fishing

companies who have provided the following data in their applications: a photocopy

of the vessel’s fisheries business license for a foreign fishing company; a

photocopy of the passport of the vessel’s captain or seaman book; a list of the boat

crew; and a recommendation by an officer appointed by the Director General of

Capture Fisheries following an examination of the physical condition of the vessel.

This permit is issued by foreign fish transporting vessels operated as units of a

fishing fleet.58 Applications for this license must be submitted to the Director

General of Capture Fisheries, in accordance with the following procedures:

57 Article 26(1) Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 58 Article 26(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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• No later than 11 working days after receiving the completed license

application, the Director General will issue a payment order for the fishing fee,

or issue a rejection letter;

• No later than one month, on the basis of the above payment order, the

applicant must pay the required fee through the Persepsi Bank and submit a

proof of payment to the Director General;

• Where payment is not made within the required period the application may be

cancelled;

• No later than 5 working days after receiving a proof of payment, the Director

General of Capture Fisheries will issue the license for the fish transporting

vessel; and

• If the application is rejected, the fishing companies will be given another

chance to re-submit the application.59

In addition to the above conditions, the license holder is also required to:

• Implement the rules prescribed in the license for the fish transporting vessel;

• submit an application for the revision or the replacement of the permit if the

license is lost or damaged, or the data contained in the existing permit

changes;

• report to the license provider on the fishing activities of the vessel every three

months; and

59 Article 31 of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

245

• observe the rules relating to monitoring and control of the fisheries resources

as well as fish product quality.60

A fish transporting license for Indonesian fishing vessels operated as a single

member of a fishing fleet is valid for three years and may be renewed for another

three years.61 A fish transportation license for foreign fishing vessels in the same

category is valid for one year and may be extended for another year.62

A fish transportation license is issued by the provincial governor or appointed

officer to Indonesian fishing companies who have submitted the following data in

their applications: a photocopy of the vessel’s fisheries business license; a

photocopy of the vessel’s certificate of registry; a recommendation by the chief of

province for marine and fisheries services or an appointed officer following an

examination of the physical condition and documentation of the vessel; and a letter

of transportation cooperation between fish transporting company and the vessel

owner.63

A fish transportation license is issued by the regency chief, city major or appointed

officer to Indonesian fishing companies which have attached the following

documents in their applications: a photocopy of the vessel’s fisheries business

60 Article 32(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 61 Article 42(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 62 Article 43(1) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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license; a photocopy of the vessel’s certificate of registry or blueprint; a

recommendation by the chief of regency or city marine and fisheries services or

appointed officer following an examination of the physical condition of the vessel;

and a letter of transportation cooperation between the fish transporting company

and the vessel owner.64

The Indonesian regulations on licensing for fish transporting vessels are largely

consistent with paragraph 48 of the IPOA-IUU. However, a gap exists in the

Indonesian regulations in relation to provisions on authorization to tranship for

support vessels operating in Indonesian fishing areas. Consistent with paragraph

48 of the IPOA-IUU, Indonesia would need to include provisions on authorization to

tranship for support vessels. As a flag State, Indonesia must also ensure that its

fishing, transport and support vessels involved in transhipment on the high seas

have prior authorization to tranship.

8.3.2 Licensing of Foreign Fishing Vessels

Under Government Regulation No. 15 of 1984 Concerning the Management

of Living Resources in the Indonesian EEZ, foreign vessels may be granted a

fishing license on the basis of special bilateral agreements.65 A similar provision is

also found in Article 29(2) of the Law No. 31 on Fisheries which allows any foreign

person or any foreign legal entity to fish within the Indonesian EEZ. A bilateral

63 Article 24(2) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing. 64 Article 24(3) of Decision of the Minister of Marine Affairs and Fisheries No. 10 of 2003 on Fish Catching Business Licensing.

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fisheries agreement between the Indonesian Government and the flag State must

be entered into prior to a grant of a fishery business license.66 An agreement under

Article 30(2) of the Law No. 31 on Fisheries must prescribe the compliance

obligations of the flag State government. Article 30(3) of the Law No. 31 on

Fisheries further requires the Indonesian government to establish regulations

regarding the granting of fishery business license to a foreign person and or foreign

legal entity fishing within the Indonesian EEZ. However, such regulations have not

been promulgated.

Articles 14, 15 and 16 of the Government Regulation No. 15 of 1984 contain a

number of provisions designed to prevent IUU fishing by foreign vessels operating

in the Indonesian EEZ, including mandatory reporting, and use of observers or

fisheries officers. The regulations provide that the captain of a foreign fishing

vessel must report to the assigned officer at the port, or check points as stated in

the permit at the start, during, and after completion of each fishing voyage.67 The

foreign fishing vessel must also receive the assigned observer or other officers

authorized to conduct all necessary inspection on board of the vessel.68

Furthermore, a foreign fishing vessel which has been granted a fishing license is

required to designate an Indonesian fishing company to represent its interest in

65 Article 10 of the Government Regulation No. 15 of 1984 Concerning the Management of Living Resources in the Indonesian EEZ. 66 Article 30(1) of the Law No. 31 of 2004 on Fisheries. 67 Article 14 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ. 68 Article 15 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ.

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Indonesia.69 The designated Indonesian fishing company will then submit an

application to the Directorate General of Capture Fisheries requesting the issue of

a fishing permit to the foreign fishing vessel. The Indonesian fishing company is

then responsible as agent, for all foreign fishing vessels operating under its

authority.70

Indonesia has entered into arrangements with China, the Philippines and Thailand

and has modified the licensing regime applicable to the vessels of these countries.

Chinese fishing vessels granted fishing licenses under the Indonesian-China

Arrangement are required to report their catch at designated fish ports. For

vessels operating in the Indonesian EEZ of the Pacific Ocean, the designated fish

ports are Bitung, Ternate, Sorong and Biak. For vessels operating in the EEZ of

the Indian Ocean, the designated ports are Bungus, Sibolga, Jakarta, Sabang and

Benoa. For vessels operating in the EEZ of the north Riau Province, the

designated ports are Tarempa, Pemangkat, Tanjung Pinang and Batam. For

vessels operating in the EEZ of the Arafura Sea, the designated ports are Tual,

Kendari, Merauke, Sorong and Ambon.

Under the Indonesian-Philippine Arrangement, Philippine vessels operating in the

Indonesian EEZ of the Pacific Ocean must report their fish catch at the fishing

ports of Bitung, Sorong, Manokwari, Biak and Jayapura. Philippine vessels

69 Article 16 of the Government Regulation No. 15 of 1984 on the Management of Living Resources in the Indonesian EEZ. 70 Suparman A.Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I. Maticts and Ted L. McDorman (eds), Seapol International Workshop on Challenges to

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operating in the Indonesian EEZ of the Indian Ocean must report their fish catch at

the ports of Bungus, Jakarta, Sabang, Surabaya and Banyuwangi.

The Indonesian-Thai Arrangement requires Thai fishing vessels operating in the

Indonesian EEZ of the South China Sea to land their catch at the fishing ports of

Tarempa, Pemangkat, Tanjung Pinang and Batam. The designated fishing ports

for the Thai vessels fishing in the Indonesian EEZ of the Arafura Sea are Tual,

Kendari, Sorong, Ambon, Ternate, Kupang and Merauke.

8.3.3 Defects in the Fishing License Regime

Despite the existence of legal provisions for vessel licensing, in practice, the

law is not effective. One of the main problems is the abuse of power by those

responsible for decision-making. Such abuse of power includes fishing licenses

being issued in municipal waters by incompetent authorities and attempts to

shorten the license process.71 Another problem identified in the implementation of

the licensing regime is the practice of regional government authorities granting

licenses intended to be used for large scale fishing vessels to small scale fishing

vessels. This practice has forced small-scale fishers to compete with big fishing

companies and has also affected the accuracy of data on the utilization of fisheries

resources.72

Fishery Policy and Diplomacy in South-East Asia, Rayong Thailand, South-East Asian Programme in Ocean Law, Policy and Management, Bangkok, Thailand, 6-9 December 1992, p. 27. 71 Busran Kadri, op.cit, p. 34. 72 A Final Research Report on “A Review of the Development and Sustainability Model of Fisheries Management in the Indonesian EEZ, Cooperation Between Directorate General of Fisheries Department of Agriculture of the Republic of Indonesia and Centre for Archipelago, Law and Development Studies, Jakarta, 1996-1997, p. 42.

