Recent trends in monitoring, TECHNICAL ets
Trang 2Recent trends in monitoring, “psn
control and surveillance PAPER
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“The đecgrslonsnpyedd ữsprronste ơ mac m | 0 tama prot ce pot yay on eneston any nan short e te gat fee Fd ant Agro ‘loansatonstine ined Maton conenrng eo sos Sy uray tetas ae sa aor ot Scootnog int eabmatan es terlgesrbavtrez
Trang 4PREPARATION 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
‘Staff of the FAO Development Law Service, Fishery Inlustries Division and Fishery Policy and Planning Division were especially helpful in the document useful to national fisheries administrators, David Lymer and Frangoise Schatto provided important help sith final manuscript preparation, The authors ‘would also like to express theic sincere appreciation to all the unotfcial advisers who, took the time to review and offer advice during the development of this paper In particular we would like to thank Commander Mike Cerne (Commandant U.S Coast Guard), Paul SIele (Chiet Surveillance and Enforcement, Fisheries and Ovesns (Canada), Andrew Richards (MCS Manager South Pacilie Forum Fisheries Agency, Solomon Islands), David Graham (MCS Adviser for Luxembourg Development tothe West Attica Subregional Fisheries Commission}, Capt, Wan Fatal Omar (MCS Adviser for the Indonesian COREMAP) Capt Per Erik Bergh (Adviser to the we Resources of Namibia), and 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
Permanent Secretary, Ministry of Fisheries and Mt Ms Sandy Davies (Eisheries Adviser for the Community) Finally appreciation and memories resp and leadership in support of susta J Erie Reynolds Programme Coordinator, Fishode Fishery Poliey snd Planning Division FAO Fisheries Department, Rome ‘wu fa0.orgfitisheade
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FAO Fisheries Techical Paper, No, 415, Rome, FAO, 2002 200p ABSTRACT
‘The paper has been designed as a handbook for fisheries administrators for use \when establishing or enhancing, monitoring, control and surveillance (MCS) systems in support of fisheries management initiatives It updates the 1994 FAO Fisheries Technical Paper No 338, An introduction to monitoring, control and surveillance systems for capture fisheries through a review of recent | 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
AIL FAG Members and Associated Members Interested Nations and International Org Directors of Fisheries
FAO Fisheries Departmes
FAO Fishery Officers in FAO Regional and Subregional Offices Interested Non-Governmental Organizations
nizations
Trang 6TABLE OF CONTENTS LLL— Misperevons of MCS, 3 LL2 Cian versus military involvement in MCS, 4 LLG Fisberies a eau mints 4 Ls MES tools for management 6 TALL Devolution of shor Ww 142 Putipatery managemen 2 1A Now technol 2 MCS Spatial Components 223 EAOConpliwes.Asresmen, 7 226 Other inemaion agreements and obligations, 20 24 the Pers of States Makeand Enforce Fisheries Las
Trang 7E EEEEEEEE E EEE E E BeEEGE’ “ eEET E * ek su ue
Topoeriphy of he ousting TT teat HỊ
Fishing get profile 3 Prscatonany appa 5 Ingerman presses Bisa and repionsl cooperation = 2 Deora ofthe iy a nung] Fond security 2
Trang 9` `"
$1 Stakeholder partcpation in ICM is 422 Soci-esonomis aus of cous Fishers and “open assess 106 $23 Copal refs and mana users m
SL] Step One Assessor ofthe iftusncing sto Hg 342 Step'fwo InersAgency Mechaniams Hà 84 Step Tse: Preventive MCS in CRM planing 13 S44 Step Four: Coal MCS option, Hà ss $51 Safey-ot Sea and Coastal MCS Swat and es = mm Ww $5.2 lntisona supporting stares ng 254 NgiệLregiunlamlimenalosmlsapensiiHie is
Senopss of Coastal MCS Considerations
FISHING VESSEL IDENTIFICATION AND MARKING (FAO aod Mansa 86) I9S
Trang 10LIST OF PROFILES
PROFILE2, INPUT AND OUTPUT CONTROLS FOR MANAGEMENT —THE NAMIBIAN EXAMPLE 11 PROFILES, INTER-AGENCY INVOLVEMENPIN MCS - THE SA APPROACIE " PROFILE, MCS INITIATIVE FOR THE SU-RE( ONAL FISHERIES COMMISSION OF NORTIVEST AFRICA “
PROFILES, MCS AND THE COMMON FISHERIES POLICY OF THE EUROPEAN UNION “ IE MALAYSIAN MES SSE ”
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ACRONYMS AND ABBREVIATIONS
ADR Asan spn Bak ¬
Werte Alcatel ol tr sie
Xin Sachets | | IRR ce gh
anicon Catan Cony {MO ema! Manne Onin fe Uh
com cow tore tox
crear tao vatey Commie foracBaaen | |ƯCC Coa nie | kote Fis Camis
CRAMP -CAMrourd | | mcs tein Tees kn
` LEX busy of Lanebuary Deeloment tứ apn Ui faery arp i More
ETA Bsns Tne Anal MEM Maint Coat Manageme
Fo src
Art
HA Nato Ai Fisher Organ
cor ie Tey Sills an Ls Eocene epratiog a Fisery Ssh Pate Reson
xr mm il
Trang 14CHAPTEI
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)
de ‘considerations forthe components of an MCS system (Chapter 8):
