Tài liệu recent trends in monitoring control and surveillance 415 pdf

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PREPARATION OF THIS DOCUMENT This Fisheries Technics! Paper is intended as a guide for Fisheries Administrators, As cân update of FAO Technical Paper swrveillonce systems for capture fisheries, it includes information on recent

.zreements and management principles, coastal monitoring control and sures

(MCS) fisher safety-at-sea, I is hoped tha this echnical paper will conuibute to efforts 10 implement coastal and offshore fisheries: management andl MCS schemes using new and emerging strategies and internationally accepted principles for responsible fishing in aeconlance with the FAO Code of Conduct for Responsible Fisheries

8, An ntrdnetion to monitoring, control ant

‘The present paper was prepared with

Programme of Assistance to Developing Countries tor Implementation of the Cove of Conduct for Responsible Fisheries (FishCode), under projeet GCP/INT/648/NOR, Principal contributors 1 the paper include the following individuals: — Peter Flewwelling, an international fisheries management and MCS adviser based in the Philippines: Comac Cullinan, an environmental and marine lawyer based in

Afric; David Balton, Bureat of Oceans and International Environmental and Scientific Alfirs, United States Department of State: Raymond Sautter, National Marine Fisheries Serviee, United States Department of Commerce: and 5

Reynolds, PAO, Rome

southern African Development to Capt Peter Decham the well ted “eller brother” and aulviser fo many of us in the MCS field, for his advice

ible and responsible fishing

elfosts to make this

Ms Sandy Davies (Eisheries Adviser for the

Community) Finally appreciation and memories

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and leadership in support of susta

J Erie Reynolds Programme Coordinator, Fishode Fishery Poliey snd Planning Division FAO Fisheries Department, Rome

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| international fisheries agreements and new MCS a participatory management preventive and deterrent MCS strategies: and the importance of safety-at-sea for fishers

ouches involving

Te paper is divided into eight chapters te:

1) provide an overview of MCS:

2) review the legal basis for MCS activites:

3) propose design considerations for MCS systems:

4) review organizationa considerations for MCS; 5) discuss management measures and consultation and planning issues: 66) review operational procedures and equipment,

T) review patrol, boarding, inspections and prosecution procedures: and 8) address emerging coastal MCS strategies,

Annexes provide further details of operational issues and options for MCS system design and implementation,

Keywords: fisheries management; capture Fisheries: MCS

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CHAPTEI

INTRODUCI

For many years, the Food and Agriculture Organization of the United Nations (FAO) hay

‘assisted national fisheries administrations in addressing the issues they confront in managing and developing fisheries This paper is intended (© enhance and update FAO Fisheries

“Technical Papet, No 338 entitled An intraduction to monitoring, contol and surveillance for capture fisheries.'- Since the release of the eater paper, many new legal concepts and

‘agreements have been forged in the international community and new management trends have emerged that affect monitoring, control and surveillance (MCS) policies, planning and

‘operations The present paper is intended to present these changes and 40 encourage fisheries administrations to update their practices accordingly

ON

‘To this end, the paper provides background on MCS strategies that should be taken into account as part of continuing efforts to deal with three Basie problem areas facing fisheries

‘administrators today ~ namely

athe inability of many governments to monitor and conteol fisheries in waters under the jurisdiction of their State

bì the maintenance of “open ac ‘managers and MCS personel to regulate this type of fishery: and ss" fisheries, despite the dif sulties for both fisheries the lack of effective regional structures and organizations t0 manage international Fisheries Options and_guidetines are offered ơn how to strengthen MCS capability within state subregions or regions The paper expands on current MCS-related fteraure (see Annex A) and provides references for more detailed auvice in certain areas It focuses on MCS for both masta and offshore fisheries and deals with both national andl fo

discussed include the following

ign-owned Meets, Topics

yan overview of MCS, definitions of is, ‘management, recent trends in MI

components of an MCS seheme Chapter 1, following sections):

tivity components the role of MCS jn fisheries and the relationships between the land, sea, and air

') de legal bass for MCS activities and how this can be strengthened and enforced (Chapter 2)

«organizational considerations for MCS (Chapter 4

6) management measures, consultation and planning (Chapter 8)

{MCS operational procedures and equipment (Chapter 6

er 7): and

£2} patrols, boardings inspections and prosecution (Chap

bb) MCS issues for coastal resource management (Chapter 8)

1.1 Overview ~ Status and Challenges

In the past, fisheries administrators have viewed MC

various maritime zones controlled by the State, This paper attemps to provide

of MCS — ä view of MCS as the vital executive arto of fisheries management

1s little moee than the policing of the broader view

The rapid depletion of Key fish stocks in the 1980s and 1990s has made it imperative that governments achiev ional Level, a number of new agreements have ereated a stronger legal basis on which to develop greater control AL the sume time, new technological developments have Facilitated the remote

‘monitoring of fishing vessels and the collection of fisheries dat,

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which entered into force in 1994, forms the backbone of the international legal framework for fisheries

‘mxanagement, It sets out the rights and duties of coastal, port and flag States in respect of each

‘ofthe principal maritime zones recognized by international law, nanely the territorial sea, the

h seas [also deals with a range of other important issues regimes applicable to internal waters, archipel the right of innocent passage and pas

greater control over Gsbing activities At the

‘exclusive economic zone andthe bi

that are related, inehuding the fe

the contiguous zone, the continental shelf, a

‘through international strats,

to re-establish and maintain sustainable fisheries worldwi

ation of the Provisions of the

‘One of these new instruments is the Agreement forthe Lmplem:

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 the UN Fish Stocks Agreement), which entered into force on 11 December 2001 AS discussed more fully in Chapter 2, he UN Fish Stocks Agreement seis forth hroad range of

ob

lions designed to create greater control over Tisheries for vertain valuable stocks, Juding the strengthening of MCS capabilities

