- Email: [email protected]
Enforcement of fishery regulations
Enforcement regulations
of fishery
Problems in coastal and international control J.C. Esteves Cardoso
The
author
theoretical
discusses
and
in the creation fishery
major
practical
problems
and enforcement
regulations
the efforts to resolve them Atlantic then
fishery
context negotiations, by
way
coastal
of
in the
commissions,
examines
of
in the light of
the
issues
He
in the
UNCLOS
the and finally
describes,
of
illustration,
how
state
has been
regulating
a
fishing in its coastal zone.
Captain
Cardoso
is Director-General
Fisheries of Department of Avenue
24th
Portugal,
for
Jufho
Fisheries, Lisbon,
of the North-East
South-East
Commission,
Atlantic
Madrid,
of
necessarily
the
article are do not any officiaf position. this
author,
represent
Fisheries
Spain.
views expressed in
these
80,
Fisheries Commission, UK, and First Vice-President
London,
The
de
President
Atlantic of the
Administration, State
and
’ J.A. Gulland, The Management of Marine Fisheries, Scientechnica, Bristol, 7974. Tables 8a and 8b list respectively the international Bodies concerned with Fishery management, with Acronyms and 1972 Membership; and a Summary af Information on Regulatory Fishery Bodies. The lists are complete but for the continued
on page
143
The problem of enforcing fishery regulations is probably almost as ofd as man: poaching must have been one of the earliest unlawful activities. Present-day efforts in the regulation of fisheries, however, can be traced to the late 1800s. The most rapid evolution of such activities has occurred in the wake of the post-war expansion of the fishing industry from 1960 onwards. For the most part, the emphasis has been on the national enforcement of regulations devised and agreed in the context of regional or international discussions carried out usually within the framework of fishery commissions. 1 The most active commissions in terms of fishery regulation of direct interest to Western Europe have been the North-East AtIantic Fisheries Commission (NEAFC) and the international Commission for the Atlantic Fisheries (ICNAF). Within their areas some 23% ofthe world fish catch was taken in 1975. More recently, the establishment by many coastal nations of wide economic zones” has introduced a further dimension to the regulation of fisheries. The Atlantic fishery commissions, for example, have been obliged to review their future roles. Above ah, this new situation demands the harmonization of national actions with a worldwide need to improve the management and conservation of living resources. National action ought nat to be taken without due regard for its international implications. Furthermore, coastal states should be aware that the creation of a wide fishing zone and the rigorous enforcement of national fishery regulations therein do not by themselves necessarily guarantee the lasting health and productivity of marine living resources. My aim here is to outline some of the major theoretical and practical problems in the construction and enforcement offishery regulations and to show how they have been tackled by the Atlantic fishery commissions.3 From a knowledge of the international approach, one can move on logically to discuss these same problems in the context of the present international debate on the law of the sea.4 Finally, as a practical example, I outline how one country, Canada, controls fishing off its shores.
Enforcement
offishery
regulations:problems
in coastal and international
control
International control
continued from page 142 addition of the Western Central Atlantic was Fishery Commission which established in 1974 by’s resolution of the Food and,Agriculture Organisation of the United Nations Council under Article VI-l of the Organisation’s Constitution. *See ‘ZOO-mile limits: recent claims’, a report by Robin Churchill in Marine Policy, Vol 1, No 3, 1977, pp 255258. 3 See D.H. Cushing, ‘The Atlantic fisheries commissions’, Marine Policy, Vol 1, No 3, 1!‘)77. pp 230-238. 4 The Seventh Session of UNCLOS began on 29 March. For reports on the Fifth and Sixth see Sessions Lee Kimball, ‘UNCLOS: frustration continues’, Marine Policy, Vol 1, No 1, January 1977, pp 8082, and ‘UNCLOS: a note of uncertainty’, Marine Policy, Vol 1, No 4. October 1977. pp 344-346. ‘Sea Fisheries Act, 1883, Ch 22, p 71, First Schedule, International Convention for the purpose of regulating the Police of the Fisheries in the North Sea outside Territorial Waters. 6 Article XXVIII ‘The cruizers of all the High Contracting Parties shall be competent to authenticate all infractions of the regulations prescribed by the present convention, other than those referred to in Article XXVII, and all offences relating to fishing operations, whichever may be the nation to which the fishermen guilty of such infractions may belong.’
Article XXX ‘The commanders of the cruizers of the Signatory Powers shall exercise their judgement as to the gravity of facts brought to their knowledge, and of which they are empowered to take cognisance, and shall verify damage, from whatever cause arising, which may be sustained by fishing boats of the nationalities of the High Contracting Parties. They shall draw up, if there is occasion for it, a formal statement of the verification of the facts as elicited both from the declarations of the parties interested and from the testimony of those present. The commander of the cruizer may, if the case appears to him sufficiently serious to justify the step, take the offending boat into a port of the nation to which the fisherman belongs. He may even take on board the cruizer a part of the crew of the fishing boat in order to hand them over to the authorities of her nation.’
Article XXXII ‘Resistance to the directions of commanders of cruizers charged with the police of the fisheries, or of those who act under their orders, shall, without taking into account the nationality of the cruizer, be considered as resistance to the authority of the nation of the fishing boat.’
The precursor of all present international controls is the Convention of 1882 concerning fisheries in the North Sea.’ This treaty had as its objective ‘the purpose of regulating the police of fisheries in the North Sea outside territorial waters’. The word ‘police’ implied an orderly supervision of fishing. Unlike the present stadium of international control, the Convention applied to the conduct of fishing vessels and not to conservation and management measures. On the other hand, it stands out as a great step in the right direction. Articles XXVIII, XXX and XXX11 were revolutionary because they established for the first time a supernational system of fisheries control on the high seas,6 although the jurisdiction of the vessel’s flag state continued to be upheld. The Fishing Agreement of Oslo between the UK and Norway followed the same line of thought. The result of the first extension of fisheries jurisdiction in the North Sea, the agreement was signed on 17 November 1960 and ratified on 3 March the following year. As far as the conduct of fishing is concerned, the text of the 1882 Treaty was followed quite closely. Nevertheless, it is interesting to compare Articles 23 and 26 of the Oslo Agreement’ with Articles XXX and XXX11 of the 1882 Treaty.8 The main difference is that the ‘policeman’, ie the fishery protection vessel verifying an alleged infringement, cannot any longer take the fishing vessel to a port of the nation to which the fisherman belongs, but simply reports the case to a fishery protection vessel of the country in which the apparently offending vessel is registered or to the competent authority of that country. These then are the two treaties that preceded the first idea of an International Inspection Scheme controlling the observance of conservation and management regulations. With many countries extending their exclusive fisheries jurisdiction to 12 miles and more, following the lack of success of the Second UN Conference on the Law of the Sea in 1958 and 1960, it became necessary to renegotiate the Treaty of 1882. Thus, in accordance with the terms of a resolution passed on 17 January by the European Fisheries Convention, London, 1964, the government of the UK convened an international conference in London in April 1965. Known as the Fisheries Policing Conference, all the countries participating in the North-East Atlantic fisheries’ were invited together with Canada and the USA. After three further meetings (two in 1966 and one in 1967), a new Convention was drawn up on 17 March 1967. The importance of this conference is that some ofthe main theoretical problems of the international enforcement of fisheries regulations were clearly defined in the context of modern fishing. These problems are questions of principle that proved difficult to settle within a consensus, and are still with us today. It is interesting to record the solutions agreed at the conference.