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Concerns have also been raised on the discrepancies between the information

contained on the fishing license and the reality of the situation. In particular, there

have been substantial discrepancies identified in vessel crew numbers and

passport details. Concern is also being expressed on the presence of a number

foreign fishing vessels operating beyond the fishing grounds stated in the fishing

license. It is also a well-known fact that many fishing vessels use fishing gear other

than those prescribed in the fishing license.73

An additional gap is that although the Indonesian regulations examined above

provide a legal framework for the adoption and implementation of transhipment

adopted by RFMOs, the regulations do not meet the requirements of paragraph 50

of the IPOA-IUU.74 The absence of such regulations makes it difficult for Indonesia

as a flag State to control and enforce national fisheries laws over its fishing

vessels. There is clearly a need to harmonize the Indonesian legislation with

international instruments in order to achieve an integrated regional and national

reporting system. Such harmonization could be achieved through the adoption of

detailed rules, regulations and procedures for obtaining authorization to fish on the

high seas. To overcome the problem of unreported fishing, the reporting

73 Busran Kadri, “Technical Policy on Survaillance and Control of Marine and Fisheries Resources”, A Working Paper Presented at Law Enforcement Officer Technical Meeting, Directorate General of Surveillance and Control of Marine Resources and Fisheries of Department of Marine Affairs and Fisheries of the Republic of Indonesia, Jakarta Indonesia, 8-12 June 2003, p.33. 74 Paragraph 50 provides that “flag States should make information from catch and transshipment reports available, aggregated according to areas and species, in a full, timely and regular manner and, as appropriate, to relevant national, regional and international organizations, including FAO, taking into account applicable confidentiality requirements”.

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requirements for fishing and the information database of fishing licenses and

registration must be upgraded and developed on a regular basis.

It is clear that the effective implementation of the Indonesian licensing regime

depends largely on the commitment and capabilities of fisheries management

authorities. Fisheries management authorities must have qualified personnel with

high moral standards so as to mitigate potential abuse of power.

In practice, Articles 14, 15 and 16 of the Government Regulation No. 15 of 1984

Concerning the Management of Living Resources in the Indonesian EEZ has a

number of loopholes which encourage violation of the requirements for fishing in

the IEEZ and encourage IUU fishing. A common problem has been collusion

between Indonesian fishing companies and their foreign counterparts to breach the

law. Article 16 of the Government Regulation No. 15 of 1984 has been misused by

national fishing companies in collaboration with their foreign fishing vessels to

change the legal status of foreign fishing vessels from that of a foreign flagged

vessel into an Indonesian flagged fishing vessel. It is estimated that 70 per cent of

the 7,000 Indonesian flagged fishing vessels that have obtained fishing licenses in

the Indonesian EEZ are owned by foreigners.75 The granting of licenses to these

fishing companies to fish in the IEEZ has raised major problems for the sustainable

management of fisheries resources as there are no supporting instruments under

this system to effectively implement the policy. Furthermore, because there are no

incentives or disincentives to follow the correct process, it is feared that the

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problem will grow, greatly increasing the incidence of IUU fishing.76 There is

therefore a need for urgent fisheries legislative reform through the revision of the

relevant provisions which deal with Indonesian fishing companies.

There are also gaps in Indonesia’s legal powers to address unauthorized fishing

activities on the high seas. Whilst the provisions of Article 27(1) of Law No. 31 on

Fisheries clearly refer to fishing outside national waters, this provision is

inadequate to combat IUU fishing. Hence, this article needs to be further supported

by provisions implementing the UN Fish Stocks Agreement and the IPOA-IUU

dealing with authorizations to fish.

Three observations can be made in relation to the suggestion above to revise the

Indonesian fisheries legislative framework. First, implementing Article 18(1) of the

UN Fish Stocks Agreement and the IPOA-IUU requires a viable national licensing

framework which ensures that Indonesian fishing vessels comply with conservation

and management measures of RFMOs. Indonesia must ensure that its vessels do

not become involved in activities that are contrary to the management and

conservation measures adopted by RFMOs. Second, in order to effectively control

its vessels, Indonesian is required under Article 18(2) of the Agreement to permit

Indonesian vessels to fish in areas regulated by RFMOs to which Indonesia is a

member. Third, Indonesia must improve its regulation with respect to terms and

conditions of licensing. Aside from requiring Indonesian fishing vessels to carry

75 Busran Kadri, op. cit, p. 4.

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their licenses on board at all times in accordance with Article 18(3b) of the UN Fish

Stocks Agreement, the regulation must stress the importance of abiding by the

terms and conditions of licenses. The regulation must also provide that if

Indonesian fishing vessels fail to abide by any of these terms and conditions, their

license may be revoked.

Currently the means to implement the provisions of Article 18(3)(b) of the UN Fish

Stocks Agreement is found in Article 27(4) of the Law No. 31 on Fisheries. The

article requires Indonesian flagged vessels that fish in areas under national

jurisdiction of another State to obtain prior approval from the Department of Marine

Affairs and Fisheries. Consistent with Article 18(3)(c) of the UN Fish Stocks

Agreement, Indonesia has to ensure that its fishing vessels are properly recorded.

All information related to licensed and IUU fishing vessels should be registered and

maintained in a secure national database.

An additional problem is the fact that there is a conflict of jurisdiction between the

Minister of Agriculture, who, under Government Regulation No. 15 of 1984 has the

right to issue fishing licenses and the Minister of Marine Affairs and Fisheries, who

under the Law No. 31 on Fisheries also has jurisdiction to issue fisheries licensing

procedures. Conflict emerged in the beginning of the establishment of the

Department of Marine Affairs and Fisheries which the competence of the Minister

of Marine Affairs and Fisheries. This institutional conflict has resulted in

76 Tridoyo Kusumastanto, “Ocean Policy in the Maritime State Development in Regional Autonomy Era”, Gramedia Pustaka Ltd Publisher, Jakarta Indonesia, 2003, pp. 43-44.

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considerable duplication of functions and inefficiency in fisheries management that

encourage IUU fishers to circumvent the law. To address the existing legislation, it

is suggested that the fishing license provisions of Government Regulation No. 15

of 1984 be amended to conform to the new fisheries law.

8.4 Regulation of Fish Aggregating Devices

Under the IPOA-IUU, Indonesia is encouraged to implement measures to

combat IUU fishing in its EEZ.77 In an attempt to regulate the deployment and

utilization of FADs, the Minister of Marine Affairs and Fisheries issued Ministerial

Decision No. 30 of 2004 on Installation and Utilisation of Fish Aggregating Devices.

Article 2(1) of this Ministerial Decision No. 30 on FADs allows individuals or fishing

companies to install and/or utilise FADs in order to increase fisheries production

and community income. Paragraph 2 of the Decision specifies three areas where

FADs can be installed, namely: the coastal fishing belt extending from 2 to 4

nautical miles seaward measured from the shoreline; the coastal fishing belt

extending from 4 to 12 nautical miles measured from the shoreline; and the coastal

fishing belt extending from 12 nautical miles up to the outer limit of the Indonesian

EEZ.

According to Article 3(1) of the Ministerial Decision No. 30 on FADs, individuals or

legal entities must obtain a permit in order to install FADs. In paragraph 2,

installation of FADs is subject to prior written authorization being granted by

various bodies having authority over a particular marine area. First, permits for

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installation of FADs may be granted locally by the regency chief (or city mayor) or

the appointed officer in the area extending from 2 to 4 nautical miles. Second,

permits for installation of FADs may also be granted locally by the provincial

governor or fisheries officer in the area from 4 to 12 nautical miles. Third, permits

may also be granted nationally by the Director General of Capture Fisheries or an

appointed officer in the area from 12 nautical miles to the outer limit of the

Indonesian EEZ. 78

When granting a permit for the installation of FADs, the concerned officers must,

under Article 9, consider the level of sustainability of fisheries resources as well as

cultural-social aspects of the local community. This provision should be read in

conjunction with Article 10 of the Ministerial Declaration No. 30 on FADs which

imposes an obligation on individuals or fishing companies to ensure that FADs will

not disrupt navigation; that the distance between one FAD and another is not less

than 10 nautical miles; and that the FADs will not be installed so as to cause

congestion in a particular area.

Article 10 of the Ministerial Decision No. 30 on FADs gives rise to a number of

interesting questions. Article 10 is only concerned with the negative impact of

deploying FADs on non-fisheries activities while the Ministerial Decree in general

deals with fishing activities. Although Article 9 of the Ministerial Decision No. 30 on

FADs is framed in terms of sustainability, the wording of Article 10 fails to address

77 Paragraph 51.1.

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the effect of FADs on the migration of fish and the sustainability of fisheries

resources. Article 10 is clearly ineffective in promoting and establishing sustainable

goals for fisheries management. Indeed, the absence of effective regulations can

be seen as a contributing factor to FADs posing a threat to living marine

resources.79

From a biological viewpoint, large-scale FADs may, if left unregulated, pose a

threat to several target and non-target fish species. Not only does this type of

supporting gear create a problem in fishery conservation and management

measures, but also arguably poses a fundamental problem in the protection of the

marine environment. Particular attention should be given to the potential

detrimental impact of FADs on tuna migration in the Sulawesi Sea. Of particular

concern is the existence of conflicting domestic law and international instruments

governing straddling fish stocks and highly migratory species. Any legal measures

by Indonesia with respect to these fish stocks should be consistent with Article 5(f)

of the UN Fish Stocks Agreement. To recollect, Article 5 of the UN Fish Stocks

Agreement imposes a number of conservation obligations on States with regard to

straddling fish stocks and highly migratory species. Of particular relevance are the

obligations to adopt measures to support long-term sustainability of straddling fish

stocks and highly migratory species and promote optimum utilization. Measures to

78 See Department of Marine Affairs and Fisheries Policy on Capture Fisheries, 22 December 2004, p.1, http://www.dkp.go.id (accessed on 24 May 2005). 79 For a discussion of this and other issues which have arisen since the enactment of this regulation, see Actual Information on IUU Fishing, “Surveillance Operation and Operation Cooperation between Department of Marine Affairs and Fisheries and Indonesian Navy”, 7 April 2005, p.1.http://www.dkp.go.id (accessed on 27 June 2006).