Chapter 2 also reviews the pertinent aspects of several other new instrun

the auspices of FAO, including

a)the 1998 Agreement 10 Promote Compliance with Internat Management Measures hy Fishing Vessels on the High Seas (FAO Compliance Agreement),

s developed under tal Conservation and

b the 1995 Code of Conduct for Responsible Fisheries (CRP

¢) four International Plans of Action dealing with various aspects of fisheries management and particularly the International Pian of Action to Prevent, Deter and Eliminate Mlegal Unreported and Unregulated Fishing: and

«) guidelines forthe marking and identification of fishing vessels,

eally, each Sta

through the development of a national “oceans policy." Such a policy would establish ‘woul! implement the 1982 Convention and the more recent agreements

government priorities and the strategy’ for the conservation and sustainable use of all marine

hin the maritime zones over which the §

‘of fisheries that occur outside these ly oF sovereign

rights, as well as efforts cowards cooperative managers!

zones, From this oceans policy would flow the integrated oceans planning and mansy Framework under which fisheries management plans would be developed “ment

Most States see this as fong-term development initiative To shorten the process, they have chosen to develop oceans policy and fisheries manazement strategies including MCS strategies) simoltaneously Consequently, although iograted into an overall oceans policy when itis ukimately established, the MCS systems i

ment pans ate being developed in the interim to address

‘the more immediate need to protect fish stocks and their habitats, This stetegy is commendable

A “precautionary approsch” recognizes that frst requirement for fisheries resource i 10 prevent further d

sequired to implement fisheries man

gradation of the resource ise

The degeoe to which a government becomes involved in the fisbing industry will have un impact on Fisheries roa

semen andthe resultant MCS activites Bor example ernment

Negative reslts of centralised, miva-management control mechanisms have become evident

in both industrialised and developing States Consequently, there is an emerging trend toward the second, participators co-management approach Fisiers and the lishing industry want and in fact are demanding, & more active role in management planning and implementation Central governments are responding by devolving authority 19 smaller units ðĩ

(provinces, districts and! municipalities) and by festering community-based management, Stakeholder involvement, snd the acceptance of responsibility forthe care, conservation aid protection of their local marine resources by the fishers and industry, Ina growing number of ceases, such als the Canadian experience described in Profile 1, the private sector is also becoming involved in MCS activities

Tndivgy in dhe voastal and nearshore Fishing zones

(On the issue of fishers, Fisheries administrators must remember that most are hare working individuals often working in a hazardous environment

Wile sometines elles ssn hth inne fo be sroks, srs ate pets Rest hse a bony as nest The nex a ul ed nhs bien Tne Ne

‘ompettine atl ote bls capitalized operations, Ie unt remem ta hes ho the face of gelyanfongiving scx hal eet wenkingenvieméat nhí [haem the wort

Jindal acide rates the Wor ad aa) they operate increasingly ao line fof ever increasing everheals countered only by the pce of caches which ae] subjected lever vet] qa restton Alt done in the Knowledge tha the soe of thee vette snd te Heep of thet crews depents entre um Hee indivi sil ello an iat, Give thew prevsres, i petaps ne suring hat sich independent ris donot alas ake XinH lụ burssacratie contol, expel these appr io them ta Rae ile practi purse

Another erroneous perception is that MCS is exclusively concerned with enforcement ~ thus ignoring the other two components of monitoring (data collection) and conteol (legislation, licensing, and controls on gear, season,

“surveillancefenforcement” or deterrent aspects of MCS, fisheries administrators and supporting agencies cannot harness the full utility of MCS as the vital executive arm of fisheries management,

areas ete.) In focussing only on the

1.1.2 Civilian versus military involvement in MCS

The expense of MCS activities is often a primary concer of any government designing and implementing an MCS system, Cost-effectiveness and efficiency is important if MCS

‘operations are 10 be successful A civilian approach to deterrent

proven in many cases to be the most cost-effective and responsive to fisheries priorities Use

of civilian assets also avinimizes the poltieal sensitivity of international fisheries incidents by avoiding the use of military equipment and personnel

ries enforcement has

‘Those fisheries administrators who must rely on the use of military resources to cary out MCS activities may find that military agencies often accord low privity to that task, Moreover, militay involvement, except in a support role is usually not cost-effective Military aireraft and vessels are more expensive to build and operate than equivalent civilian

‘equipment Savings accrue from the use of a civilian vessel with fewer crew and lower operating costs

1.1.3 Fisheries as a lead ministry

Effectiveness of operations can be enhanced considerably if single ministry is designated 10 take the lead role in MCS activities, This significantly reduces the lines of communications for the command and control of the monitoring and surveillance components of MCS setivities, making them more efficient and responsive to management needs As noted abow however a number of different agencies may be called upon in & supporting role In such siwations, effective MCS requires a strong inter-agency control mechanism,

sevens nig ma and rile syste for ne ees

In Cac, he edt Deptt of Fein and Oe (DFO) fs bse env by the Pike of Canada hgh he Fishers sr ahd the Cas Fishes roto Aer to aan al lows elaing to Feb THe

‘DED remus pon fonts manopea a th al wrofhe Paci Aas Ac, he lan wes ects nd Commerc fiahvs win Canad’ Excise Enc Zone tEEZ) in ustmda thes

‘ener aves» Flt sae apron 1 ion ols eso fe apc 795 te ttt aed 1100 O00

‘te ih nds ad ea sss malig pie enn + Shun Caradon and 900000 sinea fore eee sey ‘atch over 250 ion a ecstatic ih oe ha all fhe Ho ees er the