Definition of vessel. In the Policing Convention, ‘fishing vessel’ is, as defined in Article 1 (2), any vessel engaged in the business of catching fish.‘O Enforcement applies, however, to ‘vessels’ and these are defined in the same article as ‘any fishing vessel and any vessel engaged in the business of processing fish or providing supplies or services to fishing _
vessels’.
’ Article 23 '1. The commanders of fishery protection vessels shall exercise their judgement as
continued
MARINE
POLICY
on page 144
April
1978
Exemptionsfrom the rules. For enforcement to work, vessels must be identified, properly documented and their fishing operations properly
143
Enforcement offishery regulations: problems
in coastal and international control
recorded. Unfortunately, thousands of small fishing vessels are unable, by reason of size or type, to comply fully with these requirements. The Conference adopted the solution that within the area where a coastal state had jurisdiction over fisheries it would, without discriminating in form or fact against foreign vessels and with previous information and consultation if so wished, be able to make special rules and exemptions.
Area for international enforcement. This was considered to be the area outside national fishing limits.
continued from page 143 to the gravity of facts brought to their knowledge, which they are authorised to investigate, and shall verify any damage which resulting therefrom may be sustained. 2. They shall draw up, if there is reason for it, a formal statement of the verification of these facts as elicited both from the declarations of the parties and from the testimony of those present and forward the statement both to the competent authorities of the country in which the vessel complained of is the competent registered and to authorities of the country in which the complaining vessel is registered. 3. The commander of the fishery protection vessel may, if in the light of the referred to in investigations subparagraphs (1) and (2) of this article the case appears to him sufficiently serious to justify the step, report the case by wireless to a fishery protection vessel of the country in which the offending vessel is registered or to the competent authority of that country. Nothing in this paragraph shall be deemed to limit the action of a fishery protection vessel where the offending vessel belongs to the same flag.’
Article 26 ‘Resistance by a vessel to the directions of commanders of fishery protection vessels exercising the powers provided for in this chapter, or of those who act under their orders, shall, without taking into account the nationality of the be considered as protection vessel, resistance by the former vessel to the authorities of the country in which it is registered.’ 8 See footnote 6. 9 Belgium, Denmark, France, the Federal Republic of Germany, Iceland, Ireland, the Netherlands, Italy. Luxembourg, Portugal, Spain, Norway, Poland, Sweden, USSR, and the United Kingdom. lo In the French text explained as ‘tout bateau utilise a titre professionel’.
144
Procedures of enforcement. An officer, appointed and duly documented by the respective Contracting Party for the purpose, whose name, and the names of the ships which carry him, have been notified to all other Contracting Parties, may order a vessel which he believes is not complying with the provisions of the convention to stop and, if necessary in order to verify the facts of the case, he may board the vessel for enquiry and report. The officer may not generally order a fishing vessel to stop while it is actually fishing or engaged in shooting or hauling gear. In securing relevant information, the officer must act ‘in such a manner that vessels suffer the minimum interference and inconvenience’. Resistance to enforcement Qicers. This shall be deemed as resistance to the authority ofthe flag state ofthe vessel concerned. Validity of reports. Reports of foreign authorized officers are considered and acted upon on the same basis as reports of national officers providing they are not given higher evidential value than they would have in the country of the foreign authorized officer. Settlement of disputes. This shall be by negotiation, failing which by arbitration, failing which by the International Court of Justice. Any state, however, may make a reservation to this article on the settlement of disputes.
NEAFC solutions The NorthLEast Atlantic Fisheries Convention, signed in London on 24 January 1959, inhe;ited the work of and replaced the Convention for the regulation of the meshes of fishing nets and size limits of fish, which had been signed in London on 5 April 1946. The NEAFC Commission met for the first time in London from 18 to 20 September 1963. At its next meeting in May the following year, the Commission resolved to establish a special committee ‘to study the practical problems invoived in the establishment of international means of control’ on the high seas. In spite of some hard work, special meetings had to be convened in November 1966 and May 1967 before the Commission could adopt its scheme ofjoint enforcement. NEAFC resolved the problems outlined above with respect to the Fisheries Policing Conference as follows: l
Defiinition of vessel: A fishing vessel is a vessel employed for the
0
Exemptionsfrom the rules were not considered.
time being in fishing for sea fish or in the treatment of sea fish.
MARINE
POLICY
April 1978
Enforcement of~~hery reputations: pro~~ern~in coastal and international control l l
e 0 l
Area for international enforcement is the area outside territorial waters and fishery limits. Procedures of enforcement are the same as those adopted by the Policing Convention. Resistance to enforcement Qicers is also the same as in the Policing Convention. Validity of reports follows the Policing Convention. Settlemertt of disputes was not considered.
The Convention also dealt with major practical problems associated with enforcement. These included measurement of mesh size and undersized fish. The problem of boarding and the problems of keeping evidence and avoiding repeated infringements, among others, were not considered initially. The practical problem of exempting small vessels and certain types of vessels has still to be resolved with general agreement in NEAFC. These questions are of interest here with respect to how they were dealt with in ICNAF, as well as their implications for the coastal control of fisheries. Measurement of mesh size. The use of a flat gauge was adopted, with the attachment of a weight of 5 kg in case of doubt on the applied pressure. It is a practical solution, but the results are not consistent as between either individu~s or time and place. All nets other than those which are dry and stowed away below deck can be inspected. Undersizedjsh. This measurement however, to solve the problem of how undersized fish in the vessel’s holds and where the catch is reduced to a compact
is specified. There are no rules, to determine the percentage of how to deal with mixed fisheries load.
Boarding. Initially, as mentioned above, there was no consideration of the problem of boarding and other questions of control such as closed areas, closed seasons, prohibited gear, and the im~sition of catch quotas or controls on fishing effort. As to boarding, in the present NEAFC scheme, the master is not ‘required to stop or manoeuvre when fishing, shooting or hauling’ but simply ‘to observe the ordinary practice of good seamanship to enable an inspection party coming alongside to board as soon as practicable’. Failure to enable a party to board is given separate consideration. Keeping evidence and avoiding repeated infractions. These problems are covered by an obligation to remove and preserve gear which has been marked by the fisheries inspector and by the appointment of a designated authority of the flag state ‘to give prompt action to receive and consider the evidence of the alleged infringements’.