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http://www.dkp.go.id/


be adopted should be those based on best scientific evidence available and those

that will help maintain or restore stocks at levels capable of producing maximum

sustainable yield as qualified by relevant listed factors. These measures are to

effectively assess the impacts of fishing, other human activities and environmental

factors on target species, and the rest of the ecosystem. Conservation and

management measures are to be applied to an entire ecosystem so as to protect

both target species and non-target species and minimize pollution, discards, waste,

and abandoned or lost gear. These measures should also include the development

and use of selective fishing gear and techniques, the protection of marine bio-

diversity, and the prevention or elimination of overfishing and excess fishing

capacity.

For fishing activities within the Indonesian fisheries management areas, especially

in the EEZ, any FAD regime must promote the development and use of selective

fishing gear and techniques. The status and role of FADs must be fully realized

within both existing domestic law and the international law regime to protect the

Indonesian EEZ and the adjoining transboundary areas. In order to address the

shortcomings in the current regime for managing FADs, it is suggested that a new

condition be inserted into the Ministerial Decision No. 30 on FADs so as to

underscore the obligation of FAD users to refrain from conducting their activities in

any manner that undermines fisheries conservation and management measures.

The inclusion of this condition is important in order to demonstrate Indonesia’s

commitment to complying with international fisheries instruments.

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Although the national legislation is an effective means of protecting transboundary

fish stocks, an international cooperation is needed to halt the depletion of skipjack

tuna and small tuna that has resulted from the utilization of unregulated FADs. It

should be obvious that an international problem on FADs in shared waters, such as

the Sulawesi Sea, cannot be solved through unilateral action and Indonesian

enforcement measures. There is growing conviction that large-scale, unregulated

use of FADs has created a problem in sustainable fisheries development that

requires a bilateral cooperation between Indonesia and the Philippines in the

Sulawesi Sea. This threat seems to be most serious in the case of tuna, which

range widely over the oceans of the world and therefore need to be conserved and

managed through the Indonesian membership in the Western and Central Pacific

Fisheries Commission (WCPFC).

8.5 Conclusion

This chapter has demonstrated that there is still a gap between the

Indonesian regulatory regime and practice in so far as fishing vessel registration

and licensing is concerned. The analysis in the chapter has shown that Indonesia’s

current registration and licensing system faces serious challenges. There are

inadequate provisions in the current fisheries legislation with respect to the

verification of deletion certificates, tracking of history of fisheries compliance of a

fishing vessel, maintenance of records of fishing vessels, implementation of fishing

vessel licensing systems between the central and local governments, and licensing

of Indonesian fishing vessels which conduct activities in the RFMO areas and on

the high seas. These problems contribute to the proliferation of IUU fishing in

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Indonesia. Legislative reform is therefore required with respect to the registration

and licensing of fishing vessels, including the regulation of fish transportation and

FADs, in order for Indonesia to effectively address IUU fishing.

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CHAPTER 9

ANALYSIS OF THE INDONESIAN LEGAL FRAMEWORK FOR MONITORING AND SURVEILLANCE OF FISHING VESSELS

9. 1 Introduction

The previous chapter analysed the adequacy of the Indonesian legal

framework for vessel registration and fishing vessel licensing to combat IUU

fishing. This chapter continues the examination of measures adopted by Indonesia

to address IUU fishing by focusing on the Indonesian legal framework relating to

monitoring, control, and surveillance (MCS) for fishing vessels and analyzing it

against the international requirements discussed in chapters 3 to 5. The chapter

focuses on five issues, namely the satellite vessel monitoring system (VMS),

logbook system, observer and inspection system, and admissibility of electronic

evidence in court. The chapter concludes that despite efforts to address these

problems through legislation, the Indonesian implementation of international

standards still falls short of what is needed to combat IUU fishing.

9.2 The Indonesian Laws and Regulations on Monitoring and Surveillance

of Fishing Vessels

As previously indicated, the LOSC, the UN Fish Stocks Agreement and the

IPOA-IUU require States to prescribe laws and regulations on monitoring and

surveillance of fishing vessels. Indonesia has enacted regulations and legislation

relating to the mandatory use of satellite vessel monitoring system (VMS), use of

logbooks, observer programme, and national boarding and inspection scheme.

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These measures are considered significant accomplishment in monitoring and

controlling IUU fishing in the IEEZ. These four areas of MCS implementation in

Indonesia are discussed below.

9.2.1 Satellite-based Vessel Monitoring System

Satellite-based VMS are increasingly being employed by many States to

monitor the fishing activities of national fishing vessels and foreign fishing vessels

operating in waters under their jurisdiction. The VMS is an important tool for

monitoring, control and enforcement when combined with other measures, such as

sea and air surveillance, controls on landing, and embarkation of observers. VMS

provides an effective means for coastal States to monitor the activities of national

and foreign fishing vessels licensed to fish in their EEZs. The underlying aim of

using VMS is to increase the effectiveness of a national MCS framework.1

As noted earlier, Article 62(4)(e) of the LOSC allows coastal States to enact laws

and regulations to require fishing vessels engaged in fishing in the EEZ to report

their positions. Correspondingly, Article 18(2) of the UN Fish Stocks Agreement

obliges flag States to require their fishing vessels to install VMS in accordance with

sub-regional, regional and global systems. In the context of combating IUU fishing,

further implementation of these instruments is reflected in paragraph 24 the IPOA-

IUU. It requires States to implement VMS in accordance with relevant national,

1 Fishing Operations Vessel Monitoring Systems, FAO Technical Guidelines for Responsible Fisheries, Rome: FAO, 1998, p.34.

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regional or international standards, including the requirement for vessels under

their jurisdiction to carry VMS on board.

In line with the requirements of the IPOA-IUU, Indonesia implements VMS through

the Decision of the Minister of Marine Affairs and Fisheries No. 29 on the

Implementation of the Fishing Vessels Monitoring System in 2003. In accordance

with Article 2 of Ministerial Decision No. 29 on VMS, the objectives of VMS are to

enhance fisheries management through monitoring and surveillance; fishing fleet

management; compliance of fishing vessels and/or fish transporting vessels with

the existing laws and regulations; and obtaining data and information on fishing

vessel activities for the conservation and sustainable use of the fisheries

resources.

The Department of Marine Affairs and Fisheries is empowered under Article 3(1) of

Ministerial Decision No. 29 to implement VMS as part of its broader duty in

fisheries management. Specifically, paragraph 2 provides that the Ministry is

responsible for the planning, establishment and development of equipment

standards as well as the monitoring and evaluation of VMS implementation.

There are three fisheries management authorities directly involved in VMS,

namely: (i) the Directorate General of Surveillance and Control of Marine

Resources and Fisheries; (ii) the Directorate General of Capture Fisheries; and (iii)

the Agency of Marine Affairs and Fisheries Research. The roles and functions of

each of these authorities are examined in turn.

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Article 5(1) of Ministerial Decision No. 29 on VMS provides that the Directorate

General of Marine Resources and Fisheries Surveillance has the power to

establish an operational technical policy; provide infrastructure required for the

implementation of VMS; conduct and/or facilitate the availability of transmitter and

supporting facilities; implement VMS management; establish reporting standards

for monitoring activities; and conduct evaluation on the implementation of VMS.

The establishment of operational technical policy under paragraph 2 includes

policy dealing with standard operating procedures; transmitter operation technical

methods; technical security over transmitters and other related devices; physical

checking of technical appropriateness and transmitter function; and monitoring and

control of system development and agreement.

In order to assist in the implementation of the above policies, the Directorate

General of Capture Fisheries under Article 4 is obliged to provide data on fishing

companies and fishing vessels for VMS; provide for transmitters to be installed on

fishing vessels; provide for transmitter identity numbers to be included on all fishing

licenses; establish and carry out transmitter installation; allow for fisheries data to

be integrated with VMS data; and inform the Directorate General of Marine

Resources and Fisheries Surveillance of the installed transmitter identity number of

fishing vessels.

Under Article 7 of Ministerial Decision No. 29 on VMS, the Research Agency for

Marine Affairs and Fisheries is charged with the responsibility to establish

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technological specifications for VMS, particularly integration systems and technical

standards for infrastructure; identify satellite providers; give consideration to the

view of the Directorate General of Marine Affairs and Fisheries on technological

aspects in the implementation of VMS; conduct evaluation on technological

aspects of the VMS operations; and develop a VMS technology.