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Noel onl par eutehoan, er eter We nk cute halve Wal aris ep goer,

systems — inthe form of Emeriss Allan (EA) an Iodadal Quas (1Q) — ave Been ioface in sư,

The Depa of Faeries and Oceans (DEO) Conservation a Pecos prog ens cưng dc sử the lepton eulins and fishing ho, TH notes an tga MCS apres nd deployment of sme G08 tion of nding: arene lc tonoing of iting see

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Canaan veses co gabe scenic ftormation abd povidone montaing of sonia They ae wand 0

{tect and tpt icons mach 2 mpingfdseing, Sing nine te cách mcrodngs iemảm vỸ Pred cath aol ewe of le gear Túe cl of ets nga la domes thoes vanes peng on

‘poset rm of sh land or cet, qo monte nk cance eons The dats crc ain nds Doce ui cena eatily pid the ig Indy In 199 DEO eens ot Takes caren aman CON $0 lio tng Os hie 3 0 ere ot)

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1.14 MCS tools for management

Key tools for MCS as the seutive arm of fisheries management include:

4) an appropriate participatory management plan developed with stakeholder input:

») enforceable! legislation and control mechanisms (Hicences ete)

©) data collection systems ~ dockside monitor ‘observers, sea and port inspections,

4) supporting communications system;

©) patrol vessels capable of extended operating to remain at With the fishing Meets

£) aireraf available for rapid deployment to efficiently search large area

') support of the industry and fishers

pila al, subregional and regional cooperation with other MCS components; and

) professional staff

‘These tools will be discussed in greater detail in tater chapters, but the importance of professional staf should be highlighted atthe outset, The development of a professional MCS Staff is the most important, but often least talked about component of a comprehensive MCS: plan A credible staff with a high degree of integrity and professionalism will ensure the success of the system The use of preventive (voluntary compliance) MCS techniques in a participatory management approach is effective when combined with more traditional MCS

‘approaches to deterrent and enforcement Through training, MCS staff will become competent as communicators, planners, community/stakeholder educators, and implementers of approved management plans

efits from the limits, Fisheries MCS needs tbe defined i light of this

the economie opportunities and be? al

An MCS Conlerence of Experts organized by FAO in 1981 developed a definition of MCS that

is commonly accepted by fisheries personnel:

‘4) monitoring = the continuous requirement for the measurement of fishing effort characterities and resource yields:

by control ~ the reg

conducted: and sulatory conditions under which the exploitation of the resource

be

©) surveillance ~ the degree and types of observations required to maintain compliance with the regulatory contrals imposed on fishing activities * Simply stated MCS is the mechanism for implementation of agreed poles, plans or rategies for oceans and fisheries management MCS is an aypeet of oceans and fisheries

‘mxanagement that is often undervalued In reality it is Key to the successful implementation of any planning strategy The absence of MCS operations render a fisheries management scheme incomplete and inetlective

Since the 1981 MCS Conference, the definition of MCS has been enhanced to promote the oneept tha MCS covers more than just fisheries enforcement ~ it isan integral and component for the inyplementation of fisheries management plans Ttencompasses nol 0 traditional enforcement activities but also the development and establishment of oth data collection systems, the enactment of legislative instruments and the implementation of the

tent plan through participatory techniques ancl strategies, A 1993 workshop in Ghana offered the Following cli

8) Monitoring includes the collection, measurement and analysis of fishing activity including but not limited to: catch, species composition fishi

‘operations, ete This information is primary data that fisheries managers use (© arrive at management decisions If this information is unavailable inaccurate or incomplete managers will be handicapped in developing and implementing ma

by Como i folves the specification of the terms and conditions under which resources cu

be harvested, ‘These specifications are normally contained in national fisheries legislation

onally or regionally agreed The

ements, via MCS,

tind other arrangements that might be nationally sebreg

legislation provides the basis for which fisheries management array

sce implemented For masimum effeet, framework k sislation should clearly state the 1g implemented and define the requirements and prohibitions

‘management measures bet

that will be enforced

Surveillance involves the regulation and supervision of f

national legislation and terms, conditions of access, and management measures are observed This activity is ertical to ensure that resources are sot over exploited, poaching is minimized and management arrangements are implemented.*

“These wider definitions amplify the importance of all aspects of MCS

1.3 Role of MCS in Fisheries Management

‘A question often asked is ‘Where do fisheries management and MCS merge?”

Fisheries management in its simplest terms comprise the following activities:

a) Data collection and analysis — data for management planning and operations from socio: economic studies, rural development studies, fisheries population studies, fisheries research enuises, licensing (national, provincial and distri), catch and effort/logbooks, onboard observers (if established as 2 program), dockside monitoring/Tandings, VMS, satellite imaging, inspections at sea and in port ete

Ì) Input controls ~ such as access (number of fishers, number of vessels hy fisher Tieences, closed seasons, gear restrictions, vessel limitations, area restrictions (Protected Areas), VMS requirements, and vessel identification

4) Implementation — this includes such measures a:

1) participatory community-based management (CBM):

ii) “preventive” MCS activities to encourage voluntary compliance:

iff) public awareness and eduestion campaigns:

iv) assistance to small scale fishers for supplemental livelihood development to reduce

‘coastal area pressures

-) full enforcement to ensure compliance by those minority of fishers that persist in ignoring the law

saree stoma for cape fares

support the mans zement plan, referred to as the eontrol me: yanisms (C) and

48) implementation of the plan through “preventive and “deterrent” MCS techniques included in the idea of surveilance (8)

of its tical role as an

Unfortunately, not all fisheries administrators understand MC

implementing mechanism for fisheries management, Some view amrests as the only relevant indication of the eifectiveness of MCS efforts” The real iniicator for MCS is the level of compliance and this is governed by many factors e.g the number of fishers: the number of vessels; effort and arew coverage of patrols: results of patrols, inerease in voluntary complian

ete

Effective MCS involves @ two-pronged, parallel approach The preventive approach is 1 encourage “voluntary compliance” through understanding and support for the management strategies and this includes:

1 enhancement of communityisher awareness and understanding of an ent practices and MCS through seminars, publie awareness and information, education, and

‘communication campaigns:

by) participatory management development to promote ownership of the mans

and input into the regulatoryiconteol aspect of management «laws and regulations) in preparation for acceptance by the Fishers of their joint

‘mattagement of their fisheries in partnership with govemment

the instnution of uecurate and verifiable data collection regimes: and

«) surveillance and verification For compliance

Te parallel approach of dererrentienforcement MCS is necessary 10 ensure compliance by fishers who resist the regulatory regime to the detriment of hoth the fishery and the economic retums 10 their fellow fishers, Deterrent and enforcement inchide inspection, investi

prevention and court proceedings to enforce the lass, Voluntary compliance will fail at ssakeholklers soe aon-compliant fishers successfully evading the law anc! receiving economic retams from their illegal activity, at the expense of the fishers who comply with all requirements

w Key MCS components and their advantages and disadvantages are summaized in tabular form

‘and educational levels, coupled with easy aceess to mass media, have helped ordinary citizens

to acquire more knowledge of government processes and desire for more transparency snd a greater voice in decision-making Central governments have responded by devolv

authority over fisheries management to provinces, states, districts, municipalities and

This devolution of authority has vitally affected MCS In the past, central governments controlled, oF atleast sought to contol, all MCS activites on a national basis, Todas

|ypical role fora central government is to set national policies and standards and to co-ordinate the implementation of these policies and standards Responsibility for actually carrying out MCS activities is now typically shared by central governments with smaller governmental units, Central governments also monitor and evaluate local government performance to hance future coordination and planning, MCS planning and operations still need this national coordination for consistency in implementation of management plans, und for conflict resolution, However, the overall trend is for central governments to devolve responsibilty for MCS activities o lower levels of governmental authority

ent tn rite, io al rele or ope fre

Profile 2 Input and output controls for management

=the Namibian example

“onus are tan CSSS0 ion iới Numbaix GDP) 019% ana tye we ED pope Wy Tae

Fa ae ded Nab tg et poe, Wats ey nd Lie, Naw oof he em maj fe

the Miu Fsr = ane masher 1 pasted sh ter gables andthe pure

Nanaia seh ng tem i i poss of Nariansation lee fered i ute llc igs beers an i eels at pre Hence Tức of a ska ins rane gs

‘amin employ mea arn a empowerment anpct elton w he ec aguas _

1.4.2 Participatory management

Similarly, governments a all Jevels are giving private groups andl individuals more opportunity

to participate in the management of fisheries that affect them, This wend towards more transparency and openness is changing all sspeeis of MCS, including the development of fisheries laws and regulations, the collection of fisheries data, etc, As already indicated, entranced public participation in the fisheries management process brings a number of advantages Specifically it fosters

public understunding of the rationale behind MCS activi

sense of partnership bet

‘are being regulated: en the government and fishers and others whose

©) greater sense of ownership and acceptance by private groups and individuals in the decisions that sre ultimately adopted:

«d) voluntary compliance and the use of peer pressure to deter violations of fisheries rues:

©) greater availability of MCS funding and other assets for dealing with cases of nơn-

‘compliance,

LA3 New technology

‘Advances in technology, along with reduetions in the cast of technology have revolutionised MCS Examples include:

4) new vessel monitoring systems (VMS) in use in Argentina, Australia, Canada, Europe, Malaysia, New Zealand, United States, and member States of the South Pacific Forum Fisheries Agency, with systems also being considered in Madagascar, Namibia, Indonesia, tnd Sri Lanka and

Currently the most popular VMS systems use INMARSAT C (and more recently D) and ARGOS Others such as POLESTAR snd EULTRACS are also making an appearance FAO hhas propared detailed guidetines as part of the Code of Conduct for Responsible Fisheries series for Fisheries Administrators contemplating the introduction and use of such technology.”

“The use of this new techaoto many States can sill monitor large numbers of coastal vessels effectively Trough other means e.g observers dockside monitoring, monitoring of industry landings anc production records, et

foe coastal fisheries, particularly VMS may not yet be cost

al Components

‘eos commitment, and o

collection and enforcement operations),

“The Jand component of an MCS system serves as the base of operations, the co-ordinat centre for all MCS activities ‘Tom which governments can regulate the deployment of resources to best address changing situations The land component also entails por inspections, dockside monitoring, and the monitoring of transshipments and trade in products to ensure compliance with relevant rules, Gosernments must also undestake a variety

‘oF kand-based activities in order to ezery may be fishing in remote areas, including on the high sexs and in waters under the jurisdiction out their esponsibilties as flag States of vessels that dof other States, New technology has allowed States to link the land components of their MCS, system to those of ether Stazes on regional or subregional basis, which can greatly foster 0

‘ondinated and responsible mangement

“The sea component inchules MCS activities undertaken in marine areas under the jurisdiction

‘ofa State and may also eover high seas areas, Technology that comes into play eum inclide radar, soma a part of this component (necessary for aresting violators and securing evidence) the costs involved have prompled a growing number of States « employ “no forse” surveillance techniques Examples of suich techniques include the placement of independent observers onboard fishin bien and VMS requirements, Developing coastal States are also requiring the Mag States of vessels that wish