ICNAF solutions The International Convention for the Atlantic Fisheries signed in Washington on 8 February 1949 came to grips with the question of international enforcement only after NEAFC had its scheme in operation. Its first system of international control outside national fishery limits commenced on 1 July 1971 and initially it followed that of NEAFC very closely. All the theoretical problems were solved in the
MARINE
POLICY
April 1978
145
Enforcement ofJishery regulations: problems in coastal and international control
same way. ICNAF’s solutions to the practical problems, however, were different from the start. For the measurement of mesh size, the Scientific Commission of ICNAF devised a spring-loaded gauge, the so-called ‘ICNAF gauge’. This gauge is prescribed for the examination of both the codend meshes and those of the whole net. All nets on board can be examined whether stowed or not. With regard to undersized&h, there were no ICNAF regulations for minimum size offish. Consequently inspectors had no authority initially to inspect the catch. One can divide much more sharply than in NEAFC the coastal states from the non-coastal states. The political might of the fishing sector, particularly in Canada where large areas of the country rely on fishing for subsistence, soon obtained considerable modification of the international scheme. The distant-water fishermen accepted much more stringent regulations advocated by the coastal states mainly for two reasons. First, there was a common interest in the conservation of the important stocks, some of which were in poor condition and were of greater importance for the distant-water than the coastal fishermen. Second, they wanted to avoid the extension by the coastal states of their fisheries jurisdiction to 200 miles. Because of these factors, ICNAF passed to the forefront of all international commissions in the progress of its joint international enforcement schemes. Among the advances were the introduction of boarding by helicopter and considerable control over closed areas, closed seasons and forbidden gear, follow-up of inspection, keeping evidence and avoiding repeated infractions.”
Coastal control
” For example, the inspector was allowed to request the master of a vessel contravening suspected of these regulations to cease all fishing. The master had to help him to establish radio communication with an inspector of the vessel’s flag state or with the designated authority of that flag state. Only after one of these two officers could take charge or the inspector was reasonably satisfied that the vessel would not repeat the apparent infringement, would the master resume fishing. The be allowed to problem of exemptions was resolved by requiring only vessels of over 30 tons to register. Informal rZArticle 55, Composite Nenotiatina Text, UNCLOS III (15 Julv 1977). l3 See, for example, Robin Churchill, ‘The EEC fisheries policy -towards a revision’, Marine Policy, Vol 1, No 1, 1977. po 2636.
146
The latest development in international fisheries law, a development that for the purists is just being born and for the pragmatists is already in full bloom, is the 200-mile wide exclusive economic zone (EEZ), or exclusive fishery zone, where the coastal state has sovereign rights ‘for the purpose of exploring and exploiting, conserving and managing the natural resources’.‘* This economic zone is not a national zone. In it all states enjoy the same rights and perform the same duties as if it were high seas providing they do not clash with the coastal-state sovereign rights for the purposes previously cited. It can be considered, therefore, for want of a better term, a coastal zone subject to ‘coastal control’. This designation can be supported on several grounds. The European Economic Commmunity, for example, has devised a common fisheries policy wherein the economic zone is common property of the Community and not the sum total of the individual economic zones.13 Thus the Community, although not a state, functions as a coastal state, which along the ‘common’ coasts will exercise ‘coastal control’. Furthermore the modern scientific management of fisheries in areas of the sea where several nations concur in the optimum utilization of the living resources, which include many species of many fish stocks which mingle and interact among themselves and with others beyond the area, is so complex that even when an EEZ belongs to one and only one coastal state, control has so many international parameters that it could hardly be correctly called ‘national control.’ The existing theoretical basis for the coastal control of fisheries is the
MARINE
POLICY
April 1978
Enf~re~~e~t of~s~e~
regu~~t~~~:pr~bie~~ in c~~st~~ and ~~tern~tion~~control
Informal Composite Negotiating Text (ICNT), the only expression of the consensus of UNCLOS III available at present. Should the conference arrive at a positive result on Part V (which deals with the EEZ), then this will provide the answers to all the questions of principle. If not, the avaiIaMe text will in any case be followed by many states as the guidelines to rights and duties and procedures. It is, therefore, useful to review the solutions to the theoretical problems confronting fisheries regulation and control on that basis. ~e~~itio~ of vessel. Unfortunately the ICNT lacks a definition of vessel and/or fishing vessel. This poses an apparent difficulty but the coastal state could obviously define fishing vessels according to its sovereign rights in its EEZ without unduly impeding the enjoyment of the freedom of navigation by other states. Exemptions from the rules. The coastal state and the coastal state alone is competent to establish exemptions, if any.
Areafir coastal control. This is the area of the EEZ, which shall not extend beyond 200 nautical miles from the baselines of the territorial sea. Procedures for elzjbrcement, including reporting and dealing with resistance. These will be established by the coastal state, but as an
exercise of a sovereign right and not as a result of agreement between the coastal state and the vessel Rag’s state. Settlement of disputes. Part XV of the ICNT which deals with this matter envisages the establishment of a Law of the Sea Tribunal, Practicat problems in coastal control. Coastal control is a very complex business. Paragraph 4 of Article 62 of the ICNT indicates the regulations that might be involved: 4. Nationals ofother states fishing in the exchtsive economic zone shall comply with the conservation measures and with the other terms and con~tions estabIish~ in the regulations of the coastaf state. These regulations shall be consistent with the present convention and may relate, interalia, to the foilowing: (a)
(b)
(cf (d) (e) (f,
MARINE
POLICY April 1978
Licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which in the case of developing coastal states, may consist of adequate compensation in the field of financing, equipment and te~h~oIogy relating to the fishing industry ; Determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any state during a specified period; Regulating seasons and areas of fishing, the types, sizes and amaunt of gear, and the numbers, sizes and types offishing vessels that may be used; Fixing the age and size of fish and other species that may be caught; Specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; Requiring, under the authorisation and control of the coastal state, the conduct of specified fisheries research programmes and regulating the conduct of such
147
Enforcement offishery regulations: problems in coastal and international control
(g) (h) (9 ti)
(k)
research, including the sampling of catches, disposition of samples and reporting of associated scientific data; The placing ofobservers or trainees on board such vessels by the coastal state; The landing of all or any part of the catch by such vessels in the ports of the coastal state; Terms and conditions relating to joint ventures or other co-operative arrangements: Requirements for training personnel and transfer of fisheries technology including enhancement of the coastal state’s capability of undertaking fisheries research; Enforcement procedures.
According to this text the enforcement officer, very often a junior naval officer in the Navy’s Fishery Protection Squadron, would need to know all the numerous statutory orders governing licences, as per (a) quoted, catch and effort quotas available, as per (b), seasons and areas offishing as per (c), ages and sizes of fish caught as per (d), catch and effort statistics and logbooks as per (e), sampling and other research tis per(f), observers on board as per (g), landings as per (h), cooperative arrangements as per (i), requirements of training as per (j) and enforcement procedures as per(k). That maligned officer will have to be an inspector, a biologist, a lawyer, a diplomat and a seaman, all rolled into one. The enforcement officer must be able, for example, to decide whether a particular boat is allowed to be fishing in that area, that day, using that particular gear, and if not, whether it is worthwhile to attempt boarding the vessel. Is it a Democratic German or a Federal German vessel? Is the catch cod or saithe? Are they catching capelin or great weevers? How can one be sure? When a vessel is fishing, say for cod, and hauls in the net, the catch is not only cod. It may also have a by-catch of saithe, haddock and redfish. If one of these species, haddock for instance, is being overfished, stringent rules may apply to the amount of it allowed in the by-catch.‘Its determination is not easy; it entails identifying with certainty the different species in the catch and then counting, measuring or weighing them. There may be a quota imposed on some of the species found in the catch; how can the total on board be estimated? If the fishing vessel processes the catch on board, how can the different species filleted and frozen be distinguished? How can the area in which they were caught be determined? If vessels engage in mixed fisheries for industrial purposes and the catch in the hold, as it often is, is a compact mass, how can the component species be identified? How can the total catch already on board be estimated so that central office can check how far the catch quota allowed for a certain type and nationality of vessels in a certain area has been used up? Simple and practical answers to some of these questions have yet to be found. One should remember that these examinations are to be done at sea, in strange and uncomfortable surroundings, often in rough weather, having to interrogate and communicate with people of unknown languages, some of which may be dialects that even the nationals could have difficulty in dealing with, and that some misunderstandings may give rise to unpleasant international incidents. The situation may be further complicated by chartering. For example, a Spanish vessel with coastal state permission and at Portugal’s request, may be fishing a Portuguese quota, under the Spanish flag. She may be fishing in an area where, or at a time when, no Spanish vessel is allowed to fish, normally.
