Fisheries exploitation in the Indian Ocean : threats and opportunities 9789812309860, 9812309861, 9789814279406, 9814279404

Citation preview

Fisheries Exploitation in the Indian Ocean

The Indian Ocean Research Group (IORG) is a social science policy-oriented research network focusing on Indian Ocean issues of common regional concern. The principal aims of IORG are: • To encourage research on geopolitical, economic, socio-cultural, environmental, scientific and technological issues relevant to the Indian Ocean Region. • To promote dialogue on the peaceful uses and ecologically sustainable development of maritime resources based on the principle of Common Heritage. • To foster interstate cooperation in the sustainable management of ocean resources and the peaceful resolution of maritime disputes. • To ensure a holistic discourse on the human and environmental security of the Region among its states, peoples and communities. • To contribute to an understanding of the causes as well as the effects of a wide range of non-traditional Regional security threats. • To facilitate information flow and discussion on international maritime regimes and the rights of states and local communities representing the Indian Ocean Region. • To initiate informed policy debate among governments, NGOs, business groups, academics and other stakeholders in the Indian Ocean Region on issues of common concern.

The Institute of Southeast Asian Studies (ISEAS) was established as an autonomous organization in 1968. It is a regional centre dedicated to the study of socio-political, security and economic trends and developments in Southeast Asia and its wider geostrategic and economic environment. The Institute’s research programmes are the Regional Economic Studies (RES, including ASEAN and APEC), Regional Strategic and Political Studies (RSPS), and Regional Social and Cultural Studies (RSCS). ISEAS Publishing, an established academic press, has issued almost 2,000 books and journals. It is the largest scholarly publisher of research about Southeast Asia from within the region. ISEAS Publishing works with many other academic and trade publishers and distributors to disseminate important research and analyses from and about Southeast Asia to the rest of the world.

00 Fisheries Ex Prelims

2

10/28/09, 12:38 PM

First published in Singapore in 2009 by ISEAS Publishing Institute of Southeast Asian Studies 30 Heng Mui Keng Terrace Pasir Panjang Singapore 119614 E-mail: [email protected] Website: and The Indian Ocean Research Group (IORG) Inc. Website: All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the Institute of Southeast Asian Studies. © 2009 Institute of Southeast Asian Studies The responsibility for facts and opinions in this publication rests exclusively with the authors and their interpretations do not necessarily reflect the views or the policy of the publishers or their supporters. ISEAS Library Cataloguing-in-Publication Data Fisheries exploitation in the Indian Ocean : threats and opportunities / edited by Dennis Rumley, Sanjay Chaturvedi and Vijay Sakhuja. 1. Fisheries—Economic aspects—Indian Ocean. 2. Fishery management, International—Indian Ocean. 3. Fishery law and legislation—Indian Ocean. I. Rumley, Dennis, 1947– II. Chaturvedi, Sanjay. III. Sakhuja, Vijay. SH129.5 F53 2009 ISBN 978-981-230-986-0 (soft cover) ISBN 978-981-4279-40-6 (E-book PDF) This book is meant for educational and learning purposes. The authors of the book have taken all reasonable care to ensure that the contents of the book do not violate any existing copyright or other intellectual property rights of any person in any manner whatsoever. In the event the authors have been unable to track any source and if any copyright has been inadvertently infringed, please notify the publisher in writing for corrective action.

Typeset by Superskill Graphics Pte Ltd Printed in Singapore by Utopia Press Pte Ltd

00 Fisheries Ex Prelims

4

10/28/09, 12:38 PM

CONTENTS Preface

ix

Contributors

xi

List of Abbreviations

xiii

1. Fisheries Exploitation in the Indian Ocean Region Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja Part I: Fisheries Policy Frameworks 2. Environmental Security and Biodiversity: Critical Policy Themes and Issues Swaran Singh

1

21

3. Overview of Institutional Arrangements for Fisheries and Marine Biodiversity in the Indian Ocean William R. Edeson

39

4. A Policy Framework for Fisheries Conflicts in the Indian Ocean Dennis Rumley

54

5. The Indian Ocean Fishery: Resources and Exploitation Within and Outside National Jurisdictional Limits Vivian Louis Forbes

72

6. Competing Claims to Maritime Jurisdiction in the Indian Ocean: Implications for Regional Marine Biodiversity and Fisheries Clive Schofield

00 Fisheries Ex Prelims

5

10/28/09, 12:38 PM

104

vi

Contents

Part II: Fisheries Resource Exploitation 7. Indigenous Fishing in the Kimberley Region of Western Australia: A Case Study of Highly Regulated Fisheries in Coastal Communities Hilary Rumley

141

8. The (In)Security of Fishermen in South Asia A. Subramanyam Raju

163

9. Fisheries in the French Indian Ocean Territories Christian Bouchard

177

10. Mauritius: A Seafood Hub? Jean Houbert

194

11. The Impact of Ship Ballast on the Aquatic-based Food Supply Chain Vijay Sakhuja Part III: Fisheries Policy Directions 12. Geopolitics of Biological Prospecting: Emerging Perspectives on Antarctica and the Southern [Indian] Ocean Sanjay Chaturvedi

227

241

13. Issues in Policy and Law in the Conservation of Marine Biodiversity: A Malaysian Case Study Mohd Nizam Basiron

268

14. Regional Cooperation: A Case Study of the Western Indian Ocean Tuna Fisheries Jane Mbendo and Martin Tsamenyi

279

15. Regulatory and Market-based Instruments in the Governance of Fisheries and Marine Protected Areas in the Indian Ocean Region: In Search of Cooperative Governance Timothy Doyle and Marcus Haward

00 Fisheries Ex Prelims

6

10/28/09, 12:38 PM

298

vii

Contents

16. The Future for Indian Ocean Fisheries Sanjay Chaturvedi, Vijay Sakhuja, and Dennis Rumley

325

Index

345

00 Fisheries Ex Prelims

7

10/28/09, 12:38 PM

PREFACE On behalf of the Indian Ocean Research Group (IORG) Inc. we would like to take this opportunity to sincerely thank the Sultanate of Oman for so generously hosting our 2007 Conference in Muscat. Particular thanks go to His Excellency Abdullah bin Hamad bin Saif Al-Busaidi for his patronage of the Conference. We also especially thank all of the officials from the Ministry of Fisheries Wealth, especially its Undersecretary, His Excellency Dr Hamed bin Said Al Aufi, and the local Conference organizers, Dr Ahmed Al-Hosni and Habib Abdullah Habib Al-Hasni. We are particularly grateful, however, to one person who has been instrumental in facilitating IORG links with Oman and in strengthening Indian Ocean relations more generally, and that is, His Excellency Said bin Nasser Al Khusaibi. Fortunately for us, His Excellency is a member of the IORG International Advisory Board. However, the Conference could not have taken place without the generous support of all of the sponsors — gold, silver and bronze. We are also grateful to Ambassador K. Kesavapany, Director, Institute of Southeast Asian Studies (ISEAS), Singapore, for his wholehearted support for publishing the volume under the ISEAS banner. This has expanded the institutional linkage between ISEAS and IORG. For all delegates, the Conference was an unforgettable experience, not only due to the excellent local organization to, from, and during the various Conference sessions, but also as a result of the memorable social programme, which included an incredible trip around Muscat harbour and beyond on a local, wheelchair-accessible dhow (a lateen-rigged ship) — thanks mainly to Tim Doyle’s excellent organizational skills! IORG also owes a great debt to the Indian Ambassador to Oman, His Excellency Ashok Kumar Attri, who very generously hosted a sumptuous reception at his wonderful Muscat residence.

00 Fisheries Ex Prelims

9

10/28/09, 12:38 PM

x

Preface

Finally, the editors of this book once again thank all IORG Conference participants and contributors for their continuing fine scholarship, ongoing enthusiasm, patience, and, above all, their friendship.

00 Fisheries Ex Prelims

10

10/28/09, 12:38 PM

CONTRIBUTORS Mohd Nizam Basiron, Research Fellow, Maritime Institute of Malaysia (MIMA), Kuala Lumpur, Malaysia. Christian Bouchard, Associate Professor, Department of Geography, Laurentian University, Sudbury, Ontario, Canada. Sanjay Chaturvedi, Professor, Centre for the Study of Geopolitics, Department of Political Science, Panjab University, Chandigarh, India. Timothy Doyle, Chair of Politics and International Relations, SPIRE, Keele University, United Kingdom; and Professor of Politics and International Studies, School of History and Politics, University of Adelaide, Australia. William R. Edeson, Professor, Australian National Centre for Ocean Resources Security (ANCORS), University of Wollongong, Australia. Vivian Louis Forbes, Map Curator, University of Western Australia; Associate Professor, Curtin University of Technology, Australia. Marcus Haward, Associate Professor and Head of the School of Government at the University of Tasmania, Australia. Jean Houbert, Honorary Research Fellow, University of Aberdeen, Scotland. Jane Mbendo, Research Scholar, Australian National Centre for Ocean Resources Security (ANCORS), University of Wollongong, Australia.

00 Fisheries Ex Prelims

11

10/28/09, 12:38 PM

xii

Contributors

A. Subramanyam Raju, Associate Professor of Political Science, Centre for SAARC Studies, Andhra University, Visakhapatnam, India. Dennis Rumley, Honorary Senior Research Fellow, University of Western Australia. Hilary E. Rumley, Anthropological Consultant, Cottesloe and Yallingup, Western Australia. Vijay Sakhuja, Visiting Senior Research Fellow at the Institute of Southeast Asian Studies (ISEAS), Singapore. Clive Schofield, QEII Research Fellow, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia. Swaran Singh, Professor, School of International Studies, Jawaharlal Nehru University, New Delhi, India. Martin Tsamenyi, Professor, Australian National Centre for Ocean Resources Security (ANCORS), University of Wollongong, Australia.

00 Fisheries Ex Prelims

12

10/28/09, 12:38 PM

ABBREVIATIONS ABPORE ACAM ACIAR ADB AFRC AGOA APFIC ARIF ASOC ATCM ATS BIOT BOBLME CBD CCAMLR CCSA CCSBT CDD CECAF CFP CITES CLCS CMATS CMS

00 Fisheries Ex Prelims

Antarctic Bioprospecting Policy Regime Australian Collection of Antarctic Micro-Organisms Australian Centre for International Agricultural Research Asian Development Bank Albion Fisheries Research Centre Africa Growth and Opportunity Act Asia-Pacific Fishery Commission Alliance for the Release of Innocent Fishermen Association of Southern Ocean Coalition Antarctic Treaty Consultative Meetings APEC Antarctica Treaty System British Indian Ocean Territory Bay of Bengal as a Large Marine Ecosystem Convention on Biological Diversity Conservation of Antarctic Marine Living Resources Conservation Council of South Australia Commission for the Conservation of Southern Bluefin Tuna Community-Driven Development Fishery Committee for the Eastern Central Atlantic Common Fishing Policy Convention on International Trade in Endangered Species of Wild Fauna and Flora Commission on the Limits of the Continental Shelf Treaty on Certain Maritime Arrangements in the Timor Sea Convention on Migratory Species of wild Animals

13

10/28/09, 12:38 PM

xiv CORDIO CRAMRA CSA CSFS CZI DWFNs EEC EEZ EPBC ESD EU FAD FAO FCMZ FDI FMM FOCs FPA FRMA FSAL GABMP GATT GEF GFCM HAB HACCP IATTC ICCAT ICZM IMO INCAC IOC IOFC IOMAC IOR

00 Fisheries Ex Prelims

Abbreviations

Coral Reef Degradation in the Indian Ocean Convention on the Regulation of Antarctic Mineral Resource Activities Commonwealth Sugar Agreement Convention relating to Straddling Fish Stock Coastal Zone Inquiry Distant Water Fishing Nations European Economic Community Exclusive Economic Zone Environment Protection and Biodiversity Conservation Act Ecologically Sustainable Development European Union Fish Attracting Devices Food and Agriculture Organisation Fishing and Conservation Management Zone Foreign Direct Investment Farm in Mahebourg Flags of Convenience Fisheries Partnership Agreements Fish Resources Management Act French Southern and Antarctic Lands Great Australian Bight Marine Park General Agreement on Tariffs and Trade Global Environment Facility General Fisheries Commission for the Mediterranean Harmful Algal Blooms Hazard Analysis Critical Control Point Inter-American Tropical Tuna Commission International Commission for the Conservation of Atlantic Tunas Iintegrated Coastal Zone Management International Maritime Organisation Independent Commission Against Corruption Indian Ocean Commission Indian Ocean Fisheries Commission Indian Ocean Marine Affairs Cooperation Indian Ocean Region

14

10/28/09, 12:38 PM

xv

Abbreviations

IOR-ARC IORG IOTC IPCC IRS ISEAS ISI ITLOS IUCN IUU LDC LDWF LME LTTE MCS MFA MPAs MRRC MSC MZI NAFO NAMBIP NEAFC NEERI NEMA NIC NIO NNTT NOAA NPB NSF NT NTA PILER RAW RECOFI

00 Fisheries Ex Prelims

Indian Ocean Rim-Association for Regional Cooperation Indian Ocean Research Group Indian Ocean Tuna Commission Intergovernmental Panel on Climate Change Integrated Resort Scheme Institute of Southeast Asian Studies Inter Service Intelligence International Tribunal for the Law of the Seas International Union for Conservation of Nature Illegal, Unreported and Unregulated fishing Least Developed Countries Long Distance Water Fleets Large Marine Ecosystem Liberation Tigers of Tamil Eelam Monitoring, Control and Surveillance Multi-Fibre Agreement Marine Protected Areas Maritime Risk Reduction Centre Marine Stewardship Council Maritime Zone of India Northwest Atlantic Fisheries Organization National Marine Biodiversity Plan North-East Atlantic Fisheries Commission National Environmental Engineering Research Institute National Environmental Management Act Newly Industrialized Countries National Institute of Oceanography National Native Title Tribunal National Oceanic and Atmospheric Administration National Policy on Biological Diversity National Science Foundation Northern Territory Native Title Act Pakistan Institute of Labour Education and Research Research and Analysis Wing Regional Commission for Fisheries

15

10/28/09, 12:38 PM

xvi RFMO ROO SADC SAFE SCAR SEAFO SIDS SIOFA SLOCS SWIOFC TAC TNCs TRIPS UNASFSHMFS UNCED UNCLOS UNDP UNEP UNESCO UNFSA VRS WCED WCPFC WFP WIO WIOTO WIPO WSSD WTO WWF

00 Fisheries Ex Prelims

Abbreviations

Regional Fisheries Management Organizations Rules of Origin Southern Africa Development Community Southern Africa Far East Scientific Committee on Antarctic Research South-East Atlantic Fisheries Organisation Small Island Developing States South Indian Ocean Fisheries Agreement Sea Lanes of Communication South West Indian Ocean Fisheries Commission Total Allowable Catches Transnational Corporations Trade-Related Aspects of Intellectual Property Rights UN Agreement on Straddling Fishing Stocks and Highly Migratory Fishing Stocks United Nations Conference on Environment and Development UN Convention on the Law of the Sea United Nations Development Programme United Nations Environmental Program United Nations Educational, Scientific and Cultural Organization United Nations Fish Stocks Agreement Voluntary Redundancy Scheme World Commission on Environment and Development Western and Central Pacific fisheries Ocean World Food Program Western Indian Ocean Western Indian Ocean Tuna Organization World Intellectual Property Organization World Summit on Sustainable Development World Trade Organization World Wide Fund for Nature

16

10/28/09, 12:38 PM

1

Fisheries Exploitation in the Indian Ocean Region

1 FISHERIES EXPLOITATION IN THE INDIAN OCEAN REGION Dennis Rumley, Sanjay Chaturvedi and Vijay Sakhuja

INTRODUCTION The main purpose of this chapter is to outline the structure of the present book, to introduce some of the issues and themes that are to be considered in more detail throughout the volume, and to highlight some of the book’s principal findings. The book, which is primarily aimed at furthering the debate on the various impacts of fisheries policies in the Indian Ocean in order to facilitate a new regional policy direction, is organized into three broad sections — fisheries policy frameworks, fisheries resource exploitation, and fisheries policy directions — each of which contains five essays. Before embarking on a discussion of the principal findings of each essay, there will be a brief discussion of fisheries as a resource that will entail a consideration of the global and regional significance of fish stocks and their association with marine biodiversity and fisheries ownership.

01 Fisheries Exploitation

1

10/28/09, 12:39 PM

2

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

FISHERIES AS A RESOURCE The Global and Regional Significance of Fish Stocks Fishing is central to the livelihood and food security of approximately 200 million people around the world, with large concentrations especially concentrated in the developing world, while one in five of the world’s population depends on fish as a primary source of protein (UNEP 2008). However, as has been pointed out: For centuries, humanity has seen the sea as an infinite source of food, a boundless sink for pollutants, and a tireless sustainer of coastal habitats. It isn’t. Scientists have mounting evidence of rapidly accelerating declines in once-abundant populations of cod, haddock, flounder, and scores of other fish species, as well as molluscs, crustaceans, birds, and plants. They are alarmed at the rapid rate of destruction of coral reefs, estuaries, and wetlands and the sinister expansion of vast “dead zones” of water where life has been choked away. More and more, the harm to marine biodiversity can be traced not to natural events but to inadequate policies (Wilder, Tegner and Dayton 1999, p. 57; emphasis added).

The Food and Agriculture Organization (FAO) divides the fishing sector into two general categories of activity — capture fisheries and aquaculture. While capture fisheries involve catching fish through the use of various sorts of fishing equipment, in aquaculture, fish are farmed or raised. Within the last decade, the world’s fish harvest per person of captured fish has begun to decline, as has the total value of world fish and fish products trade (Halweil 2006). Of the 600 marine fish stocks globally monitored by the FAO, it is estimated that 76 per cent are fully exploited, overexploited, or depleted, while in the Indian Ocean, stocks of Southern Bluefin Tuna are classified as “depleted”, the FAO’s worst category. Several other species in the Indian Ocean — for example, Emperors, Indian Mackerels and Bigeye Tuna — range from being fully exploited to overexploited (FAO 2008). There are many other species in the Indian Ocean where the level of exploitation is unknown or is extremely difficult to determine. It is not known with any degree of certainty, therefore, whether there are any Indian Ocean species that are, in fact, underexploited (De Young 2006, Appendix 2).

01 Fisheries Exploitation

2

10/28/09, 12:39 PM

3

Fisheries Exploitation in the Indian Ocean Region

The overexploitation of tuna has contributed to a reduction in supply, reflected in declining catches around the Indian Ocean in the last two years. Regional tuna catches, which account for approximately 25 per cent of the global total, fell by about a third in 2007 to their lowest level for more than a decade. While the environmental and economic costs of this change are very significant, there is considerable debate over what is threatening the region’s $6 billion industry. On the one hand, some conservationists blame years of unchecked exploitation for declining catches, while, on the other hand, some processors argue that climatic conditions may be driving the fish deeper away from their nets. Yet others argue that certain fish populations will inevitably recover, but a “recovery time frame” is less than clear (Branch 2007). The World Bank has referred to the current situation regarding fish capture as a “fishing crisis” with concomitant environmental and economic impacts: For example, biomass of the global ocean’s valuable and predatory fish (such as cod, tuna, grouper, and shark) is estimated to be down by 90 percent of pre-industrial levels 50 years ago. In Asia, coastal fisheries’ biomass is now down by a similar margin, to 8 to 12 percent of prefishing levels. Catch per hour of the same surveillance ship, with the same gear in the Gulf of Thailand, declined from 250 kilograms to about 18 kilograms per hour between 1961 and 1999. Furthermore, the ecosystems that support these fish stocks are being increasingly degraded; for example, 88 percent of the coral reefs in Southeast Asia are estimated to be at risk from human damage, particularly overfishing, aggravated by coral mining and global warming (World Bank 2004, p. x).

Seven states — China, Peru, India, Indonesia, the United States, Japan and Chile — referred to here as the seven “fisher states” — take in nearly twothirds of the world’s total fish capture (Halweil 2006). Furthermore, over the next fifteen to twenty years, two states — Japan (60.2 kilograms) and China (35.9 kilograms) — and two regions — Southeast Asia (25.8 kilograms) and the European Union (23.7 kilograms) — are projected to consume the largest amounts of fish per capita (World Bank 2004, p. 8). Apart from the two Indian Ocean “fisher states” (India and Indonesia), these other states and regions are increasingly unable to meet the growing demand within their own national jurisdictions and thus there will likely be greater pressure on fish stocks in the Indian Ocean. As a result, the

01 Fisheries Exploitation

3

10/28/09, 12:39 PM

4

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

Indian Ocean is becoming a more intense arena for conflict and competition over extraregional demands for increasingly scarce fish resources. Unfortunately, however, the current status of Indian Ocean fish stocks “signal little room for further expansion, in addition to the possibility that some, if not most, stocks might already be overexploited” (De Young 2006, p. 13). The social, environmental, economic, and political outcomes of this dilemma are likely to be far-reaching and thus will necessitate careful regional and extraregional management. The economics of fish supply and demand has meant that the price of fish has increased rapidly in recent years. For example, the market price for tuna has virtually tripled since 2007. In Japan, the increasing demand for high quality tuna for sushi has meant that at Tsukiji fish market in Tokyo, for example, which handles more than 2,000 tonnes of seafood every day, a large tuna can sell for more than US$15,000. In the Indian Ocean Region, declining tuna catches are likely to have considerable long-term negative impacts on regional fish-dependent economies. For example, in the Seychelles, tuna canning is worth $180 million a year and accounts for more than 90 per cent of export earnings (Thand 2008). Overall, it seems that world ocean fish stocks are unsustainable and that inland freshwater fish populations are also increasingly threatened by overfishing, loss of habitat, and pollution. The resultant changes in regional species composition have also had numerous negative consequences for human health (McMichale and Beaglehole 2000). To make matters even more complex from the perspective of developing sustainable Indian Ocean Region (IOR) fish management policies, it is a fact that sea creatures, such as many birds and animals, continue to defy the imposed human logic of politically partitioned space. Perhaps this tells us that the latter is a form of “unnatural” behaviour? This is certainly the case, of course, in terms of the lack of congruence between ecosystems, fish habitats, and life cycles, and the international political boundaries of nation states.

Biodiversity and “Ownership” Declining fish stocks are having a detrimental effect on marine biodiversity in the Indian Ocean. In the Convention on Biological Diversity (CBD), “biological diversity” is taken to mean: The variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological

01 Fisheries Exploitation

4

10/28/09, 12:39 PM

5

Fisheries Exploitation in the Indian Ocean Region complexes of which they are a part; this includes diversity within species, between species and of ecosystems (Convention on Biological Diversity, Article 2).

Marine biodiversity describes the web of life constituting the sea and includes three discrete levels — ecosystems and habitat diversity, species diversity, and genetic diversity (differences among and within populations). Among other things, the maintenance of marine biodiversity is critical to sustaining commercial fisheries and is, therefore, not just an ecological issue, but is also an important social, economic, and political question (Wilder, Tegner, and Dayton 1999, pp. 57–58). For the Indian Ocean, the current reality is that in many fishing grounds there is increasing competition for scarce resources (Suryanarayan 2005, p. 6). While “national” fishery resources might be regarded as a combination of seabed, water column, and tourism-related species, this takes no account of the migratory patterns of many species. Principal breeding grounds and major catch locations might well be in different states, for example. In such cases, since fish breeding and diet are clearly international matters, “ownership” of fish stocks becomes a controversial interstate question overlain by national and international law and practice.

FISHERIES POLICY FRAMEWORKS More than any other cause, poor sector governance has enabled the creeping practice of overfishing to continue and negatively affect fisheries in ever larger coastal marine areas. Fisheries administrations have for decades aimed at expanding fishing capacity, or they have used illdesigned and poorly executed measures to limit catches of threatened species. Only relatively recently have some countries acknowledged that management of the sector is fundamentally a political and economic process, requiring changes in institutional, legal, and regulatory frameworks, and a more participatory role of the private sector, and have created entirely new approaches to managing the sector (World Bank 2004, p. xi).

In the Indian Ocean, fisheries practices and governance are transacted within a complex array of environmental, institutional, social, economic, and jurisdictional frameworks. These policy frameworks serve to impose some degree of regulatory control, dependent to a considerable degree on state and local adherence and enforcement capacity. However, on the other hand, these policy frameworks invariably exacerbate inter- and

01 Fisheries Exploitation

5

10/28/09, 12:39 PM

6

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

intrastate conflict, since they are primarily located within an overall statist and/or corporate context that overemphasizes national security concerns and company profit maximization at the expense of collective regional interest. Identifying a collective regional interest for fisheries is a major policy challenge in the Indian Ocean. Virtually all states within the Indian Ocean Region possess specific legislation for the management of marine capture fisheries and almost all such legislation provides a fisheries management legal framework. However, the term “fisheries management” is rarely clearly defined and only about half of all Indian Ocean states have laws and regulations designed to serve as a legal framework for fisheries management and fisheries management plans. Furthermore, only in a small number of cases does national legislation require that fisheries management decisions be derived from a firm basis of scientific research and analysis (De Young 2006, p. 2). In Chapter 2, Swaran Singh places the overall debate on the impacts of the overexploitation of Indian Ocean fisheries in the context of an environmental security policy framework. He presents an interpretation of fisheries exploitation and associated decline in marine biodiversity as a regional security challenge, and points out that there is an increasing awareness among Indian Ocean states and peoples of the implications of environmental stress for regional peace and security. Singh argues that, while the primary security focus during the Cold War era was associated with the physical security of the state, the challenges of the twenty-first century demand a broader and deeper vision, especially in relation to the world’s oceans. Solving current and future security issues will thus require a new policy paradigm that is built on a cooperative approach. Furthermore, it is likely that, as a result, cooperation in resolving environmental security concerns will create increasing mutual dependence, which, in turn, will reduce the probability of traditional security problems. Since more than 800 million people around the Indian Ocean Rim rely on fish as a major source of protein, the impact of the degradation of fish stocks, either directly or indirectly, will then likely cause very significant regional dislocations. Already, the unregulated industrial mining of fish is having a significant negative impact on traditional fishing communities. For the Indian Ocean Region as a whole, Singh calls for an increase in environmental cooperation in order to maximize the collective regional good and minimize regional tension and conflict.

01 Fisheries Exploitation

6

10/28/09, 12:39 PM

7

Fisheries Exploitation in the Indian Ocean Region

William Edeson evaluates the current institutional framework for regional fisheries and marine biodiversity in Chapter 3. The chapter discusses the international legal background of the modern fisheries regime and its slow recognition of the importance of biodiversity and measures designed for its protection. Furthermore, Edeson argues that many provisions of the modern law of the sea that concern fisheries and marine biodiversity are still being implemented in a piecemeal fashion. The 1982 U.N. Convention on the Law of the Sea (UNCLOS) contained limited provisions regarding high seas fisheries and biodiversity. However, the 1995 U.N. Fish Stocks Agreement marked a shift in the international policy framework in that it introduced the precautionary principle and made reference to protecting the marine environment and biodiversity. Furthermore, Edeson argues, the Large Marine Ecosystem (LME) approach, despite its inherent weaknesses, has much to recommend it, especially since it supports measures to enhance marine biodiversity within a more holistic framework. As the experience of the Bay of Bengal as a Large Marine Ecosystem (BOBLME) has shown, however, some basis for coordinated action is available, even if the scope of regional environmental law is somewhat uncertain. Edeson notes that various non-binding voluntary arrangements — socalled “soft law instruments” — are useful to fill some of the gaps in “hard” law since they promote a holistic ecosystem approach. Nonetheless, overall, not only is the regime of institutions in the Indian Ocean generally ad hoc, but there still does not exist any body which seeks to address cross sectoral issues. In Chapter 4, Dennis Rumley presents an integrated framework of analysis that makes explicit a range of conflicts over fisheries regulation and practice that occur at all jurisdictional and interest levels. He argues that regional policymakers should be made aware of the likelihood of these conflicts as a kind of action policy checklist to promote their resolution and thus contribute to the maximization of marine biodiversity. Rumley conceptualizes fishing conflicts as a set of interactions among the following — the marine environment, international marine resource management regimes, government agencies, local communities, and nonstate actors. International marine management regimes are invariably compromises, there are winners and losers, global and regional ratification is problematical, as is universal adherence, since, among other things, policing of transgressors can be costly and time-consuming.

01 Fisheries Exploitation

7

10/28/09, 12:39 PM

8

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

Regional states typically exhibit both vertical jurisdictional conflicts — that is, conflicts between different levels of government — as well as horizontal conflicts — that is, conflict between neighbouring states due to differing policy goals and/or unresolved maritime boundary disputes. At the community level, conflicts are generated between local subsistence fisheries and industrial mechanized trawlers, and also because of concerns over the loss of traditional fishing grounds. The fishing industry itself is not unified in its approach to marine management and there is the ongoing regional threat of illegal fishing. Rumley’s concern is the need to develop integrated management policies in the Indian Ocean that link environment and society, and which incorporate individuals, communities, agencies, states, and regimes into a holistic, cooperative endeavour. Vivian Louis Forbes in Chapter 5 also argues for the need to develop an integrated approach to marine management in the Indian Ocean. He argues for an ecosystem strategy that stresses a cooperative framework, mutual responsibility, and the sharing of marine resources. However, his primary concern is over the extent to which this can be achieved in the context of conflicting national claims over Ocean jurisdiction. Forbes evaluates the impact of the 1982 UNCLOS Convention on the governance of maritime space in the Indian Ocean and discusses several detailed examples of the nature of maritime jurisdiction and regional sovereignty claims and disputes. He argues that in order to maximize marine biodiversity and thus enhance the quality of regional fisheries, cooperative approaches to the use of regional maritime space and the development and implementation of a comprehensive Ocean policy are essential. Forbes points out that the impact of the 1982 Convention has been profound in terms of maritime boundary delimitation and jurisdiction. However, there still remain numerous territorial disputes within the Indian Ocean that have implications for maritime jurisdiction. Furthermore, a number of regional states have yet to produce enabling legislation in order to proclaim a full array of maritime zones as provided for in the Convention. Forbes identifies several potential boundaries to be determined in the southwest Indian Ocean, in the vicinity of the Arabian peninsular and the Horn of Africa, in the Persian Gulf, and in South Asia. In the Indonesian archipelago, however, several negotiated agreements have been reached.

01 Fisheries Exploitation

8

10/28/09, 12:39 PM

9

Fisheries Exploitation in the Indian Ocean Region

In Chapter 6, Clive Schofield emphasizes the complexity of the maritime jurisdictional framework in the Indian Ocean, explores the array of maritime and territorial claims, and evaluates the baselines and maritime zones claimed by Indian Ocean littoral states in the context of UNCLOS. He then considers the implications of this contested jurisdictional framework for Indian Ocean marine biodiversity and fisheries. As Schofield argues, while Indian Ocean littoral states benefit considerably from significant maritime opportunities afforded by UNCLOS, there still exist a number of serious threats to marine biodiversity and fisheries related to national claims to maritime jurisdiction. Such threats include problems associated with the inherently highly migratory and, thus, transboundary nature of key fish stocks, such as tuna, in the context of increasing illegal, unreported, and unregulated fishing. Second, security issues arise due to tensions from the distinct, and often conflicting, interests of coastal states and distant water fishing states operating in the Indian Ocean. In addition, there exist several important issues relating to maritime surveillance and enforcement against a background of concerns over management capacity among developing states and jurisdictional uncertainty arising from excessive or conflicting maritime claims, lack of boundary delimitation, and maritime boundary disputes. Schofield evaluates all of these issues and offers some policy ideas to resolve them, including options to overcome jurisdictional barriers to maritime enforcement. He suggests that the shared maritime interest of Indian Ocean states and the importance of Ocean resources should be strong incentives for agreed maritime boundaries and future cooperative policy development.

FISHERIES RESOURCES EXPLOITATION Managing marine environments to maximize biodiversity, relies, among other things, on a sufficient understanding of, and data on, fish stocks, feeding habits, breeding patterns, migration routes, and exploitation rates. However, as De Young has pointed out: Added to this are the difficulties inherent in different management environments stemming from lack of data and transparency, discrepancies between the status of management as formally reported and its true and real situation, definitional differences as to what

01 Fisheries Exploitation

9

10/28/09, 12:39 PM

10

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja constitutes large-scale or small-scale fisheries, and differences in whether a stock-based or gear-based definition of individual fisheries was applied (De Young 2006, p. 1).

In the absence of comprehensive monitoring, managing fish stocks is thus made more problematical due to a lack of knowledge of the sources of fisheries exploitation — for example, the extent to which certain fish stocks are exploited by Indian Ocean states, by extraregional states, or by vessels operating under a flag of convenience. If we examine what FAO data are available, however, we find that all eighteen IOR-ARC (Indian Ocean Rim Association for Regional Cooperation) states have a direct interest in the health of Indian Ocean fisheries, since all member states were among the main fishing countries in 2002. In addition, there are a further seven Indian Ocean states — Burma, Egypt, Eritrea, Maldives, Pakistan, Saudi Arabia, and Seychelles — which are among the “main fishing countries” group. A further four extraregional states — China, France, Spain, and Taiwan — have a very active interest in Indian Ocean fisheries, especially in terms of the exploitation of various types of tuna. However, without exception, apart from the latter, Indian Ocean states are responsible for the depletion of all fisheries that have now been classified as fully exploited or overexploited (De Young 2006, Appendix 2). The precise interrelationship between marine biodiversity and fisheries exploitation, nonetheless, will be dependent to a considerable degree on the goals of fishery states and fishery “producers” in the Indian Ocean. These range from a spectrum of traditional indigenous practices that aim to maximize sustainability and species recovery, on the one hand, to the “mining” of the oceans by fish factories that emphasize the maximization of fish catch and, thus, species depletion, on the other. For the Indian Ocean Region, it seems that, more often than not, sustainability concepts have taken second place to development-oriented goals, irrespective of whether fish stocks are already fully exploited (De Young 2006). In addition to the goals of those exploiting fisheries resources, the use of the Ocean for other purposes — for example, as sea lanes of communication, a source for minerals exploitation, and a site for waste disposal — will invariably have a detrimental environmental impact on marine biodiversity and thus on the stability and sustainability of fisheries. Maintaining a healthy and sustainable fish stock, therefore, requires a much broader Indian Ocean regional environmental policy framework than one that is simply aimed at fish producers.

01 Fisheries Exploitation

10

10/28/09, 12:39 PM

11

Fisheries Exploitation in the Indian Ocean Region

Hilary Rumley in Chapter 7 is concerned with indigenous fishing in Western Australia with a particular focus on the tropical West Kimberley region. She highlights the differences in the meaning of “ownership” of the sea between indigenous and non-indigenous people, and shows how indigenous fishing has become increasingly regulated via a range of legal and statutory measures. Recognition of native title has not brought the exclusive rights to areas of the sea adjacent to their country that many indigenous people hoped it would. Rumley argues that while there are threats to regional marine biodiversity and fisheries due to overfishing and recreational fishing, there are also opportunities, especially in relation to the increased involvement of indigenous people in the management process and development of aquaculture. The author presents a brief background on traditional fishing practices in the Kimberley region, including some of its more recent changes. In addition, she provides an overview of current policy and practice relating to indigenous fishing. Rumley discusses issues relating to fishing by indigenous people (as well as fishing by all others) and shows how this is officially subject to a wide range of legal, statutory, bureaucratic, and regulatory limitations. Nonetheless, there continues to be a relatively high level of subsistence fishing by Aboriginal people, as well as a small-scale informal, unregulated market. Rumley argues that the Kimberley case study highlights the need to examine and compare policies and practices relating to indigenous fishing and fisheries in other parts of the Indian Ocean Region. A. Subramanyam Raju in Chapter 8 examines the security of fishermen in Indo-Sri Lankan and Indo-Pakistan waters. He notes that since poverty is endemic among local fishermen, they catch fish wherever possible and thus do not respect international maritime boundaries. This issue is problematical primarily because of the depletion of fisheries resources and results in governments on either side of the boundary arresting and punishing transgressors. Raju argues that the combination of the Agreement between India and Sri Lanka to delimit their maritime boundary, and the internal conflict within Sri Lanka, has resulted in the dislocation of traditional local practice on Kachchativu Island. However, while this island is of economic significance to local Indian fishermen due to its important prawn resource, it is of minimal strategic significance to the Indian state. The internal

01 Fisheries Exploitation

11

10/28/09, 12:39 PM

12

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

conflict in Sri Lanka, however, results in a very different strategic perception on the part of the Sri Lankan Government. The conflict also comprises two additional dimensions. First, there is the conflict between traditional and mechanized fishing practices, which, in part, serves to exacerbate local poverty problems. While the Tamil Nadu State government has introduced a number of measures to assist local fishermen, these have been found to be relatively ineffective. Second, it is likely that the Sethusamudram Ship Canal Project will have an adverse environmental impact and lead to great stress being placed on the local fishery resource. Raju calls for increased regional cooperation to ensure that the welfare and security of local fishermen are protected. In Chapter 9, Christian Bouchard presents an overview and discussion of fisheries exploitation and management in the French Indian Ocean territories. He shows that fisheries represent a significant economic activity in the small island states and territories, but notes, however, that the growing pressures on fisheries resources have resulted in overexploitation, a significant decline in fish catch, and a closure of fisheries for several commercial species. Bouchard argues that the long-term sustainability of fisheries will depend on three principal interrelated factors — better knowledge and management of regional fish stocks, continued French involvement, and greater success in eradicating illegal foreign fishing. He shows that regional fishing practices vary significantly within the French Indian Ocean territories — from local fishing and aquaculture in Mayotte, to artisan, coastal, and longline fisheries and some aquaculture in Reunion, to a large industrial fishery in the southern Indian Ocean. Regional fisheries management is made more complex by the fact that the sovereignty of the Scattered Islands is contested, which is an especially important question given the potential size of their Exclusive Economic Zone (EEZ). Illegal fishing has been problematical in the Mozambique Channel since the 1990s, for example, and has necessitated an increase in French patrols and surveillance. Importantly, as Bouchard points out, regional fisheries management issues are now being dealt with on a wider scale by various international bodies, and he argues that the recently established South West Indian Ocean Fisheries Project (SWIOFP) has brought significant momentum to regional cooperation. Jean Houbert in Chapter 10 discusses the dynamic processes of social and economic adjustments by Mauritius to outside forces since colonial

01 Fisheries Exploitation

12

10/28/09, 12:39 PM

13

Fisheries Exploitation in the Indian Ocean Region

times. He shows that the objectives of the European colonizers were not based around fisheries, but were more related to commercial and military domination of the Ocean. The movement from the sea to the land was particularly linked to a change in colonial master and led to the production of sugar. This, in turn, resulted in a dramatic change to the ethnic structure of the population of Mauritius. However, as a result of economic globalization processes that threaten both its sugar and textiles, Mauritius now “looks to the sea for salvation” again. While its local fishery resources are not great, Houbert notes that Mauritius is on the migratory route for tuna, marlin, and swordfish. Rather than develop its own industrial fishery, however, Mauritius receives financial compensation for allowing foreign vessels to fish in its waters. This new oceanic orientation has become associated with the development of Mauritius as a “seafood hub”, and previously neglected coastal and peripheral areas of the country are now regarded as valuable assets. As Houbert shows, the free access gained by Mauritius to the European Union (EU) is not only associated with fish capture, but also with the farming of both freshwater and sea fish. However, in order to remain a world class seafood hub, Mauritius will have to reach beyond its dependence on its protected EU access, and compete freely in the global market. In Chapter 11, Vijay Sakhuja reminds us that the various uses of the Indian Ocean can have a negative impact on marine biodiversity and, hence, fish stocks and, thus, require incorporation into Ocean management frameworks. As Sakhuja points out, more than 80 per cent of global cargo moves across the oceans and with it huge quantities of ballast water can be loaded in one port and transported considerable distances before being discharged in another part of the world. A wide variety of alien marine organisms of various sizes contained in the ballast water can thus result in a bio-invasion and pose threats both to human health and the aquatic-based food chain. As Sakhuja notes, bioinvasion has already led to the destruction of natural marine habitats such as coral reefs and fish breeding grounds. Sakhuja analyses the impact of ship ballast on the aquatic-based food supply chain, and explains the ship ballast operation and the process of transporting non-native marine life to distant waters, thus impacting the marine ecosystem. He evaluates the technological developments aimed at

01 Fisheries Exploitation

13

10/28/09, 12:39 PM

14

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

overcoming the problems of ballast as well as technologies being developed for keeping the ship’s hull clear of barnacles. Sakhuja emphasizes the importance of the IMO (International Maritime Organization)-initiated Global Ballast Water Management Programme (Globallast) aimed at reducing the transfer of harmful organisms by establishing ballast water standards and introducing ballast water treatment systems. The successful implementation of this Programme, however, requires the cooperation of all states and agencies engaged in Indian Ocean trade.