10 Tish in theie EEZs wo ensue that those vessels do not violate the tert of the access granted

“The air component covers the air and space equipment (aireral satellites ee.) used in MC activities The Menibiliy, speed and deterrence of air and satellite baved surveillance systems ment, The air component provides for the rapid collection and dissemination of a wide range of information, including fishing vessel make these very poplar tools foe Fisheries nụ

identification and reported fisheries data Ait, satellite of VMS surveillance ean often provide initial information regarding fishing wetivity: they can also serve as First indicators of potential illegal activity and can thus tigger futher MCS action, The cost of the ai component is sireotly rate to the sophisti used Because governments can use at ey and VMS surveillance

ental and eoastal zone monitoriny

‘Phe United States of America has used all these tools in the past and currently has ult

‘agency approach to MCS as noted in Profile 3

Profile 3 Inter-agency involvement in MCS ~ the USA approach

UNITED STATES OF AMERICA

omestic) la, outlines the hey Features of the international legal ra

the Tast decile and provides guidance on reviewit ations to Facilitate MCS, puarticalaey the use of satellite-based VMS,

developed! durin rational have and

Lav full a nunober of fumetions in gelation to MCS, For example laws

4) define the powers, dies and obligations of States and regional fisheries bodies to manage

hy establish niles ua he observed by those harvest

Fishery resounees, inchuding prohibit certain activities, requiring that other activities be undertaken only with the authority of 3 Ficence, and prescribing the manner io which fishing and celated activities must be conducted:

©) grant enforcement powers to officials (e amtest, detain and seize:

4) protect the interests of Fishers, particularly in relation so confidential information:

€¢) establish howl the judicial process for penalizing those who Viole Fisheries rule and the procedures that gover the judicial process Ins critical 10 understand the distinetion between snterwational law and domestic (oattonal) lax as well as the relationship between those to spheres oF law, AS exphiined more Fully it the follow ins section, iaternatiomsal law primarily ve between Stales and inlemational organizations) Domestic haw regulates the relationships lationship among States (and between persons (including legal persons such as companies) within a particular State

No MCS system is likely to be elfective unless itis based on clear legal rules that set out the sof the varius parties in a manner whiel accords with the international law

cement, and provides effective and efficient legal procedures and those rules consistently

l6 2.2 International Law Relevant to MCS

2.2.1 International law

International law isthe system of rules governing the re

States and international org

in treaties," which generally create obligations only for those States party to the treaty Other rules of international law arise om general intemational practice aecepted as law (so-called ustomary international aw”), although it is sometimes difficult to determine whether @ particular practice has become accepted 2s law by

lationship among States (and between izations) The eules of international law are reflected primasily

The most important cules of international law relating to MCS are those contained in treaties, such as UNCLOS and related agreements"? Customary international law plays a relatively

verning MCS activities

Fisheries administrators should be aware of at least the following three characterisies of international law:

4) Iternational law governs States (and international organizations), The subjects of international law Ge the parties who are bound by it) are States and international

“organizations, Generally speaking, a rule of international law cannot be enforced directly against individuals oF companies unless there is some provision in the đomesic law that authorizes its application as a matter of domestic law In auany States (notably those h follow the common law tradition originally derived from English lass) it is -ssary for pasliament to pass an Act implementing a rule of international Taw before

ie level In other States (notably those following the civil aw

applies at the domes

tradition), this isnot always

) Treaties do not bind non-parties A treaty only applies to the parties to it, States that are not parties «0 treaty are not bound by its provisions unless they’ have consented t0 be bound by those provisions through some olber means (or Hf the provisions reflect

‘customary international la)

However, a number of recent international fisheries agreements, including the UN Fish Stocks Agreement and the FAO Compliance Agreement, require parties wo ensure that their flag vessels comply with, and do not undermine the effectiveness of, conservation and management measures adopted pursuant do other intern

{particulary those establishing regional fisheries bodies), even if the State is nota party

0 those other agreements.”

cs Similarly, the CCRF and

behaviour of some States and the conduct of some Fisher

its subsequent International Plans of Action, though non-binding, reflect wide areas of

‘consensus within the international community on many aspects of Fisheries management 2.2.2 'The 1982 UN Convention (UNCLOS)

All Tisheries administrators should have a good understanding of the basic provisions of UNCLOS® relating to th anagement of living marine resources

UNCLOS establishes a comprehensive framework for the ase of the world's oceans This

‘realy sets out the rights and duties of States concerning the oceans, particularly with respect

to the diffezent maritime zones (inte torial sea BEZ, archipelagte waters sn high seas), For most purposes related to fisheries management, the Convention divides the

‘oceans into two base areas

4a) areas under the jurisdiction of coastal States {in which the coastal State has exclusive suthorty t manage Fisheries) and

by the high seas, in which all States have the right for their nationals t fish, subject to certain important qualifications Singe its entey into force in 1994, the Convention has also served as aa “umbeel” weaty under

\hich other more specific international instruments have heen elaborated, including the FAO Compliance Agreement (discussed in 2.2.3 below the 1995 UN Fish Stocks Agreement (discussed in 2.24 below) and the CCRFdiscussed in 2.25 below

hee fundamental esponsibilites of Nag

by Vessels should not fish on the i issued by the flag St seas eXcept pursuant to express authorization ta do so

ste should mot grant such authorization 10 a vessel unless it can ensure thatthe

‘vessel will not unklermi

ate 1 ensure that is fishin enerally aecepted standarcs

Anicle II ofthe Compliance Agreement also requires cách

vessels ane marked t0 be seal

{such as the PAO vessel marking scheme), to obiain information on the operations of their vessels and to impose sanctions for aon-compliance that are sufficiently severe wo deter further

identifiable in accordance with

mì

224 1998.UN Eịkh Stocks Agree

‘The UN Fish Stocks Agreement entered into force on 11 Dezember 2001, follow ‘of instruments of fatitication oF aceession by 30 States This treaty builds on several provisions of UNCLOS in an effort (6 sirengihen cooperation in the conservation and

smeat oferta Fish stocks that occur both within EEZs and on the high seas

pollock in the Ber

stensively across the high

The 1995 UN Fish Stocks Ay

very similar those in the FAO Compliance Agreement, Ih the ares of MCS, the 1995 UN Fish Stocks Agreement also includes rules under which States otber than the fag Stare phay board anal inspect fishing vessels om the high seas