148
MARINE
POLICY
April
1978
Enforcement offishery regulations:problems
in coastal and international control
Coastal control in Canada
” L.J. Cowley, Regional Director General, Newfoundland Region, Fisheries and Environment Departments, in Notes for a Presentation on Surveillance and Enforcement, to the 32nd Annual Meeting of the Fisheries Council of Canada, Toronto, 8-11 May 1977. Also E.H. Hearnden, Information Branch, Fisheries and Marine Service, Fisheries and Environment Department, Ottawa, Ontario KlA OE6, in News Release of Canada’s POO-Mile Enforcement FishingZone, 27 September 1977.
MARINE
POLICY
April 1978
Canada has practised coastal control since 1 January 1977 over Portuguese and 15 other foreign nations’ fishing vessels.14 Under the system each foreign vessel proposing to fish within the zone must first obtain a licence to do so. This licence dictates where it can fish; when it can fish; what type of gear is permitted; at what times and how often a vessel must report to the enforcement authorities; and what species the vessel is permitted to fish. All foreign vessels must report within 24 hours before entering the 200-mile zone and 72 hours before leaving the zone, and must report its catch and species every seven days. A vessel must report when it is leaving a designated zone to fish another zone 48 hours in advance. In this way, central coastal control office knows when a vessel enters the zone, changes fishing zones, and where it is at any given time. To handle this massive amount of data, a computer-based control system has been developed. This system is designed to maintain a data base on all foreign fishing vessels licenced to operate in the zone. The system receives data inputs from each vessel as it reports upon entry into the zone, its weekly catch reports, and all sightings and inspections of the vessels. At the end of each day the computer provides enforcement authorities with an up-to-date record of the activities of all vessels licenced to operate in the zone. The system tells which vessels have failed to report as they should, which vessels have not been seen by surveillance in recent days, and the vessels that have not been inspected in recent weeks, as well as any vessels that appear to be operating contrary to coastal state regulations. To improve the cost effectiveness of the surveillance programme, each aircraft and patrol vessel is provided with a list of vessels and details on each vessel that they can expect to encounter during their patrols. Before receiving a licence all foreign nations wishing to fish in the zone in 1977 were required to submit comprehensive fishing plans for their fleet, for that year, consistent with the agreed total allowable catches and allocations, indicating the number of vessels that they wished to fish, areas to be fished, time periods, descriptions of each vessel, its port of registry, the name of its owner and master, the crew complement, registration number, radio frequencies used, etc. These plans were reviewed in the light of vessel capacity and recent catch rate data, and modifications were made to ensure that the level of fishing effort allowed each nation matched the quantity of fish it was allocated in the zone. Countries were then required to submit detailed licence applications in accordance with their approved plan, giving detailed characteristics of each vessel. Four hundred and sixteen foreign vessels were licenced to fish on this zone. The total number of foreign vessels fishing at one time was 82, with 20 foreign vessels operating outside the zone. All foreign fishing vessels operating within the zone are subject to coastal state law. In the event of a vessel being found to be operating in non-compliance with that law, its operator can be brought before a coastal state’s court for prosecution. The Minister also has the authority, at his discretion, to impose administrative penalties against violators, such as cancellation of licences. The task of patrolling the fishing zone is not a simple one. The Canadian government has approved a five-year plan for fisheries surveillance and enforcement, involving not only 8 fisheries and marine
Enforcemeni
offishery
reguiations:
problems
in coastal
and ~nternaiionQ~
control
service patrol vessels, but also aircraft and 12 destroyers of the Department of Defence and two or three ships of the Ministry of Transport. Surface surveillance will be doubled to 1650 operational sea days on the zone. Aerial surveillance will be more than doubled, as it will rise to 3750 flying hours. This increased surveillance in the Atlantic is intended to provide a level of coverage that will enable, at a minimum, the boarding and inspection of one third of the foreign fleet each month and one sixth of the coastal state’s fleet each month.
Fishery control in perspective
Captain Cardoso is a Fellow of the Royal Institute of Naval Architecture. Greenwich, a member of the Northeast Coast institution of Engineers and Shipbuilders, and a Foreign Affiliated Member of the Society of Naval Architects and Marine Engineers, New York. In 7942, he completed a four-year university course to qualify as a Lieutenant in the Portuguese Navy. In 1951 he was in charge of new construction in the Directorate of Naval Construction. Three years later, he joined the Directorate of Merchant Marine, and in 1958 became Head of its Technical Depariment, He feft that position in 196t to become Professor of Naval the Strength of Architecture and Materials at the Portuguese Naval Academy. From 1968 to 1974 Captain Cardoso was Director of Study and Directorate-General of Planning, Maritime Services and Development. At the end of that period he took up his current position as Director-General of Fisheries Administration. He is the author of various publications in the fields of sbipbuj~ding and fisheries: his most recent *Portuguese Fishing Fleets work, Vessels, Equipment and infrastructures: was published in 1977.
150
‘The changing fortunes of some major commercial fisheries have encouraged a consensus for coastal control of living resources to extend out to a distance of 200 nautical miles. The consequences of this extension of jurisdiction by the coastal state are still far from clear and, contrary to some claims, have yet to be proved all-advantageous to modern fisheries management. Certainly many commentators and politicians have been unjust when judging the work of the international fisheries commissions. In my opinion, all that is known about modern management of fish stocks is the result first and foremost of their often unsung efforts. One risk of the 200-mile limit solution may be a tendency among coastal states to overlook, or at least to depreciate the value of scientific advice given by the commissions. Any encouragement of coastal states to consider their own EEZ as a separate independent individual entity, free from interactions with other areas of the sea and EEZs, should be resisted. Scientists must be given the freedom to continue studying marine ecology and living resources as they really are: free and unhmited by arbitrary boundaries drawn up by man. A further risk is a senseless multiplication of rules and regulations. If every individual zone has rules and regulations that are made without due consideration to harmony of the whole, every distant-water fisherman will have to have different logbooks, identification documents, nets, etc, and industrial fishing will be strangled by bureaucracy. Piracy and fraudulent fishing could easily become the order of the day where coastal states do not have the capacity to police the EEZ, or, conversely, coastal states will be confronted with policing costs that ultimately will bankrupt the resource. Both in scientific work and general enforcement and registration requirements, the international commissions should be respected advisers to all and sundry. Their advice should be heeded unless the most stringent reasons militate against it. The EEZs, those vast expanses of sea, do not belong to the coastal states: they are given to them in trust to ensure that their living resources are conserved so that their opt~um utilization can be secured. These sacred duties cannot be discharged by building barriers based on nationalistic prejudice or an unfounded sense ofownership of what are, in effect, marine commons.