It can be seen from the above discussion that the three fisheries management

authorities charged with implementing the VMS are interdependent. The

Directorate General of Surveillance and Control of Marine Affairs and Fisheries is

the focal agency charged with the implementation of the VMS, while the

Directorate General of Capture Fisheries and the Agency for Marine Affairs and

Fisheries Research perform a supplemental role in the implementation of the

system. Accordingly, cooperation amongst the three agencies will determine the

success of the implementation of the VMS.2

As a condition of holding an EEZ fishing license, Article 9 of Ministerial Decision

No. 29 on VMS provides that all foreign-flagged vessels and all Indonesian-flagged

vessels over 100 GT are required to carry and operate a transmitter. Further,

Article 15(1) provides that fishing vessels must have their transmitters activated at

all times. Paragraph 3 adds further scope to this obligation by requiring vessels to

activate the transmitter from within 200 nautical miles of entering the Indonesian

EEZ. This VMS regulation applies only to big commercial vessels operating in the

2 “Fishing Vessel is Under Obligation to Install VMS”, Sinar Tani, Edition 15, 21 October 2003, No.3018, Jakarta, Indonesia, p.42.

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Indonesian EEZ. Small commercial vessels and artisanal vessels are exempt from

installing VMS.

Under Article 16(1) of Ministerial Decision No. 29 on VMS, all fishing vessels are

required to report to the Directorate General of Marine Resources and Fisheries

Surveillance data on vessel position; quantity and type of fish caught; vessel

position at the time of fishing; and the quantity and type of fish to be collected and

transported by each carrier vessel and/or fish transporting vessels. The vessel

position must be reported at least every two hours. For this purpose, under

paragraph 3, technical reporting is regulated by the Directorate General with

reference to fishing logbooks.

Generally, VMS can be used to monitor the position of a legal fishing vessel

authorized to fish3 within waters under national jurisdiction or other specified

fishing zones.4 VMS is seen as a periodic monitoring system of the position and

activities of licensed vessels.5 In terms of the basic requirements for VMS, a fishing

vessel must be capable of reporting automatically, accurately and reliably its

3 “Directorate General of Surveillance and Control of Marine Affairs and Fisheries Encourages the Owner of Fishing Vessel to Obey the Use of VMS”, Department of Marine Affairs and Fisheries Policy on Marine Resources Surveillance, Jakarta 26 October 2005, p.1, http:// www.dkp.go.id (accessed on November 7 2005). 4 Philippe Cacaud, ‘’Indonesia Review of Legal Issues and Revised Draft Fisheries Law ‘’, Food and Agriculture Organization of the United Nations Rome, October 2001, p.14 ; See also ‘’Hunting Illegal Fisher by VMS’’, IMFS Expo and Seminar, Indonesia Marine Fisheries Seafood, Jakarta Convention Centre, 13-16 December 2003, p.2. 5 Hartanta Tarigan, Luh Putu Ayu Savitri Chitra Kusuma and Taufic Dwi Ferindra, Annex I Power Point Presentation on “Technology-Based Fisheries Monitoring, Control and Surveillance in Indonesia”, Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing in Indonesia, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research, Department of Marine Affairs and Fisheries of

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position to a relevant fisheries management authority.6 Therefore, this system not

only provides for compliance with reporting requirements, but also enhances safety

at sea and provides new tools to managers for near real-time catch reporting.7

The scope of VMS data analysis is to identify fishing grounds, fishing vessel

violations, fishing vessel movements, use of fishing gears, fishing vessels

conducting transhipment at sea, and fishing vessels in port.8 Clearly as a part of a

MCS system for achieving effective fisheries management, VMS must be

integrated with other MCS measures.9 One such measure is Synthetic Aperture

Radar (SAR), which can detect non-licensed vessels or vessels which are not

participating in a VMS program.10

When a fisheries management authority makes a decision on the installation of a

satellite-based VMS, it will be important to adapt the systems to the needs of the

particular authority. A primary consideration should be the purpose of the VMS for

collecting data and ensuring compliance, or both. Having completed the installation

the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wollongong, New South Wales, Australia, p.6. 6 Fishing Operations: Vessel Monitoring System, FAO Technical Guidelines for Responsible Fisheries, FAO Fisheries Department, FAO Fisheries Offices in FAO Regional Offices, 1998, p.38. 7 National Plan of Action of the United States of America to Prevent, Deter and Eliminate Illegal, Unregulated and Unreported Fishing, The U.S Department of State and the National Oceanic and Atmosphere Administration, the National Marine Fisheries Service, the U.S. Coast Guard, the Officer of the U.S. Trade Representative, the U.S. Fish and Wildlife Service and the U.S. Customs Service, 2004, p.9. 8 Heriyanto Marwanto, “Law Enforcement and Implementation of Fishing Patrol”, Power Point Presentation (Annex J), Proceedings of the National Workshop on Illegal, Unreported and Unregulated (IUU) Fishing, Jakarta, Indonesia 28 April 2005, Organized by Research Centre for Capture Fisheries Agency for Marine and Fisheries Research Department of Marine Affairs and Fisheries of the Republic of Indonesia in Cooperation with Centre for Maritime Policy University of Wolongong, New South Wales, Australia, p. 15. 9 “Fishing Operations: Vessel Monitoring Systems”, op. cit, p. 38.

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of a satellite-based VMS in conjunction with other forms of enforcement, VMS will

have to be included in the legal framework for fisheries management or the control

component in other MCS measures. Legal considerations will include licensing,

requirements on vessels marking and identification, catch reporting through

logbooks, prescribing fixed ports of landings, and controlling transhipments.11

Challenges to VMS regulation come from government agencies, fishing industries

and other flag states. There are three key problems encountered by Indonesia in

implementing the VMS. First, the Department of Marine Affairs and Fisheries

Surveillance has difficulty in obtaining fisheries business license data from the

Directorate General of Capture Fisheries. Despite a specific duty of the agency to

provide the data,12 there is still a considerable delay in installing VMS to deal with

fisheries management. As a result, the government’s target of installing VMS for a

number of fishing vessels cannot be achieved.13

A second major problem encountered by Indonesia in the implementation of VMS

is the refusal of fishing companies to comply with VMS installation requirements.14

This problem has a number of distinct components, including failure to comply at

the socialization stage; failure to comply because of mitigating factors; and failure

10 Hartanta Tarigan, Luh Putu Ayu Savitri Chitra Kusuma and Taufic Dwi Ferindra, op.cit, p.12. 11 Erik Jaap Molenaar and Martin Tsamenyi, “Satelitte-Based Vessel Monitoring Systems International Legal Aspects and Development in State Practice”, FAO Legal Papers Online, April 2000, pp. 9-10. 12 Article 6 13 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, Directorate General of Surveillance and Control of Marine Resources and Fisheries, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2003, p. 20.

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to comply after the installation of VMS. In the first case, only a few fishing

companies return vessel registration forms which provide for the installation of

transmitters. For companies that do return the vessel registration forms, the

information provided is largely incomplete. For example, the data provided only

contained information on vessel name and gross tonnage, without providing

information on vessel landing timeframes beyond the installation period. There

have also been problems with the removal or relocation of transmitters after

installation. The second concern with the implementation of VMS in Indonesia is

the reluctance of fishing companies to evacuate their vessels during emergencies

due to a fear that VMS equipment would be stolen when the fishing vessel was

mooring at port.15

A third problem is the lack of support from the Chinese government to encourage

its fishing vessels to participate in the VMS program. At the First Meeting of the

Sino-Indonesian Joint Committee on Fisheries Cooperation in Jakarta in 2003, the

Indonesian delegation informed the meeting that any compulsory transmitter

installation and operational requirement for VMS used by China should be

compatible with the Indonesian system. In response, the Chinese delegation

considered VMS to be extremely difficult to implement, primarily because of the

potential cost to the Chinese fishing industry.16

14 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, op. cit, p.21. 15 Working Program and Surveillance Basic Activity for Marine and Fisheries Resources, ibid.

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It is clear from the above discussion that there are a number of obstacles to the

implementation of VMS in Indonesia. Critically, a failure to implement the VMS

regulations discussed above may eventually lead to IUU fishing. It is argued that

the key to the successful implementation of VMS is the willingness or ability of

fishing industry players to participate in the VMS programme and implement

relevant regulations. There is a need for cooperation between licensed and

artisanal fishermen and the fisheries administration and enforcement authorities. A

regional coordinated approach to MCS, including the sharing of information on

vessels across national jurisdictions is a desirable way to implement the VMS to

eliminate IUU fishing.17

A further problem to bear in mind regarding the scope of the VMS regulation is that

its application is only restricted to the IEEZ. The Ministerial Decision No. 29 on

VMS contains no requirement on the installation of VMS by Indonesian fishing

vessels conducting activities on the high seas. Indonesia has not yet taken any

further step to bring its VMS consistent with the post-LOSC fisheries instruments.

Indonesia must commit to the implementation of the LOSC, the UN Fish Stocks

Agreement and the IPOA-IUU, which respond to IUU fishing issues in the

Indonesian EEZ and on the high seas. What is particularly important is that

regional and high seas IUU fishing concerns should also be taken into account at

the national level because of the huge number of Indonesian fishing vessels

16 Records of Discussion The First Meeting of the Sino-Indonesian Joint Committee on Fisheries Cooperation, Jakarta, 6-8 August 2003, p. 4.

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operating on the high seas and RFMO areas. The implementation of VMS at the

national, regional and international level is necessary to provide data on IUU

fishing.