{eement contains provisions on flag State esponsibility that are

6) serious violations include Fishin

Fishing in a closed area oF for stocks subject to moratoriuny; using prohibited gear Falsitving matkings or other identification; concealing hampering With, ar disposing of evidence; and multiple violations which together constiute a serious disregant for conservation and management measures: nd

The 1995 UN Fish Stocks

fisheries management and

Socks within areas under the jurisdiction of coastal States and ip the high seas, It specifies ration between States, requites strict fisheries enforcement and

vemient also requires a precautionary approach to be taken to

States to adopt compatible measures in relation to

FAO Cade of Conduct

The FAO Code of Conduet for Responsible Fisheries (CCRF is a beoad and comprehensive but non-binding document Ie prescribes principles and i ell as For fish processing, 13 sadands lor the conservation and in fish and fishery products,

sion of Fisheries into coastal

‘operations, aquacullure, Fisheries research sa the in

area management fundamental objective of CCRE is“ serve as an instrument of re

to help States fo establish or to improve the

exercise of response Fisheries and i the formulation and implementation oF appropriate

(and institutional framework required for the

‘Other pertinent provisions of the CCRF include the Following:

term, structural adjustment within the

hn poliey decisions sn this segard must he male by

quires the participation snd Fishers, processors, NGOs and

4) IE world fisheries ane t he sustainable in the lon

fisheries sector is vequited Althow

national governments, effective implementation ofthe Cod

ooperation of a wide ringe of stakeloklers, incladi

bb) The Code is intended 10 be a dynamic or “tiving” document 10 be adapted by FAO workin

iis governing hoies, to meet new fisheries developments and situations fe) The Code is intended to (unetien sẻ part af a package oF international instruments fincluding the FXO Compliance Agreement, the 1998 LIN Fish Stocks 4 various international plans of action (IPOAS) discussed! belo, which are designed 10 work 1 1 address the management and conservation of fisheries throughout the world

1) Implementation of the Cote is primarily the responsibility of States, Howey

An important role © play in encoura

And to proside technical support to

Monitoring Systems (Rome, FAO 1998) ‘These are available on the FAO Fisheries Department website (www fa0.orgifi

2.2.6 Other international agreements and obli

‘To date, our IPOAs have heen developed within the framework ofthe Code of Conduct FAO adopted three of these instruments in 1999 to deal with the incidental catch of sea birds in longline fisheries, the conservation and management of sharks and the management of Fishing capacity

The fourth IPOA, and the one which is of the greatest relevance 10 MCS, is designed to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing A copy of this TPOA, adopted by FAO ia 200, is available on the website of the FAO Fisheries Department,

‘The FAO Fisheries Department has also produced detailed Technical Guidelines to help governments and others implement this [POA

The IPOA on IUU fishing offers many tools for States to use lo combat TUL Fishing individeally and in collaboration with other States, Some of the tools are designed for use by all tates Others tools are tailored for use hy flag States, coastal Sates and port States, The IPOA-IUU also calls for the use of “internationally 3

ate tools designed co keep fish that have been harvested by IUU fishers from being sold or traded,

‘The IPOA on TUU fishing calls upon all States to develop and adopt, as soon as possible but not later than March 2094, national pl

IPOA To the extent possible, cach State's national plan of aetion should consider how each of the basie tools in the IPOA could be put to use inthe fisheries in which itis involved, States, couraged to report to FAO on steps they have taken to implement their national plans

e IPOA itself

‘market-related measures.” These

“The territorial sea may extend! up to 12 nautical miles seaward of the baseline As with internal

‘waters, a coastal State bas sovereignty over its teritorial sea, which includes the power to mike and enforce fisheries laws Although coastal State must observe the right of innocent passage of foreign vessels including foreign fishing vessels, through its terttorial sea.” a Forel passage,

vessel that conducts Fishing activities in the territorial seu is not engaged in innocent

Aichipelsgie wators ewablished in accondane tth Aricle 47 of UNCLOS sre similarly under

clagic State, subject to he i passage.” Sovereignty

‘over archipelagie waters includes the power to make and enforce fisheries las,

232 Th

The EEZS may extend out 10 200 nautical miles seaward of the haseline Within its BE

‘coastal State ha ga tights forthe purpose of exploring and exploiting, conserving and managing” living eesources A coastal State shall gram Foreign fishing vessels acess 0 any surplus in the total allowable eateh (TAC) in its EEZ, but is entitled 10 set the terms and conditions of access and may enc laws and regulations to require foreign vessels to provide ‘vessel postion reports." LUNCLOS slso contains additional

jurisdiction of more than one State

233 The continental shelf

Under UNCLOS, a coastal State has exclusive rights with respect uo sedentary species oF Hvis

‘organisms on its continental shel." For some eosstal States, dhe continental shelf can extend beyond the seaward limit of its EEZ

L4 The hình seas

The high seas are those waters beyond the limits of rational jariietion AM States have the

‘ight for theie nationals to fish on the high seas, However this right is subject to š number of signiticant qualifications, particularly the obligation to conserve high Seas living resourees, to

‘cooperate with other States and to respect eertain Fights, duties ane! interests Of coastal States