MARINE
POLICY
April
1978
of fishery
Problems in coastal and international control J.C. Esteves Cardoso
The
author
theoretical
discusses
and
in the creation fishery
major
practical
problems
and enforcement
regulations
the efforts to resolve them Atlantic then
fishery
context negotiations, by
way
coastal
of
in the
commissions,
examines
of
in the light of
the
issues
He
in the
UNCLOS
the and finally
describes,
of
illustration,
how
state
has been
regulating
a
fishing in its coastal zone.
Captain
Cardoso
is Director-General
Fisheries of Department of Avenue
24th
Portugal,
for
Jufho
Fisheries, Lisbon,
of the North-East
South-East
Commission,
Atlantic
Madrid,
of
necessarily
the
article are do not any officiaf position. this
author,
represent
Fisheries
Spain.
views expressed in
these
80,
Fisheries Commission, UK, and First Vice-President
London,
The
de
President
Atlantic of the
Administration, State
and
’ J.A. Gulland, The Management of Marine Fisheries, Scientechnica, Bristol, 7974. Tables 8a and 8b list respectively the international Bodies concerned with Fishery management, with Acronyms and 1972 Membership; and a Summary af Information on Regulatory Fishery Bodies. The lists are complete but for the continued
on page
143
The problem of enforcing fishery regulations is probably almost as ofd as man: poaching must have been one of the earliest unlawful activities. Present-day efforts in the regulation of fisheries, however, can be traced to the late 1800s. The most rapid evolution of such activities has occurred in the wake of the post-war expansion of the fishing industry from 1960 onwards. For the most part, the emphasis has been on the national enforcement of regulations devised and agreed in the context of regional or international discussions carried out usually within the framework of fishery commissions. 1 The most active commissions in terms of fishery regulation of direct interest to Western Europe have been the North-East AtIantic Fisheries Commission (NEAFC) and the international Commission for the Atlantic Fisheries (ICNAF). Within their areas some 23% ofthe world fish catch was taken in 1975. More recently, the establishment by many coastal nations of wide economic zones” has introduced a further dimension to the regulation of fisheries. The Atlantic fishery commissions, for example, have been obliged to review their future roles. Above ah, this new situation demands the harmonization of national actions with a worldwide need to improve the management and conservation of living resources. National action ought nat to be taken without due regard for its international implications. Furthermore, coastal states should be aware that the creation of a wide fishing zone and the rigorous enforcement of national fishery regulations therein do not by themselves necessarily guarantee the lasting health and productivity of marine living resources. My aim here is to outline some of the major theoretical and practical problems in the construction and enforcement offishery regulations and to show how they have been tackled by the Atlantic fishery commissions.3 From a knowledge of the international approach, one can move on logically to discuss these same problems in the context of the present international debate on the law of the sea.4 Finally, as a practical example, I outline how one country, Canada, controls fishing off its shores.
Enforcement
offishery
regulations:problems
in coastal and international
control
International control
continued from page 142 addition of the Western Central Atlantic was Fishery Commission which established in 1974 by’s resolution of the Food and,Agriculture Organisation of the United Nations Council under Article VI-l of the Organisation’s Constitution. *See ‘ZOO-mile limits: recent claims’, a report by Robin Churchill in Marine Policy, Vol 1, No 3, 1977, pp 255258. 3 See D.H. Cushing, ‘The Atlantic fisheries commissions’, Marine Policy, Vol 1, No 3, 1!‘)77. pp 230-238. 4 The Seventh Session of UNCLOS began on 29 March. For reports on the Fifth and Sixth see Sessions Lee Kimball, ‘UNCLOS: frustration continues’, Marine Policy, Vol 1, No 1, January 1977, pp 8082, and ‘UNCLOS: a note of uncertainty’, Marine Policy, Vol 1, No 4. October 1977. pp 344-346. ‘Sea Fisheries Act, 1883, Ch 22, p 71, First Schedule, International Convention for the purpose of regulating the Police of the Fisheries in the North Sea outside Territorial Waters. 6 Article XXVIII ‘The cruizers of all the High Contracting Parties shall be competent to authenticate all infractions of the regulations prescribed by the present convention, other than those referred to in Article XXVII, and all offences relating to fishing operations, whichever may be the nation to which the fishermen guilty of such infractions may belong.’
Article XXX ‘The commanders of the cruizers of the Signatory Powers shall exercise their judgement as to the gravity of facts brought to their knowledge, and of which they are empowered to take cognisance, and shall verify damage, from whatever cause arising, which may be sustained by fishing boats of the nationalities of the High Contracting Parties. They shall draw up, if there is occasion for it, a formal statement of the verification of the facts as elicited both from the declarations of the parties interested and from the testimony of those present. The commander of the cruizer may, if the case appears to him sufficiently serious to justify the step, take the offending boat into a port of the nation to which the fisherman belongs. He may even take on board the cruizer a part of the crew of the fishing boat in order to hand them over to the authorities of her nation.’
Article XXXII ‘Resistance to the directions of commanders of cruizers charged with the police of the fisheries, or of those who act under their orders, shall, without taking into account the nationality of the cruizer, be considered as resistance to the authority of the nation of the fishing boat.’
The precursor of all present international controls is the Convention of 1882 concerning fisheries in the North Sea.’ This treaty had as its objective ‘the purpose of regulating the police of fisheries in the North Sea outside territorial waters’. The word ‘police’ implied an orderly supervision of fishing. Unlike the present stadium of international control, the Convention applied to the conduct of fishing vessels and not to conservation and management measures. On the other hand, it stands out as a great step in the right direction. Articles XXVIII, XXX and XXX11 were revolutionary because they established for the first time a supernational system of fisheries control on the high seas,6 although the jurisdiction of the vessel’s flag state continued to be upheld. The Fishing Agreement of Oslo between the UK and Norway followed the same line of thought. The result of the first extension of fisheries jurisdiction in the North Sea, the agreement was signed on 17 November 1960 and ratified on 3 March the following year. As far as the conduct of fishing is concerned, the text of the 1882 Treaty was followed quite closely. Nevertheless, it is interesting to compare Articles 23 and 26 of the Oslo Agreement’ with Articles XXX and XXX11 of the 1882 Treaty.8 The main difference is that the ‘policeman’, ie the fishery protection vessel verifying an alleged infringement, cannot any longer take the fishing vessel to a port of the nation to which the fisherman belongs, but simply reports the case to a fishery protection vessel of the country in which the apparently offending vessel is registered or to the competent authority of that country. These then are the two treaties that preceded the first idea of an International Inspection Scheme controlling the observance of conservation and management regulations. With many countries extending their exclusive fisheries jurisdiction to 12 miles and more, following the lack of success of the Second UN Conference on the Law of the Sea in 1958 and 1960, it became necessary to renegotiate the Treaty of 1882. Thus, in accordance with the terms of a resolution passed on 17 January by the European Fisheries Convention, London, 1964, the government of the UK convened an international conference in London in April 1965. Known as the Fisheries Policing Conference, all the countries participating in the North-East Atlantic fisheries’ were invited together with Canada and the USA. After three further meetings (two in 1966 and one in 1967), a new Convention was drawn up on 17 March 1967. The importance of this conference is that some ofthe main theoretical problems of the international enforcement of fisheries regulations were clearly defined in the context of modern fishing. These problems are questions of principle that proved difficult to settle within a consensus, and are still with us today. It is interesting to record the solutions agreed at the conference.