9.2.2 Fishing Logbooks

Under Paragraph 51.5 of the IPOA-IUU, coastal States are required to

ensure authorized fishing vessels in the EEZ to maintain logbooks which contain a

record of their fishing activities. In 2002, the Department of Marine Affairs and

Fisheries implemented the log book provisions contained in IPOA-IUU through the

Decision of the Minister of Marine Affairs and Fisheries No. 03 of 2002 on Fish

Transporting and Catch Log Book. The purpose of the logbook system is to collect

information on the catching and transportation of fish for the purpose of fisheries

control and surveillance.18 According to Article 4 of the Ministerial Decision No. 03

of 2002, the scope of the regulation extends to planning, implementation, analysis

and evaluation of fish transportation and logbook system.

Three forms of logbooks are required under the Ministerial Decision 03 of 2002,

namely Form A, Form B and Form C, which must be filled out by vessel masters

and fisheries control officers.19 Form A requires vessel masters to record details of

fishing and fish transporting activities. Form B requires fisheries control officers to

record details of a vessel’s fishing and fish transportation activities while Form C

17 “Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries” (Synthesis Report), Marine Resources Assessment Group Ltd 18 Queen Street London, United Kingdom, June 2005, p. 5. 18 Article 3

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requires fisheries control officers to record details of the operational

appropriateness of fishing vessels and/or fish transporting vessels.

Articles 6, 7, 8 and 9 of the Ministerial Decision No. 03 of 2002 enumerate a

number of requirements, mechanisms and application procedures for fish

transportation and catch logbooks to be fulfilled by all persons. Under Article 6(1),

all fishing vessels involved in fishing or fish transportation are required to have the

original copies of Form A, B and C logbooks. The logbook is provided by fisheries

control officers to the vessel master.20 Article 6(3) provides for certain

administrative requirements to be fulfilled by vessels, including having an

authorised copy of the fisheries business license and an approval for the use of

foreign fishing vessels and foreign fish catch allocation. In addition, vessels must

also carry their original copy of the fishing license, licenses for Indonesian and

foreign fish transporting vessels and, where relevant, an approval letter for foreign

fish transporting vessels. Other requirements include a license for foreign

expatriates, a vessel master certificate, a certificate of measurement, proof of

ownership, and a certificate of appropriateness and vessel supervision.

Indonesia currently requires all foreign fishing vessels seeking access to

Indonesia’s ports to provide a copy of their authorisation to fish and details of other

relevant documents. The submission of such documents is ultimately for the

benefit of the fishing industry as such documents are used by fisheries control

19 Article 5 20 Article 6(2)

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officers to verify the accuracy of the information provided. On this basis, Indonesia

should collect and maintain information on IUU fishing within Indonesian fisheries

management areas. Under Article 7(1) of Ministerial Decision No. 03 of 2002, the

fishing vessel master has to report its fish catch to fisheries control officers upon

landing in a designated port. This is done by submitting the completed Form A prior

to the vessel loading or transporting its fish catch. Paragraphs 2 and 3 then require

the vessel master to allow fisheries control officers to inspect the above-mentioned

documents and to conduct a physical inspection of the vessel and fish catch and/or

transported fish.

From a reporting perspective, Article 7(1) of Ministerial Decision 03 of 2002 is of

particular importance as it is designed to obtain information from the vessel master

relating to the fishing trip and quantities of fish on board. During fishing periods,

fishing vessels are obliged to maintain daily logbooks containing information on the

position, effort, catch and other relevant information such as reports of landing or

transhipment of catch. These logbooks or records are provided to fisheries control

officers at the end of each fishing operation or within a specific period after the end

of such operation.21

Article 8(1) places an obligation on the vessel master to report to fisheries control

officers about the fishing operation and/or fish transportation activities of the vessel

at least two hours prior to departure. The fisheries control officers are then required

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to inspect relevant documents and conduct a physical examination of the fishing

vessel. Overall, the reporting regime requires that information regarding the vessel

position and fish catch on board the vessel be provided prior to the vessel leaving

the port for the purpose of commencing a fishing operation, each designated day of

the week within the licensed fishing area or a closed area and before entry into port

for the purpose of unloading fish from any fishing activities in the licensed fishing

area.22 Following such verification, the vessel logbook can be used to check

collected data.23

The primary purpose of the logbook is to assist in establishing where the vessel

has been and where and when it was fishing. In certain cases concerning IUU

fishing, this sort of evidence is particularly important in the absence of universal

VMS requirements.24 However, the implementation of the logbook system is not

without problems. In most cases, the problem of unreported fishing and mis-

reported fishing is derived from the inadequacy of the logbook system. A key

problem is the complexity of the current system. The logbook system is

characterised by a long and tedious process of monitoring and control that makes it

difficult for vessel masters to complete all the required forms. The problem is

exacerbated by the lack of awareness of fisheries control officers, data input

operators and vessel masters about the importance of the logbook system.

21 Blaise Kuemlengan, “National Legislative Options to Combat IUU Fishing” Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney Australia, 15-19 May 2000, p. 5. 22 Blaise Kuemlengan, op.cit, p. 4. 23 Erik Jaap Molenaar and Martin Tsamenyi, op.cit, p.4. 24 National Plan of Action of the United States of America to Prevent, Deter, and Eliminate Illegal, Unregulated, and Unreported Fishing, op.cit, p. 21.

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Another problem is the lack of adequate personnel and equipment necessary for

the processing of fish catch. This reduces the capability of the government to

obtain accurate fisheries data and information.25

Given the identified gaps of the current logbook system, there is a need to have an

effective reporting system to ensure the flow of fisheries information to the fisheries

manager. Additionally, the quality of information is equally important and should be

as accurate as possible so as to form a sound basis for decision-making. This

accuracy could be achieved by a standardized logbook and rapid data

processing.26 The logbook system must be improved through the adoption of

simple rules and procedures to enable the vessel master to fill out all required

information. There is also a need for an authority to be established with the power

to implement logbook requirements and address the problems of IUU fishing as a

whole.

9.2.3 Observer and Inspection Scheme

Article 62(4)(g) of the LOSC entitles coastal States to prescribe laws and

regulations placing observers on board fishing vessels operating in the EEZ. In

addition, Article 18(3)(f) of the UN Fish Stocks Agreement places an obligation

upon the flag States to ensure that fish catch is properly verified through observer

25 This is based on the author’s interview with Turman Hardianto MAHA, a Master Student in Maritime Studies at Centre for Maritime Policy of the University of Wollongong, Australia, 31 August 2005. 26 Suparman A. Diraputra, “An Overview of Fishery Management Practices and Issues in Indonesia”, in Kathleen I. Matics and Ted L. McDorman (eds), Seapol International Workshop on Challenges to Fishery Policy and Diplomacy in South-East Asia, Rayong, Thailand 6-9 December, South-East Asian Programme in Ocean Law, Policy and Management Bangkok, Thailand, p. 30.

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programmes and inspection schemes. Paragraph 24.4 of the IPOA-IUU requires

States to undertake comprehensive and effective MCS of fishing from its

commencement, through the port of landing to final, including by implementing

observer programmes in line with relevant national and regional requirements.

These three instruments require States to implement observers and inspections

schemes.

Indonesia’s implementation of this requirement is through Decision of the Minister

of Marine Affairs and Fisheries No. 02 of 2002 on Fisheries Control Guidance.

Under these regulations, the Department of Marine Affairs and Fisheries created

the position of fisheries control officers for the purpose of collecting reliable and

accurate information for fisheries management, and enforcement.27 The purpose of

having fisheries control officers under Article 2(2) of this regulation is to control fish

catch and/or fish transportation in a sustainable, responsible manner, and to

ensure the conservation of fisheries resources and its environment.

Under Article 3 of Ministerial Decision 02 of 2002 on Fisheries Control Guidance,

fisheries control officers are charged with controlling fish catch and/or fish

transportation not only through monitoring and field observation, but also through

inspection and investigation. Article 5(1) of the regulations enumerates the types of

information that the fisheries control officers may collect, including: (a) information

on fishing vessels and/or fish transporting vessels which moor, anchor, sail and or

27 Article 2(2) of Decision of the Minister of Marine Affairs and Fisheries No. 02 of 2002 on Fisheries Control Guidance.

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conduct fish catch and/or fish transportation; (b) information on fishing gear and/or

supporting fishing gears; (c) information on any other fishing gears; and (d)

information on methods used for fishing. Article 5(2) of Ministerial Decision 02 of

2002 on Fisheries Control Guidance further allows fisheries control officers to

exercise control over various areas, including fishing ports, landing/fish landing

centres, ports which are designated ports, and places where vessels conduct

fishing activities.

The powers of fishing control officers associated with surveillance and enforcement

can be broken into two, namely inspection and investigation. The first power of

fisheries control officers under Article 6(1) of Ministerial Decision 02 of 2002 on

Fisheries Control Guidance is the power of inspecting fishing vessel license

documents, the physical condition of fishing vessel and/or fish transporting vessels,

fishing gears and supporting fishing gears, number and composition of master and

vessel crew in one unit of fishing activity, fish catch and fish transporting activities,

and compliance with base port loading and unloading reports.