«organizational considerations for MCS (Chapter 4
6) management measures, consultation and planning (Chapter 8) {MCS operational procedures and equipment (Chapter 6
er 7): and
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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,
agi waters
‘The provisions of UNCLOS relating to fisheries, though widely accepted even befoge the Convention entered into foree, did not prevent the depletion af several valuable fish stocks, For this reason, the 1992 United Nations Conference on Environment and Development (UNCED) called wrgemtly forthe development of further instruments that would be necessary 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
Trang 16government 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 44) assume ‘OF fishers, aad miero-regutates the hares a controlling role, where it actually runs the industy, impacts the potential income 7"
industry are encouraged to accept their resource responsibilities and roles within the Framework of general government conservation principles and
‘ment vole, whereby the fishers and the fishing
zislation,
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
LLL Misperceptions of MC!
XMikpereeplions sumouading MCS activities continue to impact how fishers and even fishery: managers view the process of MCS and enforeement, A common misperception is that all fisheries problems stem either from a failure to contol ilegal fore nselves While foreign Fishing fleets hive had documented impacts om fisheries wonservation efforts, the greater impact on fisheries often stems Irom the domestic Fishing fishing, or from the hen th
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
Trang 17Jindal 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
For many governments, however the military can play « significant supporting role ina strong, MCS system ‘The key for such governments is to establish an interagency mechanism that ‘enables fisheries administeators to call upow their military counterparts as and when needed
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
Trang 18Profile 1 Private Sector involvement in MCS - the Canadian Example ‘Canada's Fisheries MCS Program Pol Sele
spre of Heo cam Cas
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 ‘She 2S Isher ents re mpi with Absa gops a Canaa oe am basi
Masa Senn cans
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
DFO operas Mest of pat eels om each com lo cư chuet areas ad umd ls, ad some inapestn se ecomplince purposes Cone ara are wed to unter ffs Sena ar tne fies depose of pts with ie ler a serving se dteece, Cane dpi pee
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)
‘esos is on aie ee espn to changing prota fegeoees For exe ase flag pol
trance iit vee cn hn he aly anol ee team a even
{nfarmation ha will scagthea the Deparment etorcement apabiiies These efforts a ingroing data naration
Trang 191.14 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 8) use, where appropriate, of new technology (VMS, satellite, video, infra-red tracking, et.) h) linkes land-based monitoring: ') support of the industry and fishers
pila al, subregional and regional cooperation with other MCS components; and ) professional staff
Trang 2012D
ion of MCS
Fisheries are criti to the development of & State’s plan 10 conserve and utilise marine resourees, a5 fish and their batitatafe significant renewable resources in te territorial sea and en including MC’
tates waters within sustainable harvesting exclusive evonomie zone The
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 effort, bycatch, discards area of sement measures
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
Trang 21Surveillance 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
b) Participatory management planning ~ planning of tisheties management policies and strategies atthe national level, and detailed planning for management zones or areas with input from stakeholders (provinces, districts and fishers)
©) Establishing a regulatory framework —‘The management plans need to be supported by appropriate legal instrurnents hy means of which the plans are implemented These legal instruments detail all the control mechanisms available for fisheries management including but not timited to:
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
1Ì) Operational and output controls — such as species reporting requirements, air surveillance, sea patrols/inspections, hoarding, logbooks and catch limits, by-catc limits, dockside monitoring, observers, pot inspections, and catch documentation schemes,
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
Trang 22