FISHERIES POLICY DIRECTIONS A critical, regional holistic evaluation of fisheries resources exploitation policies as part of a new cooperative regional environmental strategy is essential in order to ensure a sustainable future for Indian Ocean fisheries. This overall approach will become increasingly necessary as other Indian Ocean biological and mineral resources are exploited in the future and as a result of the increasing impact of regional population pressures. Furthermore, in order to be comprehensive (see Chapter 5), such an approach will need to take place within a fully participatory environment incorporating all the stakeholders (see Chapter 4) that are informed by a new environmental security paradigm (see Chapter 2). Sanjay Chaturvedi in Chapter 12 evaluates the issue of bioprospecting as a “new frontier” for commercially-driven scientific research in the environmentally sensitive Antarctica. The aim of bioprospecting is to develop marketable biotechnological inventions generally under the protection of patents by exploiting the world’s biota. This has the potential to lead to the replacement of petrochemicals as industrial feedstock and to produce chemicals that can be used to develop new drugs, among other things. Chaturvedi raises a host of issues concerning the exploitation of global commons such as Antarctica, including geopolitical considerations of access and ownership, sovereignty and jurisdiction, and their implications for the marine environment. In addition, bioprospecting raises the problematical relationship between global commons institutions and the biological resources and indigenous knowledge of communities. Chaturvedi emphasizes the fundamental dilemma of individual corporate patent rights versus the rights of the world’s citizens in the global commons.

01 Fisheries Exploitation

14

10/28/09, 12:39 PM

15

Fisheries Exploitation in the Indian Ocean Region

All of these questions make bioprospecting an extremely complex issue and the Antarctica Treaty System (ATS) currently does not contain sufficient regulatory mechanisms to deal effectively with it. All Indian Ocean states thus need to be concerned with these issues, if only because of the importance of the Southern Ocean as a nursery and feeding ground for Indian Ocean fisheries. As Chaturvedi argues, there is a need to develop a comprehensive Antarctic Bioprospecting Policy Regime (ABPORE). In order to achieve this, however, many critical questions need to be addressed, all of which have implications for the functioning of the ATS, CBD and UNCLOS. In Chapter 13, Mohd Nizam Basiron argues that Malaysia’s policies aimed at conserving marine biodiversity have proved to be inadequate since the threats persist and the decline in marine biodiversity continues. Nizam suggests that this is due to a combination of factors — problems of translating policies into action, the inadequacy of the scope of existing laws, problems in enforcing current regulations, less focus on marine biodiversity compared with terrestrial biodiversity, and a lack of awareness concerning marine biodiversity among policymakers. In addition, while marine parks have been established in Malaysia and endangered marine species have been protected, problems associated with overexploitation, alteration of the physical environment, pollution, the introduction of alien species, and climate change have all served to contribute to marine degradation. Given the wide range of problems affecting Malaysia’s marine biodiversity, Nizam argues for a more comprehensive approach that would take the form of a National Marine Biodiversity Plan (NAMBIP) and would incorporate collaborative policies designed to manage actions at the national, state, and local levels. Such an approach could form a part of a review of Malaysia’s National Policy on Biological Diversity enacted ten years ago, which could lead to the development of appropriate management plans for all of Malaysia’s marine parks. Nizam argues that creating a national policy framework is both timely and important since there are proposals currently being made to establish a marine parks department and to draft new marine parks legislation. Ensuring policy compliance, however, is a necessary and invariably costly ingredient. Jane Mbendo and Martin Tsamenyi in Chapter 14 evaluate the tuna fisheries management framework in the Western Indian Ocean (WIO),

01 Fisheries Exploitation

15

10/28/09, 12:39 PM

16

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

with special reference to the Indian Ocean Tuna Commission (IOTC). Since tuna are globally the most economically important marine species and are highly migratory, they are, therefore, vulnerable to overfishing, with the greatest pressure on the fisheries coming from European (France and Spain) and East Asian (Japan, Korea, and Taiwan) distant water fishing nations (DWFNs). This ensures that the conservation and management of tuna fisheries is a significant regional and global challenge. Mbendo and Tsamenyi point out that while the onset of a new, purse seine fishery — due to the relocation of the fishing effort from the Eastern Atlantic to the Indian Ocean — prompted the need for a regional management organization in the 1980s, IOTC did not become fully operational until 1996. The authors highlight some of the principal difficulties faced by IOTC in effectively carrying out its conservation and management role: problems especially in relation to IOTC membership coverage and the effective participation of developing states; the fact that IOTC decisions are not necessarily binding; and problems associated with data monitoring and reporting on catch, bycatch, and size. Mbendo and Tsamenyi conclude that there is a need for more substantive resolutions regarding fish stocks, for greater effort with regard to illegal, unreported, and unregulated fishing (IUU) and the implementation of national conservation and management processes that are consistent with those operating on the high seas. In Chapter 15, Doyle and Haward provide an extensive overview and analysis of a range of marine management models in the Indian Ocean. They conclude that for regional fisheries policies to achieve a sustainable oceanic future, a strong role for regional states, and partnerships among states, as well as with non-state actors are necessary. In addition, the limitations of neoliberal natural resource management models need to be fully recognized. As the authors point out, in recent years there has been an increasing use of economic instruments in the management of ocean resources that have been developed at a time when traditional, regulatory-based approaches have been found to be inadequate. However, while the use of market-based models has been encouraged, “regulatory failures” have contributed to a reappraisal and facilitation of cooperative management models as the basis for alternative approaches to marine governance. As a result, rather than presaging a declining role for the state, the introduction of economic instruments reinvigorates state processes in terms of the

01 Fisheries Exploitation

16

10/28/09, 12:39 PM

17

Fisheries Exploitation in the Indian Ocean Region

setting of appropriate standards as well as the assessment and evaluation of performance. As Doyle and Haward argue, in the final analysis, future fisheries policies designed to maximize marine biodiversity necessitate a more comprehensive and integrated framework to replace the traditional sectoral approach to ocean management. Successful ocean governance requires the incorporation of ecological and market factors, greater interstate and interagency consultation and cooperation, an improvement in linking national initiatives to local action, increased participation of local government and local communities, and the enhancement of local capacity.

References Beddington, John. “Resource Exploitation, Fisheries”. Encyclopedia of Biodiversity. (2007): 161–72. Branch, Trevor A. “Not All Fisheries Will Be Collapsed in 2048”. Marine Policy 32, no. 1 (2008): 38–39. De Young, C. “Review of the State of the World Marine Capture Fisheries Management: Indian Ocean”, edited by C. De Young. FAO, Fisheries Technical Paper 488, Rome 2006. FAO. “Review of the State of the World Marine Fisheries Resources”. Tables D1– D17 to be found at , 2008. Garcia, Serge M. and Anthony T. Charles. “Fishery Systems and Linkages: Implications for Science and Governance”. Ocean and Coastal Management 51, no. 7 (2008): 505–27. Halweil, B. “Fish Harvest Stable but Threatened”. In Vital Signs 2006–2007. New York: WorldWatch Books, 2006: 26–27. McMichael, A. J. and R. Beaglehole. “The Changing Global Context of Public Health”. The Lancet 356, no. 9228 (2000): 495–99. Roberts, Callum M. “Ecological Advice for the Global Fisher Crisis”. Trends in Ecology and Evolution 12, no. 1 (1997): 35–38. South West Indian Ocean Fisheries Commission (SWIOFC). “Fisheries Development and its Contribution to Food Security and Poverty Alleviation”. Second Session, Maputo, Mozambique, 22–25 August 2006. Suryanarayan, V. Conflict Over Fisheries in the Palk Bay Region. New Delhi: Lancer Publishers and Distributors, 2005. Thand, G. “Indian Ocean Tuna Catch Drops; Experts Differ on Why”. UTC, 4 August 2008.

01 Fisheries Exploitation

17

10/28/09, 12:39 PM

18

Dennis Rumley, Sanjay Chaturvedi, and Vijay Sakhuja

UNEP. “Overfishing: A Threat to Marine Biodiversity”. , 2008. Wilder, R. J., Mia J. Tegner, Paul K. Dayton. “Saving Marine Biodiversity”. Issues in Science and Technology 15, no. 3 (1999): 57–64. World Bank. Saving Fish and Fishers: Toward Sustainable and Equitable Governance of the Global Fishing Sector. Washington DC: Agriculture and Rural Development Department, Report No. 29020-GLB, May 2004.

01 Fisheries Exploitation

18

10/28/09, 12:39 PM

19

Environmental Security and Biodiversity

PART I Fisheries Policy Frameworks

02 Fisheries Exploitation

19

10/28/09, 12:39 PM

20

02 Fisheries Exploitation

Swaran Singh

20

10/28/09, 12:39 PM

21

Environmental Security and Biodiversity

2 ENVIRONMENTAL SECURITY AND BIODIVERSITY Critical Policy Themes and Issues Swaran Singh

INTRODUCTION The end of the Cold War has fundamentally transformed the backdrop against which the quest for peace and security on the oceans is understood and organized. Undermining the centrality of the conventional military concerns affecting the security of the state, new issues such as pollution of the marine environment, unsustainable use of ocean resources, illicit trafficking, clandestine movement of persons, piracy, terrorism, and congested sea lanes have all emerged as new critical themes of discourses during the post-Cold War years (The Ocean: Our Future 1998, p. 17). This transformation was triggered primarily by the collapse of the former Soviet Union and the consequent diminished likelihood of global warfare between the two overarmed superpowers that had extended their naval power projections to all possible places across oceans. Nevertheless, while the existential nuclear threat looming large across oceans has receded over the years and new issues and themes such as environmental security have

02 Fisheries Exploitation

21

10/28/09, 12:39 PM

22

Swaran Singh

emerged as most critical, the international community has remained far too reticent about evolving alternative institutional frameworks for promoting and regulating peace and security across the world’s oceans (The Ocean: Our Future 1998, p. 44). Meanwhile, the dominant discourse on security continues to echo Cold War paradigms where concerns about the use and abuse of the oceans were perceived primarily in the context of navigational stationing and mobility, as well as the exploitation of sea lanes and other ocean resources by big powers with little regard to its sustainability. These military activities of the big powers, though, continue to be projected as if they are in the best interests of all humanity, while, in actual practice, the oceans continue to be the battleground for muscle flexing. All of this has kept basic questions about equity and justice in the margins of all security discourses. To a large extent, even the aforementioned new themes and concerns continue to be viewed through rather narrow prisms of statist security and development perspectives. For one thing, this line of thinking still continues to be pursued by the sole surviving superpower, the United States. Experts, for example, still implore how U.S.-led NATO has no peer in terms of military domination of the world’s oceans, including the Indian Ocean (Singh 2008, pp. 2–3). However, the transformation in this dated perspective remains irreversible, to say the least. And, it is this transformation in the themes and issues around the Indian Ocean Region that forms the critical focus of this chapter and a theoretical backdrop to what follows in the present volume. It is against this backdrop of slowly, but steadily, emerging new themes and issues that this chapter makes an attempt to highlight some new, major, oceans-related security challenges — especially those flowing from environmental security concerns. These remain of particular relevance to the Indian Ocean Region. It is with this objective that the chapter attempts to examine the security challenges of the Indian Ocean Region from an environmental security perspective, as well as analyse the rising regional consciousness with regard to these new challenges that have implications for their larger peace and prosperity.

THE NEW BACKDROP It has taken some evolution in human knowledge to realize that oceans mark the most dominant feature of the human environment. On the positive side, oceans provide an ideal context for debating emerging new

02 Fisheries Exploitation

22

10/28/09, 12:39 PM

23

Environmental Security and Biodiversity

issues in global security discourses such as environmental security. These clearly transcend political and land boundaries, thus putting security discourses in a global and regional framework and in step with future security challenges. Oceans have been a source of food since the advent of human civilization and have lately shaped modern history by providing energy, minerals, medicines, and especially sea lanes of communication (SLOCS), which have been singularly responsible for much of the global expansion of trade and commerce. It was this positive perspective that had been undermined and overcast by the nuclear overkill of the Cold War years that had straight-jacketed this holistic worldview into a narrowly defined East-West confrontation, turning oceans into zones of power and influence. Nevertheless, beginning from the late 1980s, academic debates had at least begun to link environmental security to open access to the oceans. And now, the expanded twenty-first century understanding of security that clearly focuses on people rather than the state as its primary unit of analysis has transformed our view about oceans and their centrality to the universe of humans. This new global discourse can be traced back to the U.N. Conference on the Human Environment in 1972. The concept of environmental security was, however, forcefully established for the first time in the Brundtland Report of 1987, though it still remains hotly debated as evidenced in successive Earth Summits and other climate change meetings (Annan 2006, p. 13; Adam and Sample 2006, p. 15). In academic debates, this theme was to become fashionable from the early 1990s. While some experts were to describe environmental security as the “ultimate security” issue, others were to denounce it as polluting the very concept of “security” proper (Myers 1993; Deudney, 1990). Some other scholars fell in between and examined environmental themes and issues from traditional military and political perspectives. In particular, the corelation between environmental degradation and conflict was first established by the pioneering article of Thomas Homer-Dixon in the 1991 issue of International Security and it was further debated and developed by Robert Kaplan and others (Dalby 2002, p. 41). To begin with, environmental insecurity was seen as a function of environmental degradation, which included the destruction of resources driven by pollution-intensive human development activities, coupled with poverty-driven rapid population growth, and so on (Barnett 2001, p. 12). Marking this new context, a groundswell of support for this transformation was provided by the core proposition that environment degradation

02 Fisheries Exploitation

23

10/28/09, 12:39 PM

24

Swaran Singh

constitutes the greatest security risk of all. The most common variant of environmental security was concerned with the impact of environmental stress on societies, which may lead to situations of conflict within and between societies and civilizations. Environmental security, therefore, sought to ensure harmony between humans and their biosphere where oceans presented a most dominant feature. Monsoons, for instance, has been one dominant factor in the evolution of civilizations on the Indian subcontinent and this is reflected in their folklore and intellectual discourses over centuries. As regards the centrality of oceans to the environmental security discourse, it was the combination of several factors flowing from this evergrowing human interface with oceans — offshore hydrocarbons exploitation, overfishing, resources scarcities, resources conflicts, and pollution among them — that had contributed to the realization of how statist the Cold War paradigm of equity and justice that was driven exclusively by statist security-and-development had been and how it was becoming increasingly inadequate (The Ocean: Our Future 1998, p. 58). And then, there are forces and factors that remain beyond human control and few efforts had ever been made to make these ocean-related threats and challenges predictable. For instance, the Ocean Conveyor (the global ocean circulation system) can change rapidly and shift distribution patterns of heat and rainfall, thereby, impacting significantly on human lifestyles. Worldwide concerns about the environment in recent years have accordingly emphasized the importance of incorporating the effects of environmental degradation into conventional decision-making processes, including those affecting crucial areas such as marine resources (Lutz and Munasinghe 1994, p. 96). To begin with, the origins of this positive momentum towards building environmental security (by focusing on “human” equity and justice) across open oceans can also be traced to various global movements and decisions such as the extension of coastal state jurisdiction resulting in the creation of exclusive economic zones (EEZs) of up to 200 nautical miles (The Ocean: Our Future 1998, p. 59). The second major development was the emergence of a revolutionary new concept — initially articulated by Arvid Pardo in 1967 — asserting that the resources of the seabed beyond national jurisdiction should be regarded as the “common heritage of mankind” (The Ocean: Our Future 1998, p. 60). According to this common heritage thesis, these ocean resources could not be appropriated exclusively by

02 Fisheries Exploitation

24

10/28/09, 12:39 PM

25

Environmental Security and Biodiversity

advanced and powerful states and should be used for peaceful purposes and managed in the interests of all, including future generations. Thirdly, in more recent years, global discourses have also focused on the need for the efficient use of natural resources. These include both mineral and biological resources and also human-made capital and resources that are now seen as vital prerequisites for “sustainable” development. These three normative developments were significant in shifting the focus from military security in the context of great power rivalries of the Cold War years to new twenty-first century issues of sustainable development, climate change, and biodiversity. These have highlighted the centrality of environmental security with regard to the discourse on the peace and security of open oceans. As regards the Indian Ocean, there also remain several specific triggers for the newly evolving concerns about environmental security. For instance, the rising debate on climate change seems to have had several direct consequences for the future of Indian Ocean Region as it threatens to make several Indian Ocean island states disappear altogether. Even when the majority of states affected by climate change and rising sea levels may not disappear altogether, they may experience changes to the baselines that might affect their borders. Only 180 maritime boundaries have been agreed upon worldwide. According to geographers, potentially 400 such boundaries exist (Mabey 1995, pp. 74–75). This will also accordingly impact on their EEZs and fishing rights and undermine the U.N. Convention on the Law of the Seas. Consequently, climate change and environmental security are no longer issues only for tiny island states such as the Maldives or low-lying areas such as coastal Bangladesh, but carry much widespread negative potential. The Intergovernmental Panel on Climate Change (IPCC) of the United Nations, in its twenty-one-page report released on 2 February 2006, predicted that by 2100 rising water levels will swallow Asia’s largest mangrove delta — the Sundarbans, which is currently also a world heritage site (Chahan 2007, p. 10). In their second report, which was submitted in 2007, the IPCC took the view that while the average global surface temperatures have risen by about 0.7 per cent degrees Celsius since the start of the twentieth century, this could rise by a further 1.4 degrees to 5.8 degrees Celsius by the end of the twenty-first century. Such concerns caused the World Economic Forum (Davos) study, Global Risks 2007, to call for urgent action to mitigate what it described as potentially the most

02 Fisheries Exploitation

25

10/28/09, 12:39 PM

26

Swaran Singh

devastating threats from global warming, international terrorism, and pandemics, which the international community remains least equipped to deal with (Elliott 2007, p. 11).

BIODIVERSITY AND CLIMATE CHANGE Increasingly, experts have highlighted how the dwarfing of biodiversity will be the most devastating amongst the various climate change projections (Lee, Jovejoy, and Schneider 2005, pp. 9–12). It was these heightened concerns over the rate of biodiversity loss that were to serve to underline the significance of biodiversity conservation in the 1980s and to elevate this debate to the status of a global environmental security discourse from the early 1990s (Rajan 1997, p. 158). Rapid new strides in biotechnology perhaps helped in highlighting this tragedy. Indeed, it was way back in 1987, in the wake of increasing concerns about the disappearance of species — and the need for adequate protection of biodiversity — that the Governing Council of the United Nations Environmental Programme (UNEP) had requested its Executive Director to investigate “the desirability and possible form of an umbrella convention to rationalize current activities in the field and to address other closely related areas” (UNEP 1988, p. 109). The follow-up UNEP studies argued that “biological diversity is a common global resource, like the atmosphere, from which all nations benefit and from whose diminishment all will suffer” (UNEP 1989, p. 4). Biological diversity or biodiversity is defined by the 1992 Convention on Biological Diversity as the variability among living organisms from all sources, and includes diversity within species, between species, and of ecosystems (UNEP 1992, Article 2). Biodiversity is important to the future of humankind in three major ways: (a) it has economic value; (b) it provides ecosystem services; and (c) its conservation embodies aesthetic, ethical, and cultural values for many communities (UNEP 1988, p. 153). In spite of the rising consciousness about the consequences of climate change, the rate of loss of biodiversity was so daunting that in 1989, the U.S. National Science Foundation described it as “the most catastrophic loss of species in the last 65 million years” (McGourty 1989, p. 585). As a result, by the early 1990s, more than 130 states had already established over 6,900 major, legally protected areas for the conservation of biodiversity, covering about 5 per cent of the earth’s surface (U.N. General

02 Fisheries Exploitation

26

10/28/09, 12:39 PM

27

Environmental Security and Biodiversity

Assembly 1991, para. 18). It is interesting to note that India lies at a trijunction of the Ethiopian, Palaearctic, and Oriental biogeographic provinces, and is recognized as one of the world’s top twelve “megadiversity” states. Furthermore, with the exception of Australia, all other ‘mega-diversity’ states are developing countries — Brazil, China, Colombia, Ecuador, India, Indonesia, Malaysia, Madagascar, Mexico, Peru, and Zaire — and seven are Indian Ocean states. According to James Lovelock, the U.K. scientist and author of Gaia Theory (the hypothesis that all living matter on planet Earth functions like a single organism) this loss of biodiversity is both a cause and a consequence of climate change. He believes that “[T]rying to take the job of regulating the Earth is as crazy as you can get” (Adam 2006, p. 14). On the other hand, Professor Sir Nicholas Stern (a former chief economist of the World Bank) relies on economic models to show how carbon dioxide emissions can be controlled with an investment of 1 per cent of global gross domestic product by 2050 (Randerson 2006, p. 11; The Hindu 2006, p. 10). He indeed also remains confident that governments will be willing to invest resources in cutting emissions rather than facing economic ruin, which remains the other clear choice according to them. And then there are those institutions such as the Tyndall Centre for Climate Change Research (United Kingdom) and the publishers of the Copenhagen Consensus Papers (Denmark) that put climate change at the bottom of global priorities (Monbiot 2006, p. 11; Toynbee 2006, p. 11). Similarly, Russian scientists have been debunking the climate change debate as being driven primarily by commercial motives using economic models, and not by any hard scientific research (Radyuhin 2008, p. 10). The increasing consensus, nevertheless, believes that given the continued unrestricted carbon emissions and burning of fossil fuels, the resultant greenhouse gases and global warming have all had a direct relationship with the rise in ocean waters and coastal zones witnessing famines and violent storms. In the Indian Ocean rim, for instance, it was following the across-theboard structural adjustments in most of these coastal economies from the early 1990s that their pursuit of rapid and skewed development was to result in successive environmental disasters, all culminating in a tsunami on 26 December 2004. Many experts see this as a reminder to the Indian Ocean Region on how the U.S.-led post 9/11 security discourses had narrowed their focus to terrorism, when a comprehensive approach was required that covers all aspects of non-military security, including

02 Fisheries Exploitation

27

10/28/09, 12:39 PM

28

Swaran Singh

environmental security (Bateman 2006, p. 249). And this remains especially true of the least developed littoral states of the Indian Ocean (Roza 2007; Tibballs 2005). The tsunami was to push the searchlight tragically onto concerns about understanding environmental security challenges in the Indian Ocean rim. As a result, the tsunami has certainly shifted the focus onto these new perspectives of biodiversity and climate change among Indian Ocean littoral states. It has also brought home the truth that while these states of the Indian Ocean littoral remain focused on achieving political, economic, and especially military security, all this can so easily be overwhelmed by the forces of nature. Following the tragic experience of the tsunami on 26 December 2004, several littoral states began to take new initiatives and commit to new investments in scientific explorations and joint strategies. Experts have increasingly tried to study the tentative links between natural disasters and human activities, including excessive fishing, environmental pollution, and acts leading to climate change. Studies on the tsunami, for instance, have clearly established that areas with well-kept mangrove forests and healthy coral reefs were less badly affected during the disaster. This has since made Indian Ocean littoral states far more concerned with the critical themes and issues of environmental security, which increasingly form a substantive part of their regional and bilateral discussions and policy formulations. Of particular concern is the ability to achieve a balance between “sustainable” development and the practical pressures of rapid development that involves expanding overseas trade. In addition, energy imports remain a major challenge for Indian Ocean littoral states.

OIL SPILLS AND OTHER POLLUTANTS Following the enormous and successive oil spills resulting from the 1990– 91 military conflict in the Persian Gulf, much fear was expressed concerning the spread of oil from the Gulf into the Arabian Sea and the Indian Ocean sea lanes (Sadiq and McCain 1993, p. 43; Walker 2004; Rana 2005). In May 1993, for instance, an accidental rupture in an oil processing platform in India’s Bombay High resulted in a 1,600-ton oil spill. Similarly, a Japanese oil tanker spilled 1.4 million gallons of crude oil in the eastern Indian Ocean after hitting a cargo vessel on 15 August 2006, which threatened to impact the traffic in the congested Malacca Strait (Indian Daily 2006). But besides such major accidents, oil pollution also occurs on a regular basis

02 Fisheries Exploitation

28

10/28/09, 12:39 PM

29

Environmental Security and Biodiversity

from the transport of oil tankers starting from the oil terminals in the Middle East countries along two well-known routes: one, along the Arabian sea within the Indian EEZ, around Sri Lanka, via the Bay of Bengal through the Malacca Strait to the Far East and Japan; and the other, through the Strait of Mozambique, along the coastal waters of Somalia, Kenya, Tanzania, around South Africa to the Western Hemisphere. Tanker disasters along these two routes are a frequent phenomenon (Gupta 2000, p. 207). Oil discharges also contaminate the waters of the Indian Ocean through other operational discharges — for example, bilge, bunker, and ballast washing, as well as through oil well blowouts from offshore exploration, and natural seepage from the seabed, and so on (Gupta 2000, p. 209). As 65 per cent of world’s discovered oil and 35 per cent of its gas are produced in the Persian Gulf, this clearly underlines the magnitude of pollution threats in Indian Ocean waters and to the coastal areas. Besides, many of the littoral states also remain vulnerable to their mutual rivalries and conflicts, and increasingly face new threats from so-called “non-state” actors that have elevated and intensified traditional piracy to the far more complex arena of maritime terrorism (Young 2007, pp. 2–3). Nearly half of the piracy in the world occurs in the Malacca Strait, where more than 55,000 ships transit annually (Das 20006, p. 40). The fact that the AsiaPacific region remains home to the most rapidly developing economic and military powers makes these flashpoints really a matter of great insecurity. To understand the environmental consequences of major and minor oil spills, it should be noted that immediately after the spill, oil spreads on the sea surface due to the prevailing wind, but approximately 15 degrees to the right of the wind direction. Also, given its lower surface tension, oil flows at a far higher speed than the seawater under it. But at the same time, in warm sea areas, lighter fractions of oil with carbon numbers less than 12, comprising around 40 per cent of a spill, is expected to evaporate within twenty-four hours of a spill. Photo-oxidation by solar UV radiation will account for another maximum of 1 per cent per day of the total oil spill. Heavier fractions of oil are broken down by oil-degrading bacteria, occurring naturally in seawater. A part of the oil will also be oxidized by the dissolved oxygen. In ideal conditions of warm waters, nearly half the oil spill will disappear in the first twenty-four hours. All these processes, of course, slow down with the passage of time. Also, after twenty-four hours, an emulsion called the water-in-oil mousse is formed. Depending

02 Fisheries Exploitation

29

10/28/09, 12:39 PM

30

Swaran Singh

on prevailing wind and wave conditions, the thicker fractions will form layers of tar balls. Most of these will sink and get deposited on the seabed, but this process causes irreparable damage to traffic and sealife, and ocean resources of all kinds. Besides, it can clearly impact on lifestyles — especially tourism — in coastal areas.

URBANIZATION AND INDUSTRIALIZATION IN COASTAL ZONES Waters and marine life across the Indian Ocean are not only threatened by pollution from the transport of oil spills through the sea lanes or on the high seas. The ever-increasing urbanization and industrialization and general human intervention in coastal regions has generally led to environmental changes and the impact has been particularly high on coastal communities. For instance, the developmental activities taking place in coastal zones are causing both short-term and long-term physical, chemical, and biological changes which will cause and may have already caused damage to flora and fauna, as well as public health in traditional settlements. Indiscriminate industrialization in particular, in the absence of requisite pollution control systems, often results in coastal waters becoming highly polluted. Overexploitation of groundwater in the coastal areas results in the growing intrusion of salt water from the sea to inland areas, and fresh water aquifers previously used for drinking, and agriculture and horticulture are greatly damaged (Kumar 2004, p. 115). According to United Nations studies, rising urbanization and industrialization and the resultant coastal stress and pollution have already become serious environmental dilemmas around the Indian Ocean littoral (U.N. Habitat 2007, p. 169). Direct dumping of waste materials into the seas, discharge through marine outfalls, large volumes of untreated or semi-treated wastes generated in various land-based sources/activities, ultimately find their way into the seas. Apart from this, coastal zones are also subject to intensive fishing, navigational activities, recreation, port industrial discharge, and harbours, which are all causative factors of water quality degradation to varying degrees (Kumar 2004, p. 116). Conversely, coastal urban centres also remain vulnerable to rising ocean temperatures. According to a study by India’s Mumbai-based Indira Gandhi Institute of Development Research, a rise in temperature of 2 degrees could result in losses of over $48 billion to the city of Mumbai (Sethi 2007,

02 Fisheries Exploitation

30

10/28/09, 12:39 PM

31

Environmental Security and Biodiversity

p. 13). Such activities have already damaged coastal ecosystems across the Indian Ocean and made fisheries an unsustainable proposition across several coastal regions.

ECOSYSTEMS AND FISHERIES Fishing remains the oldest and most sustained human interface with the oceans and constitutes the core of coastal ecosystems and lifestyles. Briefly, our coastal ecosystems include water-edge plant growth, seaweed, warmer, nutrient-rich tidal waters, and soft clay mud sediments pulsating with benthic life that gives food to fish, purifies seawater by renewing its oxygen content, and contributes to biological productivity. Fish life thrives in warm, shallow waters. Fish eggs are laid in the soft mud and the coastal edges and grow there into larvae. Some larvae also float into this zone from deeper waters from the deep sea and are attracted to the shallow waters and also breed in this vast ecosystem for quick growth until they attain a particular size before returning to the deeper oceans. Bigger fish from the deep sea are attracted to the shallow waters on account of the abundant reproduction of small fish which they feed on. Any disturbance of this delicate ecological balance ultimately results in the depletion of fish stocks, drastic declines in fish catch, and imbalances in the ecosystem, thereby threatening the coastal human environment (Channa 1995, p. 167). Over 800 million people around the Indian Ocean rim rely on fisheries as their main source of protein. The impact of environmental degradation on global fish stocks is likely to be large, but is hard to predict. The degradation of Indian Ocean coastal zones, for instance, can be most vividly gauged from the fast-changing lifestyle of their coastal communities. Traditional marine fishing communities normally live on the geographic, economic, and social fringes of society, with fishing being normally their subsistence occupation. However, they have always existed as an “ecosociety” fully attuned to and integrated with the coastal ecosystems. Traditional methods of fishing by rampons, shore seines, gillnets, drift nets, and hooks and lines are all slow, gentle, and of low intensity. These methods allow fish to get entangled rather than cause disturbance to their habitat which modern methods of chasing fish do. The powerful private fishing companies — the “sea lords” –– are driven by market sense and profit maximization, but have little respect for

02 Fisheries Exploitation

31

10/28/09, 12:39 PM

32

Swaran Singh

these time-tested ecological processes. Neglect of the ecological parameters may be demonstrated by considering two important methods of modern fishing — trawling and purse-seining. Trawling is carried out by dragging heavy weights and beams on the seabed in order to squeeze out prawns. This has a “ploughing” effect on the seabed and destroys the fish eggs and larvae that breed in its soft sediments (Channa 1995, p. 170). The millions of smaller fish, for which shallow waters are a “nursery”, also get entangled in the trawl and are killed by the disturbance and abrasions. Repeated trawling of the same area finally kills even the benthic life, sea weeds, and other sea vegetation on the seabed, which have the function of purifying seawater by renewing its oxygen content, besides being feed for the fish (Channa 1995, p. 168). The turbidity of water caused by the “ploughing” effect, together with the noise, drives away and deflects new fish shoals from deeper waters from entering coastal zones for feeding and spawning, and thus prevent the replenishment of the concerned fish populations (Channa 1995, p. 171). This has disastrous consequences for the food chain across oceans. And, as victims of modernization, traditional fishing communities have been protesting and some of these have become politically active, causing tensions and violent conflicts (Channa 1995, p. 176). All this, though, only symbolizes a grave human tragedy, with little initiative whatsoever being taken to restore the ecological balance and resettle these communities in their original homes and occupations.

ENVIRONMENTAL SECURITY IN THE INDIAN OCEAN RIM To focus specifically on environmental threats to marine biodiversity and fisheries in the Indian Ocean rim, the primary challenges, of course, come from increased, unsustainable, and destructive fishing as a result of rapid population growth in the littoral regions. This has also triggered the rapid expansion and mechanization of fishing industries, with bigger and modernized practices and platforms being used. Experts stand united on the argument that several critical threats specific to the security of the Indian Ocean marine waters come from increasing pollution, excessive shipping, dumping, seabed activities, as well as land-based activities such as construction and so on (Doyle and Risely 2008). These activities have not only undermined the traditional livelihood of coastal communities, but also damaged and fouled corals and beaches, and this has implications for our present as well as future.

02 Fisheries Exploitation

32

10/28/09, 12:39 PM

33

Environmental Security and Biodiversity

Several ethnic conflicts in the Indian Ocean littoral have direct linkages to these rapid changes and need to be understood from an environmental security perspective. The coastal management systems that do not effectively support conservation or the protection of biodiversity aggravate the damage in several indirect ways. To this can be added sedimentation, coastal infrastructure development projects, and other unsustainable management practices that together lead to losses in marine biodiversity, decreased fisheries, and changes in ecosystem diversity and community structures, resulting in fast-changing value systems, social unrest, and turmoil amongst coastal communities. Some of the specific environmental security challenges to Indian Ocean rim may include the following four broad sets of consequences. Firstly, while local fishing by coastal communities of fishermen often constitutes a very small percentage of total fishing, it remains poorly managed and distributed. One cause has been the extensive use of dynamite, especially on the East African coast, that not only damages fish stocks, but has also damaged large tracks of fish habitat and coral reefs. On the other hand, fishing on the high seas has often been excessive, leading to wastage and callousness. This has left many major fish stocks depleted. Even as fishing technology becomes more advanced, the result has merely led to bigger catches of fish, while hundreds of decimated species left behind in their wake are finding it difficult to propogate their species to healthy and sustainable levels. Secondly, given that the Indian Ocean Region is host to major sea lanes between major suppliers and consumers of oil, these coastal zones remain vulnerable to the impact of excessive traffic, ship ballast, and oil spills, and also to threats of maritime terrorism and piracy. The end of the Cold War may have resulted in less focus being given naval bases, but the booming trade in the Indian Ocean rim has resulted in unprecedented human interference with these water bodies. Oil spills could be caused by cyclones, impacts against reefs, or accidents between vessels. Yet, up to now, countries of the region do not have the capability or ability to deal with any potential disaster relating to oil spills. Thirdly, both coastal and high seas pollution have lately emerged as major sources of climate change as well as the destruction of habitat of species within the oceans. This pollution can destroy and seep into every aspect of the ocean life cycle, killing and displacing thousands of species at the same time. The displacement and destruction of marine mammal and fish habitats alike can cause such stress to species that they simply cannot ensure the survival or propagation of their species any longer.