In the context of fishing vessel license document, Article 7(1) of Ministerial

Decision 02 of 2002 on Fisheries Control Guidance allows fisheries control officers

to inspect a copy of the authorized fisheries business license or permanent

business license; a copy of the approval for using foreign vessel; an original fishing

letter; an original fishing license; an original license for fishing and fish

transportation for Indonesian vessels; an original license for fishing and fish

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transportation for foreign vessels; an original approval letter for foreign fish

transportation vessels; an authorized copy of employment certification for the

master and crew of foreign vessels; an authorized copy of vessel certificates such

as the certificate of measurement; a proof of fishing fee payment; and an

authorized foreign fish catch allocation for foreign-flagged fishing vessels.

Article 7(2) of Ministerial Decision 02 of 2002 on Fisheries Control Guidance further

allows fisheries control officers to conduct physical inspection of vessels. The

scope of this power extends to inspecting the compatibility of vessel certifications

with the type, size, and form of the fishing vessel; the vessel’s identification in the

form of vessel marks and flag; the quantity and size of cargo hold; and the type,

trademark, serial number and machine power of the fishing vessel. Under Article

7(3), fisheries control officers are also able to conduct physical inspection of

vessels in relation to the compatibility of fisheries business license with the type,

quantity, size and technical specification of fishing gear and supporting fishing

gear.

Another significant responsibility for fisheries control officers under Article 7(4) of

Ministerial Decision 02 of 2002 on Fisheries Control Guidance is to conduct

physical inspection of other devices used in fishing other than cargo hold which

include the type, quantity and size of the device. Under Article 7(5), fisheries

control officers are also responsible for inspecting the number and composition of

masters and crew for both Indonesian and foreign fishing vessels. Under Article

7(6), the task of inspection extends to fishing vessel operations and the type, size,

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quantity, fish origin and physical condition of fish caught. It can be questioned

whether the power under Article 7(6)(b) should more appropriately be given to

fisheries observers rather than fisheries control officers.

In general, observers are often tasked with collecting data for monitoring catch,

discards, and incidental takes of protected species which include marine

mammals, seabirds and sea turtles. In relation to certain fisheries, observers are

also given the power to monitor compliance with fisheries regulations. However,

observers who are initially trained as biological technicians have primary duties

that are scientifically oriented.28 An example of the duties of observers is to collect

data at sea such as biological data on size, length, age, and sexual maturity of fish

catch. In addition, observers can also collect data on the stomach content and

genetic samples of fish. In terms of end-use, program managers must be trained in

sampling design in order ensure that collected information from observers is useful

and relevant.29

Article 11 of Ministerial Decision 02 of 2002 on Fisheries Control Guidance gives

fisheries control officers substantial powers to exercise their authority as fisheries

civil servant investigators. These include the power to receive reports or complaints

from any person on the violation of the regulation, and the power to call upon and

investigate any person suspected of violating the regulation. Further powers

28 National Plan of Action of the United States of America to Prevent, Deter, and Eliminate Illegal, Unregulated and Unreported Fishing, op. cit, p. 9.

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include the authority to enter and search any fishing vessels, transportation

facilities and any premises used for storage and preservation of fish suspected of

being used in the violation of the regulation. Article 11 also allows the seizure or

confiscation of any fish products, equipment and documents used in the

commission of such offences.

From the above discussion, it can be seen that fisheries officers are equipped with

law enforcement powers to ensure compliance by fishing vessels with national

conservation and management measures. Fisheries officers have the power to

enforce such measures where violations occur in Indonesian waters, investigate

violations of such measures and board and seize the vessel concerned. The

powers given to fisheries officers under the regulation are particularly broad so as

to cover a wide range of enforcement measures.30 In carrying out their functions,

the fisheries officer must ensure that they observe and record all activities on the

vessel to be boarded. Designated fisheries staff and boarding personnel both in the

boarding team and onboard the patrol vessel should faithfully record all dates,

times and events of the fishing activity monitored or observed.31 In the event of an

alleged violation, such observations and records may assist in the prosecution of a

fisheries case.

29 Sali Jayne Bache and Nathan Evans, Fisheries Observer Programs : Lesson from a Global Review and Policy Options for Australia, Department of Agriculture, Fisheries and Forestry Fisheries and Agriculture Business, Canberra, September 2003, p. 10. 30 Erik Jaap Molenaar and Martin Tsamenyi, op.cit, p. 7. 31 P. Flewweling, Corman Cullinan, David A Balton, R.P. Sautter and J.E. Reynolds, “Recent Trends in Monitoring, Control and Surveillance Systems for Capture Fisheries”, FAO Technical Paper No.415, Rome: FAO, 2002, p. 88.

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It is clear that the accuracy of vessel inspections either in port or at sea is an

important part of the surveillance aspect of MCS. Inspection of the quantity of fish

on board a vessel is designed to test compliance with regulations. Inspection

during the authorised fishing period is to ensure that all fishing activities comply

with fisheries legislation.32 A control and inspection system in ports and other

places may be used to confirm that vessels possess valid documentation. Such a

system can strengthen the existing fishing vessel registration and licensing system

as an effective means of deterring IUU fishing.

Theoretically speaking, the implementation of MCS system through fisheries

control officers in the Indonesian EEZ is vital for the success of fisheries

management. It is important that the fisheries control officers have the ability to

identify at an early stage any change in the utilisation of fisheries resources in the

Indonesian EEZ. At the same time, all types and location of illegal fishing activities

should be determined precisely.33 MCS systems could also be used for other

purposes such as the investigation of a fisheries offence. These measures could

potentially provide valuable information on the activities of all fishing vessels in

fishing grounds and, in particular, on the position of the vessels from time to time.34

32 P.Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter and J.E. Reynolds, op. cit, p.60. 33 Final Research Report on “A Review of Model for the Development and Sustainability of Fisheries Management in the Indonesian EEZ”, Cooperation Between Directorate General of Fisheries, Department of Agriculture of the Republic of Indonesia and Centre for Archipelago, Law and Development Studies, 1996-1997, p. 98. 34 Yohan Sanggelorang, “Expectation and Recommendation of Nusantara Fisheries Community Towards Fisheries Sector Policy Entering Local Autonomy Era”, November 2000, p.10.

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One of the problems in the implementation of Indonesia’s observer programme and

inspection scheme is the limited number of trained fisheries control officers. As a

result, both schemes utilize the same officers on the high seas. However,

Ministerial Decision 02 of 2002 on Fisheries Control Guidance does not authorize

fisheries control officers to board and inspect on the high seas any Indonesian

fishing vessel which has engaged in unauthorized fishing in RFMO areas.

Indonesia has failed to implement international boarding and inspection regime laid

down in the UN Fish Stocks Agreement. The failure of Indonesia to become a full

member of existing RFMOs is a critical gap in the effective implementation of the

high seas enforcement regime. The absence of boarding and inspection power by

the fisheries control officers over fishing activities of Indonesian fishing vessels on

the high seas contribute to unregulated fishing.

In implementing the Ministerial Decision 02 of 2002 on Fisheries Control Guidance,

three potential problems arise. The first problem is that fishing vessels do not land

their catches in designated ports often to avoid the reporting commitments of the

vessel master. The second problem is that general ports, private bases and some

fishing ports do not have fisheries control officers.35 The third problem is related to

inadequate facilities, which makes it difficult for fisheries control officers to directly

control fishing grounds. As a result, the activities of fishing control officers have

been limited to the inspection of fish catch and fishing gear on board the vessel at

port. Such measures are considered inappropriate as there may be a difference

35 Heriyanto Marwoto, “Law Enforcement and Implementation of the Fishing Patrol”, op. cit, p.35.

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between the actual fish catch and fishing gears used and those landed by fishing

vessels in ports.36

Aside from the issues discussed above, there are a number of concerns that must

be addressed in relation to the implementation of the UN Fish Stocks Agreement

and the IPOA-IUU. Although the Ministerial Decision 02 of 2002 on Fisheries

Control Guidance contains measures adopted under the IPOA-IUU on the

inspection of vessels, it fails to address several issues concerning IUU fishing. At

present, the regulation does not require foreign fishing vessels to give prior

notification of entry into or departure from Indonesian ports. The regulation also

fails to provide for the Indonesian government to refuse entry of vessels suspected

of conducting IUU fishing. It is suggested that this problem be addressed by

incorporating the port State measures contained in paragraphs 52 to 58 of the

IPOA-IUU, such as the requirement to present logbooks and other relevant

documents in ports. Approval must be issued prior to entry into Indonesia for the

purpose of ensuring compliance with regional and national conservation and


The analysis in this section also demonstrates that while Indonesia has authority to

board and inspect all vessels in waters under the jurisdiction of Indonesia, law

enforcement measures fail to fully address violations of fisheries management

36 Final Research Report on “Development and Management of Natural Resources Based on Archipelagic Concept”, Cooperation Between Agency for Research and Development, Department of Foreign Affairs of the Republic of Indonesia and Center for Archipelago, Law and Development Studies, Bandung Indonesia, 1993-1994, p.117.

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rules on the high seas by Indonesian-flagged fishing vessels. While the Ministerial

Decision 02 of 2002 on Fisheries Control Guidance is seen as a further tightening

of the enforcement regime, the regulations fall short of the number of respects. The

problems may be addressed somehow by ensuring that the powers of fisheries

officers extend to both Indonesian waters and the high seas.