Definition of vessel. In the Policing Convention, ‘fishing vessel’ is, as defined in Article 1 (2), any vessel engaged in the business of catching fish.‘O Enforcement applies, however, to ‘vessels’ and these are defined in the same article as ‘any fishing vessel and any vessel engaged in the business of processing fish or providing supplies or services to fishing _
vessels’.
’ Article 23 '1. The commanders of fishery protection vessels shall exercise their judgement as
continued
MARINE
POLICY
on page 144
April
1978
Exemptionsfrom the rules. For enforcement to work, vessels must be identified, properly documented and their fishing operations properly
143
Enforcement offishery regulations: problems
in coastal and international control
recorded. Unfortunately, thousands of small fishing vessels are unable, by reason of size or type, to comply fully with these requirements. The Conference adopted the solution that within the area where a coastal state had jurisdiction over fisheries it would, without discriminating in form or fact against foreign vessels and with previous information and consultation if so wished, be able to make special rules and exemptions.
Area for international enforcement. This was considered to be the area outside national fishing limits.
continued from page 143 to the gravity of facts brought to their knowledge, which they are authorised to investigate, and shall verify any damage which resulting therefrom may be sustained. 2. They shall draw up, if there is reason for it, a formal statement of the verification of these facts as elicited both from the declarations of the parties and from the testimony of those present and forward the statement both to the competent authorities of the country in which the vessel complained of is the competent registered and to authorities of the country in which the complaining vessel is registered. 3. The commander of the fishery protection vessel may, if in the light of the referred to in investigations subparagraphs (1) and (2) of this article the case appears to him sufficiently serious to justify the step, report the case by wireless to a fishery protection vessel of the country in which the offending vessel is registered or to the competent authority of that country. Nothing in this paragraph shall be deemed to limit the action of a fishery protection vessel where the offending vessel belongs to the same flag.’
Article 26 ‘Resistance by a vessel to the directions of commanders of fishery protection vessels exercising the powers provided for in this chapter, or of those who act under their orders, shall, without taking into account the nationality of the be considered as protection vessel, resistance by the former vessel to the authorities of the country in which it is registered.’ 8 See footnote 6. 9 Belgium, Denmark, France, the Federal Republic of Germany, Iceland, Ireland, the Netherlands, Italy. Luxembourg, Portugal, Spain, Norway, Poland, Sweden, USSR, and the United Kingdom. lo In the French text explained as ‘tout bateau utilise a titre professionel’.
144
Procedures of enforcement. An officer, appointed and duly documented by the respective Contracting Party for the purpose, whose name, and the names of the ships which carry him, have been notified to all other Contracting Parties, may order a vessel which he believes is not complying with the provisions of the convention to stop and, if necessary in order to verify the facts of the case, he may board the vessel for enquiry and report. The officer may not generally order a fishing vessel to stop while it is actually fishing or engaged in shooting or hauling gear. In securing relevant information, the officer must act ‘in such a manner that vessels suffer the minimum interference and inconvenience’. Resistance to enforcement Qicers. This shall be deemed as resistance to the authority ofthe flag state ofthe vessel concerned. Validity of reports. Reports of foreign authorized officers are considered and acted upon on the same basis as reports of national officers providing they are not given higher evidential value than they would have in the country of the foreign authorized officer. Settlement of disputes. This shall be by negotiation, failing which by arbitration, failing which by the International Court of Justice. Any state, however, may make a reservation to this article on the settlement of disputes.
NEAFC solutions The NorthLEast Atlantic Fisheries Convention, signed in London on 24 January 1959, inhe;ited the work of and replaced the Convention for the regulation of the meshes of fishing nets and size limits of fish, which had been signed in London on 5 April 1946. The NEAFC Commission met for the first time in London from 18 to 20 September 1963. At its next meeting in May the following year, the Commission resolved to establish a special committee ‘to study the practical problems invoived in the establishment of international means of control’ on the high seas. In spite of some hard work, special meetings had to be convened in November 1966 and May 1967 before the Commission could adopt its scheme ofjoint enforcement. NEAFC resolved the problems outlined above with respect to the Fisheries Policing Conference as follows: l
Defiinition of vessel: A fishing vessel is a vessel employed for the
0
Exemptionsfrom the rules were not considered.
time being in fishing for sea fish or in the treatment of sea fish.
MARINE
POLICY
April 1978
Enforcement of~~hery reputations: pro~~ern~in coastal and international control l l
e 0 l
Area for international enforcement is the area outside territorial waters and fishery limits. Procedures of enforcement are the same as those adopted by the Policing Convention. Resistance to enforcement Qicers is also the same as in the Policing Convention. Validity of reports follows the Policing Convention. Settlemertt of disputes was not considered.
The Convention also dealt with major practical problems associated with enforcement. These included measurement of mesh size and undersized fish. The problem of boarding and the problems of keeping evidence and avoiding repeated infringements, among others, were not considered initially. The practical problem of exempting small vessels and certain types of vessels has still to be resolved with general agreement in NEAFC. These questions are of interest here with respect to how they were dealt with in ICNAF, as well as their implications for the coastal control of fisheries. Measurement of mesh size. The use of a flat gauge was adopted, with the attachment of a weight of 5 kg in case of doubt on the applied pressure. It is a practical solution, but the results are not consistent as between either individu~s or time and place. All nets other than those which are dry and stowed away below deck can be inspected. Undersizedjsh. This measurement however, to solve the problem of how undersized fish in the vessel’s holds and where the catch is reduced to a compact
is specified. There are no rules, to determine the percentage of how to deal with mixed fisheries load.
Boarding. Initially, as mentioned above, there was no consideration of the problem of boarding and other questions of control such as closed areas, closed seasons, prohibited gear, and the im~sition of catch quotas or controls on fishing effort. As to boarding, in the present NEAFC scheme, the master is not ‘required to stop or manoeuvre when fishing, shooting or hauling’ but simply ‘to observe the ordinary practice of good seamanship to enable an inspection party coming alongside to board as soon as practicable’. Failure to enable a party to board is given separate consideration. Keeping evidence and avoiding repeated infractions. These problems are covered by an obligation to remove and preserve gear which has been marked by the fisheries inspector and by the appointment of a designated authority of the flag state ‘to give prompt action to receive and consider the evidence of the alleged infringements’.
ICNAF solutions The International Convention for the Atlantic Fisheries signed in Washington on 8 February 1949 came to grips with the question of international enforcement only after NEAFC had its scheme in operation. Its first system of international control outside national fishery limits commenced on 1 July 1971 and initially it followed that of NEAFC very closely. All the theoretical problems were solved in the
MARINE
POLICY
April 1978
145
Enforcement ofJishery regulations: problems in coastal and international control
same way. ICNAF’s solutions to the practical problems, however, were different from the start. For the measurement of mesh size, the Scientific Commission of ICNAF devised a spring-loaded gauge, the so-called ‘ICNAF gauge’. This gauge is prescribed for the examination of both the codend meshes and those of the whole net. All nets on board can be examined whether stowed or not. With regard to undersized&h, there were no ICNAF regulations for minimum size offish. Consequently inspectors had no authority initially to inspect the catch. One can divide much more sharply than in NEAFC the coastal states from the non-coastal states. The political might of the fishing sector, particularly in Canada where large areas of the country rely on fishing for subsistence, soon obtained considerable modification of the international scheme. The distant-water fishermen accepted much more stringent regulations advocated by the coastal states mainly for two reasons. First, there was a common interest in the conservation of the important stocks, some of which were in poor condition and were of greater importance for the distant-water than the coastal fishermen. Second, they wanted to avoid the extension by the coastal states of their fisheries jurisdiction to 200 miles. Because of these factors, ICNAF passed to the forefront of all international commissions in the progress of its joint international enforcement schemes. Among the advances were the introduction of boarding by helicopter and considerable control over closed areas, closed seasons and forbidden gear, follow-up of inspection, keeping evidence and avoiding repeated infractions.”