Since the high seas lie beyond the limits øf national jurisition no §

rules applicible to vessels of ether States Fishing on the high sea Generally speuking, fish vessels on the hi

‘numberof recent international agreements have given States other than the fh

rights to ake aetion with respect to fishing vessels on the high seas, primarily t© help prevent, deter and eliminate IDL fishing Coastal States may’ also exercise the Fight of hot pursuit of

seas in certain carefully defined circumstances,

tate may create fisheries

Ih seas ate subject to the exclusive jurisdiction of the fg State, However, a State certain

fishing vesels on the b

235 Port State control

International law does not impose any’ significant restrictions on the powers of 3 State to regulate Foreign fishing vessels voluntarily in its ports A State may deny foreign fishing vessels aevess fis ports outright." or may place conditions on access such as advance notice fof arrival, requiring specified information be provided in advance, snd boarding and inspection,

“The 1995 UN Fish Stocks Agreement imposes a duty on port States to take measures, on a non: liseriminatory basis and in accordance with international aw to promote the effectiveness oF subregional, regional and global conservation and management measures.*

Other international instruments, including the Code of Conduct, the FAO Compliance Ạ nt and the IPOA to Prevent, Deter and Eliminate IU'U Fishing, also call upon por States 0 use their powers to promote sustainable Fisheries

A port State enjoys the advantage of being able to inspect a vessel in port and 10 eontrol its movements with relative ease port State can enforce ils laws (usually without the need to use the fore which may be required at sea) and can obtain and forward to the flag State any information conceming suspected unlawful activities ofthe vessel

Port States can also require forsign fishing vessels to obtain advance authorization to enter 8 pont Ifa State imposes conditions on entry into its ports it may take necessary steps to prevent

‘any breach of those conditions."

23.6 Flag State powers

The flag State has responsibility under international law For conteolling the

‘oF a vessel, no matter where the vessel operates: ishing uetivities

a) If the vessel is ishing in waters under the jurisdiction ofthe fag State, the responsibility

ff the flag State is exclusive, Generally: speaking no other State has the right oF responsibility to control the fishing activities ofthe vessel

by EF the vessel is fishing on the high seas, the flag State has taditionally had exclusive sof the vessel However, as noted above

responsibility for controlling the ishing aei

‘2 number of recent international agreements have given States other than the Hag State

te rights to lake aetion with respect to Fishing vessels on the high seas

6) If the vessel is fishing in waters under the jurisdiction of ä State other than the flag State (ors in the port of a State other than the flag State), the coastal (or port) State has tights and responsibilities with respect tothe fishing activities of the vessel In such situations, however the flag State also continues to have responsibilities with respect 1 those fishing activities, including the responsibility 10 ensure that the vessel does not conduct unauthorized fishing in waters under the juisdiction of another State,

Unfortunately, « number of fag States lack the means tad sometimes the will) control the Fishing activities of their vessels To compound this problem, « number of States maintain so called “open registries” in which some Fishing vessel overs may re precisely to avoil such control, Concerns with this loop-hole led to the development of the FAO Compliance Aareement and to the inclusion of provisions in the 1995 UN Fish Stocks [Agreement that focus atention on the duty of the

its fishing vessels,

In patticulae the 1995 UN Fish Stocks Agreement requites a flag State to

‘aj ensure both that its vessels comply with applicable conservation measures and not unudernine their effectiveness

') grant an authorization to fish on the high seas only “where itis able to exercise effectively its responsibilities in respect of such fishing vessels

cel develop regulations “to ensure that vessels flying its flag do pot conduct unauthorized

seas under the national jurisdiction of other States:

4) enforee compli and management measures, wherever the violations secur je by vessels flying its flag with subregional and regional conservation

be translated into speeitic enforceable legal ules acked up by sanetions in ational kas,

‘Thas, an essential part of implementing legislation to give effect to the obligations contained

practi

rather than with the provisions of treaties,”

[As uiscussed in Section 2.2, intemationat agreements impove obligations on Sta

treaties to which it is bound In cements is for each State 40 pass MCS is primaeily concemed with ensuring compliance with these domestic law rules

Ir follows therefore that in strengthening an MCS system it is essential to review the existing domestic legislation to ensure that it prescribes noems that are appropriate tw achieve the ment objectives and contains provisions that fa

the effectiveness of an MCS system in ensuring compliance with the Jaw will depend very heavily on whether or not domestic laws provide appropriate

Used fisheries: man, tae effective enforcement In practi

” 4) ensuring that fisheries administratogs and enforcement officers ean exercise all powers available 1 coastal, port and lay States under international law (this will usually require reviewing the powers of enforcement officers under domestic fay’ and strengthening procedures under which the States grants authorization to Fish

by) increasing regional and international cooperation in order to reduce the incidence of 1UU fishing, including measures 10 support the «

‘management measures an the high Seas and in areas under the jurisdiction af her States forcement of fisheries conservation an

6) increasing the transparency of fish

{particularly by requiring the use of VMS):

efforts by improving monitoring programs 4) facilitating the use of information derived from monitoring and surveillance (panicularly from new VMS technologies) to promote compliance: and

©) strengthening available w e existing sanctions and extending the range of compliance mechanisms jorcentent officers,

A list of some of the issues to be considered in reviewing national legislation to strengthen MCS is set out in Annex C

243° Introduction of VMS

As discussed above, international Jaw recognizes the sovereign tights of coastal §

explore, exploit, conserve and manage livin

those rights come responsibilities, as set fonh in UNCLOS and elaborated in subsegiient instruments to adopt and implement appropriate measures to conserve and manage those resources For stocks that oceur both within and beyond 33

States have hasie obligations to cooperate with other States to conserve and manage such

resources in steas under thet jurisdiction With

rs under its jurisdiction, coastal

Stocks Similarly, all States whose nationals fish on the high seas have obi

the stocks im question and to cooperate with other States inthis gard

‘The increasingly: sophisticated legal framework for Intemational and regional fisheries management requires States 10 develop more extensive, securate and verifiable data

vities and their effects, The declining status oF many fish stocks (and

of the marin VMS as a component of an overall MCS strategy Furthermore, advances in technology ates to adopt particularly in elation o satellite-based VMS, have the potential to substantially impnove the elfectiveness of MCS systems by genera

lower cost than exclusive relianve on more traditional MCS measures, such as atsea enforcement.”