02 Fisheries Exploitation

33

10/28/09, 12:39 PM

34

Swaran Singh

Being surrounded by the least developed and developing countries, the Indian Ocean rim also represents a region where norms about pollution are least respected. This, in turn, also has a negative impact on littoral economies and lifestyles. And finally, external actors also remain major culprits. All the unregulated and illegal fishing activities of foreign fishing firms in the region are a threat to the balanced survival of Ocean ecology. Given their short-term outlook driven by sheer profit motives, the firms have refused to acknowledge ecological limits and the result of this attitude has been devastating. Taking advantage of the absence of surveillance, monitoring, control, and patrolling securities, these foreign ships use prohibited fishing methods such as drift nets and dynamite, break coral reefs, and destroy coral habitats where lobsters and other coral fish live. On the positive side, monsoons — low pressure areas attracting a huge flow of moist oceanic wind which remain another unique feature of the Indian Ocean and the lifeline for many of the littoral states of the north Indian Ocean Region — are not really expected to suffer any major impact from the rise of global temperatures (Raj 2007, p. 11). Nevertheless, the polar caps are expected to shrink and glaciers in the Himalayas that feed many important glacier-fed rivers like such as Ganges and the Brahmaputra will be flooding Indian plains, while other rain-fed rivers will begin to retreat further, thus disrupting water flows, causing droughts, floods, and cyclones. And then there are also some other inherent advantages of the Indian Ocean. The Arabian Sea and Bay of Bengal, for instance, hold only 3 per cent of the world’s oceans, but receive 9 per cent of the global river run-off, which is three times greater per unit area than the rest of the oceans (Qasim 1998, p. 4). For the Indian Ocean, this will result in coastal areas being enriched by river discharge and run-off, while deeper layers become enriched by a process called upwelling, which is when water from deeper layers, rich in nutrients and low in oxygen content, is pushed to the surface. High concentrations of inorganic phosphate-phosphorus and nitratenitrogen are found in the northern Arabian Sea extending along the Saudi Arabian and Somalian coasts, and the coasts of Bangladesh, Myanmar, and Indonesia, while the values are low in central Indian Ocean (Qasim 1998, p. 5). As regards its bio-resources, the total zooplankton biomass of the Indian Ocean has been often categorized as primary, secondary, and tertiary (fish stocks), and the fishing potential of the Indian Ocean is

02 Fisheries Exploitation

34

10/28/09, 12:39 PM

35

Environmental Security and Biodiversity

estimated to be about 17.3 million tons a year, calculated at the level where fishing can be exploited without depleting resources, which is pegged at about 25 per cent of the total stocks (Qasim 1998, p. 6). All this portends a window of opportunity for Indian Ocean littoral states to try and rectify malpractices, and evolve norms and regulations to ensure efficiency, conservation, and sustainability as integral elements of their interface with open oceans.

CONCLUSION No doubt the primary focus of the Cold War years was on ensuring the physical security of the state, where access to sea lanes and resources of the oceans were the top priorities for which expansive and sophisticated naval forces were developed and deployed by great powers. These are not necessarily the most appropriate way of dealing with the new challenges of the twenty-first century that demand a wider vision about security, including environmental security, especially with regard to the oceans. Over the years, however, while civilian agencies continue to bear most of the responsibility for the protection of the marine environment, biodiversity and fisheries, the navies of littoral states and other major stakeholders have also added their contributions. In January 1998, for instance, the Advisory Committee on the Protection of the Seas, meeting in Stockholm, sought to “encourage states to use the capacity of their military and intelligence organizations towards environmental security in partnership with their civilian counterparts” (Till 2004, p. 332). In the new context, it makes sense for naval forces to become involved for less prosaic reasons, not least because there is also a security dimension to environmental stress. There are already many signs that interstate relations in Asia are beginning to move in that direction. Security tensions have eased considerably amongst several states of the Indian Ocean and there are numerous signs of growing interest in cooperation. This has advanced most rapidly in the economic realm, but is now also emerging in the environmental realm. Pollution control technology transfers are increasing, information flows are improving, and environment networks are forming (Schreurs 2000, p. 135). This cooperation, moreover, could foster greater mutual dependence and, thereby, reduce the potential for conflict as well. Regional environmental cooperation, therefore, should be encouraged both for its positive environmental benefits and its

02 Fisheries Exploitation

35

10/28/09, 12:39 PM

36

Swaran Singh

potential to enhance dialogue among states of the Indian Ocean rim. As a result, new environmental management capacities are being built not only at the domestic level, but are also gradually expanding at the regional level.

References Adam, David. “Oceans Storing Climate Change Dangers”. The Hindu (New Delhi), 30 November 2006, p. 14. Adam, David and Ian Sample. “Protect Forests to Soar Up Emissions”. The Hindu (New Delhi), 13 November 2006, p. 15. Annan, Kofi [Secretary General of the United Nations]. “As the Climate Changes, Can We?”. The Hindu (New Delhi), 9 November 2006, p. 13. Barnett, Jon. The Meaning of Environmental Security. London: Zed Books, 2001. Bateman, Sam. “The Emergent Maritime Future of the Asia-Pacific Region”. In The Evolving Maritime Balance of Power in the Asia-Pacific: Maritime Doctrines and Nuclear Weapons at Sea, edited by Lawrence Prabhakar, Joshua H. Ho and Sam Bateman. Singapore: Institute of Defence and Strategic Studies, 2006. Chahan, Chetan. “Hungary Tide May Swallow Sundarbans by 2100”. Hindustan Times (New Delhi), 3 February 2007, p. 10. Channa, Basavaiah, M. “Fishing along the Indian Coast: A Fishy Affair?”. In Indian Ocean: Issues for Peace, edited by Rama S. Melkote. New Delhi: Manohar, 1995. Dalby, Simon. Environmental Security. Minnesota: University of Minnesota Press, 2002. Das, P.S. “Indian Perspectives on Ocean Security”. Journal of Indian Ocean Studies (New Delhi) 14, no. 1 (April 2006): 40. Deudney, Daniel. “The Case Against Linking Environmental Degradation and National Security”. Millennium (London) 19, no. 3 (1990): 461–76. Doyle, Timothy and Melissa Risely. Crucible for Survival: Environmental Security and Justice in the Indian Ocean Region, edited by Timothy Doyle and Melissa Risely. Chapel Hill: Rutgers University Press, 2008. Elliott, Larry. “Davos Report: Threats to World Economy Intensify”. The Hindu (New Delhi), 12 January 2007, p. 11. Gupta, R. Sen. “Case Studies of Some Major Oil Spills Around India”. In Indian Ocean in the 21st Century: Linkages and Networking, edited by S. Z. Qasim. New Delhi: South Asian Publishers, 2000. Kumar, Ranjit. “Protection of Coastal Environment — Legal Provisions”. Journal of Indian Ocean Studies (New Delhi) 12, no. 1 (April 2004): 115. Lee, Hannah, Thomas E. Jovejoy and Stephen H. Schneider. “Introduction”. In Climate Change and Biodiversity, edited by Thomas E. Lovejoy and Lee Hannah. New Delhi: TERI Press, 2005.

02 Fisheries Exploitation

36

10/28/09, 12:39 PM

37

Environmental Security and Biodiversity

Lutz, Ernst and Mohan Munasinghe. “Environmental Accounting and Valuation in the Marine Sector”. In Ocean Governance: Sustainable Development of Seas, edited by Peter Bautista Payoyo. New York: United Nations University Press, 1994. Mabey, Nick. Delivering Climate Security: International Security Responses to a Climate Changed World. London: RUSI Whitehall Paper 69, 1995. McGourty, Christine. “Biodiversity Plan Gets Backing from NSF”. Nature, 340, 24 (August 1989), p. 585. Monbiot, George. “Threat Is from Those Who Accept Climate Change”. The Hindu (New Delhi), 22 September 2006, p. 11. Myers, Norman. Ultimate Security: The Environmental Basis of Political Stability. New York: W.W. Norton, 1993. Qasim, S. Z. Glimpses of Indian Ocean. Hyderabad: Universities Press, 1998. Radyuhin, Vladimir. “Challenging the Basis of Kyoto Protocol”. The Hindu (New Delhi), 10 July 2008, p. 10. Raj, Gopal N. “Global Warming and the Indian Monsoon”. The Hindu (New Delhi), 10 January 2007, p. 11. Rajan, Mukund Govind. Global Environmental Politics: India and the North-South Politics of Global Environmental Issues. Delhi: Oxford University Press, 1997. Rana, S.V.S. Environmental Pollution: Health and Toxicology. Oxford: Alpha Science International, 2005. Randerson, James. “Climate Change Poses Profound Threat”. The Hindu (New Delhi), 27 October 2006, p. 11. Roza, Greg. The Indian Ocean Tsunami. New York: The Rosen Publishing Group, 2007. Sadiq, Muhammad and John C. McCain. The Gulf War Aftermath: An Environmental Tragedy. New York: Springer, 1993. Schreurs, Miranda. A. “Environmental Security and Cooperation in Asia”. In Comprehensive Security in Asia: Views from Asia and the West on a Changing Security Environment, edited by Kurt W. Radtke and Raymond Reddema. Boston: Brill, 2000. Sethi, Nitin. “Future is Heating Up”. The Times of India (New Delhi), 3 February 2007, p. 13. Singh, K. R. Maritime Security for India: New Challenges and Responses. New Delhi: New Century Publications, 2008. The Hindu (New Delhi) editorial. “Economics of Climate Change”. 13 November 2006, p. 10. The Ocean: Our Future — The Report of the Independent World Commission on the Oceans (Chaired by Mario Soares). Cambridge: Cambridge University Press, 1998. Tibballs, Geoff. Tsunami: The World’s Most Terrifying Natural Disaster. London: Carlton Books, 2005.

02 Fisheries Exploitation

37

10/28/09, 12:39 PM

38

Swaran Singh

Till, Geoffrey. Seapower: A Guide for the Twenty-First Century. London: Routledge, 2004. Toynbee, Polly. “Climate-change Deniers Have Now Gone Nuclear”. The Hindu (New Delhi), 19 July 2006, p. 11. United Nations Environment Programme. Annual Report of the Executive Director, 1987. Nairobi: UNEP, 1988. ———. Annual Report of the Executive Director, 1998. Nairobi: UNEP, 1989. ———. Convention on Biological Diversity. Nairobi: UNEP, 1992. United Nations General Assembly. Conservation of Biological Diversity: Background and Issues, A/CONF.151/PC/66, 25 July 1991. U.N.-Habitat. Enhancing Urban Safety and Security: Global Report on Human Settlements 2007. London: Earthscan, 2007. Walker, Jane. Oil Spills. Mankato: Stargazer Books, 2004. Young, Adam J. Contemporary Maritime Piracy in Southeast Asia: History, Causes and Remedies. Singapore: Institute of Southeast Asian Studies, 2007.

02 Fisheries Exploitation

38

10/28/09, 12:39 PM

39

Overview of Institutional Arrangements

3 OVERVIEW OF INSTITUTIONAL ARRANGEMENTS FOR FISHERIES AND MARINE BIODIVERSITY IN THE INDIAN OCEAN William R. Edeson

This chapter will focus on the institutional aspects of fisheries and biodiversity in the Indian Ocean. It is intended to provide a background to the more specialist discussions that follow in later chapters. It is proposed to deal, first, though only very briefly, with the international legal background to the modern fisheries regime, and its slow recognition of the importance of biodiversity. Unfortunately, many of the provisions in the modern law of the sea that concern fisheries and marine biodiversity are still being implemented only in a piecemeal way.

THE MODERN LEGAL BACKGROUND The 1982 U.N. Convention on the Law of the Sea (hereafter referred to as the 1982 U.N. Convention) as we know was very short on high seas

03 Fisheries Exploitation

39

10/28/09, 12:39 PM

40

William R. Edeson

fisheries issues and biodiversity. The high seas fisheries provisions were so sparse that they had to be supplemented by another Agreement thirteen years later. The closest that the 1982 U.N. Convention came to addressing biodiversity was in the preamble where it called for the “conservation” of marine living resources, as well as the recognition that “the problems of ocean space are interrelated and need to be considered as a whole”. In the substantive articles, Article 61, when dealing with conservation, merely said: …the coastal State shall take into consideration the effects on species associated with or dependent on harvested species with a view to restoring populations of such species above levels at which their reproduction may become seriously threatened. (Art 61.4. See to similar effect Art 119.1 on the high seas.)

This was backed up by a general obligation to protect and preserve the marine environment set out in Part XII of the 1982 U.N. Convention. However, these provisions did not add up to a substantial contribution or commitment regarding biodiversity. The principal contribution of the 1982 U.N. Convention was to introduce the Exclusive Economic Zone (EEZ) regime that to a large extent settled the controversy over the legal character of the EEZ. It was also successful in introducing a number of provisions dealing with specific fisheries and stocks: highly migratory species, anadromous stocks and catadromous species, sedentary species and, as we know, it had some rudimentary provisions dealing with shared and straddling stocks. Some of its provisions, despite being the subject of intense negotiations at U.N. Conference on the Law of the Sea (UNCLOS III), are dead letters — thus, the provisions on landlocked and geographically disadvantaged states (Articles 69 and 70). While these provisions might have had significance for Indian Ocean coastal states, they are now largely forgotten. Perhaps this is just as well, as the obligation to grant access falls on the states in the same “region” or “sub region”. Working out what would be a region for this purpose would be a nightmare. Would Afghanistan qualify for the southern Indian Ocean? Would Malawi qualify for the Bay of Bengal? (Such questions would have kept political geographers, and perhaps others, happy for quite a while.) There has been only one clear reference to the rights of landlocked states in a fisheries agreement: the Regional Convention On Fisheries

03 Fisheries Exploitation

40

10/28/09, 12:39 PM

41

Overview of Institutional Arrangements

Cooperation Among African States Bordering The Atlantic Ocean, 1991. The emphasis, in fact, has shifted to WTO (World Trade Organization) issues of access and customs duties by landlocked states with neighbouring states. Before leaving the 1982 U.N. Convention, it is useful to ask how effective it has been with regard to the EEZ regime. One test of a regime that is quasi-constitutional in its scope and impact is how it is able to absorb change or adapt to it. As a fundamental shift in the regime of the oceans with all the imperfections and new emphasis that can be detected, the EEZ regime has survived remarkably well so far. This is if it is viewed as similar to a constitutional text intended to survive for decades, or even centuries, while revealing its preoccupations with the seventies (and all constitutions can be expected to reveal the preoccupations of the era of their negotiation), it can be regarded as a success. On the other hand, a scientist with a focus on whether the regime has delivered effective conservation and long-term sustainable use of marine living resources and whether it has promoted biodiversity, may, of course, well see the regime very differently.

POST UNCLOS III (1974–82) The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereafter referred to as the 1995 U.N. Fish Stocks Agreement) improved things by bringing in a precautionary approach in Article 6 and a specific reference to “protect biodiversity and the marine environment” in Article 5. Also, the Code of Conduct for Responsible Fisheries made several references to protecting marine biodiversity, but it was not a prime focus of the Code. Furthermore, it is a voluntary instrument. There would, of course, be no reason against formulating an instrument within the framework of the Code that focused on fisheries and biodiversity issues, in much the same way that the Reykjavik Declaration on Fisheries in the Marine Ecosystem did. The Convention on Biological Diversity only partly helped the situation as it is required to defer to the Law of the Sea. Article 22.2 states: “Contracting parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations on States under the law of the sea.”

03 Fisheries Exploitation

41

10/28/09, 12:39 PM

42

William R. Edeson

Of course, this does not exclude action; however, it requires that the straitjacket of the zonal approach of the 1982 U.N. Convention is not interfered with. Hardly surprisingly, the principal path of action with respect to marine biodiversity has been via the Jakarta Mandate on Marine and Coastal Biodiversity Resources, and the actions taken thereunder.

THE LARGE MARINE ECOSYSTEM (LME) APPROACH One approach which has tried to break away from this has been the LME approach. This approach is essentially geographical or areal in character. It thus involves the differentiation and selection of particular areas of the world that are to be treated as a large marine ecosystem across which large-scale measures can be applied to protect the ecosystem. As the National Oceanic and Atmospheric Administration (NOAA) put it: “These are areas characterised by distinct bathymetry, hydrology, productivity, and trophic interactions.” As an approach, it has much to recommend it. It not only supports a more holistic perspective, but also supports other measures beneficial to the promotion of marine biodiversity, and the protection and preservation of the marine environment. In the Indian Ocean, we have the following mentioned as possible LMEs: Agulhas current, Arabian Sea, Bay of Bengal, North-west Australian Shelf, Red Sea, Somalian Coastal Current, and West Central Australian Shelf. However, the major weakness of the Large Marine Ecosystem approach is that it has to operate across the zones established by the 1982 U.N. Convention (despite the recognition in the preamble that “the problems of ocean space are closely interrelated and need to be considered as a whole”). Thus, it has to deal with the regime of internal waters and the territorial sea over which States have sovereignty, the EEZ over which states have certain economic rights (described as sovereign rights), and limited controls with respect to protection, and the fact that while on high seas, the freedom of the high seas (what is left of it) still applies.

OVERALL ASSESSMENT OF THE LEGISLATIVE REGIME IN BOBLME COUNTRIES In a review of the Bay of Bengal as a Large Marine Ecosystem (BOBLME), the following conclusions were drawn:

03 Fisheries Exploitation

42

10/28/09, 12:39 PM

43

Overview of Institutional Arrangements The pattern throughout the countries of the BOBLME region as regards legislation is remarkably similar. All countries have enacted basic EEZ type laws to give effect to the EEZ concept, broadly along the lines of the 1982 UN Convention. However, for some, these laws are merely proclamatory of the right of the State in question to the resources of the Zone. In such States, it is necessary to go beyond these basic laws and look at the specific laws governing fisheries, or marine pollution. For others, however, these laws provide a rudimentary rule or regulation making power which might be the only basis on which they can take action over certain activities, especially non fisheries activities. In some countries, there exist general environmental laws, however, the scope of some of these laws is uncertain, and it is not always clear if they extend to the EEZ. On the other hand, such laws do provide a basis for the coordination of actions by relevant agencies to address environmental matters. In addition, while most countries will have some legislation that is capable of addressing the problem of land based pollution, no country appears to have a systematic legal regime for controlling such a source of pollution. On the other hand, the environmental laws would provide the best means available to bring about controls in this area. More information on the existing laws applicable to land-based pollution is needed. Critical habitats were at least capable of some, if not complete, protection under the laws of most countries, even if not under a law that referred to such an entity. For many, the basic fisheries law or a national parks or environmental law could provide the basis for exercising necessary control. However, the evidence of laws dealing directly with such matters is limited and patchwork at best. In this regard, BOBLME countries do not differ significantly from other countries and regions.

It is very likely that the information revealed above with respect to the Bay of Bengal will be replicated for much of the Indian Ocean as a whole.

THE ROLE OF SOFT LAW INSTRUMENTS No discussion of the modern regime would be complete without a reference to the role so-called “soft” law instruments have played in the modern Law of the Sea, namely, non-binding voluntary instruments. There are numerous soft law instruments which promote ecosystem approaches,

03 Fisheries Exploitation

43

10/28/09, 12:39 PM

44

William R. Edeson

either generally or specifically, such as UNCED (U.N. Conference on Environment and Development), the Code of Conduct for Responsible Fisheries, IPOA-IUU (International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing), the Washington Declaration on Protection of the Marine Environment from Land-based Activities, the Reykjavik Declaration on the Ecosystem, and the World Summit on Sustainable Development (WSSD), to name a few. However, it is very important to get the balance right when assessing soft instruments and the binding (hard) instruments, such as treaties. These soft law instruments are playing an important role in filling the gaps left by the 1982 U.N. Convention, and the 1995 U.N. Fish Stocks Agreement, and by promoting a more holistic approach to marine affairs. To discuss this without reference to the important progress made in these soft law instruments can be very misleading. However, to go to the next step and treat them as if they are quasi-binding in character can also lead to a distortion of judgement — and disappointment.

PATCHWORK OF INSTITUTIONS IN INDIAN OCEAN REGION While the regime of institutions in the Indian Ocean is very ad hoc, it is certainly no different to other ocean regions in this regard. There is no one overarching body that can address cross-sectoral issues (such as LMEs); instead there are a number of institutions. UNEP (United Nations Environmental Programme) and IOMAC (Indian Ocean Marine Affairs Cooperation) would probably come closest in this regard. The problems identified in the LME are largely true for the Indian Ocean as a whole.

IOTC The most important of these Indian Ocean institutions from a fisheries point of view is the Indian Ocean Tuna Commission (IOTC) that is responsible for the valuable tuna resource. It currently has twenty-four members. However, it is within the FAO framework and this is causing problems for Taiwan to join. Apart from the problem of Taiwan, it does have good geographical coverage of its membership. It has the authority to adopt binding conservation and management measures under Article IX.1 of the IOTC Agreement. However, while it has adopted a number of binding measures, it has not so far adopted any binding conservation measures with respect to the allocation of catch.

03 Fisheries Exploitation

44

10/28/09, 12:39 PM

45

Overview of Institutional Arrangements

Taiwan is, however, the problem for IOTC as it accounts for a significant amount of the tuna catch in the Indian Ocean. Very simply put, and at the risk of oversimplifying a complex problem, China will not allow Taiwan to be a member of any United Nations body except under the name “Taiwan Province of China”, and then probably subject to a number of other conditions concerning its legal status. Taiwan is not prepared to join in such circumstances. Furthermore, it would want to be known at least as Taiwan, Chinese Taipei, Fishing Entity of Taiwan, or something similar. At present, Taiwan attends IOTC meetings only as “invited experts”. It sits with observers and has limited speaking rights. This is the furthest it has achieved in the U.N. system. Amendments were proposed to take IOTC outside the FAO framework, and, therefore, outside the U.N. system. The hope was that once that has been done, Taiwan can participate in the work of the IOTC in one way or another, drawing on the examples from other fisheries bodies outside the U.N. system such as ICCAT (International Commission for the Conservation of Atlantic Tunas), CCSBT (Commission for the Conservation of Southern Bluefin Tuna), WCPFC (Western and Central Pacific Fisheries Commission), IATTC (Inter-American Tropical Tuna Commission), SIOFA (Southern Indian Ocean Fisheries Agreement), and SEAFO (South-East Atlantic Fisheries Organisation). There are also the precedents with WTO (World Trade Organisation) and APEC (AsiaPacific Economic Cooperation). There is also a wide range of nomenclature to choose from, as these precedents amply reveal, though nomenclature is itself an important element of the problem! The approach adopted, however, was a very cautious one. The amendments being proposed did not refer to the problem of Taiwan; instead they used the following language in the report of the third special session: The Commission explored ways to achieve a more effective and efficient organization, notably through a change in the relationship between the IOTC and the FAO. To this end, the Members present at the 3rd Special Session reached consensus on the text of the amendments to the IOTC Agreement and the text of the Rules of Procedure. The Members also agreed to a list of actions to be undertaken inter-sessionally. To maintain a strong relationship between the FAO and the IOTC, the Members concurred on the need to establish a Cooperation Agreement.

These amendments were due to be formally adopted at the session of the IOTC which was held in Mauritius in May 2007. However, as the Director

03 Fisheries Exploitation

45

10/28/09, 12:39 PM

46

William R. Edeson

General had refused to circulate the amendments to the members as he was required to do as the depositary, it was not thought possible by some of the Members for the meeting to consider the amendments at that session. In addition, the Legal Office of FAO had advised that it considered it wrong for the IOTC to deal with the subject of its leaving the FAO framework through a process of amendment. Rather, the correct process, it said, was for the agreement to be terminated by members withdrawing from it and then creating a new Commission with a new treaty. The matter is being discussed further in a number of different fora. However, if the view put forward by the FAO Legal Office prevails, it will be many years before the IOTC will be able to place itself outside the FAO framework and function effectively.

SIOFA The South Indian Ocean Fisheries Agreement (SIOFA) is a new body that was negotiated with much difficulty. It was originally to have been within the FAO framework as a body established by treaty under Article XIV of the FAO Constitution, but it has, in fact, been set up outside the FAO. It is too early to judge how it will work. It covers all fish (including sedentary species) other than highly migratory species (tuna), which is covered by IOTC, and excludes areas under national jurisdiction. It is mandated to apply inter alia the precautionary approach and to practise the protection of marine biodiversity. However, SIOFA has yet to take any action. The agreement has not yet come into force. One of the problems is that the principal resource of interest to its members — the orange roughy — is believed to be at risk of overexploitation.

SWIOFC SIOFA is also linked, at least informally, to the South West Indian Ocean Fisheries Commission (SWIOFC), an FAO body established under Article VI of the FAO Constitution, and the intention is that they will meet back to back. However a body such as SWIOFC can only make recommendations and has no management powers. It is, therefore, likely to be a vehicle for cooperation for the coastal states of the region. I shall return later to the important distinction between those bodies established by treaty under Article XIV of the FAO Constitution and those

03 Fisheries Exploitation

46

10/28/09, 12:39 PM

47

Overview of Institutional Arrangements

established under Article VI, as the difference is important and often misunderstood.

WIOTO The Western Indian Ocean Tuna Organization (WIOTO) was intended to be a body comprising coastal state members of West Indian Ocean. While it come into force in 1992, it is not operative, however, due to financial reasons. Furthermore, it has no regulatory powers under its agreement. It was intended to be a body performing a similar role to that of FFA (Forum Fisheries Agency) in the Western Central Pacific, which coordinated the small island states of the Pacific.

RECOFI The Regional Commission for Fisheries (RECOFI) is an Article XIV body of FAO which applies largely to the Gulf region which came into force in 2001. Its functions are set out in Article III. It covers “the conservation, rational management, and best utilisation of all living marine resources, as well as the sustainable development of aquaculture”. It can make “recommendations” on management measures, which, if adopted by a two-third majority shall be binding unless a state objects to it in a particular period of time. Not for the first time in a regional fisheries body is the term “recommendation” used misleadingly to refer to a binding decision, the International Commission for the Conservation of Atlantic Tunas (ICCAT) being another well-known example. There is no specific reference to biodiversity in its mandate though there is one to the precautionary approach.

CCSBT The Commission for the Conservation of Southern Bluefin Tuna (CCSBT) covers the wide range of migration of the southern bluefin tuna, the migratory path of which is partly in the Indian Ocean, and the Southern Ocean, though they breed off Java. The Commission is small, its original members being Australia, Japan, and New Zealand. Korea has since joined, as has the Fishing Entity of Taiwan, though the latter by means of an imaginative solution involving the establishment of an extended commission. In addition, the Commission offers a cooperating non-

03 Fisheries Exploitation

47

10/28/09, 12:39 PM

48

William R. Edeson

membership status, which it sees as a transition to full membership. Currently, those with this status include the Philippines, the Republic of South Africa, and the European Community. Indonesia has recently applied for such status.

IOMAC The Indian Ocean Marine Affairs Cooperation (IOMAC) is a body based in Sri Lanka, which was established under the initiative of Dr Hiran Jayewardene. It has been operating since 1985, and is well placed to tackle marine biodiversity issues on a cross sectoral basis.

Regional Seas Programme This well-known global programme includes both treaties and action plans. Although there is no comprehensive treaty or plan covering the Indian Ocean, there are a number of its elements that impinge on the Indian Ocean. The most important treaty regime of this programme is the Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern African region, usually known as the Nairobi Convention. The geographical coverage of this treaty does not include internal waters. Basically, it applies to the marine and coastal environment of the Indian Ocean situated within the East African region and falling within the jurisdiction of the contracting parties to the Convention. It is very largely a framework agreement which provides the basis for future cooperation between the contracting parties. It does, however, have some general obligations. It also has some specific clauses — Articles 5 to 12 — which impose certain obligations, but these are not drafted in very specific terms. They are in general to cooperate either individually or jointly to achieve certain objectives, which range from the general (to prevent, reduce, and combat pollution of the Convention Area — Article 4) to more specific objectives, (prevent, reduce, and combat pollution from ships — Article 5; pollution caused by dumping — Article 6; pollution from land-based sources — Article 7; pollution from seabed activities — Article 8; airborne pollution — Article 9; provisions for specially protected areas — Article 10; cooperation in combating pollution in cases of

03 Fisheries Exploitation

48

10/28/09, 12:39 PM

49

Overview of Institutional Arrangements

emergency — Article 11; environmental damage from engineering activities — Article 12). In sum, it is really a Convention setting up a framework for future cooperation and the development of new protocols. In addition to this treaty, there are a number of action plans which impinge on the Indian Ocean. These are: the Red Sea and Gulf (which includes the Jeddah Convention and other programmes), the ROPME Area, which includes the Kuwait Convention, and the South Asian seas.

THE DISTINCTION BETWEEN ARTICLE VI AND ARTICLE XIV BODIES OF FAO It is important before leaving the subject of existing institutions to draw clearly the distinction between bodies established by FAO under Article VI of the FAO Constitution, and those established by treaty under Article XIV. Article VI bodies are advisory bodies which have been established directly by the FAO Conference or Council, which report to either the FAO Conference or Council. They are empowered to make only nonbinding recommendations, or, to use the language of Article 1 itself, to “advise on the formulation and implementation of policy and to coordinate the implementation of policy”. In the marine fisheries area, such bodies are: SWIOFC, WECAFC (Western Central Atlantic Fishery Commission), and CECAF (Committee for the Eastern Central Atlantic Fisheries). Article XIV bodies are those which have been established by treaty under Article XIV of the FAO Constitution. They are normal international treaties, and registered with the United Nations once they have come into force. Such bodies are the creatures of the treaties which establish them, though all bodies established by this process have a clause in the treaty itself which states that they are within the FAO framework. Because they are treaty regimes (unlike Article VI bodies), the parties can commit themselves to agreeing to binding conservation and management measures in certain circumstances, for example, IOTC, GFCM, and RECOFI. Some bodies established by treaty made under Article XIV have, in fact, very wide powers. Of the Article XIV bodies, IOTC has often been considered the most successful. RECOFI is still at an early stage and its long-term success is not easily judged. APFIC (Asia Pacific Fishery Commission) has achieved

03 Fisheries Exploitation

49

10/28/09, 12:39 PM

50

William R. Edeson

very little since its establishment in 1948. GFCM likewise has been very slow to adopt significant conservation and management measures, although it has become more active in recent years. While the principal reason for placing IOTC outside the FAO framework has been to find a means of involving Taiwan, an additional reason is that several Members hold the view that such bodies tend to be more effective when outside the FAO framework. They point to NEAFC (North East Atlantic Fisheries Commission), NAFO (Northwest Atlantic Fisheries Organisation), CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources), WCPFC (Western and Central Pacific Fisheries Commission), CCSBT, IATTC, and ICCAT, to name a few. The best solution to some is to place the body outside FAO, but have a cooperation agreement with FAO — for example, as in the case of ICCAT.

A NEW SOFT LAW INSTRUMENT? One of the outcomes proposed for the current volume is the possibility of an Action Plan — an example of a soft law instrument (see Chapter 16). It is, therefore useful to consider briefly the background to such instruments. When considering these instruments, it is important to reflect very carefully on their role, and to look at earlier models. Some so-called soft law instruments were very successful; others have hardly been worth the paper they have been written on. One of the clear advantages of such instruments is that you can say things you would not put into a binding agreement. Examples of this would be the Code of Conduct for Responsible Fisheries, the IPOA-IUU, UNCED, and WSSD. On the other hand, this can lead to the danger that too much reliance is placed on the instrument and highly ambitious goals are set, which become meaningless in a very short period of time. There has been a tendency for such instruments to churn out increasingly unrealistic objectives. Besides, there is currently an overload of international instruments in the fisheries area, and there is at least as much need for more effort to be put into implementing these instruments, as developing new ones. As an illustration of some unrealistic objectives, we have the WSSD that adopted some highly ambitious targets. Briefly, the important timeframes set out for fisheries concern: by 2004, to develop and implement

03 Fisheries Exploitation

50

10/28/09, 12:39 PM

51

Overview of Institutional Arrangements

national plans of action to put into effect the IPOA-IUU; by 2005, to develop and implement national and regional plans of action to put into effect the IPOA-Capacity; by 2010, to implement the ecosystem approach; by 2012, to establish representative networks of marine protected areas; by 2015, to restore depleted stocks and the achievement of maximum sustainable yield. It will be apparent that the first of these (2004) concerning the IPOA-IUU is already behind schedule for a lot of states. Others, for example, the implementation of the ecosystem approach, is also likely to prove a considerable challenge for many states. As J. Caddy and K. Cochrane put it: Even while fisheries management struggles to get to grips with single species issues, it is increasingly being called on to take a multispecies and ecosystem perspective. However, there are still few case studies with more than few years duration which illustrate how these concepts are to be applied, and the difficulties are already apparent to all.

Thus, if there is a call for a new instrument — action plan, declaration, or however it is named, it is vital that the contents be thoroughly scrutinized to ensure that they are truly groundbreaking in the sense that they say something that has not been said many times before. It is also vital that the objectives set out are realistic in order to avoid the fate of many such instruments. It is also important to get governments involved in their preparation. One soft law instrument which has been successful in recent times is the Reykjavik Declaration on Fisheries in the Ecosystem. It was very heatedly negotiated and represented a compromise in a number of respects. However, it has, despite this, provided the basis for action with respect to promoting the ecosystem approach to fisheries.

IS THERE A NEED TO AMEND EXISTING TREATIES? In a lot of instances, there is scope for amending existing treaties in order to make them more effective. However, amending treaties can be a difficult process, and sometimes it is not necessary. For example, to introduce ecosystem considerations and the protection of marine biodiversity, it is often not necessary to amend a treaty as such objectives can be adapted by an existing regime.

03 Fisheries Exploitation

51

10/28/09, 12:39 PM

52

William R. Edeson

IOTC, for example, has adopted some resolutions — for example, on port state measures — which are not mentioned in the parent agreement. Thus, the Commission has adopted both binding and non-binding resolutions dealing with Cooperating Non-Contracting Parties, noncooperating non-contracting parties, flag of convenience vessels, programmes of inspection in ports, preparation of a list of vessels presumed to have engaged in illegal, unregulated, and unreported (IUU) fishing, preparation of a list of vessels authorized to operate in the Convention Area, fishing capacity of Parties and Non-contracting Parties, and trade measures. Some of these resolutions are directed, inter alia, towards fishing entities. An example of a probable de facto amendment is provided by the situation of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), which adopted a resolution for the establishment of an Extended Commission and an Extended Scientific Committee, which radically changed the manner in which the CCSBT operated with respect to the participation of Taiwan. The use of the resolution avoided the need for an amendment of the constituent Convention. In this regard, attention is drawn to the flexibility offered by international law here. Thus, we find in the 1969 Vienna Convention on the Law of Treaties Article 31: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ….. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

In other words, a treaty can be amended to a certain extent if the parties agree through the practice of the parties. It is important not to overuse this means of dealing with amendments, as it can be controversial. Besides, it is likely to stimulate arguments about the difference between an amendment and practice, or it might be seen as allowing practice to depart too much from the precise terms of the constituent instrument. To some, the “de facto amendment” approach,

03 Fisheries Exploitation

52

10/28/09, 12:39 PM

53

Overview of Institutional Arrangements

for want of a better term, is seen as lacking a democratic base, as the de facto amendment does not go through the process of national parliamentary scrutiny or approval. However, against that is the very real consideration that, if excessive reliance is placed on the amendment process, the treaty regime could be stifled. Another possibility is that of modifying a treaty, which is also provided for in the 1969 Vienna Convention. Article 41 provides: 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

It will be apparent that the prospect of modifying a treaty as between certain parties is not something to be undertaken lightly. Those states that are party to the modified treaty face the same disadvantages as the amendment process, namely time consuming treaty formulating action, and in some countries, national parliamentary approval. Furthermore, the provisions of the modified treaty would need to be drafted with some care in order to meet the requirements of Article 41.

Reference Caddy, J. and K. Cochrane. “A Review of Fisheries Management Past and Present, and Some Future Perspectives for the Third Millennium”. Ocean and Coastal Management 44, nos. 9–10 (2001): 635–51.

03 Fisheries Exploitation

53

10/28/09, 12:39 PM

54

Dennis Rumley

4 A POLICY FRAMEWORK FOR FISHERIES CONFLICTS IN THE INDIAN OCEAN Dennis Rumley

INTRODUCTION The post-Cold War period has seen a move towards a modern sovereignty concept in terms of increasing cooperative action on the conservation and management of regional and global fisheries. While this can only lead to a long-term improvement in ocean ecosystem health, too little scholarly attention has been given to the politics of maritime conservation issues. Environmental ideals of ecological sustainability and the maximization of marine biodiversity are invariably compromised by the outcomes of a range of interacting conflicts at all jurisdictional and interest levels. The principal purpose of this chapter is to describe and discuss an integrated framework of analysis that makes more explicit where such conflicts are likely to occur as a kind of checklist for policymaker action. It is argued that the resolution of these conflicts will contribute towards the maximization of marine biodiversity as a consequence of directly addressing some of the impediments to closer cooperation at all interest levels.

04 Fisheries Exploitation

54

10/28/09, 12:40 PM

55

Policy Framework for Fisheries Conflicts

The chapter contends that fishing conflicts can be conceptualized as a complex set of interactions among five sets of variables — the marine environment, international marine resources management regimes, government agencies, local community fisheries, and non-state actors. The nature of conflict is elaborated for each of these sets of variables, using illustrative examples from the Indian Ocean Region (IOR) from an Australian perspective. Some of the policy implications of the framework are briefly outlined. This chapter represents a plea for the development of integrated marine management policies in the IOR that imply changes to the goals of all stakeholders and an increase in interstate cooperation among neighbouring states. In order to maximize interstate cooperation, a basic typology of fishing conflicts is devised as a kind of action policy checklist that can then be applied to the identification and resolution of regional fishing disputes.

FISHING CONFLICTS: TOWARDS AN INTEGRATED FRAMEWORK OF ANALYSIS A Basic Typology of Fishing Conflicts All fishing conflicts can be conceptualized as a complex set of interactions among five sets of variables — the marine environment, international marine resources management regimes, government agencies, local community fisheries, and non-state actors — the relative importance of which will vary contextually. It has been argued that fishing conflicts, in essence, result from a conflict of interests over competing goals (Suryanarayan 2005, p. 8). Conflicts will not arise without the existence of differing beliefs on the part of the participants about the use of maritime space and/or a forum or means through which such beliefs can be articulated or enacted. The causes of fishing conflicts generally arise out of differing value systems over the use of the sea and, in its broadest sense, differing values can range across a spectrum from “economism” to “environmentalism”. The former embodies a belief in economic growth at all costs. It encompasses the view that economic development should be carried out based on the assumption that the marine environment is a free good. Materialism and profit maximization are the main goals, and marine pollution and degradation are exported to other places that possess lower marine environmental standards.