9.2.4 Admissibility of Electronic Evidence in Courts

The rapid advancement in the development of information integration

systems on fishing vessels has resulted in the widespread use of electronic

logbooks37 and the transmission of logbook information through VMS.38 The

mandatory use of VMS, along with the development and application of electronic

logbook systems, has the potential to combat IUU fishing.39 However, the use of

electronic information systems raises the question of whether or not information

obtained through electronic devices is admissible as evidence of illegal fishing in

courts. 40

From the perspective of national and regional fisheries management, two major

problems have arisen in relation to the collection and use of observers data for

enforcement proceedings. The first problem concerns the right to collect data and

37 Paragraph 17 of the IPOA-IUU requires national legislation to address, inter alia, evidentiary standards and admissibility including, as appropriate, the use of electronic evidence and new technologies. 38 David Evans, “The Consequences of Illegal, Unreported and Unregulated Fishing for Fishery Data and Management”, Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, p. 7. 39 David Evans, op.cit, p. 6. 40 Philippe Cacaud, op.cit, pp.14-15.

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its use in the prosecution of illegal fishers, while the second problem concerns the

legal status provided to both the information as evidence and the observers as

enforcement officers.41

The authorized officers can use evidentiary provisions to enable them to certify

evidence. For instance, authorised officers may use position fixing instruments to

identify the position of a vessel, then use the position certificate as evidence in the

prosecution, if the defendant has not yet objected to it.42 In general, however,

fisheries officers, other than on board observers, have faced difficulties in

observing fisheries offences due to the fact that the majority of crimes are

committed at sea. Specifically, fisheries officers face difficulties in identifying the

vessel with accuracy, or determining the precise position of the vessel at the time

of alleged illegal action.43

The problems faced by fisheries officers are exacerbated when Global Position

Systems or VMS information is used, due to the general rule that hearsay evidence

may not be admissible in criminal proceedings.44 Essentially, courts are unwilling

to accept evidence from witnesses who do not appear before the court itself.

Witnesses are also unable to testify to matters beyond their personal knowledge.45

41 Sally Jayne Bache and Nathan Evans, op. cit, p.20. 42 Ghana National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, June, 2004, p. 15. 43 P.Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p.26. 44 Blaise Kuemlengan, op.cit, p. 8. 45 P. Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p. 28.

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In light of the above limitations, Indonesia is considering the introduction of a

presumption in cases of fisheries law infringement.46 Generally, presumptions are

used in circumstances where the prosecution has reason to believe that an offence

has been committed and it would otherwise be difficult to prove the offence.47 In

the context of fisheries law infringement, a presumption of illegal fishing may be

raised where observations show that a vessel has engaged in fishing activities

without the necessary authorisation. The use of presumptions allows the court to

highlight the issues that may or may not be in dispute between the parties, so as to

facilitate a more expeditious trial. The duty of the prosecutors is then to ensure that

sufficient evidence is gathered and adequate preparations are made for trial in

order to prove the guilt of the accused.48

The use of expert evidence to prove the validity and accuracy of information taken

from satellite-based VMS is also fraught with problems. Aside from being both

time-consuming and expensive, the use of expert evidence would also constitute a

significant obstacle to prosecutions.49 The use of a presumption system,50 with the

46 National Plan Draft of Action of Indonesia to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Department of Marine Affairs and Fisheries of the Republic of Indonesia, 2004, p. 17. 47 P. Flewweling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p.27. 48 Blaise Kuemlengan, op. cit, p. 9. 49 P. Flewwelling, Corman Cullinan, David A. Balton, R.P. Sautter, and J.E. Reynolds, op. cit, p. 29. 50 For a similar concept of the use of the presumption liability principle for domestic air transport in Indonesia see E.Saefullah W, “Air Carrier’s Liability Under International and National Air Transportation”, Liberty Publisher, Jogyakarta, Indonesia, 1989, pp.268-269. He observed “For the first and last time in Indonesia, the 1939 Ordinance intoduced the presumption liability in cases of damage caused by air transport accident”. He emphasized that the principle of air carrier’s liability under the 1939 Ordinance was based on a rebuttable presumption of the liability on the part of the carrier. Under this principle, the victim was not obliged to prove negligence or fault of any kind; whereas the carrier was not liable for damage caused by an accident if he proved that he and his agent had taken all necessary measures to avoid the damage. Thus, the burden of proof lies on the shoulder of the carrier. Apart from that, the carrier could be exonerated from his liability, and his

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obligation placed upon the prosecutors to prove fault of IUU fishers, would also be

an extremely expensive and complex process. The prosecutors may simply fail to

prosecute the fisheries law violation on the basis of lack of evidence. The failure of

the prosecutors to prove the alleged crime may eventually render fisheries law and

regulations ineffective. Essentially, fisheries law infringements may become an

unregulated and unresolved problem.

An alternative to the use of presumption is the strict liability system, which is

generally applied in determining compensation in relation to ultra-hazardous

activities.51 In international law, the strict liability principle is applied in the 1969

International Convention on Civil Liability for Oil Pollution (CLC), the LOSC, and

the 1972 Convention on International Liability Damage Caused by Space Objects

(the Liability Convention).

The objective of the CLC is to ensure that adequate compensation be payed to the

victim of oil pollution damage caused by the discharge of oil from a vessel meeting

with marine casualty. Under Article III.1 of the CLC, a tanker owner or operator

must pay damages based on the application of the strict liability principle subject to

liability was limited. He further argued that the weakness of the presumption of liability, especially from the victim’s point of view, are inter alia: (a) the application of this principle was based on the ‘protective philosophy’ for the carrier; (b) the application of the presumption liability principle might produce lengthy litigation. To exonerate himself from his liability the carrier would often try to prove that the accident was not caused by his fault; (c) if the litigation took a long time, the plaintiff’s litigation costs and other expenses would be great. 51 Rosemary Rayfuse, “International Environmental Law”, in Sam Blay, Ryszard Piotrowicz, and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Second Edition), Oxford University Press, 2005, p.358.

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specific exceptions.52 The liability of a tanker owner or operator based on this

principle is further regulated in Article 235 of the LOSC on the responsibility and

liability on States. Article 235(1) provides that States must fulfil international

obligations for the protection and preservation of the marine environment. Under

paragraph 2 of this article, States have the obligation to ensure that recourse is

available in accordance with their legal systems for prompt and adequate

compensation or other relief with regard to damage caused by pollution of the

marine environment by natural or juridical persons under their jurisdiction.

Under the strict liability system, the liability for compensation in pollution damage53

comes into immediate existence at the time the marine casualties occur,

regardless of whether the fault lies with the vessel carrying the oil, a third party or

the owner of the oil itself. Although a cap is generally placed on the maximum

amount of compensation payable, the strict liability system provides a simpler

system, both from an evidentiary and procedural perspective.54 Exception to the

principle of strict/absolute liability is accepted only in one case--if the launching

State can establish that the damage is caused either wholly or partly by gross

52 E.D Brown, “The Conventional Way of the Environment”, in Ludwik A. Telclaff and Albert E.Utton (eds), International Environmental Law, Praeger Publishers, 1974, p.46. 53 Daud Silalahi, “Development of Indonesian Environmental Law”, Proceeding of ICLOS – NILOS Seminar on the Law of the Sea in the 1990’s Offshore Resources Development Bandung, Indonesia 24-26 January 1991, Law Consortium, Department of Education and Culture of the Republic of Indonesia and Nederlandse Raad Voor Jurisdische Samenwerking met Indonesia, 1993, p.358. 54 Komar Kantaatmadja, “Compensation in Oil Pollution Damage”, Proceeding of ICLOS – NILOS Seminar on the Law of the Sea in the 1990’S Offshore Resources Development Bandung, Indonesia 24–26 January 1991, op. cit, pp.381-382.

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negligence or act omission on the part of a claimant State with intent to cause the

damage.55

The correlation between IUU fishing and marine casualty may be illustrated by the

potential environmental damage consequences of the problem. IUU fishing mostly

affects the population of coastal States and potential claimant States where these

incidents occurred. The great risks to the victims are dramatically demonstrated by

the degradation of fisheries resources, marine environment degradation, and

economic consequences. Strict liability in these circumstances can be imputed to

the fishing industries or operators who have engaged in IUU fishing.

Accordingly, the choice between a presumption or a strict liability system will

require a consideration of which system is the most effective for and compatible

with the Indonesian legal system. In the context of IUU fishing, where a serious

violation of fisheries management measures has occurred, lack of evidence should

not be a basis for postponing legal proceedings. The fishing industry must take

responsibility for safely and carefully managing fisheries resources and take all

necessary measures to prevent IUU fishing from occurring. Exception to the

principle of strict liability can only be accepted in the case of negligence or

omission act on the part of fisheries management authorities and fisheries control

officers with intent to cause the fisheries law infringement.

55 Carl Q. Christol, “the Modern International Law of Outer Space, Pergamon Press, New York, Oxford, Toronto, Sydney, Paris, Frankfurt, 1982, p.102.

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9.3 Conclusion

This chapter provided an analysis of the existing Indonesian legal

framework on monitoring, control and surveillance to effectively address IUU

fishing. This chapter particularly focused on the use of the vessel monitoring

system, logbook system, observer and inspection schemes, and electronic

evidence in court.