A number of international fisheries instruments encour

based VMS." How VMS enerally lelt wo the States to decide since {his will depend on the circumstances In most eases satellite-based VMS is more approp foe large scale commercial fishing operations than to vontral nearshore artisanal ar subsisten

fo require States to use satelite

by sessels must be clearly marked for identification purposes, allo

tings and! the satellite-based VMS dat the comparison of

visually acquired pateo) si

©) ish vessels must report regularly on their position, setivities snd caleBe:

4) landines and wansshipmenis must take place in designated ports or areas under specified conditions: and

€¢) information derived from satelite times of fishing activities precise locations und

T44

Security and contid ality of information

‘The ability of VMS systems 10 provide detailed real-time or near real-time information

y ofall data collected This may increase resistance to the introduction ation to protect data derived feom VMS

increases the sent

‘of such systems, Consequently itis essential fork anal to provide appropri

penalties far ils misuse

‘To proiect the eanfidemtiality of sueh information, a State should

4 categorise sensitive information derived from VMS as confidential

bb) require that this information he used primarily far MCS and other fisheries

tating legal enforcement

New legislation (and amendments existing legislation) shoukl facilitate effective

ls of persons aecused of conteavenin enforcement with due consideration given to the

Evidentiary issues

Although different legal systems have different standarls and procedures for establishing that

an offence has been committed, most legal systenis require the prosecution to place before the

‘court evidence that is sulficienty reliable co establish the essential elements of the offence with an appropriate degree of certainty, The defendant will then have an opportunity t0 cross

‘examine the prosecution's witnesses and evidence as well as present their own witnesses and in order t© refwle or otherwise call into question the prosect establish a defense that would allow the defendant fo avoid lability

cevidene on’s case, oF 10

Fisheries offences ure usually committed at sea, beyond the dect observation of enforcement

‘officers (other than on-hoard observers), This creates a number of difficulties, For example it

‘may be dificult identify the vessel, oF co determine ils precise position a the ime of the alleged violation, oto determine the specitiewetivities of Uae Vessel at any particular ime (2

‘whether it was ishing) Ie may’ also be difficult to obtain physical evidence of the alleged lon,

of offences with elements that ane relatively easy’ to investigate and prove (eg, possession of

tht fish in addition to illegal fishin Fishing ares), and the use of “stret liability” offences where no proof of general or specific

‘mens vea feriminal intent is required

taining safeguards 10 address de process issues and 0 ease t

oF failure io stow gear while in a estricted

In most legal systems, the prosecution beats the initial burden to prove that 2 violation has occurred In many situations, ifthe prosecution sueceeds in providing at least prea evidence of a violation, the burden may shift to the defendant to prove the elements of its defence Most legal systems also specity the level of proof which is required (i.e the

“Standard of proof”) In common kaw systems, the standard of proof in eriminal eases is formally “beyond a reasonlble doubs." In a civil ease, the standard of proof is usually the palanee of probabilities” (ic the most likely conclusion) or by a “preponderance of the evidence

facts (6, hái a fishing vessel was fishing w that Presumptions are most appropriate (0 establish facts that are difficult for the prosecution 10 prove leg co

innocent defendant Examples include presumptions that cerning the act es ofthe vessel while at sea) but can easily be rebutted by an

đa ishing vessel apprehended transiting the FE

engaged in illegal fishing, 7, without stowing its Fishing gear has Some presumptions ars inappropriate, however, and may be strack down as unconstitutional

‘or as conteary’ to applicable conventions on hutwan rights, particularly laws that “presume” to be guilty of an offence unless they are able 10 prove otherwise oF that caherwise undermine the right of a defendant to a fair tial, Thos, caution must be taken in using presumptions.” For example i is not appropriate to presume that a violation bas accurted in the absence of even prim facie evidence of the violation, This would effectively place a burden on apparently innocent partes 3 prove that th

Using data from VMS in court

In common law systems, prosecutors have experienced difficulty in using data derived trom satellite-based VMS (ez to establish the position of 2 vessel at a particular ime) because of the general rule that “hearsay” evidence is inadmissible, Although States have varying rales

‘on “hearsay” evidenee, the general idea is that courts are reluct

Witnesses who do not appear befoge the court itself, of who ate testifying 10 matters that ane not within their personal knowledge, A court may thus refuse to accept evidence from derived

e-based VMS unless an expert in VMS technolagy appears before the court to contim the accuraey and reliahii

properly, and that a qualified person interpreted the data coereetly

to take judicial notice ofthe accuracy of data derived trom VMS."

are matters of

pert evidence to prose the validity and acc used VMS woukl he extremely

constitute significant obstacle 10 prosecutions In some situations legislative

x of all information derived from a time-consuming and expensive and would

intervention may be required to deal with this problem, For example, the South Alcan Resouces Act, 18 of 1998, contains ä number of provisions designed to facilitate the use of evidence derived from new technologies, This law empowers the Minister 10 designate certain ck

ses of machines or instruments as “designated “ines are admissible as evidence

is made by a properly trained person and if the machine was checked a reasonalle time before