04 Fisheries Exploitation

55

10/28/09, 12:40 PM

56

Dennis Rumley

“Environmentalism”, in its extreme form, assumes marine conservation at all costs. It takes the view that economic development should be ecologically sustainable, that the marine environment is not a free good, and that “environmental costs” and maritime and local cultural values are pre-eminent considerations. Clearly, the nature of conflict resolution procedures will influence the ways in which conflicts are expressed and prolonged (Table 4.1).

Table 4.1 A Basic Typology of Fishing Conflicts The Marine Environment

What is marine biodiversity? Conflicts over “ownership” Politicization of stock estimates What is a sustainable quota?

International Marine Resources Management Regimes

International management goals Changing regimes Conflicts over ratification Conflicts from “non-ratifiers”

The Role of Government Agencies

National laws and regulations Conflicting government goals Government bureaucratic conflict Jurisdictional conflicts

Local Community Fisheries

“Traditional” ‘fishing rights’ Local community institutions Economic value conflicts Economic inequality

Non-State Actors

The issue of ownership Intra-industry conflicts The power of corporations Criminal organizations Recreational fishers Conservation groups

Conflict Resolution Procedures

ITLOS International Court of Justice Convention mechanisms Consensus-orientation Arbitration processes “Gunboat diplomacy”

04 Fisheries Exploitation

56

10/28/09, 12:40 PM

57

Policy Framework for Fisheries Conflicts

THE NATURE AND EXPLOITATION OF THE MARINE ENVIRONMENT The legal definition of the term “overfishing” is problematical since in some states it does not account for the needs of other species, or of overall ecosystem health (Meester et al. 2004, p. 1031). Nonetheless, however defined, “overfishing” not only degrades the total ecosystem — for example, it has a negative impact on the sea bird population —– but it also impacts on marine biodiversity as well as on other fish species and thus on the fishing industry through the practice of “by-catches”. For example, Indonesian fishing for bigeye and yellowfin tuna takes place within its EEZ that also includes the only known spawning area of the Southern Bluefin Tuna. As has been pointed out, this results in a major loss of large adult fish taken as a “by-catch” (Sato 2002). Unsustainable fishing practices have led to an increasing number of critically endangered, endangered and vulnerable fish species around the world — from 734 threatened species in 1996–98 to 1,173 threatened species in 2006 (IUCN website 2007). It is well known that the nature of the fishing methods used can severely impact upon biodiversity and sustainability and that the method used can affect the size of the catch. However, there are no reliable data on increasing catches by fishing states, such as Indonesia and Taiwan, for example, due in part to underreporting (Sato 2002). Furthermore, as Sato goes on to argue, in an environment of scarcity and competition, stock estimates and fishing quotas are invariably politicized: The current stock assessment is based on data such as catch per unit effort (e.g., the number of fish caught per 1,000 hooks) and age composition of the caught fish (catch-at-age). The data are interpreted through a set of hypotheses, but each country assigns different weights to each hypothesis. The weighting process exposes the stock assessment to possible political influence, creating a large discrepancy in the stock estimates and the stock recovery projections (Sato 2002).

Such a situation is also partly due to the fact that, in general, marine ecosystems are poorly understood and that certain basic linkages between fishing and stock depletion and fishery productivity and the environment are uncertain (Meester et al. 2004, p. 1032). It is especially problematical in a fish migratory context and clearly indicates the need for more scientific

04 Fisheries Exploitation

57

10/28/09, 12:40 PM

58

Dennis Rumley

research and better knowledge of the marine environment in general, and fish behaviour, in particular. This notwithstanding, the implementation of models that are now available in some environments for the protection of marine biodiversity (for example, Sala et al. 2002) is inhibited primarily by a lack of political will (Lundmark 2003). In order to inform sustainable policy for the marine environment requires much more basic ecological, oceanographic, and fisheries management data (Wilder, Tegner, and Dayton 1999, p. 63) and, in particular, much greater political will. Among other things, this means that maximizing marine biodiversity requires much greater cooperative management across national agencies and among states.

INTERNATIONAL MARINE RESOURCES MANAGEMENT REGIMES Global concerns for the sustainable management of marine biodiversity led the Parties to the Convention on Biological Diversity to adopt in 1995 the “Jakarta Mandate on Marine and Coastal Biological Diversity”, which agreed to a programme of work in 1998 which was updated in 2004. This programme focuses on integrated marine and coastal area management, the sustainable use of living resources, marine and coastal protected areas, mariculture, and alien species (CBD website). The maximization of marine biodiversity, which implies regional and global cooperation, assumes a “modern sovereignty” rather than a “traditional sovereignty” perspective. Modern sovereignty is not simply defined solely in terms of traditional territoriality, but also incorporates other functions such as human rights, human governance, human dignity, and non-territorial centres of authority and control (Falk 2000). However, the application of, and adherence to, a concept of modern sovereignty via international environmental law is necessarily a process that embodies at least five interrelated conflict scenarios. First, bilateral or multilateral agreements are inevitably compromises and thus marine environmental ideals can rarely be achieved. Second, the implementation of any new agreement usually implies winners and losers. The latter will never go away completely quietly. Third, the global extent of national ratification will always vary, thus revealing individual state “chinks in the international marine environmental armour” which will always be commercially exploited. Fourth, ratification by a state does not necessarily mean immediate or actual full adherence by that state or by all non-state actors. Fifth, policing for transgressors can be costly and time-consuming and reliant to a considerable degree on the resource priorities of state signatories.

04 Fisheries Exploitation

58

10/28/09, 12:40 PM

59

Policy Framework for Fisheries Conflicts

States which fall into many or all of the above conflict categories can be described as “deliberately conflictual states” since they are clearly flouting many aspects of a modern sovereignty approach to fisheries biodiversity. In addition to states which may be implicated in these five conflict scenarios, there has been the special problem of Taiwan due to its “unrecognized” status (Sato 2002). Not only is it imperative from the viewpoint of marine biodiversity that all Indian Ocean regional states cooperate to manage their fishery properly, it is also essential that the management group also incorporates all seven of the “fisher states”. The protection and control over the marine environment has been subject to a wide range of international agreements, one of the earliest of which was the creation of the Whaling Commission in 1948. Since 1978, most, but not all, states have stopped whaling and Australia banned the importation of whale products in 1980. As is well known, fish are highly sensitive to a range of environmental insecurities, especially water-borne pollution from coastal states, spillages from shipping, and ecological attacks from neighbouring states and waters. Not surprisingly, given the size of its coastline and the potential for environmental damage and the introduction of noxious substances, Australia was one of the first few states to sign the MARPOL Convention (1983), aimed at preventing pollution from ships. The considerable and useful codification and control arising out of the U.N. Law of the Sea (UNCLOS) Convention (1982) has also been conflictual, to a degree. Australia’s implementation of its 200-nautical mile Exclusive Economic Zone (EEZ) in 1994 yielded an enormous area of additional jurisdictional control over minerals as well as living resources, much to the dismay of some regional states. On the one hand, the EEZ extension has led to greater regulation and control through the use of quotas and licences. On the other hand, the assertion of coastal state claims over the EEZ has placed fishing waters, previously regarded as occurring legally on the high seas, under the management and regulation of coastal states (Rothwell and Stephens 2004). For many states, the acquisition of such resources has increased their potential to generate domestic employment and export revenue. On the other hand, there is evidence to suggest that some Northern states have entered into fisheries agreements with some Southern states which are incompatible with ecological sustainability, have led to unfair competition with the local artisanal fleets of many developing states, and have resulted in conflict with development policies which focus on food security and poverty alleviation, especially in Africa (WWF 2005).

04 Fisheries Exploitation

59

10/28/09, 12:40 PM

60

Dennis Rumley

Given the “international” nature of many fish stocks, the 1995 U.N. Agreement on Straddling Fishing Stocks and Highly Migratory Fishing Stocks (UNASFSHMFS), which came into effect in 2001 and is based on twelve conservation and management principles (Article 5), is extremely important from the viewpoint of maximizing marine biodiversity. This is because the Agreement emphasizes the necessity for states to “cooperate to ensure conservation and promote the objective of the optimum utilization of fisheries resources both within and beyond the exclusive economic zone” (UN Conference 1995). Unfortunately, the group of sixty-three states worldwide that had ratified the Agreement at 28 December 2006 included only seven of the IOR-ARC (Indian Ocean Rim Association for Regional Cooperation) member states — Australia, India, Iran, Kenya, Mauritius, Sri Lanka, and South Africa (UN, Oceans and Law of the Sea 2007). India is the only one of the seven “fisher states” to have ratified this Agreement. Regional fisheries management organizations (RFMOs) and regional agreements, of course, are also potentially very important in maximizing marine biodiversity. On the other hand, however, as has been argued: The vast majority of RMFOs lack the legal competence to impose restrictions on high seas bottom trawl fishing, let alone protect the ecosystem as a whole within their areas of jurisdiction (Deepsea Conservation Coalition 2004).

Of particular note from an Indian Ocean Regional perspective is the agreement for the establishment of the Indian Ocean Tuna Commission (IOTC) that operates under the framework of the Food and Agriculture Organisation (FAO). The IOTC came into force in March 1996 and recognizes the “special interests of developing countries in the Indian Ocean Region to benefit equitably from the fishery resources” and is based on the view that: the conservation of tuna and tuna-like species and the sustainable and rational utilization of tuna resources in the Indian Ocean would be greatly enhanced by the establishment of cooperative measures by both the coastal states of the Indian Ocean and other States whose nationals harvest tuna in the region (IOTC Preamble).

Unfortunately, once again, Indian Ocean regional cooperation on this important issue is less than complete, with only ten of the IOR-ARC member states indicating acceptance of the agreement in January 2007 —

04 Fisheries Exploitation

60

10/28/09, 12:40 PM

61

Policy Framework for Fisheries Conflicts

Australia (1996), India (1995), Iran (2002), Kenya (2004), Madagascar (1996), Malaysia (1998), Mauritius (1994), Oman (2000), Sri Lanka (1994), and Thailand (1997). Only China and Japan of the other “fisher states” have indicated acceptance of this agreement. Since the UNASFSHMFS came into force in 2005, the FAO announced the establishment of a new fisheries body — the South West Indian Ocean Fisheries Commission (SWIOFC) — essentially an African Indian Ocean Commission, although the north-eastern portion of its “area of competence” overlaps the southern extension of India’s EEZ — to promote the sustainable development of regional fisheries resources. Furthermore, a new FAO-sponsored regional fisheries agreement — the South Indian Ocean Fisheries Agreement (SIOFA) — was convened in July 2006 “to conserve and manage non-tuna resources in areas beyond the national jurisdiction of coastal States in the southern Indian Ocean” (U.N. General Assembly 2006, pp. 37–38). As of 29 December 2006, only four IOR-ARC member states had signed this new agreement — Australia, Kenya, Madagascar, and Mozambique. Furthermore, all seven of the “fisher states” have yet to sign the Agreement. Other species-specific, rather than regional agreements, can potentially reinforce the goal in the Indian Ocean of maximizing marine biodiversity. The Convention for the Conservation of Southern Bluefin Tuna (1994), which was originally signed by Australia, Japan, and New Zealand, created the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), applied quotas to their fishing fleets to enable stocks to rebuild, and has invited the other main tuna fishing states — Indonesia, South Korea, and Taiwan — to participate. Subsequently, South Korea (2001) and Taiwan (2002) have joined the Commission, and the Philippines (2004), South Africa (2006), and the EC (2006) have become Cooperating Non-Members. “Indonesia has indicated that it intends to lodge an application for Cooperating Non-Member status in the near future” (CCSBT website 2007).

THE ROLE OF NATIONAL GOVERNMENT AND GOVERNMENT AGENCIES One of the fundamental traditional functions of the state has been to protect the security of its inhabitants. One would thus assume that governments would act to maximize this function, and to devise national

04 Fisheries Exploitation

61

10/28/09, 12:40 PM

62

Dennis Rumley

policy and reach international agreements to this effect. One would also assume that government agencies would facilitate this overall goal. However, governments often behave both nationally and internationally according to a variety of motives, which may not necessarily coincide with the maximization of human security and, in addition, government agencies can have conflicting goals. In short, governments and their bureaucracies may not even succeed in meeting traditional sovereignty expectations. Overall, however, in terms of fisheries policies, the national goals of policymakers have traditionally been principally concerned with food production and employment. In an environment of scarcity, such goals inevitably conflict with marine environmental goals and with those of neighbouring states. The environmental motives of national governments can often be a matter of perception, however. For example, one commentator has described Australia as “pseudo-conservationist” and has argued that New Zealand is “a more consistent conservationist than Australia” in terms of the Southern Bluefin Tuna dispute with Japan (Sato 2002). It is likely that fishery conservation regimes differ on either side of an international political boundary and it is clear that national laws and regulations can impinge on the management of “extra-territorial” fishing resources. For example: Backed by the international commission’s resolution, the Japanese Diet in June 1997 passed the Tuna Management Act. The act mandated that if other countries’ activities had adverse effects on tuna conservation efforts, the government must (a) request necessary measures by the international conservation management organizations and (b) request improvement in the activities of the relevant countries (Sato 2002).

It has been noted that some states have seen an increase in the politicization of fisheries management by government bureaucrats. The goals of bureaucrats may not necessarily completely match those of governments or of state inhabitants (Marshall 2004). For example, human security concerns may not be the most important goal for neighbouring Indian Ocean states. In the Palk Strait, for example, the governments of India and Sri Lanka have concluded maritime agreements that have adversely impacted on the lives of Indian fisherfolk. However, it seems that these Indian fisherfolk will resist surrendering a means of livelihood which they have held for several centuries (Suryanarayan 2005, p. 8).

04 Fisheries Exploitation

62

10/28/09, 12:40 PM

63

Policy Framework for Fisheries Conflicts

In federal or highly decentralized political systems (vertical) jurisdictional conflict is not uncommon. For example, in the Australian case, the different states have had differing approaches to illegal fishing, and to some extent, these have not completely meshed with Australian Federal policies. Of course, jurisdictional conflict can also be horizontal in nature, and thus fishing disputes between neighbouring states can arise out of unresolved or disputed international maritime boundaries. For example, the yet to be delimited maritime boundaries in the northern and southeastern sectors of the Persian Gulf have the potential to become sites for resource conflicts, including fishing disputes (Forbes 2005).

LOCAL COMMUNITY FISHERIES Local “traditional” community-based fisheries conflicts in the Indian Ocean have generally been of two types. First, there are conflicts between traditional fishing craft generating local subsistence and perhaps revenue, and, on the other hand, the mechanized trawlers designed to generate revenue for non-residents in a much larger market. Second, there are conflicts that arise out of the removal or restriction of traditional fishing grounds, perhaps as a result of colonization and the imposition of international political boundaries. In the case of the first type, the marine environment has traditionally been central as a resource base that has defined the autonomy of the community. There is generally a community reliance on traditional fisheries, local stocks have been depleted, and there has been an increase in income disparities (Marshall 2004). Conflicts between such traditional fisherfolk and those using mechanized craft have been discussed for the Palk Bay Region between Tamil Nadu and Sri Lanka: As a result of mechanised trawling, the Indian side of the maritime boundary is virtually devoid of fish. As a fisherman in Mandapam told the author, “If we have to catch fish, we should venture into the Sri Lankan side of the maritime boundary” (Suryanarayan 2005, p. 41).

In the case of the second type, an Australia-Indonesia fishing dispute came about due to the imposition of British colonial boundaries on the “traditional” fishing patterns of Indonesian villagers, since, from the seventeenth century, Indonesian artisanal distant-shore fishing had operated in what are now Australian waters. A 1974 Memorandum of

04 Fisheries Exploitation

63

10/28/09, 12:40 PM

64

Dennis Rumley

Understanding between Australia and Indonesia allowed for the facilitation of a degree of traditional practice, especially in Northern Territory (NT) and Western Australian (WA) waters. However, the combination of declining fishing stocks and the corporatization of the fishing industry resulted not only in overfishing, but was also associated with illegal fishing and the alleged involvement of Indonesian criminal elements. Increasingly, the geographical scope of illegal fishing has widened, with crews venturing from further afield, including from China and Taiwan. As a result, illegal fishing has become a significant problem for NT and WA, and boats have been regularly apprehended and confiscated. Within Australia, it appears that approaches to the resolution of this conflict vary at the local and national levels. Furthermore, at the international level, up until very recently, the Indonesian government had refused to engage in patrolling the coast for such illegal practice. However, clause 7e of Article 3 of the Australia-Indonesia Security Agreement, which was signed in Lombok in November 2006, identified illegal fishing as one of the particular crimes that will involve increased law enforcement cooperation between the two countries, including the likelihood of joint patrols.

THE IMPACT OF NON-STATE ACTORS The fishing industry, represented by fishing corporations, companies, and cooperatives, plays an important lobbying role in order to maximize its own interests. These may or may not be either in the national interest or in the interest of maximizing marine biodiversity. Part of the reason for this is that the fishing industry is not unified in its approach to this subject, in particular, and to environmental issues in general. For example, it has been argued that conflicts within the domestic tuna industry help to explain Australia’s conservative stock estimate, its reluctance to conduct a joint research programme, and the easing of its opposition to joint experimental fishing with Japan (Sato 2002). The economic and environmental significance of illegal fishing is considerable and impacts negatively on marine biodiversity. It has been estimated, for example, that illegal fishing in “top end” waters costs Australia an estimated A$10 million per annum. In addition, it has also been estimated that approximately 15 per cent of the world’s large-scale fishing fleet is either flying flags of convenience (FOCs) or unknown flags.

04 Fisheries Exploitation

64

10/28/09, 12:40 PM

65

Policy Framework for Fisheries Conflicts

FOC states, including Belize, Honduras, Panama, and St. Vincent, register fishing vessels in exchange for a small fee, while generally turning a blind eye to illegal activities and exercising minimal control over how these vessels actually operate (AAP 2005). Furthermore, some states — for example, Taiwan — possess significant economic interests in illegal fishing through companies and individuals who operate flying FOCs (Young and Randerson 2005). It has also been recently reported that criminal syndicates are now operating in the business of illegal fishing. For example, in December 2005, the Indonesian Marine Resources and Fisheries Minister, Freddy Numberi, is reported to have said that an international criminal syndicate was profiting from Indonesian fishermen operating illegally in Australian waters. The syndicate was reputedly financing Indonesian fishermen and providing them with vessels and equipment to catch sharks in Australian waters for shark fin, for which they were then paid a high price (Antara 2005). Conservation groups can potentially play a critical role in education and lobbying to maximize marine biodiversity. In Australia, for example, there is a strong, domestic conservationist lobby with Green representation in State and Federal parliaments. Conservationists have been active on many fronts to enable sustainable ocean management. For example, some have argued that the Southern Bluefin Tuna (SBT) should be regarded as an endangered species. SBT trade would then be regulated under one of the other global biodiversity-related Conventions — the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

CONFLICT RESOLUTION PROCEDURES As international agencies and states with depleting fishing resources all know, resolving the multiplicity of interacting and overlapping fishery conflicts and designing ecologically sustainable solutions is a very significant challenge. The nature of fisheries conflict resolution itself, of course, can vary along a spectrum from peaceful diplomacy and interstate cooperation at the one end to open hostility, “gunboat diplomacy” or war at the other. Part XV of the 1982 Law of the Sea Convention outlines a comprehensive system for the settlement of disputes that may arise as a result of the interpretation and application of the Convention. This system

04 Fisheries Exploitation

65

10/28/09, 12:40 PM

66

Dennis Rumley

requires that States Parties resolve any conflicts peacefully, and if this is not possible, then they are obliged to engage in a set of compulsory dispute settlement procedures. The Convention provides for four alternative means by which conflicts can be resolved — the International Tribunal for the Law of the Seas (ITLOS), the International Court of Justice, an arbitral tribunal and a special arbitral tribunal. ITLOS is an independent judicial body composed of twenty-one independent experts in the Law of the Sea (ITLOS website 2007). In addition to these general Convention procedures, there are some fishery-specific conflict resolution guidelines. For example, those contained in the Convention for the Conservation of Southern Bluefin Tuna (CCSBT) employ a “consensus-oriented mechanism”, which relies first on consultation, and thereafter, on arbitration as outlined in Article 16 (CCSBT website 2007). Clearly, such conflict resolution cannot proceed between states that are not Parties to the Convention. This is one of several reasons for the need for Indonesia to be included in the regime (Sato 2002). Furthermore, it is imperative that the “fisher states” are Parties to such Conventions in order to ensure that fisheries conflicts do not end up as violent conflicts such as the so-called “cod war” between two NATO allies, Britain and Iceland. This “war” lasted between November 1975 and June 1976 during which time British trawlers continued to fish for cod despite a ban on fishing that had been put in place by the Icelandic government. Few shots were fired, but several vessels were rammed, some damage was inflicted, and there were some minor injuries. In the Australian case, in December 2006, the then Defence Minister, Brendan Nelson, approved “new rules of engagement” between navy patrols and illegal fishing vessels operating in Australia’s northern waters, most of which come from Indonesia. Mr Nelson is quoted as saying that: Our patrol boats will be allowed to fire directly to disable a vessel which is ignoring orders and which is seeking to escape apprehension, and which is indeed threatening our navy and our people (The Australian newspaper 2006).

The Defence Minister stated that the illegal fishing boats were becoming increasingly sophisticated and that some were engaging in dangerous practices, such as throwing “missiles” to avoid arrest (The Australian newspaper 2006). However, one Australian international law expert has argued that any Australian policy which sanctions the navy to fire on

04 Fisheries Exploitation

66

10/28/09, 12:40 PM

67

Policy Framework for Fisheries Conflicts

illegal fishing vessels may well be illegal under international law since ITLOS has ruled out the use of force as excessive (ABC News Online 2006). As far as the Australian government is concerned, it is uncertain whether such an argument will have any effect since the threat of the use of force may well be leading to a reduction in the problem. In a media release entitled, “Progress in the War against Illegal Fishing” (emphasis added), then Australia’s Minister for Fisheries and Conservation, Senator Eric Abetz, stated that the number of illegal vessels entering Australia’s northern waters had begun to decline, which indicated that “the Government’s policy of ‘getting tough’ is working” (Media Release 2007). However, “getting tough” can lead to mistakes and to an exacerbation of international conflict. For example, in April 2008, fifty-five crew members were arrested and five Indonesian vessels were destroyed by Australian authorities on false grounds (Butterly and Johnson 2008). However, on a more positive note, on 4 May 2007 Indonesia and Australia formally agreed to undertake new joint patrols beginning June 2007 that would especially target illegal fishing syndicates. The two states have also agreed to control the size of legal fishing fleets and to institute new data-sharing procedures aimed at estimating fish stocks in order to ensure fishing sustainability (Johnson 2007; Thompson 2007).

CONCLUSION AND POLICY IMPLICATIONS This chapter has attempted to address the tendency in the marine biodiversity literature to neglect the politics of fisheries disputes (Sato 2002). One commentator has talked of the myth that “policymakers can do little to safeguard the sea” (Wilder et al. 1999, p. 57). Clearly, sufficient political will is essential to implement a new policy framework to protect marine biodiversity which integrates science with policy and which assumes a broader integrated policy approach that links environment and society in a way that incorporates individuals, communities, agencies, states and regimes on a cooperative basis (Berger and Carr 2003; Marshall 2004; Wilder et al. 1999). It has been argued that: The United States needs a new policy that regards marine biodiversity as a resource worth saving. The fundamental pillar of this policy must be the precautionary principle: conserving marine resources and preventing damage before it occurs (Wilder et al. 1999, p. 60).

04 Fisheries Exploitation

67

10/28/09, 12:40 PM

68

Dennis Rumley

This basis for a new policy can be translated from the United States around the globe and especially into the Indian Ocean. It has been suggested that this new policy framework can be built on three pillars — first, reconfiguring regulatory authority; second, widening the bureaucratic outlook of agencies dealing with marine resources, and, third, conserving marine species (Wilder et al. 1999, pp. 61–62). As part of this new approach, there is potential for the greater use of fishing licences within EEZs as a management tool (Sato 2002). Successfully confronting the difficult problem of either eliminating the FOC system, or ensuring greater enforcement of the duty of flag states to control and monitor their vessels under UNCLOS, would go a long way to eradicating illegal fishing (Young and Randerson 2005). Rebuilding the world’s fish stocks necessitates the implementation of a bold strategy involving, among other things, the large-scale use of marine reserves — that is, regions where fishing would be banned or severely restricted to allow fish to spawn and to mature in an uninhibited environment (Sala et al. 2002; Halweil 2006, p. 26). This was one of the recommendations of the Pew Oceans Commission for the United States (Pew Oceans Commission 2003). Such areas have also been variously referred to as marine protected areas or MPAs (Young and Randerson 2005), “marine havens” (Agardy 1999), and marine refuges (Wilder et al. 1999; Meester et al. 2004). It has been argued that, in order to maximize marine biodiversity, there is a need to build a global network of MPAs, not only in EEZs but also on the high seas (Young and Randerson 2005). In Western Australia, after a three-year review, the State government decided to reduce the number of commercial fishing licences significantly from much of its western coast in order to allow declining fish stocks to regenerate (The West Australian 2007). This decision, in turn, is also linked to demands on fish stocks by, and associated conflicts with, recreational fishers. Conflicts with and within the recreational fishing sector are significant issues in the Indian Ocean as a whole (De Young 2006, Figure 21). In order to maximize biodiversity and to minimize conflict, in the final analysis, there is an urgent need in the Indian Ocean Region to move towards a different “modern” concept of sovereignty where global standards and universals are yielded to by states for the common good. Indian Ocean regional states need, therefore, to join and adhere to all bilateral and multilateral fishing agreements and conventions. Furthermore,

04 Fisheries Exploitation

68

10/28/09, 12:40 PM

69

Policy Framework for Fisheries Conflicts

all non-cooperating regional states need to be exposed and brought to account in bilateral, regional, and multilateral forums. For the Indian Ocean, regional cooperation on fisheries should be one of the key items on a new revised agenda for a reinvigorated IOR-ARC.

References AAP. “Fishing Pirates Hide Behind Flags of Convenience”. Sydney, 2 November 2005. ABC News Online. “Australia’s Fishing Sanctions ‘Illegal’ ”, 8 December 2006. Abouchar, J. “Canada and the Biodiversity Convention”. Alternatives 20, no. 1 (1993). Agardy, T. “Creating Havens for Marine Life”. Issues in Science and Technology 16, no. 1 (1999): 37–44. Allan, J. D., Robin Abell, Zeb Hogan, Carmen Revenga, et al. “Overfishing of Inland Waters”. Bioscience 12 (2005): 1041–51. Antara. “International Syndicate Benefiting from Illegal Fishing in Aussie Waters”. The Indonesian News Agency, Jakarta, 19 December 2005. Bergen, L. K., Mark H. Carr. “Establishing Marine Reserves: How Can Science Best Inform Policy?”. Environment 45, no. 2 (2003). Black, D. J. “International Trade v. Environmental Protection: The Case of the U.S. Embargo on Mexican Tuna”. Law and Policy in International Business 24, no. 1 (1992): 123–36. Busch, L. “Scientific Dispute at Center of Legal Battle over Salmon Catch”. Science 269, no. 5230 (1995): 1507–08. Butterly, N. and C. Johnson. “Indonesian Fishers Win Payout”. The West Australian newspaper, 16 May 2008, p. 3. Campbell, B. C. and V. E. Wilson. The Politics of Exclusion: Indonesian Fishing in the Australian Fishing Zone. Perth: Indian Ocean Centre for Peace Studies, 1993. CCSBT website at . Convention on Biological Diversity (CBD), text available at . De Young, C. “Review of the State of the World Marine Capture Fisheries Management: Indian Ocean”, edited by C. De Young. FAO, Fisheries Technical Paper 488, Rome 2006. Deepsea Conservation Coalition. “A Net with Holes: The Regional Fisheries Management System”. 22 October 2004, available on the Greenpeace website . Djalal, H. “The Strategic Values of the Indian Ocean to Indonesian Diplomacy, Law and Politics”. In The Security of Sea Lanes of Communication in the Indian Ocean

04 Fisheries Exploitation

69

10/28/09, 12:40 PM

70

Dennis Rumley

Region, edited by D. Rumley, S. Chaturvedi and M. Taib, pp. 51–58. Kuala Lumpur: MIMA, 2007. Dybas, C. L. “Ode to a Codfish”. Bioscience 56, no. 3 (2006): 184–91. Falk, R. A. Human Rights Horizons: The Pursuit of Justice in a Globalizing World. London: Routledge, 2000. Forbes, V. L. “Conflict and Cooperation in Managing Maritime Space in the Persian Gulf: Implications for Energy Security”. In Energy Security and the Indian Ocean Region, edited by D. Rumley and S. Chaturvedi, pp. 88–113. New Delhi: South Asian Publishers, 2005. Halweil, B. “Fish Harvest Stable but Threatened”. In Vital Signs 2006–2007, pp. 26– 27. New York: WorldWatch Books, 2006. ITLOS website . IUCN website — describes and discusses its Red List of Threatened Species. Johnson, C. “Australia Ties Up Fishing Pact with Regional Neighbours”. The West Australian newspaper, 5 May 2007, p. 66. Kedziora, D. M. “Gunboat Diplomacy in the Northwest Atlantic: The 1995 CanadaEU Fishing Dispute and the United Nations Agreement on the Straddling and High Migratory Fish Stocks”. Northwestern Journal of International Law and Business 17, nos. 2/3 (1997): 1132–62. Kwiatkowska, B. “Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order on Provisional Measures (ITLOS cases Nos. 3 and 4)”. The American Journal of International Law 94, no. 1 (2000): 150–55. ———. “Arbitration-Jurisdictional Effect of Different Dispute Settlement Provisions in Related Treaties — High Seas Fishing — Relationship between U.N. Convention on the Law of the Sea and Specialized Treaties”. The American Journal of International Law 95, no 1 (2001): 162–71. Li, Chuan-Zhong, Karl-Gustaf Lofgren, and Martin L. Weitzman. “Harvesting versus Biodiversity: An Occam’s Razor Version”. Environmental and Resource Economics 18, no. 4 (2001): 355–66. Lundmark, C. “Marine Reserve Model Protects Biodiversity and Fisheries”. Bioscience 53, no. 2 (2003): 196. Marshall, J. “Defining Maritime Boundaries: ‘The Murky Hand of History’s Oversight’ in the Gulf of Maine”. Canadian Geographer 48, no. 3 (2004): 266–86. McMichael, A. J. and R. Beaglehole. “The Changing Global Context of Public Health”. The Lancet 356, no. 9228 (2000): 495–99. Media Release. “Progress in the War Against Illegal Fishing”. Senator Eric Abetz, DAFF07/1A, 4 January 2007. Meester, G. A., Anuj Mehrotra, Jerald S. Ault, and Edward K. Baker. “Designing Marine Reserves for Fishery Management”. Management Science 50, no. 8 (2004): 1031–43.

04 Fisheries Exploitation

70

10/28/09, 12:40 PM

71

Policy Framework for Fisheries Conflicts

Minister for Foreign Affairs. “Australia-Indonesia Agreement on the Framework for Security Cooperation”. Canberra. Signed in Lombok, 13 November 2006. Pew Oceans Commission. America’s Living Oceans: Charting a Course for Sea Change. A report to the nation, May 2003. Rothwell, D. R. and T. Stephens. “Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests”. The International and Comparative Law Quarterly 53, no. 1 (2004): 171. Sala, E. et al. “A General Model for Designing Networks of Marine Reserves”. Science 298 (2002): 1991–93. Sato, Y. “Fishy Business: A Political-economic Analysis of the Southern Bluefin Tuna Dispute”. Asian Affairs 28, no. 4 (2002): 217–37. Suryanarayan, V. Conflict over Fisheries in the Palk Bay Region. New Delhi: Lancer Publishers and Distributors, 2005. The Australian newspaper. “Navy to Shoot at Illegal Fishing Boats”. 6 December 2006. The West Australian newspaper. “Despite Pain, Fish Stocks Must Prevail”. Editorial, 5 January 2007, page 16. Thompson, G. “Aust, Indonesia to Run Joint Patrols to Stop Illegal Fishing”. ABC Online, 4 May 2007, at . U.N. Conference. “Straddling Fish Stocks and Highly Migratory Fish Stocks”. Sixth session, New York, 24 July–4 August 1995. U.N. General Assembly. “Impacts of Fishing on Vulnerable Marine Ecosystems”. Sixty-first session, item 69b, 14 July 2006. U.N. Oceans and Law of the Sea. Division for Ocean Affairs and the Law of the Sea, 2007. Wilder, R. J., Mia J. Tegner, and Paul K. Dayton. “Saving Marine Biodiversity”. Issues in Science and Technology 15, no. 3 (1999): 57–64. WWF. “World Summit on Sustainable Development — Fisheries”. Available at the WWF website . Young, E. and J. Randerson. “Marauders of the High Seas”. New Scientist 188, no. 2524 (2005): 12–13.

04 Fisheries Exploitation

71

10/28/09, 12:40 PM

72

Vivian Louis Forbes

5 THE INDIAN OCEAN FISHERY Resources and Exploitation Within and Outside National Jurisdictional Limits Vivian Louis Forbes

INTRODUCTION The principal aim of this chapter is to argue for an integrated approach to the political assessment of the maritime zone management of the ocean in a regional context. As such, it draws attention to the regional need for cooperation in fishery conservation and technology and for the further development and enhancement of trading relationships among the littoral states. In a bid to obtain or control access to the use of maritime space and the seabed, national maritime claims have been steadily expanding to the point where the majority of coastal and island states have claimed offshore zones for distances varying from 200 to 350 nautical miles for their exclusive exploitation and utilization of the ocean resources. In order to elaborate on the overall argument, the chapter will first evaluate the impact of the 1982 Convention on the governance of

05 Fisheries Exploitation

72

10/28/09, 12:40 PM

73

The Indian Ocean Fishery

maritime space in the Indian Ocean Region. Second, examples of the nature of maritime jurisdiction and regional sovereignty claims and disputes will be discussed. Third, the chapter will especially stress the necessity for cooperative approaches to the use of regional maritime space and the need to develop a comprehensive ocean policy in order to maximize maritime biodiversity and thus enhance the quality of regional fisheries. The Indian Ocean basin comprises a number of regional seas and associated bays, channels, gulfs, and straits. Geographical studies of regional seas assist in focusing local factors which might encourage regional solutions to transboundary resource allocation problems and political boundary issues. Increased harvesting of marine biotic resources, exploitation of marine mineral resources, and the utilization of maritime space have spawned jurisdictional and management problems in regional seas between national governments and their subordinate political units, and among management agencies within governments (Alexander 1977, pp. 84–109). These problems require vigorous national assessment and development programmes, which must be guided by clearly defined policy objectives. A cooperative approach is required not only in defining national maritime limits in disputed zones, of which there are no fewer than twenty-six cases within the Indian Ocean basin, but also in developing policies to share the marine resources that transcend maritime international political boundaries, and for the effective management of the marine environment (Forbes 2001). Whereas the ocean environment is capable of sustaining valuable outputs in combination with other activities and inputs, there has been, however, a perception since the 1980s that the ocean environment is being used at or near its capacity. The U.N. General Assembly was informed on 6 December 2006 that without more protection, the world’s fragile ocean ecosystem will not rebound from the shrinking populations of biotic resources (GA/10548 2006). This is certainly the case for certain fisheries in some geographical regions and possibly for other competing interests. Relatively little attention has been given to the utilization of marine resources for aquaculture, mining, and entrepreneurial developments, compared with the application of science and technology to land-based resources. Much of the geographical area in the context of this study is tropical: many of the coastlines of the developing states are fringed by

05 Fisheries Exploitation

73

10/28/09, 12:40 PM

74

Vivian Louis Forbes

mangroves and/or coral reefs and the marine biotic resources appear barely able to support existing human population demands. Implementations of the Exclusive Economic Zone (EEZ) (Article 57) and other special maritime jurisdictional zones have created new international boundaries for many coastal and island states. This extended jurisdiction regime, coupled with the possibility of marine biotic and mineral resources straddling potential maritime national jurisdiction has re-emphasized the urgency of establishing mutually recognized international political boundaries. Only political will and private contractual arrangements developed on clearly defined and understood mutual gains will ensure long-term and equitable access to marine biotic and mineral resources (Phillips 1977, pp. 585–618). Defining the limits of sovereignty must naturally be a priority for administrators of governments of coastal and island states; however, this is not necessarily the case with India and Pakistan when it relates to the delimitation of a common maritime boundary as there are other pressing border issues in Kashmir and the Rann of Kutch. A first step towards achieving this aim is the determination of state jurisdictional zones in accordance with international customary law as codified in the 1982 Law of the Sea Convention (The 1982 Convention) and principles adopted in the 1992 Rio Declaration and Agenda 21.

THE 1982 CONVENTION In December 2007, the 1982 Convention celebrated its twenty-fifth Anniversary. It has been in force from 16 November 1994. Of the 157 States and political entities that have placed their signature to the Convention, 152 have deposited their instruments of ratification or accession as of 2 November 2006. For a list of those Indian Ocean States that have acceded to the 1982 Convention please see Appendix I. The Agreement relating to the Implementation of Part XI of the Convention (in force as from 28 July 1996), an integral portion of the document, has been accepted by 126 States and the Agreement for the Implementation on the provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (CSFS, in force as from 11 December 2001) has received sixty-two instruments of ratification (Anderson 1996, pp. 463–75; U.N. Division of Ocean Affairs 2006). The states that have not deposited their instruments of ratification within the regional context of this research are: Eritrea, Iran, Israel, and

05 Fisheries Exploitation

74

10/28/09, 12:40 PM

75

The Indian Ocean Fishery

Thailand. A notable absence from the 1982 Convention’s list is that of the United States, a major maritime power with extensive national jurisdiction in the Atlantic and Pacific Oceans and substantial political influence, adverse or otherwise, within the Indian Ocean Region. The 1982 Convention has transformed the governance of the oceans in many ways. Its impact has been profound in the realm of maritime boundary delimitation and jurisdictional issues. Key jurisdictional aspects of the law of the sea that were codified in the 1982 Convention included: setting the maximum breadth of the territorial sea at 12 nautical miles (M) (Article 3); establishing the EEZ of 200-M limit and redefining the extent of the legal continental shelf over which states may claim sovereign rights (Articles 76–85); and replacing the focus of maritime boundary delimitation beyond the territorial sea towards achieving an “equitable solution”. Scholars of political geography and international law argue over what constitutes an equitable spatial division of ocean space, especially given that geography itself is not equal.