Similarly, MCS involves: 4) data collection and analyses for both operational planning and execution, as well as ‘management plannin, sd 8 monitoring (M): b) involvement in the participatory management planning to include discussions oa appropriate implementing: mechanisms;
‘eldevelopment and approval of appropriate anc! enforceable legislative instruments and cờ nar, Season, vessel sizes, Fish rol mechanisms such as licences permitted fishin
sizes species, catch limits, by-catch limits, and area controls, a other restrictions to
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 ‘stewardship role for the ©) peer pressure towanls voluntary compliance and support forthe ran jement regime:
the instnution of uecurate and verifiable data collection regimes: and «) surveillance and verification For compliance
Trang 23w
Key MCS components and their advantages and disadvantages are summaized in tabular form in Annex B
Namibia has used an effective mix of input and output controls to build a very suecesstil fisheries management regime in the short peril since inlependence was declared in 1989 (see
2
1.4 Emerging Trends in MCS “Trends over
MCS strategies in particular, These have occurred in three arcas — vie: devolution of authority o lower levels of government: the encouragement of participatory management and new technology
n the past decade have sigiticantly altered fisheries management in general and
1.4.1 Devolution of authority
Fisheries mans .gement can no longer be the sole responsibility of central governments, Rup population growth, utbanisation and migration to coastal areas have ereated a greater need for focal governmental units to address Joeal fisheries management concerns Growing li
‘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
Trang 24Profile 2 Input and output controls for management =the Namibian example
Nat
IAN
FERIES AND MCS SYSTEAE
[Namibia Sts ies he ie fhe Unie King an th pion of LÝ lien lam he West Cos
The fing inky i taned on Ye high pray of he die Hengieh Chờ spn Fate “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 face ue esti and can tbo ly iene oon he rerogliuloi Ietreinlgenlee ren oe erases ke rs hs she song te sn
the Derr ke 200 nk CD igh se súc
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 _ “Thema ore cout by De esate ofan TAC ad qr acon set et sci ae
stan ashes appropri bear ising sexs saying pat pesons an upto pling fata opens Tete ces fr deploying heo elBcr toa xa lưu gpcrloro.dieving Thiet gisrken ae
Trang 251.4.2 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 'b) ier-linked coastal radar systems in use in Se }acomsined VMS and satebite imaging system in use in the Maldives
Cheap cellular telephone and computer technology has also brought MCS into the computer age and has greatly improved the capacity of States o respond rapidly to situations Over-the horizon radar technology is evolving as well, but ils cost has not yet fallen to a level that is appropriate for general fisheries management
Trang 26“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 effective Howe 18 MCS Spi
© are three min spatial dimensions or components te MCS: land, sea and air The proper configuration ofthese spatial components for a given system will depend on such factors as sizational structure (national subregional, or regional) All three components cat now effectively use satellite technology Leg for vessel licensing, data
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 vescel platforms While physical presence through at-sea patrols remains & Funda vessels national of regional vessel ret However, an at-sea presence remains active enforcement of management measures to nroteet marine fisheries resour “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
n ofthe technolog
satellite, video and advanced digital photographic technolo (o address tasks beyond MCS (ee
technolo
‘on, and search and rescue), this equipment can improve the cos clfectiveness and efficieney of an integrated ovean management programme:
‘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
Trang 28CHAPTEI LEGAL ASPI OF MC 24 Introduction Law is cental wo MCS, This chapter discusses the nature and sole of international and national work relevant to MCS x and strengthening 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
Generally speaking domestic kaw applies only within the territory ofthe State concerned and ‘over which the Stae applies tothe aetivities of exercises sovereign rights, such ss the EEZ, Domestic haw alo jonals and vessels of a State thal aecur on the high seas aad in Sine situations, even in waters under the jurisdiction of ether States
Trang 29l6 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
wh
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.”