Coastal control
” For example, the inspector was allowed to request the master of a vessel contravening suspected of these regulations to cease all fishing. The master had to help him to establish radio communication with an inspector of the vessel’s flag state or with the designated authority of that flag state. Only after one of these two officers could take charge or the inspector was reasonably satisfied that the vessel would not repeat the apparent infringement, would the master resume fishing. The be allowed to problem of exemptions was resolved by requiring only vessels of over 30 tons to register. Informal rZArticle 55, Composite Nenotiatina Text, UNCLOS III (15 Julv 1977). l3 See, for example, Robin Churchill, ‘The EEC fisheries policy -towards a revision’, Marine Policy, Vol 1, No 1, 1977. po 2636.
146
The latest development in international fisheries law, a development that for the purists is just being born and for the pragmatists is already in full bloom, is the 200-mile wide exclusive economic zone (EEZ), or exclusive fishery zone, where the coastal state has sovereign rights ‘for the purpose of exploring and exploiting, conserving and managing the natural resources’.‘* This economic zone is not a national zone. In it all states enjoy the same rights and perform the same duties as if it were high seas providing they do not clash with the coastal-state sovereign rights for the purposes previously cited. It can be considered, therefore, for want of a better term, a coastal zone subject to ‘coastal control’. This designation can be supported on several grounds. The European Economic Commmunity, for example, has devised a common fisheries policy wherein the economic zone is common property of the Community and not the sum total of the individual economic zones.13 Thus the Community, although not a state, functions as a coastal state, which along the ‘common’ coasts will exercise ‘coastal control’. Furthermore the modern scientific management of fisheries in areas of the sea where several nations concur in the optimum utilization of the living resources, which include many species of many fish stocks which mingle and interact among themselves and with others beyond the area, is so complex that even when an EEZ belongs to one and only one coastal state, control has so many international parameters that it could hardly be correctly called ‘national control.’ The existing theoretical basis for the coastal control of fisheries is the
MARINE
POLICY
April 1978
Enf~re~~e~t of~s~e~
regu~~t~~~:pr~bie~~ in c~~st~~ and ~~tern~tion~~control
Informal Composite Negotiating Text (ICNT), the only expression of the consensus of UNCLOS III available at present. Should the conference arrive at a positive result on Part V (which deals with the EEZ), then this will provide the answers to all the questions of principle. If not, the avaiIaMe text will in any case be followed by many states as the guidelines to rights and duties and procedures. It is, therefore, useful to review the solutions to the theoretical problems confronting fisheries regulation and control on that basis. ~e~~itio~ of vessel. Unfortunately the ICNT lacks a definition of vessel and/or fishing vessel. This poses an apparent difficulty but the coastal state could obviously define fishing vessels according to its sovereign rights in its EEZ without unduly impeding the enjoyment of the freedom of navigation by other states. Exemptions from the rules. The coastal state and the coastal state alone is competent to establish exemptions, if any.
Areafir coastal control. This is the area of the EEZ, which shall not extend beyond 200 nautical miles from the baselines of the territorial sea. Procedures for elzjbrcement, including reporting and dealing with resistance. These will be established by the coastal state, but as an
exercise of a sovereign right and not as a result of agreement between the coastal state and the vessel Rag’s state. Settlement of disputes. Part XV of the ICNT which deals with this matter envisages the establishment of a Law of the Sea Tribunal, Practicat problems in coastal control. Coastal control is a very complex business. Paragraph 4 of Article 62 of the ICNT indicates the regulations that might be involved: 4. Nationals ofother states fishing in the exchtsive economic zone shall comply with the conservation measures and with the other terms and con~tions estabIish~ in the regulations of the coastaf state. These regulations shall be consistent with the present convention and may relate, interalia, to the foilowing: (a)
(b)
(cf (d) (e) (f,
MARINE
POLICY April 1978
Licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which in the case of developing coastal states, may consist of adequate compensation in the field of financing, equipment and te~h~oIogy relating to the fishing industry ; Determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any state during a specified period; Regulating seasons and areas of fishing, the types, sizes and amaunt of gear, and the numbers, sizes and types offishing vessels that may be used; Fixing the age and size of fish and other species that may be caught; Specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; Requiring, under the authorisation and control of the coastal state, the conduct of specified fisheries research programmes and regulating the conduct of such
147
Enforcement offishery regulations: problems in coastal and international control
(g) (h) (9 ti)
(k)
research, including the sampling of catches, disposition of samples and reporting of associated scientific data; The placing ofobservers or trainees on board such vessels by the coastal state; The landing of all or any part of the catch by such vessels in the ports of the coastal state; Terms and conditions relating to joint ventures or other co-operative arrangements: Requirements for training personnel and transfer of fisheries technology including enhancement of the coastal state’s capability of undertaking fisheries research; Enforcement procedures.
According to this text the enforcement officer, very often a junior naval officer in the Navy’s Fishery Protection Squadron, would need to know all the numerous statutory orders governing licences, as per (a) quoted, catch and effort quotas available, as per (b), seasons and areas offishing as per (c), ages and sizes of fish caught as per (d), catch and effort statistics and logbooks as per (e), sampling and other research tis per(f), observers on board as per (g), landings as per (h), cooperative arrangements as per (i), requirements of training as per (j) and enforcement procedures as per(k). That maligned officer will have to be an inspector, a biologist, a lawyer, a diplomat and a seaman, all rolled into one. The enforcement officer must be able, for example, to decide whether a particular boat is allowed to be fishing in that area, that day, using that particular gear, and if not, whether it is worthwhile to attempt boarding the vessel. Is it a Democratic German or a Federal German vessel? Is the catch cod or saithe? Are they catching capelin or great weevers? How can one be sure? When a vessel is fishing, say for cod, and hauls in the net, the catch is not only cod. It may also have a by-catch of saithe, haddock and redfish. If one of these species, haddock for instance, is being overfished, stringent rules may apply to the amount of it allowed in the by-catch.‘Its determination is not easy; it entails identifying with certainty the different species in the catch and then counting, measuring or weighing them. There may be a quota imposed on some of the species found in the catch; how can the total on board be estimated? If the fishing vessel processes the catch on board, how can the different species filleted and frozen be distinguished? How can the area in which they were caught be determined? If vessels engage in mixed fisheries for industrial purposes and the catch in the hold, as it often is, is a compact mass, how can the component species be identified? How can the total catch already on board be estimated so that central office can check how far the catch quota allowed for a certain type and nationality of vessels in a certain area has been used up? Simple and practical answers to some of these questions have yet to be found. One should remember that these examinations are to be done at sea, in strange and uncomfortable surroundings, often in rough weather, having to interrogate and communicate with people of unknown languages, some of which may be dialects that even the nationals could have difficulty in dealing with, and that some misunderstandings may give rise to unpleasant international incidents. The situation may be further complicated by chartering. For example, a Spanish vessel with coastal state permission and at Portugal’s request, may be fishing a Portuguese quota, under the Spanish flag. She may be fishing in an area where, or at a time when, no Spanish vessel is allowed to fish, normally.