MARITIME JURISDICTION Problems associated with the determination of the extent of maritime jurisdiction, and in particular, maritime boundaries in regional seas, include the complex issue of sovereignty and control of the natural resources of the ocean in the water column, on the seabed, and in the substratum of the seabed. Within the Indian Ocean basin there are numerous disputes over territory, many of which relate to sovereignty over islands, islets, reefs, and rocks. There are others which relate to the directional flow of river systems and political boundary alignments, particularly in deltas — for example, territorial disputes between Bangladesh and India in the Ganges Delta, and between India and Pakistan, in Sir Creek. Table 5.1 presents a list of geographical features, mainly islands, whose sovereignty is disputed by parties within the Indian Ocean basin. Many of the disputes stem from the period when many of the presentday states were administered by external European powers, and terrestrial political boundaries were either not demarcated or defined, or at best illdefined, and maritime boundaries beyond the then traditional territorial sea width of three nautical miles were not a major issue. Naturally, resolution over the sovereignty issue must be sought before any attempt can be made to negotiate a maritime boundary between the states that are parties to the dispute.

05 Fisheries Exploitation

75

10/28/09, 12:40 PM

76

Vivian Louis Forbes Table 5.1 Sovereignty Claims and Counter-claims over Islands within the Indian Ocean

Parties to the Dispute

Geographical Features

Australia/Indonesia

Ashmore and Cartier Islands

Bangladesh/India

New Moore/South Talpathy/Purbasha Island

Mauritius/Seychelles/ United Kingdom

Chagos Archipelago (British Indian Ocean Territory)

Madagascar/France

Isles Espares (Bassa du India, Isle Europa, Isle Glorioso, Isle Juan de Nova

Mauritius/France

Isle de Tromelin

Comoros/France

Mayotte Island

Iran/United Arab Emirates

Abu Musa Island and Tunb Islands

Malaysia/Singapore

Pedra Branca/Pulau Batu Puteh/White Rock (Horsburgh Lighthouse, an aid to navigation is sited on this rock)

Source: Division of Ocean Affairs and Law of the Sea, UN (as at 29 December 2006).

Since the late-1980s, courts and tribunals tasked with delimiting maritime boundaries have all begun their deliberations by identifying the median line between the relevant coasts of the parties in dispute and then debating whether any circumstances (geographical, social, and even economic) exist which justify a departure from the median line. Many of the world’s maritime jurisdictional disputes concern the interpretation of the 1982 Convention’s (Article 7) guidelines relating to the establishment of straight baselines and/or what constitutes a rock which is not entitled to an EEZ or continental shelf (Article 121:3). A first step for coastal and island states is to enact legislation so as to establish its territorial sea datum. States have generally been prompt in their actions; however, there are many that have not proclaimed their datum and yet claim a full suite of maritime zones as provided for in the 1982 Convention. Table 5.2 depicts those states that have enabling legislation that provides for the establishment of straight baselines as a datum for measuring the width of the various maritime zones that the state proclaims. Straight baselines may include straight lines across the mouths of rivers and across the mouths of bays, regardless of whether the lengths of these lines conform

05 Fisheries Exploitation

76

10/28/09, 12:40 PM

77

The Indian Ocean Fishery Table 5.2 States with Enabling Legislation

National legislation provide for use of straight baselines Yes

Australia, Bangladesh, Djibouti, Egypt, France, Iran, Kenya, Madagascar, Mauritius, Mozambique, Myanmar, Oman, Pakistan, Saudi Arabia, Somalia, South Africa, Sri Lanka, Sudan, Thailand, United Arab Emirates, United Kingdom, Yemen

Not stated

Eritrea, India, Iraq, Israel, Jordan, Kuwait, Malaysia, Qatar, Singapore, Timor-Leste, Tanzania

Archipelagic baselines

Comoros, Indonesia, Maldives, Seychelles.

Source: Division of Ocean Affairs and Law of the Sea, UN (as 29 Dec. 2006).

to internationally accepted limits. The geographical coordinates of the base points may not have been necessarily established by the state concerned. Delimitation and delineation of maritime territorial claims and zones of national jurisdiction must be acceptable, not only to the negotiating countries, but also to the international community of states. Maritime boundary agreements, like those relating to political land boundaries, are politically sensitive issues, and should thus be accorded the status of official recognition by all states. Although states are not compelled to delineate any maritime boundaries, most will eventually wish to do so when it is in their selfinterest, or convenient to them, or on the insistence of their coastal neighbours. A perusal of the preamble in numerous maritime boundary agreements reveals that an awareness exists for close cooperation and coordination between the parties to the negotiation based on a goodneighbourly policy, and a desire to promote further such cooperation and coordination in managing maritime space. That recognition can only be realized when national legislation prose and graphics of bilateral and multilateral treaties are in the public domain and deposited at the Division for Ocean Affairs and Law of the Sea, United Nations. Although the extension of maritime jurisdiction by coastal states erodes the internationally accepted perception of the freedom of the

05 Fisheries Exploitation

77

10/28/09, 12:40 PM

78

Vivian Louis Forbes

high seas, such action offers coastal and island states the security they seek from any threatened naval attack by external force (in theory), protects their resources and marine environment, and ensures their exclusive use of the ocean’s resources within the proclaimed zones. A brief summary of the delimited maritime boundaries and unilateral jurisdictional claims made by states is presented below in examining the basin by sectors commencing with the south-west corner of the basin and moving clockwise. About forty-eight sets of negotiations have delimited maritime boundaries since the early 1970s. A list of the negotiated maritime boundaries appears in Appendix IV.

ESTABLISHED NATIONAL JURISDICTIONAL LIMITS Off the southeast African seaboard four continental shelf boundaries have been established by agreements. One boundary is between Kenya and Tanzania; another is the boundary between Mozambique and Tanzania; a third is between France and the Seychelles; and the fourth between Seychelles and Tanzania. The Seychelles Government defined geographical coordinates to delineate the extent of its Exclusive Economic Zone. The proclamation was based on a unilateral decision. Apparently no discussion took place with its neighbours prior to the announcement being made. For the most part, the boundary is formed by the locus of a point 200 nautical miles from the nearest land mass of the Republic of Seychelles, except between Points 13 and 18 and 19 and 29, where the boundary is formed by the median line between the Republic and its neighbours. Subsequently, the Government of Seychelles has delimited through agreements its maritime boundaries with France (in 2001) and Tanzania (in 2002). The Government of Mauritius has defined its EEZ limits in a unilateral decision and is presently establishing the limits of its legal continental shelf. Details of the defined limits are not available and neither are redefined territorial sea base points. There are seven potential maritime boundaries to be established in the region. They are the boundaries between: Mozambique and South Africa; Mozambique and France; Mozambique and Comoros; Comoros and Tanzania; Comoros and France; Comoros and Seychelles; and, France and Madagascar. The complexities of the negotiations rest on the issue of sovereignty of some small but politically significant islands in the Mozambique Channel (Table 5.1).

05 Fisheries Exploitation

78

10/28/09, 12:40 PM

79

The Indian Ocean Fishery

In the vicinity of the Arabian Peninsula and the Horn of Africa the two negotiated boundaries are in the Red Sea, which is the Common Zone of Exploitation established by Saudi Arabia and Sudan, and in the Gulf of Aqaba between Jordan and Israel. The boundary of the Common Zone is the 1,000-metre isobath. Excluding the undefined boundaries in the Persian Gulf there are several potential boundaries to be negotiated in the region. They are the boundaries between: Kenya and Somalia; Somalia and Djibouti; Somalia and Yemen; Djibouti and Yemen; Djibouti and Eritrea; Eritrea and Sudan; Eritrea and Saudi Arabia; Egypt and Saudi Arabia; Egypt and Israel; Egypt and Jordan; Jordan and Saudi Arabia; Iran and Pakistan and an extension of the Iran/Oman maritime boundary. Within the Persian Gulf, continental shelf boundaries have been determined for the central portion of the Persian Gulf and in the Strait of Hormuz and the northern waters of the Gulf of Oman. Boundaries in the process of being negotiated or to be determined are those between Iraq and Iran, and Iran and Kuwait at the head of the Gulf. In the south-eastern sector of the Gulf, Iran and individual Emirates of the United Arab Emirates have yet to determine their common continental shelf boundary. Delays in negotiations are centred on the issue of sovereignty of some small islands, in particular Abu Musa and the Tunb Islands that lie between the coastlines of the two states. The insular geography of the region favours Iran in boundary determination if all the islands it claims were to be considered as points of measurements. In the waters off the Indian subcontinent, continental shelf boundaries have been determined by bilateral and trilateral agreements for the Andaman Sea, the south-west corner of the Bay of Bengal, Palk Bay, the Gulf of Mannar, and the Laccadive Sea. Potential boundaries are between: Pakistan and India; India and Bangladesh; Bangladesh and Myanmar; and, Iran and Pakistan. Within the seas that surround the Indonesian Archipelago, Indonesia, by virtue of its archipelagic status and the adoption of straight baseline system connecting the outermost islands of the archipelago, has gained vast areas of jurisdictional space. It is apparent from the geographical extent of the archipelago that Indonesia has been keen, and indeed, taken the initiative in many instances, to bring about negotiations on determining continental shelf boundaries with its neighbours in the adjacent seas. Successful negotiations have been brought to fruition with the signing of agreements with Australia, India, Malaysia, Singapore, Thailand, Papua New Guinea, and Vietnam.

05 Fisheries Exploitation

79

10/28/09, 12:40 PM

80

Vivian Louis Forbes

Three cooperative ventures, established as a means of conflict resolution in the subregional context, are the Joint Development Area in the Gulf of Thailand between Malaysia and Thailand, a Common Area for Exploitation between Malaysia and Vietnam; and, the Joint Petroleum Development Area in the Timor Sea between Australia and Timor-Leste (Forbes 2001). Delimitation of segments of the remaining boundaries is yet to be finalized between Indonesia, Malaysia, and Singapore in the eastern and western approaches to the Straits of Singapore. This act is dependent on the verdict that will be handed down by the International Court of Justice when it hears the case on the issue of sovereignty claims over Pulau Batu Puteh/Pedra Branca. In the vicinity of the Mascarene Basin, vast areas of the sea, its water column, the seabed, and its substratum now fall under the regime of the Exclusive Economic Zone of a few maritime states. Maldives, Mauritius, and Seychelles have each defined, by geographical coordinates, the geographical limits to their claims for the exclusive rights to explore and exploit the resources of the sea. The claim by Mauritius is intriguing since it comprises two parts. The western part, consisting of forty turning points, encompasses Tromelin Isle. The delineated zone incorporates the common agreed boundary with France (Réunion Island). The eastern part of the claim, defined by twenty-one turning points labelled A to U, encompasses the islands of the Chagos Archipelago. Part of the claim overlaps the Maldives declared limits (Forbes 1995, pp. 168–69). The complexity of the issue over the sovereignty of the Chagos Archipelago is highlighted by the decision of the Administration of the British Indian Ocean Territory (BIOT) to declare a Fishing and Conservation Management Zone (FCMZ) of 200-M radius around the Chagos Archipelago. The zone overlays an earlier Mauritian claim. Maritime boundaries have as yet to be determined between Madagascar and the neighbouring states of Seychelles, Mauritius, Comoros, and France. In the waters of the southern Indian Ocean a continental shelf boundary between Kerguelen and Heard and McDonald Islands was established in an agreement between Australia and France. It consists of eight turning points. Elsewhere in this sector the 200-M EEZ around the groups of other islands have been proclaimed by the respective states. Small islands, when sufficiently separated geographically and politically from other islands can generate vast areas of space under the regime of the EEZ. France and South Africa both benefit from the extended maritime jurisdictional zones in this southern region of the basin, gained by claiming exclusive 200-M

05 Fisheries Exploitation

80

10/28/09, 12:40 PM

81

The Indian Ocean Fishery

zones around the islands of Amsterdam-Saint Paul, Iles Crozet, and the Prince Edward Group. Whereas determination of maritime boundaries between coastal states in the region may assist in settling the question of sovereignty and control over ocean resources, it is the policing of the limits that often create problems. Witness the excessive illegal fishing of Patagonian Toothfish in the southern Indian Ocean especially in waters that are within Australia’s maritime jurisdiction (Australian Antarctic Division 2006). Despite the carving up of maritime space into jurisdictional/political divisions, suggestions of areas of cooperation between states and states and international organizations are to be found in the 1982 Convention’s Article 123, for general provision; Article 61, for management, conservation, exploration, and exploitation of marine biotic resources; Articles 193, 197– 201 and 204–206, for the protection and preservation of the marine environment; and Articles 242–244 and 246 for matters relating to scientific research programmes and joint marine scientific research.

MANAGING MARITIME SPACE The problems of effective management of maritime space and the question of sharing marine resources in regional seas are principally political issues. The premise of this chapter is that, although the dominant political issue is state control over natural resources, it requires more than political will to manage maritime space successfully and to develop in a sustainable manner the marine resources in these seas. Geographical reality, diplomacy, and appropriate legal instruments, coupled with authoritative control but unburdened administrative procedures, are factors that must be taken into consideration to ensure the effective management of maritime space and of the resources contained therein. The present study argues that it requires not only participation at the local and national levels, but also for consensus and the coordinated efforts of regional bodies, for effective management of marine space in semi-enclosed seas. The Convention’s Article 122 defines an enclosed or semi-enclosed sea and Article 123 provides for states bordering these seas to cooperate with one another in exercising their rights and performing their duties under the Convention (Article 123 [a–c]). Such actions may be supplemented through bilateral and/or multilateral agreements for management regimes of marine space and for joint development of marine biotic and mineral resources. The ultimate

05 Fisheries Exploitation

81

10/28/09, 12:40 PM

82

Vivian Louis Forbes

measure of success for the management of maritime space will become evident within the marine and coastal zone environments and within the marine ecosystems. The concept of ecosystem management is an emerging one. Although complex, there is considerable potential to achieve the desired effects. Management policies must be developed for ecological units — for example, the mangroves along the Malay peninsula and the Ganges Delta; coral reefs systems in the Red Sea, Persian Gulf, and along Australia’s northern coastline; and, the seagrass habitat along the coastal zone in many geographical regions. It is the responsibility of all states to ensure that the resources of the oceans are utilized in an environmentally acceptable manner. Sustainable development is proposed on a global scale, in recognition of the problems of pollution, the rapid growth in population, and associated food shortages. National responsibilities extend to the atmosphere above the oceans, to the seabed below, and to the coastal zone. They are clearly stated in Article 192 of the 1982 Convention which stipulates that “States have the obligation to protect and preserve the marine environment”. Any discussion on the management and development of resources naturally raises the question of ownership and the problems associated with it, not the least of which is the delimitation and delineation of territorial claims and outer limits of national maritime jurisdiction. Such questions, problems, and processes have unique characteristics in the context of the oceans.

MANAGING MARINE BIOTIC RESOURCES If users of maritime space and communities along the littoral could ensure the adoption and observance of anti-pollution measures, as well as the development of marine resources, with a view to managing the reproductive and non-reproductive resources of the oceans, there is then a likelihood that the marine environment will sustain itself (Garcia and Hayashi 2000, p. 460; Forbes 2001). Broadly, governments of states that border the semi-enclosed seas have to accept responsibility for the stewardship of the states’ adjacent marine zones by adopting the following objectives: conserve and manage the marine biotic and mineral resources and the ocean’s environment; promote dynamic ocean industries and economic development benefits; enhance capabilities in ocean-related science, technology, and engineering; mediate in conflicts

05 Fisheries Exploitation

82

10/28/09, 12:40 PM

83

The Indian Ocean Fishery

between user groups; provide infrastructure for all users, especially for safe navigation; and preserve and enhance the states’ sovereign rights and be respectful of the historic rights of indigenous peoples and those of the states’ near neighbours. Curiously, until the late-1970s, little knowledge was available on the consequences of over-fishing or dumping of refuse and oil at sea, and comparatively little research had been carried out to seek the answers. (Reuters 2006; 2007) As the world’s population is now in excess of 6.5 billion (six billion in October 1999, U.N. The World at Six Billion Report On Population 1999) and as our resource-based systems have been extended further into the adjacent seas and oceans, humankind has been forced into proximity with others. The consequence has been a reaction to protect what one already holds or to take what one fears may not be there in the future. Such perceptions and relationships have led to waste, frustration, conflict, and at times, cooperation. The seas and oceans play a predominant role in regulating both natural and human-induced changes within and on the planet. The world’s population is now large enough to alter the chemical composition of the ocean and atmosphere and to impact on the biological composition of Earth. Thus, the natural marine setting must be set as a benchmark to measure national and international efforts for the effective management of the regional seas and oceans. As an example, the unique Torres Strait Treaty, which permits the equitable sharing and sustainable development of biotic resources in the Torres Strait between Australia and Papua New Guinea; the Agreement that established the Joint Development Area between Malaysia and Thailand; and the precise and comprehensive Timor Gap Treaty (now defunct and replaced by the Timor Sea Treaty, between Australia and Timor-Leste in 2002) that created the establishment of a Zone of Cooperation between Australia and Indonesia for the exploitation of oil and natural gas in the Timor Sea, are all models, along with others, that can be adapted in areas of potential conflict. In the international relations context, it is the cooperative approach that is likely to succeed, as evident in the preamble to numerous bilateral and multilateral maritime boundary negotiations and joint development regimes that have been formulated since the late 1950s. The various methods of peaceful settlement suggested in G.A. Resolution Number 2625 (XXV) of 1970 are not set out in any order of priority, but negotiation is the principal avenue for all international disputes.

05 Fisheries Exploitation

83

10/28/09, 12:40 PM

84

Vivian Louis Forbes

THE NEED FOR COMPREHENSIVE OCEAN POLICY The need for comprehensive policies on coastal zone management, the sustained development of natural marine resources, and the protection of the marine environment, are issues facing administrators and governments of all political persuasions. While most coastal states of the world already have a variety of sectoral policies in place to manage different uses of the ocean (such as shipping, fishing, and oil and gas development), it has only been since the mid-1990s that coastal states have undertaken concerted efforts to articulate and implement an integrated vision for the governance of ocean areas under their jurisdiction — to harmonize existing uses and law; foster sustainable development of ocean areas; protect biodiversity and vulnerable resources and ecosystems; and coordinate the actions of the many government agencies that are typically involved in oceans affairs. This is an encouraging development, responding, as it does, to the reality of serious conflicts of use in most national ocean zones and to the prescriptions articulated in both the Law of the Sea and in the 1992 Earth Summit. Given the interrelationship among uses and processes in the coast and ocean, ocean and coastal governance must be integrated in content, and precautionary and anticipatory in ambit. The U.N. G.A.’s debate, in early-December 2006 on oceans and the Law of the Sea and sustainable fisheries, expressed serious concern that not only were fish stocks being rapidly depleted, but that little was being done to reverse the trend. The speakers called for worldwide adherence to the 1982 Convention, and for, among other things, new marine reserves, and more effective management to prevent overfishing, and tighter controls on pollution. A global process to monitor and assess the state of the marine environment was also urgently needed (U.N. G.A./10548 2006). The delegations identified bottom trawling and illegal, unregulated, and unreported (IUU) fishing as the most destructive fishing practices and threats to vulnerable marine ecosystems. Bottom trawling involved dragging huge, heavy nets along the sea floor, with the large metal plates and rubber wheels attached to those nets moving along the bottom of seas and oceans, crushing nearly everything in their path. Some speakers called for an outright ban on this practice, while others argued that illegal, unregulated, and unreported fishing deserved equal attention since it represented a major loss of revenue, particularly to some of the world’s poorest countries, with high dependency on fisheries for food, livelihoods and revenues (U.N. G.A./10548 2006).

05 Fisheries Exploitation

84

10/28/09, 12:40 PM

85

The Indian Ocean Fishery

Australia, India, and Tanzania have developed integrated ocean policies. Other states within the basin are in the process of developing such policies, and in a subregional context, there exists a New Partnership for Africa’s Development. Other initiatives include one for the Bay of Bengal Development Programme, the ASEAN Marine Region Strategy, and the Gulf Cooperation Council.

THE COOPERATIVE APPROACH Parties to a dispute must perceive that the benefits of an agreement will outweigh the losses in order for a negotiated settlement to be possible. If their interests are in opposition, any agreement which might require one side to yield all or most of its position is, therefore, unlikely to be acceptable. There are substantive aspects of negotiations, particularly if a cooperative approach is taken. If negotiations on a dispute are deadlocked, it may be possible for the disputants to agree on a procedural solution and forward the case to arbitration whereby each gains a definitive settlement to the problem. Another alternative is to consider whether the issue in dispute can be split in such a manner as to enable each side to obtain satisfaction. Having identified the major issues in dispute, in the delimitation of a maritime boundary in the Torres Strait, negotiators from Australia and Papua New Guinea formulated the Torres Strait Treaty in 1978. The agreement dealt separately with the status of the islands within the Strait, seabed jurisdiction, fisheries jurisdiction, conservation of the marine resources, navigation rights within the strait, and most importantly, the interests and the historic rights of the inhabitants of islands in the Strait (Forbes 1995, pp. 120–22). State practice indicates that cooperative approaches are functional and working solutions despite the fact that bilateral agreements may take many years to formalize. Utilization of marine space and ocean resources provides opportunities for new functional approaches to regional cooperation quite distinct from those formulated for land-based activities. For example, the United Nations Environmental Protection (UNEP) Regional Seas Programme appears to have advanced marine pollution management both regionally and internationally through political consensus, international legal instruments, and national capacity building (Christy 1975, p. 257).

05 Fisheries Exploitation

85

10/28/09, 12:40 PM

86

Vivian Louis Forbes

The potential for conflict among fishers, and between fishers and naval authorities operating in enclosed seas, and the break in diplomatic relations amongst administrators, haunts the policymakers of coastal and island states. The primary causes are the exploitation of restricted fishing grounds — for example, in the Andaman Sea and Gulf of Thailand — coupled with the need for stricter conservation and fishery management programmes in the region. The restrictive fishing grounds have been brought about by new increased maritime limits to the territorial sea and the implementation of a 200-M EEZ that coastal and island states are now entitled to claim.

SHARING MARINE BIOTIC RESOURCES The question of sharing marine biotic resources, as stated above, is principally a political issue, and yet it must be based on geographical reality. Indeed, the 1982 Convention should be viewed as being a political and social document as much as a legally binding text for the international community. Whereas the resources of the oceans are biological, geological, or chemical in nature, the utilization of these resources is regulated through decisions made by political bodies, often on the advice of administrators in the various governments concerned. After the political decisions have been formulated, agreements between the various governments concerned are reached through diplomatic channels or meetings of special representatives. It is only through these political processes that internationally acceptable procedure of marine mineral resource exploitation and marine biotic resource harvesting can be achieved (Beck 1975, pp. 711–43). Cooperative approaches to the utilization of the marine resources and the protection of the marine environment in semi-enclosed seas are needed if peaceful coexistence is to be an objective for the states that border these waters. A dominant political issue is state control over natural resources. This fact was recognized in the United Nations General Assembly Resolution 3281 (XXIX), on 12 December 1974. It is clearly stipulated in Article One of the Charter of Economic Rights and Duties of the State, that: Every State has the sovereign and inalienable right to choose its economic system as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever.

05 Fisheries Exploitation

86

10/28/09, 12:40 PM

87

The Indian Ocean Fishery

Paragraph one of Article Two of the same document further notes that: Every State has and shall freely exercise permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.

Although the present study echoes these sentiments it argues at the same time that a need exists for coastal states to cooperate on a wide range of marine-related issues. These include: the protection of the marine environment; the sustainable development of marine biotic resources; the careful exploration and exploitation of marine mineral resources; protection of the coastal zone; and, the surveillance of narrow, congested waterways to curb acts of piracy, stem the flow of illegal drugs and money; regulate customs and excise; and monitor the movement of “boat persons”, namely persons who seek political and economic refugee status in neighbouring states and elsewhere. The argument is substantiated by the recommendations handed down by the World Commission on Environment and Development (WCED). Established as an independent body in 1983 by the United Nations Organization, the Commission’s brief was to re-examine the critical environmental and developmental problems on the planet. It was requested to formulate realistic proposals to solve problems and to ensure that human progress would be sustained through development without exhausting the resources for future generations. Two Articles in the WCED Report handed to the U.N. General Assembly for consideration at the 42nd Session in 1987 are of particular relevance to the context of this study. They relate to transboundary resources. Article Nine suggests that “States shall use trans-boundary natural resources in a reasonable and equitable manner”; and Article Fifteen proposes that “States shall cooperate in good faith… to achieve optimal use of trans-boundary natural resources and effective prevention of abatement of trans-boundary environmental interferences.” Thus, the underlying issue is the determination of the limit of coastal state sovereignty and jurisdiction, or at least, recognition or acceptance of the status of neighbours.

REGIONAL FISHERIES ISSUES Statistics on fisheries production of the thirty-seven coastal and island states in the Indian Ocean basin are generally not readily available from national sources. Reliance for basic information falls on the United Nation’s

05 Fisheries Exploitation

87

10/28/09, 12:40 PM

88

Vivian Louis Forbes

Food and Agriculture Organization (FAO). The production figures of fisheries and aquaculture products for select states, as well as the import and export values of fish product are listed in Appendix V. Twenty-five of the thirty-two States collectively imported in excess of US$300 million in 2002, and exported in excess of US$9,624 million the same year. Thailand was by far the greatest importer ($1 billion) and exporter ($3.7 million), followed by Indonesia ($77 million and $1,491 million respectively), and India ($36 million and $1,412 million respectively). An examination of the list in Appendix V reveals some interesting facts — in particular, the monetary value of exports of fishery products from Bangladesh, India, Indonesia, Madagascar, and Thailand — countries whose relatively large populations require a reliable food source. The above-named countries, as well as Malaysia and Myanmar, record substantial catches. Figures for production of fishery and aquaculture products for at least ten countries were not available at the time that this study was being prepared, and those for Comoros (12,000 tonnes) and Mauritius (9,000 tonnes) appear to be relatively low given the rather extensive maritime space that each may claim. This may be due to the inferior fishery infrastructure and support facilities that fishers in these countries possess or are offered. Subsistence fishing operators are perhaps the ones who are most aggrieved by the policies and support of their respect governments. Despite Australia’s rather generous concessions to Indonesia in seabed and water column boundary allocation, the number of Indonesian fishers apprehended in the waters off the northern coastline of Australia would imply that fishers will risk their lives to fish within Australia’s EEZ. Subsistence fishers in many developing countries comprise a large workforce. In India, for example, nearly 8,000 persons (fishermen and their wives) work in an industry that does not have substantial financial gains for the workers. The men bring home the “catch” and their wives sell the fish in the marketplace. The methods employed are simple but labour-intensive. Their area of operation is usually within the state’s territorial sea (Willmann 2001, p. 3). Other controversial issues include: the legitimacy of traditional fishing grounds in the Gulf of Thailand, the Arafura and Timor Seas; the sovereignty and management of the reefs and uninhabited islands within the Indian Ocean basin, and the existence of historic fishing grounds in the Andaman Sea, Strait of Malacca, and adjacent Straits. The trespassing of

05 Fisheries Exploitation

88

10/28/09, 12:40 PM

89

The Indian Ocean Fishery

alien fishermen into a coastal state’s declared territorial sea or economic zone, either for fishing or to engage in other illegal activities, for example, drug trafficking and the landing of persons on foreign soil, creates a nuisance and, in many instances, a financial burden on the coastal state (Sakhuja 2001, p. 4). It is a problem that Australia, Malaysia, and Singapore have experienced since the 1970s. In this context, two questions may be posed: To what extent are the traditional fishing activities of aliens to be permitted? Do coastal states have the right to prosecute offenders who stray — accidentally or intentionally — into waters claimed by such states for their exclusive uses? Conflict may result from the internal pressures imposed on the fishers and the local community. To these factors is added the interaction of government and the fishing industry. Within the industry there may arise competition over production inputs such as labour and fuel cost, as well as the same fisheries resource. For example, vessels of small-scale operators compete with the industrial fleets (factory fish-processing ships). In Thailand, fishing gear destroyed by trawlers is a common complaint from small-scale operators. There is usually competition between the private and public sectors; government operations are heavily subsidized and thus the profit margin is unrealistic for many operators. National or local governments have initiated public fishing ventures. Profits may only be a small percentage of the final retail price. Consider the cost of a kilogram of crayfish in the marketplace. What percentage of that price will the fisher get for the effort of catching the crayfish? Fisheries must compete with other industries in the community for production inputs such as labour, fuel, infrastructure, and capital. Maritime space must now accommodate sport fishers, divers, leisure boaters, windsurfers, canoeists, water-skiers, and the yachting fraternity. Fish products face stiff competition from other animal protein sources such as beef, chicken, and pork. Pollution of the oceans and the coastal zones are major issues and create additional pressure of subsistence fishers. The potential for conflict is great when governments adopt a leading role in fisheries management and development. Often local fishers are not consulted. Internal conflicts can develop between competing fisher groups, the community, and government (India). Objectives may be stated but are often not compatible. Research groups — fisheries, development, and scientist must have regard for one another’s knowledge and inputs.

05 Fisheries Exploitation

89

10/28/09, 12:40 PM

90

Vivian Louis Forbes

Governments can encourage or restrict the fishing industry (as witnessed in Australia). They may facilitate development of the industry by modifying regulations in line with technological changes, minimizing restrictions, and importantly, providing tax incentives — such as accelerated depreciation on assets, concession tax rates, and minimal government licensing and reporting requirements. Small-scale fishers may be given the option of increased poverty or seek alternative employment. Market interventions include subsidizing production inputs, and market price and supply stabilization schemes. Governmental support for industrial expansion may result in over-exploitation of a fishery resource, for example, Indonesia (ADB 2006). A $388.9 million plan to combat illegal foreign fishing in northern Australian waters was announced on 9 May 2006 as part of the Australian Government’s 2006–07 Federal Budget, and brings the government’s total commitment to “fighting” illegal fishing to well over half a billion dollars. Under an integrated whole-of-government plan, the Australian Customs Service, Australian Fisheries Management Authority, Australian Quarantine and Inspection Service, Department of Agriculture, Fisheries and Forestry, Department of Defence, Department of Immigration and Multicultural Affairs, the Great Barrier Reef Marine Park Authority, Attorney-General’s Department, the Australian Federal Police, and Commonwealth Director of Public Prosecutions will be provided with the resources to apprehend more than double the number of illegal foreign fishing boats that are now caught each year. In Malaysia, commercial vessels are restricted to offshore areas whose zones are determined by distance from the coast and the size of the boat. The fishing industry in Malaysia has recorded exceptional growth in recent years, due in part to the fact that Malaysians are eating more fish (52.2kg per person in 2005) despite an increase in prices (New Strait Times, 27 June 2006, p. 6). Malaysia is harmonizing domestic legislation to accord with the provisions of the 1982 Convention. Since the early 1990s, there has been a dramatic increase in the incidence of illegal, unregulated, and unreported (IUU) fishing for Toothfish within the Convention Area and adjacent areas. Substantial catches were and continue to be taken by long-line fishing. As a consequence of tougher international and national measures to combat such fishing, the level of IUU fishing has declined in recent years in the Convention Area, and is near zero in Australian subantarctic waters. Some IUU historic catches

05 Fisheries Exploitation

90

10/28/09, 12:40 PM

91

The Indian Ocean Fishery

were far in excess of the legal catches allocated to licensed fishers in the same areas by CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources). Illegal catches are unsustainable. Besides the detrimental effect on Toothfish stocks, IUU fishing has significantly affected seabird populations, including endangered albatrosses. Small island states and other developing states are offered assistance through the G.A. Resolution to identify their needs in attaining development of marine resources and utilization under their jurisdiction. Naturally, such participation of developing countries depended on the scientific information available to them. Thus, the flow of scientific data and the transfer of relevant knowledge to developing countries are both essential. Following two days of talks at FAO’s Rome headquarters in early July 2006, six countries (the Comoros, France, Kenya, Mozambique, New Zealand, and Seychelles) and the European Community signed a multilateral agreement on the management of fishing in a vast area of the high seas in the South Indian Ocean. The South Indian Ocean Fisheries Agreement (SIOFA) is aimed at ensuring the long-term conservation and sustainable use of fishery resources other than tuna in areas that fall outside national jurisdictions (Figure 5.1). A number of concrete actions must be taken under the Agreement, including: establishing effective mechanisms to monitor fishing in the SIOFA; providing annual reports on fishing operations, including amounts of captured and discarded fish; and, conducting inspections of ships visiting ports of the parties to verify that they are in compliance with SIOFA regulations, and denying landing and discharging privileges to those who do not comply.

CONCLUSION This chapter has argued for an integrated approach to the political assessment of the maritime zone management of the ocean in a regional context. As such, it has drawn attention to the regional need for cooperation in fishery conservation and technology, and for the further development and enhancement of trading relationships among the littoral countries. Pressures from market competition are inherent in free market economies. Such pressures will continue and may result in competitive prices. Pressures from government intervention can be in terms of management or development.

05 Fisheries Exploitation

91

10/28/09, 12:40 PM

92

Vivian Louis Forbes Figure 5.1 South Indian Ocean Fisheries Agreement (SIOFA) High Seas Managed Area of Indian Ocean Basin

Source: U.N. FAO, Newsroom map online, 2006.

In a bid to obtain or control access to the use of the maritime space and the seabed, national maritime claims have been steadily expanding to the point where the majority of coastal and island states have claimed offshore zones for distances varying from 200 to 350 M, for their exclusive exploitation and utilization of the ocean resources. Agreements on the political delimitation of the continental shelf demonstrate that the seas can be politically divided and regulated, and in many instances, the resources therein, can be explored and exploited through cooperative ventures. The marine biotic and mineral resources contained within the seas, if explored and utilized with controlled management, may bring greater economic benefits to the communities of

05 Fisheries Exploitation

92

10/28/09, 12:40 PM

93

The Indian Ocean Fishery

the littoral states of semi-enclosed seas. Failure to manage and share the resources effectively, however, could eventually spell disaster for the coastal regions and especially for those persons who live along the littoral. More distant shelf areas may be claimed by the coastal state in certain circumstances as prescribed in Article 76. The new definition, which is based on technical criteria, clearly reflects the current technological advances and technical feasibility to explore and exploit mineral resources from the seabed. Coastal and island states will need to undertake scientific surveys of their continental margins in order to ascertain and obtain the geophysical and geological data necessary for the determination of the outer limits of the continental shelf. Continental shelves extend out from most of the continents and some of the large islands all around the world. They vary in width. From the shore they gradually tilt away to depths of about 110 to 200 metres on the average, although some drop to 800 metres. They meet a steeper slope, (continental slope), down from which the transition from shelf to deep sea is quite sudden. The provisions contained in 1982 Convention are an ideal framework from which states could develop their cooperative approaches to managing the marine environment and the utilization of marine resources in semienclosed seas. However, it is possible to achieve a compromise to share the responsibilities for the care of the marine environment, and for the conservation and careful exploitation of renewable and non-renewable resources by resolution to harvest or exploit the resources jointly. It is reasonable to expect that the increased utilization of the oceans for purposes other than traditional fishing and navigation practices will create a greater need for regulatory control of national and international sea space.

References Alexander, Lewis M. “Regional Arrangements in the Oceans”. The American Journal of International Law 71, no. 1 (1977): 84–109. Anderson, D. H. “The Straddling Stocks Agreement of 1995: An Initial assessment”. The International and Comparative Law Quarterly 45, no. 1 (1996): 463–75. Asian Development Bank. Policy on Fisheries. 2006. (available online) (accessed 4 January 2007). Australian Government. “$388.9M Budget Boost in Fight against Illegal Foreign Fishing in Australian Waters”. Media Release, 9 May 2006. (accessed 15 January 2007).

05 Fisheries Exploitation

93

10/28/09, 12:40 PM

94

Vivian Louis Forbes

Beck, Charles B. “Collective Arrangements for Managing Ocean Fisheries”. International Organisation 29, no. 3 (1975): 711–43. Christy, Francis T. “Transitions in the Management and Distribution on International Fisheries”. International Organisation 31, no. 2 (1977): 235–65. Forbes, V.L. The Maritime Boundaries of the Indian Ocean Region. Singapore: Singapore University Press, 1995. ——— Conflict and Cooperation in Managing Maritime Space in Semi-Enclosed Seas Singapore: Singapore University Press, 2001. Garcia, S.M. and Hayashi, Moritaki. “Division of the Oceans and Ecosystem Management: A Contrastive Spatial Evolution of Marine Fisheries Governance”. Ocean and Coastal Management 43 (2000): 445–74. Phillips, J. C. “The Exclusive Economic Zone as a Concept in International Law”. The International and Comparative Law Quarterly 26, no. 3 (1977): 585–615. Reuters. “Octopus Study Shows Way to Save Fish Stocks”. (accessed 19 December 2006). ———. “Fish Follow Their Noses Back to Tropical Reefs”. (accessed 9 January 2007). Sakhuja, Vijay. “Indian Ocean and the Safety of Sea Lines of Communication”. Strategic Analysis IDSA, XXV, no. 5 (2001): 1–8. U.N. FAO. “New Agreement Governing High-Seas Fishing in the Indian Ocean”. , 15 January 2007. U.N. Division for Ocean Affairs and Law of the Sea. Chronological Lists of ratifications of, Accessions and Successions to the Convention and the Related Agreements as of 2 November 2006. U.N. General Assembly. Draft Resolutions Introduced on Law of the Sea, sustainable Fisheries. G.A./10548, 6 December 2006. (accessed 11 January 2007). U.N. Population Division. The World at Six Billion. New York: United Nations, 1999. . United Nations. UN Treaty Series, Vol. 2167. (accessed 20 December 2006). Willmann, Rolf. “International Instruments for Managing Fisheries in the Indian Ocean”. Paper presented at the Conference — Forging Unity: Coastal Communities and the Indian Ocean’s Future. Chennai, India, 2001.