Trang 30its 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 2.2.3 FAO Compliance Agreement The F hi whose vessels fish on the high seas take a ran
{© Complianee Agresment!® seeks to strengthen the provisions in UNCLOS relating 10 seas fishing This treaty bias wo primary objectives The frst is to require all States tf steps to ensure that those vessels do not undermine measures to conserve and manage the living resources ofthe high seas, The second ‘opesations through the
‘objective is 10 increase the transparency oF all high seas fishin caallection and dissemination of dat
Article III of the FAO Compliance Agreement contains its most significant provisions for purposes of MCS inclu
2) Flag States should ensure that their vessels dv not undermine fishery conservation and management measures that apply in any’ high seas area,
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
fishery conservation and management measures that apply in a high seas area in whicl the vessel will operste,
Trang 31
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 ¬
the deposit cneral
4) “Straddling” fish stocks, which are stocks whose natural ranges straddle the line dividing reas under the figheries jurisdiction of one oF more eoastal States snd the advent high seas areas, Examples of such stocks include cod in the Northwest Atantie Ocean and Ses and
pollock in the Ber
stensively across the high
satory” fish slocks, which are stocks that
seas and through areas under the fisheries jurisdiction oF many coastal States, Examples fl such stocks include tania and sWordtish
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 ircumitances, States other than the fag
1) under certain, lishing on the high seas to ensure compliance with conservation and management measures established by regional fishery bodies
Siate may hol and inspect vessels
b) further enforcement action, including ordering a fishing vessel fo port, may be ken in the care of serious violations by vessels whose fay State either cannot or will nt exercise proper control over them
without a license; failing to maintain aceurate reeorlx:
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
4 States should inspection and to implement the other provisions involving cooperative enforcement If act through regional fishery hodies to establish procedures for boarding and they have not done so by now, of have not established an alternative enforcement
Trang 32
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
the collection and exchange of fisheries data, and requires parties to setle disputes using the procedures established in UNCLOS,
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 seenent und the - BẢO hà ing and facilitating the implementation of the Code 1) Implementation of the Cote is primarily the responsibility of States, Howey An important role © play in encoura And to proside technical support to
eV The Code will requite regional and sectoral implementation in order to address the particular necls of fisheries in different regions or sub-sectors,
Trang 33Monitoring 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 as of aotion fo further achieve the objectives of the and 2.3 The Powers of States to Make and Enforce Fisheries Laws 3.1 Internal waters, the territorial sea and archipelagie waters Internal waters generally consist of waters Iandward ofthe baseline trom whieh the terior sea is measured (including ports and roadsteads) Under international law 8 coastal State has sovereignty over its internal waters, including the power to make and enforce fisheries laws
Trang 34
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 hi tance relating to fish that oveue in waters under the migrate bers eh seas and that occur exclusively on the high seas, en ares under national jurisdiction and the
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,
Trang 35235 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
Trang 36
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 State o esercise effective contr over
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 sthening Nat onal Regulatory Frameworks for MCS 24.1 The rote of domestic (national) law that mus 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
Trang 37
”
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.” concerning fisheries avironment ia general) has also created a strong incentive for S wider range of useful data at 8 substantially
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
Trang 38
ein different circumstances, ending on vessel size andl areas lished Ditferent types of satellite-based VMS may be appropri {A State must usually enact specific legislation to enable satellite-based VMS to operate as an mepral and elfeeive pa of an MCS system, For example legislation should provide that 3) Fishin insallaion of automatic Incation communicators (ALCS is subject 10 an authorization regime ( system) tha requires the 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
purposes: wanagement
cl cleady defins the situations in which secondary use of VMS information is permitted (e- for search and rescue)
4) restriot access to premises where VMS information is processed or stored a well ks access to the information itself: and make breach of confidentiality an offence punishable hy severe penalties.”
Fa
tating legal enforcement
Trang 39Evidentiary 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,
Defence lawyers can often exploit these practical difficulties and use technical aspeets of the evidentiary rules to secure an aequital for their eliens.® Careful drafting of the evidentiary rules and fisheries laws cua help the prosecution Secure convictions in appropriate eases, while still iat innocent parties are not convicted, «A number of mechanisms can be used to achieve this most notably the ereation 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 Presumptions
Another widely used technique in Fisheries legislation is to provide that if the prosecution is able to prove cera hout the necessary jsthorization) then certain ther facts or consequences will he presumed (e hoard were cauzbt illegally) The defendant then has ehunce 49 show otherwise ~ to “rebut” y fish on the presumption
facts (6, hái a fishing vessel was fishing w that
Trang 40
aya vessel is a foreign vessel if i flies a foreign Mag, Mies no fag, bears the name of a port oF possesses foreign documentation:
by a fisher appeehendee! without a license in waters where authorization to fish is required was engaged in unauthorized fishing «all fish aboard a vessel that is arested for illegal fishing were caught il
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 hae! not weted 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
int 0 accept evidence from ‘of such systems in general, thatthe particular system Was working
al systems may nevertheless allow a court to take “Judicial notice” of certain facts tind accept them as true even in the absence of specific evidence, Courts generally take judicial noice of facts th the local area, As VMS becomes mone widely used and understood, more courts may’ be al knowledge or are well-known (notorious) in
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