148
MARINE
POLICY
April
1978
Enforcement offishery regulations:problems
in coastal and international control
Coastal control in Canada
” L.J. Cowley, Regional Director General, Newfoundland Region, Fisheries and Environment Departments, in Notes for a Presentation on Surveillance and Enforcement, to the 32nd Annual Meeting of the Fisheries Council of Canada, Toronto, 8-11 May 1977. Also E.H. Hearnden, Information Branch, Fisheries and Marine Service, Fisheries and Environment Department, Ottawa, Ontario KlA OE6, in News Release of Canada’s POO-Mile Enforcement FishingZone, 27 September 1977.
MARINE
POLICY
April 1978
Canada has practised coastal control since 1 January 1977 over Portuguese and 15 other foreign nations’ fishing vessels.14 Under the system each foreign vessel proposing to fish within the zone must first obtain a licence to do so. This licence dictates where it can fish; when it can fish; what type of gear is permitted; at what times and how often a vessel must report to the enforcement authorities; and what species the vessel is permitted to fish. All foreign vessels must report within 24 hours before entering the 200-mile zone and 72 hours before leaving the zone, and must report its catch and species every seven days. A vessel must report when it is leaving a designated zone to fish another zone 48 hours in advance. In this way, central coastal control office knows when a vessel enters the zone, changes fishing zones, and where it is at any given time. To handle this massive amount of data, a computer-based control system has been developed. This system is designed to maintain a data base on all foreign fishing vessels licenced to operate in the zone. The system receives data inputs from each vessel as it reports upon entry into the zone, its weekly catch reports, and all sightings and inspections of the vessels. At the end of each day the computer provides enforcement authorities with an up-to-date record of the activities of all vessels licenced to operate in the zone. The system tells which vessels have failed to report as they should, which vessels have not been seen by surveillance in recent days, and the vessels that have not been inspected in recent weeks, as well as any vessels that appear to be operating contrary to coastal state regulations. To improve the cost effectiveness of the surveillance programme, each aircraft and patrol vessel is provided with a list of vessels and details on each vessel that they can expect to encounter during their patrols. Before receiving a licence all foreign nations wishing to fish in the zone in 1977 were required to submit comprehensive fishing plans for their fleet, for that year, consistent with the agreed total allowable catches and allocations, indicating the number of vessels that they wished to fish, areas to be fished, time periods, descriptions of each vessel, its port of registry, the name of its owner and master, the crew complement, registration number, radio frequencies used, etc. These plans were reviewed in the light of vessel capacity and recent catch rate data, and modifications were made to ensure that the level of fishing effort allowed each nation matched the quantity of fish it was allocated in the zone. Countries were then required to submit detailed licence applications in accordance with their approved plan, giving detailed characteristics of each vessel. Four hundred and sixteen foreign vessels were licenced to fish on this zone. The total number of foreign vessels fishing at one time was 82, with 20 foreign vessels operating outside the zone. All foreign fishing vessels operating within the zone are subject to coastal state law. In the event of a vessel being found to be operating in non-compliance with that law, its operator can be brought before a coastal state’s court for prosecution. The Minister also has the authority, at his discretion, to impose administrative penalties against violators, such as cancellation of licences. The task of patrolling the fishing zone is not a simple one. The Canadian government has approved a five-year plan for fisheries surveillance and enforcement, involving not only 8 fisheries and marine
Enforcemeni
offishery
reguiations:
problems
in coastal
and ~nternaiionQ~
control
service patrol vessels, but also aircraft and 12 destroyers of the Department of Defence and two or three ships of the Ministry of Transport. Surface surveillance will be doubled to 1650 operational sea days on the zone. Aerial surveillance will be more than doubled, as it will rise to 3750 flying hours. This increased surveillance in the Atlantic is intended to provide a level of coverage that will enable, at a minimum, the boarding and inspection of one third of the foreign fleet each month and one sixth of the coastal state’s fleet each month.
Fishery control in perspective
Captain Cardoso is a Fellow of the Royal Institute of Naval Architecture. Greenwich, a member of the Northeast Coast institution of Engineers and Shipbuilders, and a Foreign Affiliated Member of the Society of Naval Architects and Marine Engineers, New York. In 7942, he completed a four-year university course to qualify as a Lieutenant in the Portuguese Navy. In 1951 he was in charge of new construction in the Directorate of Naval Construction. Three years later, he joined the Directorate of Merchant Marine, and in 1958 became Head of its Technical Depariment, He feft that position in 196t to become Professor of Naval the Strength of Architecture and Materials at the Portuguese Naval Academy. From 1968 to 1974 Captain Cardoso was Director of Study and Directorate-General of Planning, Maritime Services and Development. At the end of that period he took up his current position as Director-General of Fisheries Administration. He is the author of various publications in the fields of sbipbuj~ding and fisheries: his most recent *Portuguese Fishing Fleets work, Vessels, Equipment and infrastructures: was published in 1977.
150
‘The changing fortunes of some major commercial fisheries have encouraged a consensus for coastal control of living resources to extend out to a distance of 200 nautical miles. The consequences of this extension of jurisdiction by the coastal state are still far from clear and, contrary to some claims, have yet to be proved all-advantageous to modern fisheries management. Certainly many commentators and politicians have been unjust when judging the work of the international fisheries commissions. In my opinion, all that is known about modern management of fish stocks is the result first and foremost of their often unsung efforts. One risk of the 200-mile limit solution may be a tendency among coastal states to overlook, or at least to depreciate the value of scientific advice given by the commissions. Any encouragement of coastal states to consider their own EEZ as a separate independent individual entity, free from interactions with other areas of the sea and EEZs, should be resisted. Scientists must be given the freedom to continue studying marine ecology and living resources as they really are: free and unhmited by arbitrary boundaries drawn up by man. A further risk is a senseless multiplication of rules and regulations. If every individual zone has rules and regulations that are made without due consideration to harmony of the whole, every distant-water fisherman will have to have different logbooks, identification documents, nets, etc, and industrial fishing will be strangled by bureaucracy. Piracy and fraudulent fishing could easily become the order of the day where coastal states do not have the capacity to police the EEZ, or, conversely, coastal states will be confronted with policing costs that ultimately will bankrupt the resource. Both in scientific work and general enforcement and registration requirements, the international commissions should be respected advisers to all and sundry. Their advice should be heeded unless the most stringent reasons militate against it. The EEZs, those vast expanses of sea, do not belong to the coastal states: they are given to them in trust to ensure that their living resources are conserved so that their opt~um utilization can be secured. These sacred duties cannot be discharged by building barriers based on nationalistic prejudice or an unfounded sense ofownership of what are, in effect, marine commons.
MARINE
POLICY
April
1978