05 Fisheries Exploitation

94

10/28/09, 12:40 PM

95

The Indian Ocean Fishery APPENDIX I

The 1982 United Nations Law of the Sea Convention Agreement Relating to the Implementation of Part XI of the 1982 Convention And Convention relating to Straddling Fish Stock etc., etc. (CSFS)

List of Ratifications by States (IOR) as of 2 November 2006 State

1982 Convention

Agreement

CSFS

Australia Bahrain Bangladesh Comoros Djibouti Egypt France India Indonesia Iran Iraq Israel Jordan Kenya Kuwait Madagascar Malaysia Maldives Mauritius Mozambique Myanmar Oman Pakistan Qatar Saudi Arabia Seychelles Singapore Somalia

5 October 1994 30 May 1985 27 July 2001 21 June 1994 8 October 1991 26 August 1983 11 April 1996 29 June 1995 3 February 1986 — 30 July 1985 — 27 November 1995 2 March 1989 2 May 1986 22 August 2001 14 October 1996 7 September 2000 4 November 1994 13 March 1996 21 May 1996 17 August 1989 26 February 1997 9 December 2002 24 April 1996 16 September 1991 17 November 1994 24 July 1989

5 October 1994 — 27 July 2001 — — — 11 April 1996 29 June 1995 2 June 2000 — — — 27 November 1995 29 July 1994 2 August 2002 22 August 2001 14 October 1996 7 September 2000 4 November 1994 13 March 1997 21 May 1996 26 February 1997 26 February 1997 9 December 2002 24 April 1996 15 December 1994 17 November 1994 —

13 December 1999 — — — — — 19 December 2003 19 August 2003 — 17 April 1998 — — — 13 July 2004 — — — 30 December 1998 — — — — — — 20 March 1998 — —

continued on next page

05 Fisheries Exploitation

95

10/28/09, 12:40 PM

96

Vivian Louis Forbes

State

1982 Convention

Agreement

CSFS

South Africa Sri Lanka Sudan Tanzania Thailand Timor-Leste U.A.E. United Kingdom Yemen

23 December 1997 19 July 1994 23 January 1985 30 September 1985 — — — 25 July 1997 21 July 1987

23 December 1997 28 July 1995 — 25 June 1998 — — — 25 July 1997 —

14 August 2003 25 October 1996 — — — — — 19 December 2003 —

The Convention came into force on 16 November 1994, a year after the deposit of the 60th Ratification. As of 2 November 2006: Number of ratifications to 1982 Convention — 152 Number of ratifications to the Agreement — 126 Number of ratifications to the CSFS — 62 Non-ratifiers within the context of this research include: Eritrea, Iran, Israel, and Thailand. A major maritime power that has not ratified the Convention is the United States. Source: Division for Ocean Affairs and the Law of the Sea (DOALOS/OLA), United Nations. (accessed 20 December 2006).

05 Fisheries Exploitation

96

10/28/09, 12:40 PM

97

The Indian Ocean Fishery APPENDIX II Maritime Jurisdictional Limits Claimed by States (Indian Ocean Region)

Column 1 Common short-form name of country Column 2 Territorial Sea limit claimed by the State Column 3 Most recent date of Baseline declaration Column 4 Limit of Contiguous Zone claimed by the State Column 5 Limit of Exclusive Economic Zone Column 6 Limit of Continental Shelf natural or legal Column 7 Number of maritime boundaries delimited ND = not defined NM = nautical miles Common Name

TS NM

Baseline Declared

CZ NM

EEZ NM

CS metres

MB Determined

Australia Bahrain Bangladesh Comoros Djibouti East Timor Egypt Eritrea France India Indonesia Iran Iraq Israel Jordan Kenya Kuwait Madagascar Malaysia Maldives Mauritius Mozambique

12 12 12 12 12 — 12 12 12 12 12 12 12 12 3 12 12 12 12 12 12 12

14-2-83 — 13-4-74 6-5-82 5-5-85 — 9-1-90 15-9-91 19-10-67 — 18-2-60 21-7-73 — — — 16-5-72 24-12-67 27-2-63 — 27-6-96 16-4-70 18-8-76

24 24 18 — 24 — 24 — 24 24 — 24 — — — — — 24 — 24 — —

200 — 200 200 200 — 200 — 200 200 200 50 — — — 200 — 200 200 200 200 200

200/CM — CM — — 1 CS — CS 200NM defined CS — CS — CS — 200NM defined defined 200NM/CM —

8 3 ND ND ND ND 1 16 5 13 5 1 1 1 1 1 ND 6 2 1 1

continued on next page

05 Fisheries Exploitation

97

10/28/09, 12:40 PM

98

Vivian Louis Forbes

Common Name

TS NM

Baseline Declared

CZ NM

EEZ NM

CS metres

MB Determined

Myanmar Oman Pakistan Qatar Saudi Arabia Seychelles Singapore Somalia South Africa Sri Lanka Sudan Tanzania Thailand United Arab Emirates United Kingdom Yemen

12 12 12 12 12 12 3 200 12 12 12 12 12 12 12 12

9-4-77 1-6-82 29-8-96 — 16-2-58 12-3-99 — 10-9-72 11-11-94 15-1-77 31-12-70 15-10-89 17-8-92 17-10-93 15-11-98 15-1-78

24 24 24 24 18 24 — — 24 24 18 — — 24 — 24

200 200 200 — — 200 — — 200 200 — 200 200 200 200 200

200NM CS 200NM CS defined 200 — — CM 200NM CS — CS CS CS 200NM

2 2 1 2 3 ND 2 ND ND 2 2 2 4 8 10 1

Notes: South Africa claims a 24-nautical mile “maritime cultural zone”; claims same rights and powers over archaeological or historic items as in the territorial sea. Many of the States stipulate that foreign warships must obtain permission prior to entering their territorial sea. France and the United Kingdom are featured in this list as each of them administers some territory in the basin.

05 Fisheries Exploitation

98

10/28/09, 12:40 PM

99

The Indian Ocean Fishery APPENDIX III Coastal Length, Shelf, and EEZ Characteristics and Date of EEZ Proclamation

State African coast Comoros Djibouti Egypt Eritrea Kenya Madagascar Mauritius Mozambique Somalia South Africa Sudan Tanzania Asian coast Bahrain Bangladesh India Indonesia Iran Iraq Israel Kuwait Malaysia Maldives Myanmar Oman Pakistan Qatar Saudi Arabia Seychelles Singapore Sri Lanka Thailand United Arab Em. Yemen Oceania Australia

Coastal Length Shelf Area EEZ area Nautical miles To 200-metre depth To 200-M limit

EEZ Proclaimed Date

2,111 180,000 13,077 5,500 2,500 2,155 877 135,223 1,596 14,622 3,900 7,000

726,000 — 109,000 139,000 42,000 526,000 267,000 304,000 177,000 418,000 65,000 120,000

— — 506,000 2,221,000 344,000 3,768,000 3,445,000 1,639,000 2,283,000 4,529,000 267,000 651,000

6 May 1982 7 January 1979 26 August 1983 — 28 February 1979 16 September 1985 3 June 1977 19 August 1976 — 11 November 1994 — 1989

700 3,100 27,600 198,000 9,909 100 1,244 1,355 18,531 — 12,300 10,000 4,400 2,055 13,400

15,000 160,000 1,318,000 8,096,000 312,000 2,000 13,000 41,000 1,089,000 30,000 669,000 178,000 170,000 70,000 227,000

300 6,500 13,000 4,200 9,000

1,000 78,000 751,000 173,000 223,000

15,000 224,000 5,876,000 15,773,000 454,000 2,000 68,000 41,000 1,387,000 2,797,000 1,486,000 1,638,000 929,000 70,000 549,000 3,934,000 1,000 1,509,000 250,000 173,000 1,704,000

— — 28 May 1976 21 March 1980 2 May 1993 — — — 24 December 1984 5 December 1976 9 April 1977 10 February 1981 22 December 1976 2 June 1974 — 23 May 1977 — 15 January 1977 16 February 1988 17 October 1993 1991

150,900

6,616,000

13,109,000

26 July 1994

Source: V. L. Forbes, The Maritime Boundaries of the Indian Ocean (1995, p. 103); and various national publications and U.N. Division of Ocean Affairs and Law of the Sea .

05 Fisheries Exploitation

99

10/28/09, 12:40 PM

100

Vivian Louis Forbes APPENDIX IV Maritime Boundary Agreements between Indian Ocean Littoral States

Australia (Heard/McDonald Islands) — France (Fr. Southern and Antarctica Lands — (9 January 1983) Australia — Indonesia (2 boundaries; 8 November 1973) Australia — Indonesia (1 February 1982) Australia — Indonesia (11 December 1989) Australia — Papua New Guinea (2 boundaries; 15 February 1985) Australia — East Timor (Timor-Leste) (2 April 2003) Bahrain — Iran (14 May 1972) Bahrain — Saudi Arabia (26 February 1958) Burma — India (14 September 1987) Burma — Thailand (12 April 1982) Eritrea — Yemen (17 December 1999) France (Reunion) — Mauritius (2 April 1980) France — Seychelles (19 February 2001) India — Indonesia (17 December 1974 and 15 August 1977, two agreements) India — Indonesia — Thailand (2 March 1979 — Tri-point established) India — Maldives — Sri Lanka (31 July 1976 — Tri-point established) India — Maldives (8 June 1978) India — Myanmar (14 September 1987) India — Sri Lanka (8 July 1974 and 10 May 1976, two agreements) India — Thailand (15 December 1978) Indonesia — Malaysia (7 November 1969) Indonesia — Malaysia (8 October 1971) Indonesia — Malaysia (7 November 1969 and 16 July 1973, two agreements) Indonesia — Malaysia — Thailand (16 July 1973 — Tri-point established) Indonesia — Papua New Guinea (2 boundaries; 26 December 1974) Indonesia — Papua New Guinea (10 July 1982) Indonesia — Singapore (29 August 1974) Indonesia — Thailand (16 July 1973 and 15 December 1978, two agreements) Iran — Oman (28 May 1975) Iran — Qatar (10 May 1970) Iran — Saudi Arabia (29 January 1969) Iran — United Arab Emirates (Dubai) (31 August 1974) Iraq — Kuwait (20 May 1993) Israel — Jordan (17 February 1996)

05 Fisheries Exploitation

100

10/28/09, 12:40 PM

101

The Indian Ocean Fishery Kenya — Tanzania (9 July 1976) Kuwait — Saudi Arabia (31 January 2001) Malaysia — Singapore (3 August 1928) Malaysia — Thailand (15 July 1982) Malaysia — Thailand (16 July 1973 and 15 July 1982, two agreements) Mozambique — Tanzania * (28 December 1988) Oman — Pakistan (21 November 2000) Oman — United Arab Emirates (date not available) Oman — Yemen (27 December 1992) Qatar — Saudi Arabia (31 May 1971) Qatar — United Arab Emirates (Abu Dhabi 20 March 1969) Seychelles — Tanzania (23 January 2002) Saudi Arabia — Yemen (4 July 2000) UAE — Qatar (30 March 1969)

05 Fisheries Exploitation

101

10/28/09, 12:40 PM

102

Vivian Louis Forbes APPENDIX V Production of Fisheries and Aquaculture; Imports and Exports by State

State Australia Bahrain Bangladesh Comoros Djibouti Egypt France India Indonesia Iran Iraq Israel Jordan Kenya Kuwait Madagascar Malaysia Maldives Mauritius Mozambique Myanmar Oman Pakistan Qatar Saudi Arabia Seychelles Singapore Somalia South Africa Sri Lanka Sudan

Production of Fisheries Thousand tonnes

Imports (fish) $ million

Exports (fish) $ million

233 — 1,891 12 — 802 — 5,962 5,420 403 — 28 1 146 6 150 1,435 — 9 37 1,434 — 612 7 62 63 8 — 771 306 60

554 — 10 — — 107 3,207 36 77 30 — 134 27 3 21 14 387 — 129 8 1 — 0 — 130 — — — 48 71 1

898 — 305 — — 2 1,089 1,412 1,491 51 — 8 1 56 2 156 378 — 137 98 248 — 130 — 10 — — — 320 84 0

continued on next page

05 Fisheries Exploitation

102

10/28/09, 12:40 PM

103

The Indian Ocean Fishery

State Tanzania Thailand Timor-Leste U.A.E. Yemen

Production of Fisheries Thousand tonnes

Imports (fish) $ million

Exports (fish) $ million

— 3,547 — — 159

0 1,042 — — 7

117 3,676 — — 43

Source: FAO Statistical Yearbook 2004, Volumes 1 and 2, FAO, Rome, 2005 (Generally from information based on 2002 values as cited in the volumes).

Addendum During the publication stages of this book certain events happened relating to this chapter which may be of interest to our readers. For example, on 10 March 2009, the Ministers for Foreign Affairs of Indonesia and Singapore signed a maritime boundary accord which extended in westward alignment a boundary delimited in 1973 in the western approaches to the Straits of Singapore. The International Court of Justice handed down its decision on the case between Malaysia and Singapore on 23 May 2008 relating to the sovereignty dispute over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. Full transcript of the proceedings and Judgment handed down can be viewed at the ICJ’s webpage . The home page of Oceans and Law of the Sea of the United Nations’ Division of Ocean Affairs and Law of the Sea is updated on a regular basis. Hence the information given in Appendix I and II should be verified with the webpages accordingly. This includes submissions made by States for claims to extended continental shelf. No less than thirteen states in the Indian Ocean region have submitted their respective claims either in full or in part as a preliminary statement to extended jurisdiction over their adjacent natural prolongation of the landmass.

05 Fisheries Exploitation

103

10/28/09, 12:40 PM

104

Clive Schofield

6 COMPETING CLAIMS TO MARITIME JURISDICTION IN THE INDIAN OCEAN Implications for Regional Marine Biodiversity and Fisheries Clive Schofield

INTRODUCTION The Indian Ocean encompasses an enormous maritime space that plays host to considerable marine resources including important marine biodiversity and fisheries resources. Substantial swaths of the Indian Ocean are subject to extensive national claims to maritime jurisdiction. These claims provide coastal states with access to the living and non-living resources of the Indian Ocean through the sovereignty and sovereign rights within their claimed zones of maritime jurisdiction and these claims, therefore, represent tremendous potential maritime opportunities. There are, however, considerable challenges to contend with in terms of realizing these opportunities. Indeed, the resource-related economic benefits that

06 Fisheries Exploitation

104

10/28/09, 12:41 PM

105

Competing Claims to Maritime Jurisdiction

were generally anticipated to flow on from these broad maritime claims made by the predominantly developing Indian Ocean coastal states have largely not lived up to initial expectations. This chapter explores the complex mosaic of maritime and territorial claims existing in the Indian Ocean. It provides an overview of the baselines and maritime zones claimed by the Indian Ocean littoral states in the context of the United Nations Convention on the Law of the Sea (LOSC) (United Nations 1983). Particular reference is made to those claims arguably at odds with the relevant provisions of LOSC, notably arguably inappropriate baseline designations and excessive claims to maritime jurisdiction. Additionally, problematic unilateral and historical claims as well as sovereignty disputes over islands, together with their inevitable maritime jurisdictional implications, are examined. The consequences of these factors for the delimitation of maritime boundaries in the Indian Ocean are then considered. The chapter then addresses some of the implications of this complex jurisdictional framework for Indian Ocean marine biodiversity and fisheries in the context of these extensive and complex jurisdictional claims. Clearly, the Indian Ocean littoral states benefit from significant maritime opportunities afforded to them through their broad claims to maritime jurisdiction. This is particularly the case in terms of coastal state sovereign rights over biodiversity and living resources within claimed EEZs. There are, however, a number of serious threats to marine biodiversity and fisheries in the Indian Ocean Region related to national claims to maritime jurisdiction, which are highlighted. These include the problems associated with the inherently highly migratory and thus transboundary nature of key fish stocks such as tuna in the context of increasing illegal, unreported, and unregulated (IUU) fishing; tensions arising from the distinct, and often conflicting, interests of coastal states and distant water fishing states (DWFSs) operating in the Indian Ocean; and challenges relating to maritime surveillance and enforcement against a background of concerns over management capacity among developing states and jurisdictional uncertainty arising from excessive or conflicting maritime claims, lack of boundary delimitation, and maritime boundary disputes. These issues are examined and some brief observations and reflections are offered on potential ways forward — for example, options to overcome jurisdictional barriers to maritime enforcement, notably through cooperation across agreed maritime boundaries.

06 Fisheries Exploitation

105

10/28/09, 12:41 PM

106

Clive Schofield

GEOGRAPHICAL CONTEXT For the purposes of the present discussion, the Indian Ocean is defined as being bounded by the east coast of Africa, the south-east coast of Arabia, the southern Asian littoral, and the western coasts of the Indonesian archipelago and Australia. The limits of the Indian Ocean, therefore, proceed in a great arc from the Cape of Good Hope at the southern tip of the African continent, northwards to the Bab al Mandeb, north-eastwards to the Strait of Hormuz, eastwards to the Straits of Malacca and along the fringes of the Indonesian archipelago, and then south along the west coast of Australia. This definition, therefore, excludes the Red Sea and Persian/Arabian Gulf, but includes the Arabian and Andaman Seas, the Bay of Bengal, and the Timor and Arafura Seas as far as the Torres Strait. Southwards, the Indian Ocean is deemed to extend to an irregular chain of sub-Antarctic islands, notably South Africa’s Prince Edward Islands, France’s Kerguelan Islands, and the Australian external territories of the Heard and McDonald Islands. The Indian Ocean states considered in this chapter are listed in Table 6.1. These include seventeen continental states,1 eight island or archipelagic states,2 and two extra-regional states with possessions within the Indian Ocean.3 Although each contains a single large island — Sri Lanka in the east and Madagascar in the west — the eastern and western halves of the Indian Ocean are geographically distinct. The eastern Indian Ocean is characterized by major archipelagos, most notably that of Indonesia, but also the Andaman and Nicobar Islands group. These island groups are predominantly located towards the Indian Ocean’s mainland margins and there are relatively few isolated islands, although Australia’s Cocos (Keeling) Islands and Christmas Island are notable exceptions to this general rule. 4 In contrast, the western part of the Indian Ocean features predominantly smooth continental coastlines, coupled with numerous small, isolated islands, and groups of islands such as the Comoro Islands group, and islands scattered through the Mozambique Channel, the Seychelles, the Maldives, the Chagos Archipelago, Réunion, and Mauritius (Prescott and Schofield 2005, p. 461).

06 Fisheries Exploitation

106

10/28/09, 12:41 PM

107

Competing Claims to Maritime Jurisdiction Table 6.1 Indian Ocean Claims to Maritime Jurisdiction

Country

Party to LOSC

Territorial Sea

Contiguous Zone

EEZ

Fishery Zone

Australia Bangladesh Burma Comoros Djibouti France1 India Indonesia Iran Kenya Madagascar Malaysia Maldives Mauritius Mozambique Oman Pakistan Seychelles Somalia South Africa Sri Lanka Tanzania Thailand United Arab Emirates United Kingdom2 Yemen

5/10/94 27/7/01 21/5/96 21/6/94 8/10/91 11/4/96 29/6/95 3/2/86 — 2/3/89 22/8/01 14/10/96 7/9/00 4/11/94 13/3/97 17/8/89 26/2/97 16/9/91 24/7/89 23/12/97 19/7/94 30/9/85 — — 25/7/97 21/7/87

12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 200 12 12 12 12 12 3 12

24 18 24 — 24 24 24 — 24 — 24 — 24 24 — 24 24 24 — 24 24 — — 24 — 24

200 200 200 200 200 200 200 200 200 200 200 200 200 200 200 200 200 200 — 200 200 200 200 200 — 200

200 — — — — — — — — — — — — — — — — — 200 — — — — — 200 —

Notes:

1

In relation to Bassas da India, Europa Island, the Glorioso Islands, and Juan de Nova Island, Mayotte Island, and Tromelin Island. 2 In respect of the British Indian Ocean Territory. Sources: United Kingdom Hydrographic Office (UKHO) (2009) National Claims to Maritime Jurisdiction, Annual Notice to Mariners, No. 12/09, Taunton: UKHO. Available at: . United Nations, Division of Ocean Affairs and the Law of the Sea (DOALOS) (2007) “Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part XI of the Convention and of the Agreement for the implementation of the provisions of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks”, updated 10 July 2009. Available at: .

06 Fisheries Exploitation

107

10/28/09, 12:41 PM

108

Clive Schofield

CLAIMS TO MARITIME JURISDICTION IN THE INDIAN OCEAN The Indian Ocean States and the Law of the Sea The international law rules concerning baselines and maritime claims, and governing the delimitation of maritime boundaries, are largely codified in the United Nations Convention on the Law of the Sea (LOSC), and its predecessors, notably the four Conventions signed in Geneva in 1958.5 Of the Indian Ocean’s twenty-six coastal States,6 twenty-three have signed and ratified LOSC. The exceptions are Iran, Thailand, and the United Arab Emirates (UAE). The Indian Ocean littoral states have proved to be similarly enthusiastic with respect to maritime jurisdictional claims, particularly the EEZ concept (see below). Indeed, the term “exclusive economic zone” was first used in a working paper submitted by an Indian Ocean State, Kenya, to the African-Asian Legal Consultative Committee in 1972. However, a number of the maritime claims articulated by the Indian Ocean coastal states are questionable or potentially problematic. These include arguably excessive and inappropriate claims to straight baselines and excessive claims to maritime jurisdiction. Additionally, unilateral claims to maritime jurisdiction and those based on historical rights are potentially problematic. The Indian Ocean is also host to a number of sovereignty disputes over islands, which inevitably have an associated maritime jurisdictional dimension. These problematic claims have given rise to international protests. Such protests often emanate from neighbouring states keen to protect their own national interests offshore. However, it also appears that, in some cases, neighbouring states opt to remain silent in the face of arguably excessive maritime claims. This may well be due to concerns not to aggravate bilateral relations. Alternatively, this attitude may result from these states’ own questionable practice. In this context it is notable that the world’s pre-eminent maritime power, the United States, is particularly vigilant, and routinely protests against any practice excessive or contrary to the provisions of LOSC, or, more specifically, the United States’ interpretation of those provisions. This is achieved through the United States Freedom of Navigation Program, which was established in 1979 (Roach and Smith 1996, pp. 3–13). The rationale for these actions is that, as it is a maritime state, the national security of the United States “depends on a stable legal regime assuring freedom of navigation on, and overflight of, international waters”, and

06 Fisheries Exploitation

108

10/28/09, 12:41 PM

109

Competing Claims to Maritime Jurisdiction

that, in view of this, the United States will respond to what it views as excessive maritime claims in order to preserve the “careful balance of coastal and maritime state interests” enshrined in LOSC (Roach and Smith 1996, p. 4). The Freedom of Navigation Program provides for three types of responses — diplomatic representations in the form of formal protest notes, notes verbale or aides mémoire; “operational assertions” whereby United States air and naval forces undertake missions designed to emphasize freedom of overflight or navigation in a “low-key and nonthreatening manner, but without attempt at concealment”; and through bilateral and multilateral consultations (Roach and Smith 1996, pp. 6–7 and 10–11). As part of this effort to counter what the United States deems to be excessive claims, the U.S. Department of State provides, particularly through the Limits in the Seas series, a wealth of detailed information and analysis of state practice in respect of baselines and maritime claims which have proved invaluable in the following discussion.7

Baselines Where the coastline is especially complex, the application of normal baselines can result in a similarly complex maritime jurisdictional arrangements, with areas of non-territorial sea surrounded by areas of territorial sea. Under such circumstances, Article 7 of LOSC allows states to depart from the use of normal baselines and measure maritime zones from straight baselines drawn along selected parts of their coastlines. In usual circumstances, according to Article 5 of LOSC, a coastal state’s baseline is defined as “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State”.8 This type of baseline, referred to in LOSC as the “normal” baseline, is the predominant type of baseline used by states and is, in effect, a state’s “default” baseline. Such normal baselines account for the majority of the baselines applicable around the Indian Ocean. It is worth noting in this context that normal baselines can change significantly over time and this necessarily has an impact on the generation of the outer limits of claims to maritime jurisdiction (Prescott and Schofield 2005, pp. 100–101). Clearly, the tsunami of 26 December 2004 has, in many cases, had a significant impact on the normal baselines of many Indian Ocean states, in addition to the other serious impacts associated with it.9 Where specific coastal geography exists, Article 7 of LOSC allows states to depart from the application of the normal baseline and measure

06 Fisheries Exploitation

109

10/28/09, 12:41 PM

110

Clive Schofield

maritime jurisdictional zones from straight baselines drawn along selected parts of their coastlines. In particular, Article 7(1) allows the application of straight baselines in localities where “the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity”. Although the intention of LOSC Article 7 — to deal with complex coastal geography — is clear, the imprecise nature of the provisions of Article 7 and the lack of any objective test for the validity of a particular straight baseline system, has led to wide interpretation in state practice, and a significant number of what might be termed excessive claims (see Prescott and Schofield 2005, pp. 139–66; see also, United Nations 1989 and United States 1987). One of the earliest straight baseline claims in the region is that of Madagascar, articulated through a Decree of 23 February 1963 (United States 1970b, p. 2). The claim comprises a continuous series of straight baselines from the northern tip of Madagascar, around the entirety of the island’s western and southern coasts. Approximately two-thirds of the eastern coast is composed of normal baselines before straight baselines recommence to front Madagascar’s northeastern coastline. The straight baseline system so defined totals 1,577.3 nautical mile (nm) of a total baseline calculated to be 2,029.3nm in length (United States 1970b, p. 6). By no means is all of the coastline in question deeply indented enough or fronted by a fringe of islands to justify the application of straight baselines. Additionally, the claim includes some arguably overly long straight baseline segments, the longest being 123.1nm. Having apparently been constructed using a small-scale chart, inconsistencies also arise when the coordinates recorded in the Decree are transposed to a large-scale chart, including straight baselines apparently cutting across land territory (United States 1970b, p. 7). Another early claim to straight baselines was that made by Portugal on behalf of Mozambique, dated 22 August 1966. The straight baselines in question encompass a substantial portion of Mozambique’s coastline, totalling 453.4nm in length. The baselines are divided into five distinct sections, two of which link fringing islands and reefs to the mainland coast, whilst the remaining three close indentations or bays along the coast. The longest straight baseline segment claimed is 60.4nm long with an average segment length of 19.7nm (United States 1970c, pp. 5–7). As such, these straight baselines compare favourably with those of Madagascar on the opposite shore of the Mozambique Channel.

06 Fisheries Exploitation

110

10/28/09, 12:41 PM

111

Competing Claims to Maritime Jurisdiction

Myanmar (Burma) claimed a system of straight baselines on 15 November 1968 through a Ministry of Foreign Affairs statement. Aside from an approximately 30nm long section of normal baselines extending southwards from the terminus of Burma’s land boundary with Bangladesh, Burma employs straight baselines along the remainder of its coast. These straight baselines total 826.4nm. This claim includes a single baseline segment across the Gulf of Martaban which is 222.3nm in length — the longest single straight baseline segment claimed worldwide (United States 1970a, p. 6). Despite Burma’s justification of these straight baselines “by reason of geographical conditions prevailing” on the coastline in question, together with the need to “safeguard the vital economic interest of the inhabitants of the coastal regions”, this claim resulted in a U.S. protest (Roach and Smith 1996, pp. 123–24). This protest was made partially on the basis of the manner in which the Gulf of Martaban’s closing line deviates from the general direction of the coast (Roach and Smith 1996, p. 124). Most protests against the Burmese straight baseline claim tend to focus on the extraordinarily and excessively long Gulf of Martaban closing line. This is not surprising as it has been observed that at one point along this line, the nearest Burmese land territory is over 75nm away, whilst the mouth of the Sittang River is over 120nm distant (Roach and Smith 1996, p. 123). However, other sections of the Burmese claim, for instance the most northerly segment, are also of questionable merit. In a similar fashion, both Iran and Pakistan have defined straight baselines along the entirety of their coastlines, apparently without regard to whether the coastline in question is deeply indented or cut into, or, alternatively, fronted by a fringe of islands in the immediate vicinity of the coast as is required under LOSC Article 7. Iran first established straight baselines in 1959 and these baselines were revised in 1973. However, Iran’s currently claimed straight baseline system relies on a comprehensive Marine Areas Act of 2 May 1993. As noted, Iran’s claimed baselines stretch along almost the entire length of the Iranian coastline in the Arabian/ Persian Gulf, and eastwards into the Gulf of Oman. These claims have been subject to international protests. While Kuwait and Saudi Arabia’s protests merely noted that parts of Iran’s 1993 Act were inconsistent with international law and did not single out Iran’s straight baselines for adverse comment, it is likely that these baselines were among the aspects of the Iranian claims of concern to these neighbouring states. In contrast to Kuwait’s and Saudi Arabia’s somewhat circumspect comments, the United

06 Fisheries Exploitation

111

10/28/09, 12:41 PM

112

Clive Schofield

States issued a detailed protest dated 11 January 1994 (United States 1994, pp. 37–39). In particular, the United States objected to Iran’s straight baselines on the basis that the Iranian coastline is only “rarely” deeply indented or fringed by islands and that several of the baseline segments are “excessively long” (United States 1994, p. 37; see also, Roach and Smith 1996, p. 92). In a similar fashion to Iran, Pakistan, through a notification of 10 September 1996, has claimed a system of straight baselines extending 396nm through nine segments, fronting the entirety of its coast (United States 1996, pp. 2–3 and 5–7). As the Pakistani coastline is also predominantly smooth and lacking in deep indentations or a fringe of offshore islands, it has likewise been subject to international protest. The U.S. State Department’s analysis of the Pakistani claim observes that Pakistan’s coastline “does not meet either of the two LOS Convention geographic conditions required for applying straight baselines”, that is, a deeply indented coastline or a fringe of islands in the immediate vicinity of the coast. The analysis went on to argue that “for the most part” the waters enclosed by the new straight baseline system do not have a close relationship with the land such that “it would be more appropriate to use the normal baseline” (United States 1996, p. 4; see also Prescott 1996, p. 87). A further curious feature of these straight baseline claims is that both the eastern end of the Iranian claim and the western end of the Pakistani claim end at “floating” points out to sea at the entrance to Gwatar Bay, offshore of the terminus of their land boundary on the coast, rather than on land. It appears that the two adjacent straight baseline systems are meant to join up. Whilst this type of arrangement is not unique, it is rare and rather unconventional.10 It is unclear whether the two straight baseline systems connect with one another (United States 1996, p. 5). It is also notable that, at their eastern end, Pakistan’s straight baselines terminate 5nm beyond the line of equidistance, off the coast of India. This serves to complicate the already politically fraught delimitation picture between these two neighbours (see below). Bangladesh is located at the head of the Bay of Bengal. As Bangladesh’s coastline is predominantly concave in configuration, the application of equidistance lines as a method of maritime boundary delimitation would render Bangladesh shelf-locked or zone-locked. A strong case can be made that such a distribution of maritime entitlements would not only be highly disadvantageous to Bangladesh, but also would be inequitable. In an

06 Fisheries Exploitation

112

10/28/09, 12:41 PM

113

Competing Claims to Maritime Jurisdiction

apparent attempt to compensate for this geographically disadvantaged position, Bangladesh has claimed some highly problematic straight baselines. LOSC, Article 7(2) does provide rules relevant to deltas — such as that at the mouth of the Ganges/Brahmaputra Rivers, which forms Bangladesh’s coastline. In fact, these provisions were introduced into the Convention with Bangladesh’s circumstances in mind. However, Bangladesh’s claims appear to go well beyond baselines that could be justified under these provisions of LOSC. This is so because Bangladesh’s claimed straight baselines, which measure 221nm in length, do not, in fact, touch land at any point. Indeed, aside from one area in the vicinity of a deep landward indentation, the baselines appear to follow the 10 fathom (18 metre) isobath. The consequence of this extraordinary claim is that Bangladesh’s claimed baselines are located up to 50nm offshore (Bradley et al. 2001, p. 65). Bangladesh justifies its claims on the basis that special circumstances exist in the offshore area of the Ganges/Brahmaputra delta. In particular, the highly unstable nature of the coastline in question leads to significant and frequent changes in the low-water line and the shallow nature of the waters concerned presents a major challenge for traditional hydrographic surveying of these normal baselines. Despite these problems, it nonetheless seems excessive for Bangladesh to claim baselines anywhere up to 50nm from the nearest coastal point. Rather unsurprisingly, therefore, Bangladesh’s claims have been subject to international protests, including from its immediate maritime neighbours — Myanmar and India in April 1982, and from the United States in April 1978 (Roach and Smith 1996, pp. 134–38). The straight baselines claimed by Djibouti and Oman have also been criticized. Djibouti claimed straight baselines in the vicinity of the southwestern shore of the Bab al-Mandeb, at the southern entrance to the Red Sea, extending from the mainland coast and enclosing the Sawabi [Seba] Islands. It has been noted that these islands “run virtually perpendicular to the mainland coastline” and, as such, “do not fringe the coast”, though it was acknowledged that the claimed straight baselines do not impact on the definition of Djibouti’s territorial sea limits (United States 1992, p. 3). As a result, this claim has been subject to international protest (Roach and Smith 1996, pp. 111–12 and United States 1992, pp. 3 and 10). Although parts of Oman’s coastline are deeply indented and justify the application of straight baselines, notably parts of the Musandam Peninsula on the Strait of Hormuz, parts of Oman’s four separate sets of claimed straight

06 Fisheries Exploitation

113

10/28/09, 12:41 PM

114

Clive Schofield

baselines, defined through Decree No. 28/82 of 1 June 1982, front relatively smooth coastlines lacking deep indentations, or rely on isolated islands rather than fringing islands (United States 1992, p. 5). As a result, the United States has issued a diplomatic note protesting against a significant proportion of Oman’s claimed straight baselines system (United States 1992, pp. 6 and 15–16; see also Roach and Smith 1996, p. 84). The claims of Malaysia and Thailand relevant to the Indian Ocean have escaped serious international protest. In the case of the former, this is in large part due to the fact that it has not formally publicized its straight baselines claim. The location of Malaysia’s straight baselines can, however, be deduced, particularly from a map issued by the Malaysian Directorate of National Mapping on 21 December 1979, illustrating Malaysia’s agreed maritime boundaries and maritime claims (Malaysia 1979). Although no baselines are shown on these maps, the outer limit of the Malaysian territorial sea claim is marked with straight lines — a configuration only possible if these limits were constructed from straight baselines. The location of Malaysia’s straight baselines can, therefore, be determined with reasonable accuracy by drawing lines parallel to the outer limit of the Malaysian territorial sea claim, but 12nm landward of that line. With regard to Malaysia’s claims in the Indian Ocean, essentially bordering the Malacca Strait, it is clear from this exercise that Malaysia has been liberal in its application of LOSC, Article 7. These claimed but not publicized straight baselines are, therefore, likely to complicate further maritime boundary delimitation with Indonesia (regarding EEZ rights) and be subject to international protest as and when they finally emerge in the public domain. On 1 May 2007 Malaysia enacted a fresh legislation on baselines. The Baselines of Maritime Zones Act 2006 (Act 660) provides for the use of both normal and straight baselines on the part of Malaysia but is essentially enabling legislation with regard to straight baselines as, at the time of writing, no charts or lists of geographical coordinates defining the location of straight baselines had been issued (Forbes 2007, pp. 7–8). In contrast to most of the aforementioned claims to straight baselines, Thailand’s 1970 claim to straight baselines off its Andaman Sea coast (Area 3) has attracted favourable comment. The U.S. State Department’s Office of the Geographer’s analysis noted that the Thai claim, the longest segment of which measures 16.2nm and which has a low average segment length of 6.8nm, “encloses a large number of scattered islands which are situated relatively close to the mainland” and that, due to the “significant number of excluded islands, seawards of the straight baselines system, the

06 Fisheries Exploitation

114

10/28/09, 12:41 PM

115

Competing Claims to Maritime Jurisdiction

straight baselines do no extend the territorial sea appreciably” (United States 1971a, p. 9). Similar conclusions were reached when this analysis was updated in 2000 (United States 2000, p. 10). Consequently, this portion of the Thai straight baselines claim has not excited international protest. Australia proclaimed straight baselines in 1974, but this was subsequently overtaken by Proclamation of 4 February 1983. The 1983 Proclamation defined a total of 396 straight baselines, including 297 baseline segments around the mainland coast. These claims have, however, been generally regarded as reasonably conservative in character and have not excited international protests (see Prescott 1985a and 1985b). The Indian Ocean is also host to four archipelagic states in accordance with LOSC Article 46: Comoros, Indonesia, Maldives, Seychelles. These states can apply the provisions relating to archipelagic straight baselines contained in LOSC, Article 47. Five key conditions are laid down in Article 47: that the claimant state’s “main islands” must be included within the archipelagic baseline system; that the ratio of water to land within the baselines must be between 1:1 and 9:1; that the length of any single baseline segment must not exceed 125nm; that no more than 3 per cent of the total number of baseline segments enclosing an archipelago may exceed 100nm; and, that such baselines “shall not depart to any appreciable extent from the general configuration of the archipelago”. The Law of the Sea rules relating to archipelagic baselines are technically reasonably robust, particularly when compared with those dealing with straight baselines contained in LOSC, Article 7. While the concept of an archipelagic state was codified in LOSC in 1982, Indonesia was a key pioneer of the archipelagic concept, having first claimed archipelagic-type baselines through Law No. 4 of 1960 (see United States 1971b). Indonesia is currently in the process of revising its archipelagic baselines, but has thus far only provided for a partial redesignation of new archipelagic baselines for Indonesia (Schofield and Arsana 2007, pp. 75–76).11 The Maldives has claimed archipelagic baselines through the Marine Zones of the Maldives Act, No. 6/96 which took effect on 27 June 1996 (United States 2005, pp. 2 and 5). The Maldives claim comprises thirtyseven baseline segments. The United States State Department analysis of this claim notes that LOSC Article 47(2) provides that only 3 per cent of baseline segments may exceed 100nm in length, but that in the case of Maldives claim, three segments of thirty-seven exceed 100nm (United States 2005, p. 3). On 5 May 2009, the Seychelles deposited a list of coordinates defining four sets of archipelagic baselines around distinct