There is evidence to suggest that the failure of Indonesia to address the problems

of IUU fishing is primarily due to the inadequacy of an effective MCS framework.

The existing MCS framework fails to adequately address a range of issues dealing

with mandatory use of VMS on the high seas by Indonesian vessels and

inadequacies in the logbook system and boarding and inspection regime. The

regulations have not yet satisfied the requirements of the post-LOSC international

fisheries instruments. Specifically, there is a complete absence of regulations

authorizing government officers to refuse entry to foreign vessels and inadequate

regulations relating to fisheries observer programs. Indonesia must improve

monitoring, control and surveillance of fishing vessel activities in order to combat

IUU fishing both within and outside national jurisdiction. The challenge for

Indonesia today is to develop a system that will allow the use of electronic data as

evidence in legal proceedings against fisheries violations and apply the strict

liability principle in the Indonesian legal system.

290

CHAPTER 10

CONCLUSION

The objective of this study has been to test the adequacy of the

Indonesian fisheries legislative framework against the provisions of relevant

international fisheries instruments on IUU fishing, particularly the LOSC, UN Fish

Stocks Agreement, FAO Compliance Agreement, FAO Code of Conduct for

Responsible Fisheries, and the IPOA-IUU. The areas of consideration focused,

in general, on management of fisheries in Indonesia and the implementation of

national fisheries laws and policies and in particular, on the implementation of

the fishing vessel registration and licensing system and monitoring control and

surveillance (MCS) for fisheries,

In chapter 2, a general overview and background to IUU fishing activities was

presented. This chapter discussed and analyzed the factors causing IUU fishing,

such as the increase in the demand for fisheries products globally, application of

subsidies in the fisheries sector and overcapacity in fishing fleet, and ineffective

fisheries monitoring, control and surveillance. Among the major impacts of IUU

fishing identified are loss of marine biodiversity, collapse of major fisheries, and

negative economic impacts on coastal and fishing communities. Chapter 1

concluded by arguing that international cooperation is required to combat IUU

fishing.

291

Chapter 3 examined the provisions of the LOSC on fisheries and how the legal

framework under the LOSC addresses IUU fishing. The gaps identified in the

LOSC include the lack of effective provisions on fishing vessels registration,

records of fishing vessels, and authorization to fish on the high seas. Chapter 2

also demonstrated that the provisions of the LOSC on the management of

transboundary fish sotcks are inadequate to address IUU fishing. Other

inadequacies identified in the LOSC relate to the mechanisms for surveillance

and enforcement and compliance with conservation and management

measures.

Chapter 4 addressed post-LOSC legally binding instruments and assessed the

extent to which they address IUU fishing concerns. The analysis in chapter 4

focused on the FAO Compliance Agreement and the UN Fish Stocks

Agreement. The key conclusions drawn in chapter 4 are that the FAO

Compliance Agreement and the UN Fish Stocks Agreement play important roles

in addressing the problems of IUU fishing through their requirements for more

effective exercise of flag State responsibility, control of nationals through

authorization to fish, and requirements for regional cooperation.

Chapter 5 concluded the analysis of the international legal and policy framework

to address IUU fishing by focusing on non-legally binding instruments that

support the implementation of the legally binding agreements discussed in

chapter 4. The instruments discussed in this chapter are the FAO Code of

292

Conduct for Responsible Fisheries and the IPOA-IUU. The chapter considered

the extent to which these non-legally binding instruments build on the

frameworks under the LOSC, FAO Compliance Agreement, and the UN Fish

Stocks Agreement. Although these instruments are not legally binding, they

provide policy guidance for States to support national efforts to combat IUU

fishing, and as such, contribute to the international legal and policy efforts to

combat IUU fishing.

Chapter 6 started the discussions on the Indonesian framework in combating

IUU fishing by providing a general background to fisheries management in

Indonesia. It also discussed the various types of IUU fishing in Indonesia’s

fisheries jurisdiction. The key IUU fishing practices identified include non-

compliance with terms and conditions of fishing licenses and unlicensed fishing

activities. In the case of fishing vessels registration, two types of illegal fishing

activities were discussed, namely fraudulent re-flagging and change of

nationality of foreign-flagged vessels. The chapter demonstrated that

unregulated fishing activities in Indonesian waters are often associated with the

ineffectiveness of rules and regulations adopted by fisheries management

authorities. Chapter 6 also examined a number of factors that have contributed

to IUU fishing in Indonesian waters. These include inadequate MCS and

fisheries management legislative frameworks, and the lack of agreed maritime

boundaries with neighbouring States. What emerged from this chapter are the

293

negative impacts of IUU fishing on the sustainability of fisheries resources in

Indonesia.

Chapter 7 analyzed the fisheries legislative framework in Indonesia and

examined the adequacy of this framework to combat IUU fishing within and

beyond Indonesian waters. The key finding in this chapter is that the Indonesian

legal framework for combating IUU fishing is fundamentally flawed and that its

application does not meet the requirements of international fisheries

instruments. The chapter concluded by providing specific ways in which

Indonesia can improve existing regulations so that they remain consistent with

international requirements in preventing, deterring and eliminating IUU fishing.

Chapter 8 assessed the adequacy of the laws and regulations of Indonesia

dealing with fishing vessel registration and licensing. The chapter demonstrated

that there are gaps in the Indonesian regulatory regime with respect to the

registration and licensing of fishing vessels. Legislative reform is therefore

required and would need to include regulations on fish transportation and fish

aggregating devices in order to effectively address IUU fishing in Indonesia.

Lastly, chapter 9 focused on the Indonesian legal framework on monitoring,

control, and surveillance for fishing vessels. The issues discussed in the chapter

include regulations on satellite vessel monitoring systems (VMS), use of logbook

system, and observer and inspection schemes.. The Chapter concluded that

294

despite efforts to address these problems through legislation, the Indonesian

implementation of international standards on MCS still falls short of what is

needed to combat IUU fishing.

Overall, the thesis has demonstrated that although Indonesia has enacted a

series of legislation designed to combat IUU fishing, the existing legislative

framework does not adequately implement international legal requirements to

combat IUU fishing. As a developing country with inadequate human and

financial resources to eliminate IUU fishing in its waters, Indonesia would have

to rely on international cooperation. This is particularly important in light of

Indonesia’s position as a world tuna producing nation.

To combat IUU fishing, it is important that Indonesia addresses the lack of clarity

in the institutional framework for the management of fisheries resources and

enforcement of fisheries regulations. The thesis has demonstrated the conflict of

jurisdiction among the relevant agencies in managing fisheries resources. For

instance, the competence of the Department of Marine Affairs and Fisheries

overlaps with the Department of Forestry and the Department of Industry and

Trade. The thesis has recommended that the Department of Marine Affairs and

Fisheries, together with the Department of Forestry develop a joint policy relating

to ornamental fish. There is also conflict of jurisdiction between the Indonesian

Navy which has exclusive power in fisheries law enforcement in the Indonesian

EEZ, and civil government fisheries investigators who have the same power in

295

the archipelagic waters and territorial sea. This conflict needs to be resolved by

clarifying the powers of each agency.

Currently, Indonesia controls and monitors the activities of national and foreign-

flagged fishing vessel through vessel registration, licensing, mandatory reporting

of fisheries information, and installation of vessel monitoring systems. However,

it is arguable that the national legal framework established for MCS for fisheries

is inadequate to combat IUU fishing and contribute to the sustainability of

fisheries resources. To date, Indonesia’s failure to combat IUU fishing has been

apparent, mainly because of the problems of lack of implementation of

international MCS frameworks and enforcement.

It should also be noted that unreported fishing activities stem from the

weaknesses in the fisheries data collection system of Indonesia due to lack of

sufficient port facilities and lack of effective implementation of MCS and logbook

systems. These difficulties are compounded by the absence of provisions for the

denial of landing and transshipment of fish into the Indonesian ports by vessels

believed to have engaged in or supported IUU fishing. The port State measures

provided for in the UN Fish Stocks Agreement and the IPOA-IUU also need to

be implemented by Indonesia. In addition, Indonesia is encouraged to implement

an observer program to prevent, deter and eliminate IUU fishing in the

Indonesian exclusive economic zone, especially in the Sulawesi Sea.

296

In terms of unregulated fishing activities, the thesis has demonstrated the

ineffectiveness of Presidential Decree on Trawl Ban that led to unregulated

fishing in the form of using modified illegal gear in the Indonesian EEZ of the

South China Sea. Another issue is the inadequacy of regulations on fish

aggregating devices. Rational management of fisheries resources cannot be

achieved if Indonesia does not have the rules to control the use of fishing gears.

The effectiveness of the efforts to combat IUU fishing depends on the availability

of an adequate legal framework. Indonesia needs to introduce reforms to its

existing fisheries regulations. Any legal reform must also address the

admissibility of electronic evidence in courts. The thesis also proposed the

application of a strict liability principle in determining fisheries infringements.

It is hoped that the analysis provided in this thesis will provide some policy

guidance to legislators and fisheries managers not only to combat IUU fishing

but also to overhaul the Indonesian legal framework governing fisheries

management with a view to ensuring the sustainability of Indonesia’s fisheries

resources for the present and future generations.

297

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