06 Fisheries Exploitation

115

10/28/09, 12:41 PM

116

Clive Schofield

groups of its constituent islands. The baselines in question enclose relatively modest areas.12 The Comoro Islands is another Indian Ocean state potentially able to claim archipelagic baselines in accordance with LOSC Article 47. The Comoro Islands has indicated that it intends to make such claims but has yet to do so (Bradley et al. 2002, p. 100). Additionally, when Mauritius deposited its list of charts and geographic coordinates of its baselines with the United Nations, it included a chart and coordinates of archipelagic baselines for the Chagos Archipelago — a development that elicited a strong protext from the United Kingdom.13

Claims to Maritime Jurisdiction All but two of the Indian Ocean littoral states claim 12nm territorial seas and 200nm breadth EEZs (see Table 6.1). The exceptions are Somalia and the United Kingdom in respect of the British Indian Ocean Territory (BIOT). Somalia claims a territorial sea “to the extent of 200 nautical miles” and no EEZ.14 This claim is, of course, not in accordance with the international norm of 12nm set down in LOSC, Article 3. This excessive territorial sea claim has resulted in international protest on the part of the United States (Roach and Smith 1996, pp. 158–61). It is notable, however, that Somalia’s 200-mile territorial sea claim predates LOSC and Somalia’s signature and ratification of that Convention.15 The United Kingdom has claimed a 3nm territorial sea and 200nm fishery zone on behalf of BIOT. While the majority of the Indian Ocean states’ maritime claims are in accordance with LOSC in terms of their breadth (the only exception being Somalia), a number of Indian Ocean states have claimed rights within their national maritime zones that other maritime states, notably the United States, deem to be excessive and beyond those provided for under LOSC. Such claimed rights often relate to security and the right of foreign naval vessels to undertake the right of innocent passage through the territorial sea, or to conduct military data gathering or other military activities such as conducting exercises in the EEZ. For example, the United States has protested against aspects of Iran’s 1993 Marine Areas Act, notably Iran’s claiming of the right to establish “safety zones” around artificial structures such as oil platforms, to control the laying of submarine pipelines and cables and to exercise control over “any kind of research” within the EEZ. The United States has also objected to Iran’s interpretation of the regime of innocent passage and prohibition on the military activities of foreign states within its EEZ (United States

06 Fisheries Exploitation

116

10/28/09, 12:41 PM

117

Competing Claims to Maritime Jurisdiction

1994, pp. 38–39). Other Indian Ocean coastal states claiming similar kinds of jurisdiction, arguably contrary to the terms of LOSC, include: Bangladesh, Burma, India, Mauritius, Pakistan, Sri Lanka, the Seychelles, and the UAE (Roach and Smith 1996, pp. 172, 186–92 and 203–08). With regard to sovereign rights over the continental shelf, it is also worth noting that in accordance with LOSC Article 77(3), continental shelf rights “do not depend on occupation, effective or notional, or on any express proclamation” and coastal states, therefore, possess the rights to them, regardless of them having been formally claimed. A few Indian Ocean states have, in a similar fashion to rights claimed within the other zones of maritime jurisdiction mentioned above, made claims to jurisdiction on the continental shelf, arguably beyond that provided for under LOSC. These states include India, Pakistan, Mauritius, and the Seychelles (Roach and Smith 1996, pp. 203–05). Several Indian Ocean coastal states have made or have indicated that they will be making submissions to continental shelf rights beyond 200nm from their baselines, in accordance with LOSC Article 76. Article 76 of the LOSC establishes that the continental shelf of a coastal state comprises the seabed and subsoil of submarine areas “throughout the natural prolongation of its land territory to the outer edge of the continental margin” or to a distance of 200nm from relevant baselines. Article 76 provides a series of complex provisions relating to the coastal state establishing the location of the outer edge of the continental margin where that margin extends beyond 200 nm from its baselines,16 as well as imposing some constraints on coastal state claims.17 Such claims must be submitted to the United Nations Commission on the Limits of the Continental Shelf (CLCS).18 The deadline for such submissions was originally ten years following LOSC coming into force. In light of the challenges associated with formulating submissions, especially for developing states, the deadline was shifted to ten years following the adoption of the CLCS guidelines, on 13 May 1999, resulting in a deadline of 13 May 2009. This deadline is only applicable to those states that were parties to LOSC prior to 13 May 1999. States which became, or become, parties to LOSC after that date have a full ten years to prepare their submissions. Additionally, as the May 2009 deadline applicable to many states loomed, it became clear that numerous states would still struggle to meet the deadline, despite the fact that it had been pushed back. Accordingly, in June 2008 a meeting of the State Parties to the Convention agreed that rather than a full submission, states could instead opt to provide the Commission with “preliminary information

06 Fisheries Exploitation

117

10/28/09, 12:41 PM

118

Clive Schofield

indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission”.19 At the time of writing, the Commission had received fourteen submission (two of which are joint submissions) relating to areas of outer continental shelf in the Indian Ocean, involving eleven Indian Ocean States. In chronological order of submission these are: Australia (15 November 2004), Indonesia (16 June 2008), Mauritius and the Seychelles (joint submission in the region of the Mascarene Plateau, 1 December 2008), Myanmar (16 December 2008), France (relating to the Kerguelen Islands, 5 February 2009), Pakistan (30 April 2009), South Africa (5 May 2009), France and South Africa (joint submission in respect of the Crozet Archipelago and the Prince Edward Islands, 6 May 2009), Kenya (6 May 2009), Mauritius (in the region of Rodrigues Island, 6 May 2009), the Seychelles (Northern Plateau region, 7 May 2009), France (La Réunion Island and Saint Paul and Amsterdam Islands, 8 May 2009), Sri Lanka (8 May 2009) and India (11 May 2009).20 At the time of writing, the Commission had provided recommendations only in respect of Australia’s submission. The Commission’s recommendations were highly favourable to Australia, confirming 2.56 million km2 — an area roughly equivalent to one-third of the area of Australia’s continental and islands landmass — as being part of Australia’s maritime jurisdiction (Symonds, Alcock and French 2009).21 Additionally, six Indian Ocean States have submitted sets of preliminary information as a prelude to making full submissions. These are the Comoro Islands, Mauritius, Mozambique, Oman, Somalia and Tanzania.22

Unilateral Claims Although most Indian Ocean coastal states have tended to advance only general proclamations regarding their claims to maritime jurisdiction, a few have made more specific claims. Such unilateral claims can prove problematic and give rise to disputes and examples exist within the Indian Ocean. For example, Kenya has defined a unilateral EEZ limit that runs due east along the 1°38’ south parallel (Bradley et al. 2002, pp. 192 and 288). This line lies substantially to the north of a theoretical equidistance line between Kenya and Somalia, which, because of the configuration of the coastline and the presence of small Somali islands in the vicinity of the terminus of the land boundary on the coast, trends in a south-easterly

06 Fisheries Exploitation

118

10/28/09, 12:41 PM

119

Competing Claims to Maritime Jurisdiction

direction (Prescott and Schofield 2005, pp. 465–66). Whilst a maritime boundary dispute as such has not arisen, largely due to the lack of a functioning central government in Somalia, it can be anticipated that as and when a Somali government does emerge from the Somali conflict, a dispute will arise over this unilateral maritime claim on the part of Kenya (see Schofield 2008). As previously noted, Bangladesh would be zone-locked within the Bay of Bengal were equidistance lines to be used to define its potential maritime boundaries with neighbouring Burma and India. In addition to its unique straight baselines claim (see above), Bangladesh has apparently made unilateral claims to maritime jurisdiction. Although these claims have not been fully disclosed in the public domain, they have served to complicate maritime boundary delimitation negotiations in the Bay of Bengal. This is largely because the Bay of Bengal is understood to be prospective in terms of seabed oil and gas resources. The littoral states have sought to gain access to these resources and simultaneously bolster their maritime claims by issuing hydrocarbons exploration licences. As a result, it has become plain that maritime claims in the Bay of Bengal overlap and a contentious trilateral maritime boundary dispute exists (Bradley et al. 2002, p. 65). The delimitation scenario in the Bay of Bengal is further complicated by the dispute over the South Talpatty or New Moore/Purbasha Island between Bangladesh and India (see below). As previously noted, Malaysia published the limits of its territorial sea and continental shelf claims through a 1969 map. In the Indian Ocean at least, however, these unilateral claims have been largely overtaken by maritime boundary agreements with neighbouring states in the Malacca Strait. The Maldives also advanced EEZ claims on the basis of a “constitutional rectangle” whereby, according to its 1964 constitution, the Maldives was defined as the islands, air, and sea within a rectangle formed by parallels of latitude and meridians of longitude (Forbes and Armstrong 1995, p. 93; Roach and Smith 1996, pp. 132–34; and United States 1978, pp. 7–9).23 This controversial claim has now been abandoned as a result of the adoption of the Marine Zones of the Maldives Act mentioned above (United States 2005, p. 5).

Historic Claims On 26–28 June 1974, India and Sri Lanka agreed on a maritime boundary delimitation through their claimed historic waters in the Palk Strait and

06 Fisheries Exploitation

119

10/28/09, 12:41 PM

120

Clive Schofield

Bay (Charney and Alexander 1993, pp. 1,409–17). This body of water measures approximately 74nm north-south and 76nm east-west and, despite the presence of numerous islands, parts of it would fall beyond the 12nm-breadth territorial seas claimed from the baselines of the two states (United States 1975, p. 3). Unlike most other historic waters claims which tend to relate to the waters contained within a so-called “historic bay” and which are largely surrounded by the territory of the claimant state, the Palk Strait and Bay area involves two states and the maritime area claimed as historic waters lies between the mainland and island coasts of the two states, with multiple entry points to the wider ocean. Despite its unusual character, the claim to historic waters status for Palk Strait and Bay is backed by considerable evidence. The issue was subject to legal proceedings before the Appellate Criminal Division of the Indian High Court in Madras in 1903–04 when both India and Sri Lanka (Ceylon) formed part of the British Empire. The court ruled that Palk Bay was: …landlocked by His Majesty’s dominions for eight-ninths of its circumference…[and] effectively occupied for centuries by the inhabitants of the adjacent districts of India and Ceylon respectively…[w]e do not think that Palk’s Bay can be regarded as being in any sense the open sea and therefore outside the territorial jurisdiction of his Majesty (United States 1975, pp. 3–4).

This led to the view being expressed that there “seem to be strong reasons for considering these areas historic waters” (Charney and Alexander 1993, p. 1,410). This evidence did not, however, prevent the United States from protesting against this claim in a note directed to the Indian Ministry of External Affairs dated 13 May 1983 (Roach and Smith 1996, p. 43).24 A further claim to historic waters in the Indian Ocean was made explicit on 27 June 2008 when Mauritius deposited charts and lists of geographical coordinates of points relating to its baselines and included a historic bay closing line for Maturin Bay on Rodrigues Island.25

Problems Relating to Uncertainty over the Terminus of the Land Boundary on the Coast A further problem can arise in terms of overlapping claims and maritime boundary disputes as a consequence of disputes over the precise location of the land boundary on the coast. For example, the boundary between India and Pakistan reaches the Indian Ocean at the mouth of the Sir Creek.

06 Fisheries Exploitation

120

10/28/09, 12:41 PM

121

Competing Claims to Maritime Jurisdiction

The dispute between the two countries over the Rann of Kutch was settled by an international tribunal in 1968 (Prescott 1975, pp. 286–93). Unfortunately, however, the 1968 tribunal did not consider the continuation of the boundary down the Sir Creek to the sea. At the core of the dispute is India’s contention that the boundary lies in the middle of Sir Creek and Pakistan’s contention that the boundary lies on the Creek’s eastern bank instead and that, therefore, Sir Creek as a whole belongs to Pakistan (Misra 2001, p. 92). Naturally, the starting point of the India-Pakistan maritime boundary is dependent on determining the terminus of the land boundary. The dispute over Sir Creek, therefore, compromises efforts towards maritime boundary delimitation between India and Pakistan offshore. In this context, however, it should be noted that the bilateral relationship between the parties concerned has often been acrimonious and has been clouded by a number of other factors, most notably the long-standing territorial dispute over Kashmir. At present, therefore, serious maritime boundary negotiations designed to resolve the Sir Creek dispute do not appear to be on the horizon. Similarly, debate over the precise delimitation and redemarcation of the land boundaries between East Timor and Indonesia, including the four land boundary termini on the coast, has helped to delay the initiation of bilateral maritime boundary delimitation negotiations between these neighbouring states (Schofield and Arsana 2007, p. 75).

INDIAN OCEAN ISLAND DISPUTES A number of contentious sovereignty disputes over islands complicate maritime jurisdictional claims and efforts towards the delimitation of maritime boundaries in the Indian Ocean.

The “Scattered Islands” of the Mozambique Channel Although Madagascar gained independence from France in 1960, as did Comoros in 1975, France retained control over a number of small island territories in the Madagascar Channel, namely Bassas da India, Europa Island, the Glorioso Islands, and Juan de Nova Island. Collectively, these features are referred to by the French as the Îles Éparses (or Îles Éparses de l’Océan Indien), or the “Scattered Islands” in English (Bouchard 2009).26 Bassas da India appears to be a low-tide elevation, no point of which is above water at high tide (Prescott and Schofield 2005, p. 469). In accordance with LOSC, Article 121(2), an island can generate a full

06 Fisheries Exploitation

121

10/28/09, 12:41 PM

122

Clive Schofield

suite of maritime zones in an identical fashion to mainland coasts. In contrast, a low tide elevation, in accordance with LOSC Article 13, may only be used as a territorial sea basepoint, if it falls wholly or partially within the breadth of the territorial sea measured from another island or mainland baseline. As Bassas da India is located beyond 12nm from the nearest island or mainland baseline, it consequently has no capacity to generate claims to maritime jurisdiction (Prescott and Schofield 2005, p. 469). Europa Island, Juan de Nova Island, and the Glorioso Islands are, unlike Bassas da India, all small islands possessing points above water at high tide and so may well be capable of generating claims to, at the very least, territorial seas (Prescott and Schofield 2005, pp. 468 and 470–71). The extent to which continental shelf and EEZ claims may be made from these small features, or would be given weight in the context of the delimitation of maritime boundaries, is, however, open to question. If these small islands are given full effect in the construction of strict equidistance lines, the maritime spaces associated with them has been estimated to be as follows: Europa Island — 66,300nm2, Juan de Nova Island — 18,700nm2, and the Glorioso Islands — 12,870nm2 (Prescott and Schofield 2005, pp. 468 and 471). A delimitation exercise is, however, off the agenda at present as the islands are subject to a sovereignty dispute between France and Madagascar. Madagascar claims sovereignty over the islands on the grounds of historic title and geographical proximity, and has sought support from the U.N. General Assembly, which passed resolutions in 1980 calling on France to negotiate on the return of the islands to Madagascar. France bases its claim on first discovery and its history of occupation and administration. The islands are significant in that sovereignty over them offers claims to maritime space encompassing the southern two-thirds of the Mozambique Channel (Bradley et al. 2002, pp. 140 and 209; Prescott and Schofield 2005, p. 280; and Schofield 2003, p. 43. See also, Chapter 9, and Bouchard 2009).

Mayotte Island In 1974, when the Comoro Islands were on the verge of independence from France, the population of one of the islands making up the Comoros archipelago, Mayotte, voted in favour of remaining under French jurisdiction. Despite the referendum, the Comoros claims sovereignty over Mayotte and has been backed in its claim by the Organization of African Unity and the U.N. General Assembly, which declared the vote

06 Fisheries Exploitation

122

10/28/09, 12:41 PM

123

Competing Claims to Maritime Jurisdiction

on Mayotte to be null and void (Bradley et al. 2002, pp. 100 and 140; Prescott and Schofield 2005, p. 282; and Schofield 2003, p. 43). France, however, maintains that the island will remain under its sovereignty for as long as its population wishes this to be the case, and, if anything, the relationship between Mayotte and France appears to be strengthening especially since a March 2009 referendum in which over 95 per cent of voters favoured Mayotte becoming an integral part of France (see Chapter 9 and Bouchard 2009).

Tromelin Island Tromelin Island, located approximately 280nm east of Madagascar and around 340nm north of Mauritius and Réunion, has a potential claim to maritime jurisdiction of approximately 80,160nm2 (Prescott and Schofield 2005, p. 471). No sovereignty dispute over the feature emerged until the middle of the twentieth century, largely due to the island’s remote location, difficulties of access from the sea, lack of water, and perceived lack of value. France established a meteorological station on the island in 1954, apparently with British permission, the United Kingdom having administered the island from Mauritius (Prescott and Schofield 2005, p. 471). Five years later, Mauritius informed the world Meteorological Organization Congress that it regarded Tromelin as part of its territory on the grounds that it was part of Mauritius under British rule — a claim rejected by France which claims sovereignty on the basis of first discovery of the island by a French explorer in 1722, and more recent occupation and administration of the island. The claim by Mauritius, in turn, prompted Madagascar from which Tromelin had been previously under French administration — to assert its sovereignty over the island on independence in 1960. Subsequently, in 1976, Madagascar waived its claim in favour of Mauritius, and in 1980, Mauritius added Tromelin to the list of its dependencies contained in its constitution (Bradley et al. 2002, pp. 140 and 219; Prescott and Schofield 2005, pp. 280–81 and 471; and, Schofield 2003, p. 43).

Diego Garcia and the Chagos Archipelago Diego Garcia is the principal island of the Chagos Archipelago which consists of six major islands and numerous associated islets, rocks, and reefs. The Chagos group is located approximately 1,000nm south of India, 2,000nm south-east of the Arabian Peninsula, and 1,200nm north-east of

06 Fisheries Exploitation

123

10/28/09, 12:41 PM

124

Clive Schofield

Mauritius. Quite apart from the maritime areas that may be claimed by whichever state has sovereignty over the archipelago, its location in the Indian Ocean represents an important strategic asset and Diego Garcia is home to a major military base leased by the British authorities to the United States. From the end of the Napoleonic period to 1965, the Chagos group, which remains under British control, was administered from Mauritius. However, with the building of the military base, the population of the islands was forcibly transferred, chiefly to Mauritius, and the archipelago became part of the BIOT, along with the Seychelles and associated islands. With independence for the Seychelles in 1976, the BIOT consists solely of the Chagos archipelago. In 1980, Mauritius demanded the return of the archipelago to its control. The dispute has been complicated by a campaign on the part of the 3,000–4,000 descendants of the original Chagos inhabitants (the Ilois), who were removed in the 1965–73 period, to win the right to return to the islands.27 Because of the Chagos archipelago’s remote and isolated location, sovereignty over it confers rights over huge maritime areas in the central Indian Ocean. These maritime claims overlap with those from the Maldives. A simplified line of equidistance has, however, apparently been between the British and Maldives authorities at a technical level (Bradley 1999; Bradley et al. 2002, pp. 219 and 322; Prescott and Schofield 2005, pp. 281–82 and 472–73; and Schofield 2003, p. 43).

South Talpatty/New Moore/Purbasha Island Maritime boundary negotiations between Bangladesh and India in the Bay of Bengal have been complicated by a dispute over a newly-emergent island in the estuary of the Haribhanga and Raimongal rivers, which forms the terminus of the land boundary between the two countries. The island in question, known as South Talpatty to Bangladesh, and New Moore/Purbasha to India, emerged in 1971. The dispute centres on the question of whether the boundary river flows to the east of the island (as India claims) or to the west (according to Bangladesh). Approximately 1,300nm2 of maritime space is found to be at stake when strict equidistance lines are constructed (Prescott and Schofield 2005, p. 464). This is a potentially significant issue given that the areas offshore from the GangesBrahmaputra delta in the Bay of Bengal are believed to be potentially oil-rich (Bradley et al. 2002, pp. 65 and 170; Prescott and Schofield 2005, pp. 282–83; and, Schofield 2003, p. 43).

06 Fisheries Exploitation

124

10/28/09, 12:41 PM

125

Competing Claims to Maritime Jurisdiction

MARITIME BOUNDARY DELIMITATION IN THE INDIAN OCEAN The contrast between the eastern and western parts of the Indian Ocean in terms of coastal geography has already been raised (see above). There is also a marked contrast between the two sectors of the Indian Ocean with regard to maritime boundary delimitation. Whereas in the east more than twenty maritime boundary agreements have been concluded and the maritime boundary mosaic is largely complete with the exceptions of the Bay of Bengal and the boundaries associated with the recently independent East Timor, in the west, by contrast, only seven maritime boundaries have been delimited since 1976 (Prescott and Schofield 2005, pp. 461–62).28 By no means can all of this contrast be explained by the impact of differing coastal geography. As ever, political factors tend to play the dominant role. Significant civil unrest in, for example, Mozambique, Somalia, and Yemen, has tended to relegate maritime boundary delimitation to the back burner in a number of cases in the western portion of the Indian Ocean (Prescott and Schofield 2005, p. 462). Similarly, the sovereignty disputes over islands outlined above, are concentrated in the eastern part of the Indian Ocean, notably in the Mozambique Channel. These contentious disputes over territory necessarily need to be resolved as a precursor to the delimitation of the associated maritime boundaries. Other important factors that have hampered maritime boundary delimitation in, the western Indian Ocean, particularly, have already been highlighted. These include problematic claims to straight baselines and maritime jurisdiction, unilateral claims at odds with equidistance, and disputes over the terminus of the land boundary on the coast. It is also worth observing that, where boundaries have been agreed, innovative and conciliatory practice has delivered equitable and mutually acceptable maritime boundary agreements. This is exemplified by the progress that has been achieved in the Andaman Sea. Despite the existence of island groups fronting the mainland coast and thus potentially severely restricting the claims of mainland states, and the presence of questionable claims, especially in respect of straight baseline claims, the maritime boundary delimitation picture is, with the exception of the Bay of Bengal, near complete. In part, this is perhaps because conflicting claims have tended to even out — for instance, the fact that India’s Andaman and Nicobar groups are relatively compact and thus present a reasonably continuous coastal front, helps to balance these islands out against the mainland coastlines of, for example, Burma and Thailand. Nonetheless, in

06 Fisheries Exploitation

125

10/28/09, 12:41 PM

126

Clive Schofield

order to achieve such agreements, considerable negotiating flexibility had to be demonstrated, for example, in respect of claims from straight baselines. Another notable feature of maritime boundary delimitation practice in the eastern part of the Indian Ocean is the presence of innovative practice in the shape of separate boundaries for seabed and water column and alternatives to maritime boundary delimitation lines. With regard to the former, Australia and Indonesia have concluded a series of agreements over the years which has led to this situation, largely as a result of the way in which the international law relating to the delimitation of maritime boundaries has evolved over time, whereby Australian seabed rights are overlain by Indonesian jurisdiction over the water column. While this arrangement represents a creative and pragmatic compromise in order to deal with complex and competing claims, there are potential problems associated with this approach (Herriman and Tsamenyi 1998). With regard to alternatives to the delimitation of maritime boundary lines, Australia has been involved in several agreements that established maritime joint development zones for roughly the same maritime space with two different countries. Firstly, Australia and Indonesia in 1989 concluded a treaty relating to a Zone of Cooperation for the so-called “Timor Gap”.29 Following the independence of East Timor, a fresh agreement was required, and through the Timor Sea Treaty which took effect on 20 May 2002 — the day East Timor gained independence — a joint petroleum development area (JPDA) coinciding with the central part of the old Timor Gap treaty area (Schofield 2005; Schofield and Arsana 2007)30 was established. Furthermore, and most recently, on 23 February 2007, the agreement between Australia and East Timor relating to the sharing of the Greater Sunrise complex of fields and other matters, the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), came into force (Schofield 2007). These agreements illustrate that viable, cooperative, and mutually beneficial alternatives to maritime boundary delimitation exist, even if a particular boundary dispute appears to be deadlocked — if the requisite political will to reach agreement is present.

IMPLICATIONS FOR REGIONAL MARINE BIODIVERSITY AND FISHERIES: OPPORTUNITIES AND THREATS The conclusion of LOSC and the introduction of EEZs have been heralded as “the most significant reallocation of fisheries property rights of the

06 Fisheries Exploitation

126

10/28/09, 12:41 PM

127

Competing Claims to Maritime Jurisdiction

20th century”, shifting these valuable resource rights from international to national regimes (Hanich, Schofield and Cozens 2009). In the Indian Ocean, the enormous claims to maritime jurisdiction made by coastal states give rise to potential maritime opportunities, especially in respect of sovereign rights over marine living and non-living resources, of similar magnitude. This, at least, was the expected consequence worldwide of broad international acceptance of coastal state rights over the extended zones of maritime zones, the continental shelf, and, especially, the EEZ. Indeed, Kenya’s proposal of the EEZ concept reflected a growing concern among newly independent states in Africa and Asia about the over-exploitation of their offshore fisheries by foreign fleets, and envisaged a 200nm zone in which fishery and pollution control would fall under exclusive state jurisdiction. It was, therefore, generally thought that the declaration of EEZs would and should be of substantial benefit to, predominantly, developing coastal states. This perception is highlighted by the U.N. Food and Agriculture Organization’s (FAO) 1984 estimate that 90 per cent of marine fish and shellfish were caught within 200nm of the coast (quoted in Schurman 1998, p. 107). However, anticipated economic gains have largely not been realized or, at least, not to the same scale as hoped, and this problem certainly applies in the Indian Ocean context. One key problem is that fish do not necessarily respect political boundaries and maritime zone limits. Whilst in-shore fish stocks have generally fallen within coastal state territorial sea and EEZ claims, key high-value stocks transcend international maritime limits and boundaries. In particular, tunas, which represent the Indian Ocean’s most valuable fisheries resource, are inherently highly migratory and transboundary in nature. These fish stocks, therefore, migrate not only between the maritime zones claimed by coastal states, but between national EEZs and the high seas. Such stocks clearly demand management throughout their range. However, such management is complicated by the difficulty of reconciling coastal state sovereign rights and interests with those of DWFNs. Here there exist long-standing tensions and differences over the interpretation of LOSC and, particularly, over coastal state and foreign state rights, and responsibilities regarding living resources within claimed EEZs. While the declaration of EEZs affords coastal states considerable sovereign rights, such claims are also coupled with significant responsibilities. These include protecting and preserving the marine environment, and thus marine biodiversity, and ensuring conservation and optimal use of marine living resources. Advancing such extensive

06 Fisheries Exploitation

127

10/28/09, 12:41 PM

128

Clive Schofield

claim to maritime jurisdiction, therefore, poses a serious challenge in ocean management terms, demanding sophisticated infrastructure and investment. Many developing coastal states, including Indian Ocean littoral states, are, therefore, faced with great difficulties in meeting the responsibilities that match their prodigious rights within EEZs. Purely in terms of monitoring, surveillance, and enforcement, in the case of many developing Indian Ocean states, this challenge may very well prove to be beyond their current capacity — especially in an era of significant IUU fishing. The surveillance and enforcement challenge is, moreover, made all the harder due to the complexity of the Indian Ocean maritime mosaic. Problematic straight baseline claims give rise to uncertainties over the limits of maritime zones generated seawards, lack of delimited maritime boundaries, unilateral and overlapping claims to maritime jurisdiction and sovereignty disputes over islands all contribute to uncertainties over jurisdiction, and thus lack of clarity over which state has enforcement rights. These difficulties can be highlighted by examining the divergent experiences of Australia and Somalia. At one extreme is Somalia. By virtue of its long coastline — at around 3,300km, the longest of any mainland African state — and geographical position, Somalia benefits from (or should benefit from) an enormous maritime jurisdiction, estimated at 1.2 million km2 (Jennings 2001, p. 404). These waters boast considerable marine living resources, including high-value stocks such as tunas, largely as a result of periodic but intense upwelling of nutrients associated with the Somalia Current marine ecosystem. However, as a consequence of prolonged internal conflict, Somalia has lacked a functioning central government since 1991, and, consequently, any official regulation and enforcement of maritime activities. These factors have converged to provide a virtual free-for-all in terms of unrestrained illegal fishing in Somali waters (Schofield 2008). In contrast, Australia has, as a developed coast state, been able to devote considerable resources to safeguarding its own extensive maritime jurisdiction. In particular, Australia has taken a number of legal steps to deter illegal fishing in Australian waters, for instance, by substantially increasing fines related to illegal fishing offences, introducing an automatic forfeiture regime for illegal fishing vessels, and factoring in the costs of pursuits on the part of enforcement authorities into bonds imposed on captured illegal fishing vessels. These measures have been backed up with

06 Fisheries Exploitation

128

10/28/09, 12:41 PM

129

Competing Claims to Maritime Jurisdiction

considerably enhanced maritime surveillance and enforcement efforts in an operational sense (Schofield, Tsamenyi and Palma 2008). It is, however, questionable whether, in particular, the more innovative aspects of Australia’s legal response to the illegal fishing threat, particularly its automatic forfeiture regime and pursuit costs provisions, will survive international legal scrutiny (Gullett and Schofield 2007). Furthermore, as far as the effectiveness of its operational surveillance and enforcement measures is concerned, the case of Australia’s Southern Ocean maritime jurisdiction around its sub-Antarctic Heard Island and McDonald Island is potentially instructive. Australia has instituted yearround patrols of this area at considerable expense under the Southern Ocean Maritime Patrol and Response (SOMPR) programme. This has proved remarkably effective in one sense in that no illegal fishing vessels have been detected in the Australian EEZ around these islands since 2004. However, unregulated fishing vessels have repeatedly been detected operating just outside the Australian EEZ limit, on the high seas. This emphasizes that fact that, even with effective national maritime surveillance and enforcement measures in place, over-exploitation will remain a significant threat to regional biodiversity and fisheries until the wider issue of reconciling coastal state and DWFN interests in EEZs and, crucially, beyond them on the high seas, is addressed (see Gullett and Schofield 2007, and Schofield, Tsamenyi and Palma 2008). Having noted some of the implications for and threats to Indian Ocean biodiversity and fisheries resources in the context of competing claims to maritime jurisdiction, it is also worth noting that many of these issues are well recognized and positive steps have been, and are being, taken to address them (see, for example, McDorman 1988). For example, some notable progress has been made towards addressing the major challenges that exist in respect of the management of Indian Ocean fisheries through the work of regional fisheries management organizations such as the Indian Ocean Tuna Commission (IOTC) (see Chapter 14). With regard to clarifying the Indian Ocean jurisdictional picture and overcoming the difficulties associated with excessive or competing maritime claims, it is also worth highlighting the recent example of Australia’s and France’s practice on the fringes of the Indian Ocean, around their respective subAntarctic island territories. In order to help combat illegal foreign fishing in these waters, Australia and France have concluded two treaties on cooperative surveillance and enforcement that transcend their respective

06 Fisheries Exploitation

129

10/28/09, 12:41 PM

130

Clive Schofield

maritime jurisdictions and boundaries, and this represents an excellent example of a cooperative response to a common challenge (Gullett and Schofield 2007). While it has to be acknowledged that major challenges remain, it is to be hoped that the clear, shared maritime interests of the Indian Ocean coastal states, emphasized by the presence of highly migratory and economically valuable stocks such as tunas in the waters of the region, will provide a powerful incentive and argument for the development of similar maritime cooperative initiatives in the future.

Notes 1. Australia, Bangladesh, Burma, Djibouti, India, Iran, Kenya, Malaysia, Mozambique, Oman, Pakistan, Somalia, South Africa, Tanzania, Thailand, the United Arab Emirates, and Yemen. 2. Comoro Islands, East Timor, Indonesia, Madagascar, Maldives, Mauritius, the Seychelles, and Sri Lanka. 3. France and the United Kingdom. France’s Indian Ocean possessions include the large island of Réunion, Tromelin Island, Mayotte Island, and a number of small islands scattered through the Mozambique channel, namely, Bassas da India, Europa Island, the Glorioso Islands, and Juan de Nova Island. The United Kingdom’s British Indian Ocean Territory comprises the Chagos Archipelago. 4. The twenty-seven islands making up the Cocos group are located approximately 2,770km north-west of Perth, at 96°50’ East, by 12°10’ South. Christmas Island is located around 2,300km north-west of Perth, and 1,260km south of Java, at latitude 10°25’ South and longitude 105°43’ East. See . 5. Four Conventions emerged from the first United Nations Conference on the Law of the Sea (UNCLOS I), held in Geneva in 1958: Convention on the Territorial Sea and Contiguous Zone; Convention on the Continental Shelf; Convention on the High Seas; and, Convention on Fishing and Conservation of the Living Resources of the High Seas. 6. Australia, Bangladesh, Burma, Comoros Islands, Djibouti, France, India, Indonesia, Iran, Kenya, Madagascar, Malaysia, Maldives, Mauritius, Mozambique, Oman, Pakistan, Seychelles, Somalia, South Africa, Sri Lanka, Tanzania, Thailand, United Arab Emirates, United Kingdom, and Yemen. 7. The Limits in the Seas series is available from the United States’ Department of State website at . 8. LOSC, Article 5. This represents an almost verbatim repetition of Article 3 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.

06 Fisheries Exploitation

130

10/28/09, 12:41 PM

131

Competing Claims to Maritime Jurisdiction

9. It is worth noting in this context that the definition of the low-water line is dependent on the choice of vertical datum, that is, the level of reference for vertical measurements such as depths and heights of tide. Thus, if a lower vertical datum is selected, the area landward of the baseline, and thus designated as land territory or internal waters, increases. Simultaneously, as the starting point for measuring maritime claims is further seaward, the potential area claimed from that baseline is likely to be increased. This consideration can play an important role in disputes over islands — influencing whether a particular feature can be considered to be, for example, an island or a low-tide elevation. This, in turn, can have significant implications in terms of the capacity of a particular feature to generate extensive maritime claims to jurisdiction. LOSC does not specify a particular vertical datum, leaving the choice to the coastal State (Carleton and Schofield 2001, pp. 21–25 and 38). 10. Other “floating” basepoints connecting straight baseline claims include those linking the claims of Denmark and Germany, Finland and Sweden, and Norway and Sweden, all within the Baltic Sea. 11. Indonesia’s Law No. 6 of 1996 serves to invalidate the 1960 straight baselines system. Unfortunately, the Peraturan Pemerintah (PP) [Government Regulation] No. 38 of 2002, which enacts the 1996 law, only provides for a partial redesignation of Indonesia’s archipelagic baselines. 12. Deposit of the lists of geographical coordinates of points: a list of geographical coordinates of points identifying normal and archipelagic baselines from which the breadth of the territorial sea is measured, as contained in schedules 1 and 2 of the Maritime Zones (Baselines) Order, 2008 (S.I. 88 of 2008) as amended by Maritime Zones (Baselines) (Amendment) Regulations, 2009 (S.I.35 of 2009), available at, . 13. See Deposit of charts and lists of geographical coordinates of points representing the basepoints and defining the baselines from which the maritime zones of Mauritius shall be measured, as contained in the “Regulations made by the Prime Minister under sections 4, 5 and 27 of the Maritime Zones Act 2005”; together with an illustrative map; together with communications from the governments of Mauritius and the United Kingdom available at . 14. In accordance with Article 1(1) of Somalia’s Law No. 57 on the Territorial Sea and Ports of 10 September 1972. 15. A number of coastal states have made claims to 200nm territorial seas. Most of these claims date from the period when extended zones of jurisdiction were developing and thus reflect the aspirations of coastal states at that time for extended jurisdiction over offshore resources (Prescott and Schofield

06 Fisheries Exploitation

131

10/28/09, 12:41 PM

132

16.

17.

18. 19.

20.

21.

22.

23.

Clive Schofield 2005, p. 34; see also Roach and Smith 1996, pp. 151–53). Whilst most of these claims have been “rolled back” to the international norm of 12nm breadth territorial sea claims, several anachronistic 200nm territorial sea claims remain, largely as a consequence of major developmental and governance problems in the states concerned. This is certainly the case for Somalia (see Roach and Smith 1996, pp. 151–61, and Schofield 2008). The outer edge of the continental margin may be established either through reference to the thickness of sedimentary rocks, or a line no more than 60 nautical miles from the foot of its continental slope. LOSC, supra note 6, Article 76(4). Coastal state claims “either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath.” LOSC, supra note 6, Article 76(5). Article 76 further provides that the coastal state shall define the outer limits of its continental shelf where it extends beyond 200 nm from its baselines “by straight lines not exceeding 60 nautical miles in length, connection fixed points, defined by coordinates of latitude and longitude.” See . See also, Cook and Carleton, 2000. See Decision of the eighteenth Meeting of State Parties, SPLOS/183 at . The executive summaries of these submissions are available from the Commission’s website at . Of the area covered by the Australian submission that was considered by the Commission, 95 per cent was recommended to form part of Australia’s outer continental shelf jurisdiction. In a move designed to forestall disputes with other states which do not recognize Australia’s territorial claims to parts of Antarctica, Australia requested that the Commission not consider the outer continental shelf areas off the Australian Antarctic Territory “for the time being”. See “Note from the Permanent Mission of Australia to the SecretaryGeneral of the United Nations accompanying the lodgement of Australia’s submission”, November 2004, available at . A summary of the Commission’s recommendations to Australia is available at . Details of these sets of preliminary information are available from the Commission’s website at . The coordinates of the parallels of latitude and meridians of longitude defined

06 Fisheries Exploitation

132

10/28/09, 12:41 PM

133

Competing Claims to Maritime Jurisdiction

24.

25.

26.

27.

28.

in 1964 were Latitude 0° 45' 30"S and 7° 10' 15"N; Longitude 72° 29’ 25" and 73° 49’ 00"E. A slight amendment was effected in 1972 and the relevant coordinates were amended to 0° 45' 15"S and 7° 9' 30" N and 72° 30' 30" and 73° 48' E. (see Forbes and Armstrong 1995, pp. 93–94 and United States 1978, p. 8). Australia has also made claims relating to historic bays. However, these are associated with South Australia and are, therefore, not related to the Indian Ocean proper and are not considered in the present discussion. A “historic bay closing line” is listed for the line connecting points R30-R31 in the list of coordinates of basepoints deposited with the United Nations by Mauritius. See Deposit of charts and lists of geographical coordinates of points representing the basepoints and defining the baselines from which the maritime zones of Mauritius shall be measured, as contained in the “Regulations made by the Prime Minister under sections 4, 5 and 27 of the Maritime Zones Act 2005”; together with an illustrative map, available at, . N.B. This is the same reference as for the claim by Mauritius for archipelagic baselines around the Chagos archipelago. In February 2007 (through law 2007-224 of 21 February 2007), the Îles Éparses were officially integrated into the French Southern and Antarctic Lands (TAAF), for which they now form the fifth administrative district. In addition to the four Mozambique Channel islands of Bassas da India, Europa, Juan de Nova, and Glorioso, this new TAAF administrative district also includes Tromelin Island. In 2000 the Ilois won a landmark case before the High Court in London which ruled that the 1971 Immigration Ordinance which banned people without permits from entering or remaining in the Chagos Archipelago, thereby effecting the eviction of the Ilois, was illegal (see Bradley 1999). The British government instead applied an Order in Council in 2004 to maintain its position, but the High Court again ruled in favour of the Ilois in another case, which concluded in May 2006 (“Court Victory for Chagos Families”, BBC, 11 May 2006. See ). Ultimately, however, the Ilois right of return was overturned through a House of Lords ruling of 22 October 2008. (“Islanders return hopes dashed by ruling, BBC, 22 October 2008. See ). Discussion of individual agreements can be found in Charney and Alexander (1993 and 1998), Charney and Smith (2002) and Colson and Smith (2005). Within these volumes, regional summaries by Adede (1993), Daniel (2005), and Prescott (1993 and 2005) can be found. For a discussion of the Indian Ocean’s undelimited maritime boundaries, see Prescott and Schofield (2005).

06 Fisheries Exploitation

133

10/28/09, 12:41 PM

134

Clive Schofield

29. Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of east Timor and Northern Australia, 11 December 1989. See Charney and Alexander 1993, pp. 1245–328. For treaty text, see . 30. Timor Sea Treaty, Dili, 20 May 2002, for treaty text see: .

References Adede, A.O. “African Maritime Boundaries”. In International Maritime Boundaries, edited by Charney, J.I. and L.M. Alexander. Vol. I, pp. 293–96. Dordrecht: Martinus Nijhoff, 1993. Arsana, I.M.A. and C.H. Schofield. “Indonesia’s Extended Continental Shelf Submission: Status and Problems”. Paper presented at Map Asia 2007, Kuala Lumpur, 14–16 August, 2007. Bouchard, C. “Maritime Affairs in the Mozambique Channel”. In The Security of Sea Lanes of Communication in the Indian Ocean Region, edited by D. Rumley, S. Chaturvedi and M. Taib, pp. 73–92. Kuala Lumpur: MIMA, 2007. Bradley, R.E. “Diego Garcia — Britain in the Dock”. Boundary and Security Bulletin 7, no. 1 (Spring 1999): 82–88. Bradley, R.E., M.A. Pratt, and C.H. Schofield. Jane’s Exclusive Economic Zones 2002– 2003. Coulsdon: Jane’s Information Group (yearbook, edited by M.A. Pratt), 2002. Carleton, C.M. and C.H. Schofield. Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits. Maritime Briefing, 3, 3, Durham: International Boundaries Research Unit, 2001. Charney, J.I. and L.M. Alexander. International Maritime Boundaries, edited by J.I. Charney and L.M. Alexander. Vols. I and II. Dordrecht: Martinus Nijhoff, 1993. Charney, J.I. and L.M. Alexander. International Maritime Boundaries, edited by J.I. Charney and L.M. Alexander. Vol. III. Dordrecht: Martinus Nijhoff, 1998. Charney, J.I. and R.W. Smith. International Maritime Boundaries, edited by J.I. Charney and R.W. Smith. Vol. IV. The Hague: Martinus Nijhoff, 2002. Colson, D. and R.W. Smith. International Maritime Boundaries, edited by D. Colson and R.W. Smith. Vol. V. The Hague: Martinus Nijhoff, 2005. Cook, P.J. and C.M. Carleton. Continental Shelf Limits, edited by P.J. Cook and C.M. Carleton. Oxford: Oxford University Press, 2000. Daniel, T. “African Maritime Boundaries”. In International Maritime Boundaries, edited by D. Colson and R.W. Smith. Vol. V. The Hague: Martinus Nijhoff, 2005.

06 Fisheries Exploitation

134

10/28/09, 12:41 PM

135

Competing Claims to Maritime Jurisdiction

Forbes, V.L. “The Territorial Sea Datum of Malaysia”. MIMA Bulletin 14, no. 4 (2007): 3–8. Forbes, V. and J. Arsrong. “The Sector Principle: Two Indian Ocean Examples”. Boundary and Security Bulletin 2, no. 4 (1995): 92–95. Gullett, W. and C.H. Schofield. “Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean”. International Journal of Marine and Coastal Law (2007): 545–83. Hanich, Q., C.H. Schofield, and P. Cozens. “Oceans of Opportunity? The Limits of Maritime Claims in the South Pacific”. In Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region, edited by Q. Hanich and M. Tsamenyi. Wollongong: Ocean Publications, 2009. Herriman, M. and M. Tsamenyi. “The 1997 Australia-Indonesia Maritime Boundary Treaty: A Secure Legal Regime for Offshore Resource Development?”. Ocean Development and International Law 29, no. 4 (1998): 361–96. Jennings, T. “Controlling Access in the Absence of a Central Government: The Somali Dilemma”. In Ocean Yearbook 15, pp. 403–27. Chicago: Chicago University Press, 2001. Malaysia, Director of National Mapping. Peta Menunjukkan Sempadan Perairan dan Pelantar Benua Malaysia. [Map Showing the Territorial Waters and Continental Shelf Boundaries of Malaysia], 2 sheets, 1979. McDorman, T.L. “Extended Jurisdiction and Ocean Resource Conflict in the Indian Ocean”. International Journal of Esturine and Coastal Law 3, no. 3 (1988): 208–34. Prescott, J.R.V. Map of Mainland Asia by Treaty. Melbourne: Melbourne University Press, 1975. Prescott, J.R.V. Australia’s Maritime Boundaries. Canberra: Australian National University, 1985a. Prescott, J.R.V. The Maritime Boundaries of the World. London: Methuen, 1985b. Prescott, J.R.V. “Indian Ocean and South East Asian Maritime Boundaries”. In International Maritime Boundaries, edited by J.I. Charney and L.M. Alexander. Vol. I, pp. 305–14. Dordrecht: Martinus Nijhoff, 1993. Prescott, J.R.V. “Pakistan’s Straight Baslines”. Boundary and Security Bulletin 4, no. 3 (Autumn 1996): 87. Prescott, J.R.V. “Indian Ocean Boundaries”. In International Maritime Boundaries, edited by D. Colson and R.W. Smith. Vol. V, pp. 3452–66. The Hague: Martinus Nijhoff, 2005. Prescott, J.R.V. and C.H. Schofield. The Maritime Political Boundaries of the World. Leiden/Boston: Martinus Nijhoff Publishers, 2005. Roach, J.A. and R.W. United States Responses to Excessive Maritime Claims. The Hague: Martinus Nijhoff Publishers, 1996.

06 Fisheries Exploitation

135

10/28/09, 12:41 PM

136

Clive Schofield

Schofield, C.H. “The Trouble with Islands”. Jane’s Intelligence Review, Volume 15, No. 9 (September 2003): 42–45. Schofield, C.H. “Dividing the Resources of the Timor Sea: A Matter of Life and Death for East Timor”. Contemporary Southeast Asia 27, no. 2 (August 2005): 255–80. Schofield, C.H. “Minding the Gap: The Australia — East Timor Treaty on Certain Maritime Arrangements in the Timor Sea”. International Journal of Marine and Coastal Law 22, no. 2 (2007): 189–234. Schofield, C.H. “Plundered Waters: Somalia’s Maritime Resource Insecurity”. In Crucible for Survival: Environmental Security in the Indian Ocean Region, edited by T. Doyle and M. Risely, pp. 215–41. Rutgers University Press, 2008. Schofield, C.H. and I.M.A. Arsana. “The Delimitation of Maritime Boundaries: A Matter of ‘Life or Death’ for East Timor?”. In East Timor: Beyond Independence, edited by D. Kingsbury and M. Leach, pp. 67–85. Melbourne: MAI Press, 2007. Schofield, C.H., M. Tsamenyi and M.A. Palma (in press). “Securing Maritime Australia”. In Ocean Development and International Law 39, no. 1 (2008): 1–19. Schurman, R., “Tuna Dreams: Resource Nationalism and the Pacific Island’s Tuna Industry”. Development and Change 29 (1998): 107–36. Symonds, P.A. “Practical Aspects of the Continental Shelf”. Unpublished presentation. Wollongong: Centre for Maritime Policy, 2006. Symonds, P., M. Alcock and C. French. “Setting Australia’s Limits: Understanding Australia’s Marine Jurisdiction”. AUSGEO News, Issue 93 (March 2009). United Nations. The Law of the Sea. New York: United Nations, 1983. United Nations. Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea. New York: Office for Ocean Affairs and the Law of the Sea, United Nations, 1989. United States. Straight Baselines: Burma. Limits in the Seas, No. 14. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 14 March 1970a. United States. Straight Baselines: Madagascar. Limits in the Seas, No. 15. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 16 March 1970b. United States. Straight Baselines: Mozambique. Limits in the Seas, No. 29. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 12 November 1970c. United States. Straight Baselines: Thailand. Limits in the Seas, No. 31. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 24 March 1971a. United States. Straight Baselines: Indonesia. Limits in the Seas, No. 35. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 20 July 1971b.

06 Fisheries Exploitation

136

10/28/09, 12:41 PM

137

Competing Claims to Maritime Jurisdiction

United States. Historic Water Boundary: India-Sri Lanka. Limits in the Seas, No. 66. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 12 December 1975. United States. Maritime Boundary: India — Maldives and Maldives’ claimed “Economic Zone”. Limits in the Seas, No. 78. Washington D.C.: The Geographer, Bureau of Intelligence and Research, United States’ Department of State, 24 July 1978. United States. Developing Standard Guidelines for Evaluating Straight Baselines. Limits in the Seas, No. 106. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 31 August 1987. United States. Straight Baseline Claims: Djibouti and Oman, Limits in the Seas. No. 113. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 22 April 1992. United States. Iran’s Maritime Claims. Limits in the Seas, No. 114. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 16 March 1994. United States. Straight Baseline Claim: Pakistan. Limits in the Seas. No. 118. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 20 December 1996. United States. Straight Baseline Claim: Thailand. Limits in the Seas, No. 122. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 8 September 2000. United States. Maldives: Maritime Claims and Boundaries. Limits in the Seas, No. 126. Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, United States’ Department of State, 8 September 2005.

06 Fisheries Exploitation

137

10/28/09, 12:41 PM

138

06 Fisheries Exploitation

Clive Schofield

138

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

PART II Fisheries Resource Exploitation

07 Fisheries Exploitation

139

10/28/09, 12:41 PM

139

140

07 Fisheries Exploitation

Hilary Rumley

140

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

141

7 INDIGENOUS FISHING IN THE KIMBERLEY REGION OF WESTERN AUSTRALIA A Case Study of Highly Regulated Fisheries in Coastal Communities Hilary Rumley

INTRODUCTION Despite the stereotypical, tourist image of Australian Aborigines being desert dwelling nomads, the reality is that almost half of Australia’s indigenous people (as other Australians), inhabit and have always inhabited the coastal zone. The fact that many of Australia’s indigenous peoples inhabited and still do inhabit coastal and estuarine locations has, of course, much to do with the availability of reliable food resources in the form of fish and shellfish along the coasts and estuaries, as well as short distances out to sea, which supplemented food resources obtained from the land. This chapter is concerned with indigenous fishing in Western Australia (WA), with a particular focus on the West Kimberley region. It will indicate

07 Fisheries Exploitation

141

10/28/09, 12:41 PM

142

Hilary Rumley

the difference in perspective of “ownership” of the sea between indigenous and non-indigenous people. It will attempt to show how indigenous fishing has become increasingly regulated through a number of legal and statutory means. There are threats to marine biodiversity and fisheries in the region from overfishing and recreational fishing. Yet there are also opportunities such as the increasing involvement of indigenous people in the management of fisheries, and the development of aquaculture projects. The chapter will provide a brief background on traditional fishing practices in the region and some of the more recent changes that have occurred. In addition, the chapter presents an overview of current policy and practice relating to indigenous fishing. It describes and discusses issues relating to fishing by indigenous people (as well as fishing by all others) and shows how this is officially subject to a wide range of legal, statutory, bureaucratic, and regulatory limitations. There continues to be a relatively high level of subsistence fishing by Aboriginal people, as well as a small-scale, informal, unregulated market. This Kimberley case study also highlights the need to examine and compare the policies and practices relating to indigenous fishing and fisheries in other parts of the Indian Ocean Region.

TRADITIONAL/CUSTOMARY/ARTISANAL FISHING BY INDIGENOUS PEOPLE Aboriginal and Torres Strait Islander people were the earliest owners and managers of Australia’s coastal zone. Today, many indigenous communities maintain an active interest and involvement in coastal zone management. In some areas they retain ownership rights. As noted, nearly one-half of the indigenous population lives in Australia’s coastal zone. Aboriginal people today use the description “saltwater people” to refer to those who have strong links to the coast and the adjacent sea. There are approximately 100 coastal indigenous communities in Australia occupying land under some form of Aboriginal or Torres Strait Islander leasehold, freehold, reserve, or native title. A further 200 or more outstations are associated with these communities and are occupied on a semi-permanent basis. Indigenous people form the majority of the population in a number of coastal regions, including, among other regions, north-west Western Australia. Coastal land and estuarine and marine resources are of major economic and cultural importance to many Aboriginal and Torres Strait Islander

07 Fisheries Exploitation

142

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

143

people. Maintenance of traditional fishing practices and uses varies with local history, tenure, and legislation. It is most evident among indigenous people who are living on blocks of land they own or control, although many people who have been legally dispossessed of their traditional lands continue to hunt, gather, and fish, and to care for many places of cultural significance. The economic importance of marine resources for some coastal communities is revealed in large measure by the dietary patterns of these communities. For example, a variety of seafoods has been estimated to contribute between 30 and 40 per cent of the calorific intake in one coastal outstation community in the Northern Territory (Meehan 1982). Seafood consumption by Torres Strait Islanders has been ranked among the highest in the world. Indigenous people in the north of Western Australia used and continue to use a variety of equipment and techniques to catch fish, depending on the species, the location, and the season. Log or bark canoes with harpoons; different types of barbed spears; use of poison leaves to stun fish; collectively driving fish into shallow pools/reefs to capture them more easily; not killing some species (for example, stingray) during the breeding season until the new ones have grown, are just some of the continuing traditional techniques that may be used in addition to more modern techniques. These latter include fishing lines, boats with outboard engines, and fish farming. In addition to these interests in the coastal zone, many indigenous people have a strong and continuing sense of belonging to, and responsibility for, those parts of the zone they consider to be their traditional estates. The sense of custodianship extends to sea as well as land areas, and often focuses on particular places of cultural significance, including Dreaming tracks, story places, “poison” places, burial grounds, and archaeological sites. Sites of significance occur in all types of coastal environments, including beaches, headlands, estuaries, reefs, and the sea itself, and sites offshore were identified by indigenous people in Western Australia. Many groups of indigenous people consider areas in the sea to be integral parts of their traditional country. Anthropological research shows that distinctive maritime cultures continue to exist among some indigenous communities (see Chase and Sutton 1981) and records dating back to early last century describe instances of a system of indigenous property rights relating to reefs and seas (Cordell 1992).

07 Fisheries Exploitation

143

10/28/09, 12:41 PM

144

Hilary Rumley

Fishing for food provides opportunities for many indigenous communities to maintain contact with their traditional estates and for new generations to learn traditional skills and acquire cultural knowledge about the coastal environment. In remote areas, it also provides opportunities for people to monitor the activities of other resource users, such as recreational and commercial fishers, and to report any breaches of regulations. A number of important issues in coastal zone management arise from a consideration of the interests of indigenous people both in Australia and elsewhere, in relation to the rights of indigenous populations. Of particular concern for Australia’s indigenous people are issues relating to the following: • recognition of traditional land, sea, and resource rights; • the protection of heritage sites, cultural knowledge, and the environment generally; • participation in coastal zone management institutions and decisionmaking processes; • involvement in, and benefits from, the commercial use of coastal zone resources. There have long been exemptions from the laws and regulations governing fishing for indigenous people carrying out “customary” or “traditional” activities (Wright and Sparkes 2002, p. 29). For example, Section 43 of the WA Fisheries Act of 1905 stated that: This Act shall not apply to fish obtained for food by the aboriginal inhabitants of the State in their accustomed manner, otherwise than by means of any weir or hedge.

Today, Section 6 of Western Australia’s Fisheries Resources Management Act of 1994 exempts indigenous people from requiring a recreational fishing licence, as long as any fish caught are for their family and not for sale: An Aboriginal person is not required to hold a recreational fishing licence to the extent that the person takes the fish from any waters in accordance with continuing Aboriginal tradition if the fish are taken for the purposes of the person or his or her family and not for commercial purpose.

07 Fisheries Exploitation

144

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

145

However, anecdotal evidence indicates that this provision has not been sufficient to guarantee all the rights which indigenous people wish to have and maintain. A few communities are involved in small-scale commercial fishing enterprises, although in some cases, licences are held only for the sale of fish within the local community. Commercial ventures include, among others, the harvesting of trochus shells in Western Australia, which will be discussed later in the chapter.

ABORIGINAL AND NON-ABORIGINAL PERSPECTIVES ON SEA/COUNTRY Customary laws regulate access to resources, as well as to the observance of traditional group estate boundaries. Aboriginal people viewed and still view the sea in the same way as they regard their traditional land — that is, the sea, its resources, and access to it, was/is group owned and managed, and bound up with identity. As one writer put it: “The sea, like the land, was integral to the identity of each clan, and clan members had a kin relationship to the important marine animals, plants, tides and currents” (Smyth 2001, p. 62). As a result, many indigenous people living around the coast of Australia have endeavoured, through the Native Title process, to claim exclusive possession to coastal waters which they see as being “owned” in the same way as their land. In contrast, however, non-Aboriginal people view the sea as open to the whole community with free access for all. That is to say, non-Aboriginal people’s law gives individual property rights to the land, but not to the sea, whereas indigenous people’s law gives group property rights to both the land and its adjacent sea. Interestingly, Campbell and Wilson (1993, pp. 57–61) introduce and discuss the concept of mare nullius as a maritime form of the concept of terra nullius, which they see as characterized by the same myths of emptiness and subsistence and the associated elements of fewness, primitiveness, and itinerancy. Although they use the concept of mare nullius with reference to the eviction of Indonesian fishermen from Australian waters, the concept of mare nullius can be used here to describe non-Aboriginal (that is, European) perceptions of the sea. This contrasts markedly to non-Aboriginal views of terra firma, the land, which is subject to individual ownership and various forms of title

07 Fisheries Exploitation

145

10/28/09, 12:41 PM

146

Hilary Rumley

with restricted access to others. While viewing the sea as a free and open domain, non-Aboriginal Australians recognize and accept the need for management of this by government through such legal mechanisms as the establishment of shipping lanes, issuing of fishing licences, and the establishment of catch quotas.

POLITICAL CONTEXT The Australian Government has officially been made aware of the customary and continuing relationship between Aboriginal people and the sea for well over twenty years. In 1984, a government report about Aboriginal customary fishing and ownership of the sea stated that: Aborigines do have systems of sea tenure but these are currently not recognised as forms of title to the sea. Perhaps less fundamental but of more direct relevance to the survival of Aboriginal culture and lifestyle… is their right to exploit marine resources for subsistence purposes, and their right to control access to territory which is of sacred significance to them. The entitlement of Aborigines to special commercial fishing rights is another issue to be resolved… commercial fishing rights … are a natural consequence of recognition of traditional and unrelinquished ownership of the sea (Lawson 1984).

Seven years later, in 1991, this reference was repeated in another government report on Ecologically Sustainable Development (ESD). However, indigenous interests and the comments in the 1984 report were almost ignored until a report on Indigenous fisheries was eventually included as part of the ESD on Fisheries. As a result, this 1991 report included recommendations for action to develop Indigenous fishing policies and Indigenous involvement in fisheries management in Australia. In 1992, the then Australian Government of Prime Minister Paul Keating initiated the extensive Coastal Zone Inquiry (CZI) by the Resource Assessment Commission. Specialist papers were commissioned for this inquiry, including at least four which sought to provide indigenous input into the inquiry. The CZI included extensive consultation and provided an opportunity for indigenous people in Australia to meet, discuss, and put forward their views on marine and sea rights issues. The final report in 1993 contained ten recommendations relating to recognition of indigenous customary rights to use and manage traditional

07 Fisheries Exploitation

146

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

147

estates in the coastal zone, and for indigenous people to be involved at all levels of coastal zone management. The CZI recommended the development of an indigenous fisheries strategy as well as some measures similar to those previously proposed to the ESD. It also called for action to improve economic development and employment opportunities for indigenous people and communities in fisheries and aquaculture ventures, in addition to measures intended to improve relations between indigenous communities, fisheries agency staff, and commercial fishers. The concept of developing an Aboriginal Fishing Strategy came from the Canadian experience. In 1996, three years after the findings and recommendations of the Coastal Zone Inquiry were published, the Australian Government, now under conservative Prime Minister John Howard, allocated a small amount of money to State and Territory agencies to initiate an Indigenous Fisheries Strategy. The Western Australian government’s draft Aboriginal Fishing Strategy, Recognising the Past, Fishing for the Future was released for public comment in May 2003. It should be noted that during this time in Australia, interest in Aboriginal land rights had become focused on the Mabo case before the High Court. The finding in 1992 of the High Court in the Mabo case — that native title continued to exist — was a major development in Australian law and created headline news.

NATIVE TITLE IN AUSTRALIA The Australian High Court’s 1992 Mabo decision overturned the idea that the Australian continent was empty, belonged to no one (terra nullius) at the time of the arrival/invasion of Europeans in 1788. The decision recognized for the first time that indigenous Australians may continue to hold native title in common law, based on continuing traditions and connection to the country. Native title describes the rights and interests of Australia’s Aboriginal and Torres Strait Islander people in both land and waters, according to their traditional laws and customs. With the passing of the Native Title Act (NTA) in 1993 and the establishment of the National Native Title Tribunal (NNTT) in 1994, Aboriginal and Torres Strait Islander people can apply to lodge a claim to have their native title rights recognized under Australian

07 Fisheries Exploitation

147

10/28/09, 12:41 PM

148

Hilary Rumley

law. Native title claims are then dealt with by NNTT procedures and are eventually decided by mediation or litigation. Native title only exists for those indigenous people who have not been dispossessed, and generally survives in the remoter areas of Australia where the Federal and State governments have not made land grants to others. The NTA 1993 (section 6) refers to the extension of the Act to “ …each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973”. “Waters” as defined for the purposes of the NTA (section 253) and for the purposes of this chapter, include the sea, tidal inlets, bays, estuaries, harbours, and the shore between high and low water. Wright and Sparkes (pp. 11 and 29) point out that there are forty-eight native title claims in Western Australia extending into the sea. This figure includes three claims that have been determined (Bardi Jawi and Rubibi), discussed below, plus seven unregistered claims. Australia’s indigenous people have an interest in marine areas for a variety of reasons, in addition to having their native rights and interests recognized (Sparkes 2006, p. 23). These include at least the following: • To obtain sustenance/resources using either customary or other methods • To participate in commercial fisheries • To protect the marine environment/ecosystems • To preserve lifestyle/traditional law and customs • To protect sites of significance Recognition of native title rights and interests over “waters” around Australia’s coasts has not matched the expectations/aspirations of indigenous peoples. While indigenous people have generally lodged native title claims, including exclusive rights and interests to the sea, court decisions in a number of cases have only granted non-exclusive, unprotected, subsistence rights.

Croker Island Sea Case It is important to refer briefly to this native title claim in the Northern Territory because it covered certain waters within the territorial sea and

07 Fisheries Exploitation

148

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

149

the intertidal zone. The claim was for exclusive rights to these waters, but the rights and interests determined after legal appeals were for nonexclusive native title rights to have free access to the sea and seabed for a variety of purposes, including fishing and gathering for domestic, communal (non-commercial) needs, and for the purpose of observing traditional, cultural, ritual, and spiritual laws and customs, including visiting and protecting places of cultural and spiritual importance in order to safeguard cultural and spiritual knowledge. Sparkes (2006, pp. 7–10) summarizes the legal decisions in this case and their relevance for other native title claims around the Australian coast. The most important finding was that there was a “fundamental inconsistency between a claim of exclusive possession to the area and the common law rights to fish and navigate through the area and the international law right of innocent passage” (Sparkes 2006, p. 9). Since the Croker Island decisions in 1998/2001, native title claims have generally not included a claim for exclusive rights over seas and waters.

Bardi Jawi Native Title Claim The Bardi and Jawi people of the Dampier Peninsula and the islands of the Buccaneer Archipelago in the West Kimberley first lodged their native title claim in 1995 (Figure 7.1). They were engaged in mediation before the claim went to trial and later amended the area to reduce the expanse of sea from 12nm offshore to 3nm. After a long process of litigation and mediation, they were rewarded in June 2005 when a decision from the Federal Court determined in favour of some of their native title claims. The two indigenous groups were found to hold exclusive possession over parts of the 1,037 square kilometres of the land claimed, but not over some islands to the north of the claim area and some other areas. Non-exclusive rights were recognized over the inter-tidal zones and associated, nearby reefs which are exposed, as well as some areas of water. Court findings regarding the non-exclusive native title rights and interests in relation to the intertidal zone, together with reefs within and adjacent to that zone, and offshore reefs otherwise exposed and traditionally used by the Bardi and Jawi people, together with the waters in their immediate vicinity, included the following:

07 Fisheries Exploitation

149

10/28/09, 12:41 PM

150

Hilary Rumley Figure 7.1 Bardi Jawi Determination Area

Source: National Native.

07 Fisheries Exploitation

150

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

151

• The right to access, move about in and on, and use and enjoy the zone, the reefs, and the associated waters. • The right to hunt and gather, including for dugong and turtle. • The right to access, use, and take any of the resources thereof (including the water of the intertidal zone — that is, below the mean high water mark) for food, trapping fish, religious, spiritual, ceremonial, and communal purposes. No native title was found in respect of Alarm Shoals and Brue Reef. In November 2005, the Federal Court judge made the final orders for the Bardi and Jawi people in the coastal community of One Arm Point on the Dampier Peninsula, 190 km north-east of Broome.

Rubibi Native Title Claim In April 2006, the Yawuru indigenous people of the Broome area in the West Kimberley had their native title rights recognized in law when a determination on the Rubibi claim, begun in 1994, some twelve years earlier, was handed down by a Federal Court Judge. The judgment was delivered on Broome’s Town Beach and recognized the Yawuru people as the rightful native title holders, showing they successfully maintained their traditional laws and customs in relation to the land and waters covered by the Rubibi application. As noted, the Yawuru people’s efforts to establish native title date back to 1994 when the earliest of several applications was lodged over the Kimberley tourist town. The decision covers a combination of applications totalling 5,298sq km. It includes pockets of land in and around the townsite and two pastoral stations, one of which is currently held by the Indigenous Land Corporation. The judgment clarifies areas where native title has been extinguished. Like the Bardi Jawi claim, the native title claim process had involved several stages of litigation and intensive periods of mediation over a number of years. Justice Merkel found the Yawuru were largely successful in their application, but the criteria for extinguishment of native title meant that their rights and interests were partially or totally extinguished in relation to significant parts of the area. The rights and interests over land and waters recognized in the Rubibi claim were essentially the same as in the Bardi Jawi claim. These include

07 Fisheries Exploitation

151

10/28/09, 12:41 PM

152

Hilary Rumley

the right to live on the land; the right to access, move about in and on the land and waters; the right to hunt and gather on the land and waters for personal, domestic, or non-commercial communal purposes which include social, cultural, religious, spiritual, and ceremonial purposes. In addition, non-exclusive rights to access, use, and take any of the resources of the land and waters for personal, domestic, or non-commercial purposes, and the right to care for, maintain and protect the land and waters, including places of spiritual or cultural significance, were recognized. The recognition of these native title rights and interests specifically stated that they did not confer possession, occupation, use, and enjoyment on the native titleholders to the exclusion of all others. They were to be exercisable in accordance with the traditional laws and customs of the native titleholders, and subject to and exercisable in accordance with the laws of the State and the Commonwealth, including the common law. Significantly, however, the appeal by the native title claimants in the Northern Territory (Blue Mud Bay #2 [NT] to have their claim for exclusive rights to the sea in their original claim, was granted on appeal. Furthermore, on 30 July 2008, a majority ruling of the full bench of the High Court, which will apply to 80 per cent of Northern Territory intertidal waters, granted traditional owners the right to exclude fishermen and others from tidal waters within Blue Mud Bay in northeast Arnhem Land. While territory Aboriginal leaders strongly welcomed this outcome, concerns were expressed by professional fishermen and other stakeholders over the High Court decision (Robinson and Karvelas 2008). However, an Aboriginal spokesperson has stated that traditional owners are willing to enter into negotiated agreements for joint use of parts of the granted sea claim.

ABORIGINAL FISHING STRATEGY Aboriginal people throughout Australia have for many years been asking fisheries management to include and recognize Aboriginal people’s use of fish for food, cultural reasons, and for economic development. The WA Department of Fisheries responded in 2000 with the establishment of the Aboriginal Fishing Strategy Working Group (consisting of representatives from six indigenous/Aboriginal organizations, two recreational fishing groups, two fishing/fisheries agencies, and one conservation group). As a result, the Draft Aboriginal Fishing Strategy was developed, and released for public comment in May 2003. The strategy is consistent with the Department of Fisheries obligation under law to conserve, develop, and

07 Fisheries Exploitation

152

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

153

share the fish resources of Western Australia for the benefit of present and future generations, and to recognize the involvement of Aboriginal people in the sustainable management of fisheries. What is the Aboriginal Fishing Strategy? The Aboriginal Fishing Strategy examines how indigenous people can: • be involved in making rules about fishing for food and cultural reasons, and • be involved in commercial fishing, aquaculture, and fishing ecotourism whilst making sure there will be fish for the future. The Aboriginal Fishing Strategy is about fishing — ensuring that all commercial, recreational, and Aboriginal interests are included within a sustainable fisheries management framework. The Aboriginal Fishing Strategy is not, it should be noted, about native title. Following an extended period of public consultation, the final strategy is currently before the WA Minister for Fisheries for consideration. The main objectives of the Aboriginal Fishing Strategy are to make recommendations to the WA government about: • the inclusion of traditional and cultural fishing practices within a framework of planned sustainable use of fish and fish habitat; and • greater involvement of Aboriginal people in the fisheries sector, including commercial fishing, aquaculture, the aquatic charter industry, and fisheries management (2003, pp. 18–19). Furthermore, it is noted that, “Aboriginal people are seeking more opportunities for direct involvement in the pearling industry and also wish to have the right to take pearl oysters for meat and other traditional uses, which is currently prohibited” (Everall 1997, p. 11). The Fisheries Department and the Minister for Fisheries determine applications for licences and leases over areas of the WA marine environment to enable the operation of the pearling and aquaculture industries.

RECREATIONAL FISHING IN THE KIMBERLEY Historically, there has been relatively low fishing pressure from recreational fishing in the Kimberley region, with boat fishing focused in Broome.

07 Fisheries Exploitation

153

10/28/09, 12:41 PM

154

Hilary Rumley

However, in recent years, there has been a significant growth in recreational fishing activity, peaking in the dry season (winter months of June–August), with a booming, fishing-based tour and eco-tourism industry, based on the region’s reputation for being remote and pristine (Department of Fisheries 2004, p. 21). Creek systems, mangroves, rivers, and ocean beaches provide shore and boat fishing for a variety of marine and freshwater species, including barramundi, tropical emperor, sea perch, trevally, sooty grunter, threadfin, mud crabs, and cod. Offshore islands, coral reef systems, and continental shelf waters provide species of major recreational interest, including many members of the demersal sea perch family, such as scarlet sea perch, red emperor, cod, coral and coronation trout, shark, trevally, tuskfish, tuna, mackerel, and billfish. While many people in the recreational fishing community support the recognition of customary fishing practices by people of Aboriginal descent, concern has been expressed over different management arrangements recommended in the Aboriginal fishing strategy applying to Aboriginal fishers around key population centres. For example, some recreational fishers argue that different arrangements for fishing for barramundi could lead to tension between Aboriginal and non-Aboriginal fishers and that the same fishing rules should apply to Aboriginal and non-Aboriginal fishers alike (Department of Fisheries 2004, p. 38).

AQUACULTURE In 2004–05, Western Australia aquaculture production amounted to A$128 million. The highest grossing species in the state are pearl oysters. Western Australia has the largest representation of indigenous people in the aquaculture industry, with thirty-two farms at various stages of development. The majority of the farms in Western Australia are involved in intertidal reef reseeding of trochus. The Western Australian Government has also developed a Kimberley Aquaculture Development Plan with a focus on sites where a significant number of indigenous communities reside (W.A. Fish 1996). This plan provides region-specific information on potential aquaculture sites, candidate species, and associated production technologies. The Kimberley Aboriginal Aquaculture Corporation has also developed an indigenous aquaculture information pack that contains material for

07 Fisheries Exploitation

154

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

155

indigenous communities interested in entering the aquaculture industry (IADWG 2003). It defines aquaculture, provides a general discussion on available aquaculture species, and also provides a specific discussion on suitable species for indigenous aquaculture. Other information includes growing different species, ongoing maintenance, and some important scientific and animal health aspects that are required for this type of business. It also contains information and contact details of groups of interest in Western Australia that can provide help with various aspects of the business, including technical and financial advice, education and training providers, and indigenous organizations. The pack also assesses whether an aquaculture venture is suitable. It can take up to three years to complete a pilot project for a small- to medium-size venture and up to four years for a large venture. This shows that developing an aquaculture venture is not a short process, but, in fact, requires a long-term commitment to get the business operational. At the discretion of the executive Director of Fisheries in the state, special licences can be granted to Aboriginal communities to conduct certain fisheries. Licences granted to date are all in the north of the state (Wright and Sparkes 2002, p. 30). Since 1989, special commercial fishing licences have been provided to Aboriginal communities for beche-de-mer (edible sea cucumber) and mud crab fisheries. However, the best known licensed fishery is the trochus fishery operated by the Bardi community of indigenous people at One Arm Point (Figure 7.1).

Case Study: Trochus Hatchery at One Arm Point, Dampier Peninsula, Western Australia One Arm Point is located on Aboriginal land in a remote area north of Broome, close to Cape Leveque on the Dampier Peninsula. There are currently between three and four hundred residents living in about ninety houses spread over a large area. The One Arm Point Community Council operates as Ardyaloon Incorporated, which manages the One Arm Point trochus hatchery. In 1999, the Bardi Community was presented with an opportunity to participate in a government-funded project to grow trochus. Financial support was obtained from an Australian Centre for International Agricultural Research (ACIAR) grant, as well as other agencies in Australia. This funding provided the support necessary for the hatchery to begin

07 Fisheries Exploitation

155

10/28/09, 12:41 PM

156

Hilary Rumley

operating. The aim was to breed an amount of trochus that would be used to reseed nearby reefs off One Arm Point and Cunningham Point in order to replenish the existing trochus populations. Within twelve weeks the hatchery was designed and constructed. Even though the original setup of the operation was basic, the business has had several successful trochus harvests. Since commencing operations in 1999, the hatchery has had two upgrades and is looking to commence its third. To proceed further will require an additional injection of funds. The business currently produces a maximum of ten tonnes (dry processed weight) of produce per season, which equates to an estimated 70,000 trochus shells and 1,750 kilograms of processed trochus meat, yielding around $120,000 in revenue. The hatchery is looking to expand its capacity to produce an additional 12,000 trochus for the aquarium trade, and around 26,000 trochus for reseeding the nearby intertidal reefs. This will provide additional income of a minimum of $36,000 and more, if a different marketing approach is employed. The trochus product is sold in two separate parts — the outside shell and the meat inside the shell. Markets for the shell are easier to find than markets for the meat. Every year, through a Perth-based marketing agent, the business exports more than ten tonnes of shell to the Italian fashion industry to make buttons for clothing. Other uses for the shell include using it as an input to make jewellery and pearl-based paints. The second part of the product, the trochus meat, is more valuable, but is an acquired taste. Currently the meat is sold to local markets, but may in the future, depending on the outcome of market research, be exported to Asia, in particular to Japan, where the meat sells for a high price. Over the lifetime of the project, the hatchery has required funding and support for the startup phase of the business, the expansion phases, and for ongoing business operations. As indicated, this support has come from a number of sources, both Aboriginal and government. Other businesses have been created by reinvesting revenue from community businesses (including the hatchery) into other local ventures, leading to further development of the local community. These include: • In a light industrial area of One Arm Point, the harvested trochus shells from the hatchery are cleaned and sorted before selling them to the market, creating additional employment opportunities. • A tourism venture, where people can visit the touch tank to view a

07 Fisheries Exploitation

156

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

157

variety of marine creatures at a short distance, creating additional income for the hatchery. • By diversifying into other marine species, the hatchery has developed a market for tropical fish (including clown fish) in the aquarium trade. • As part of a self-reliant community, the Bardi Community currently manages the community store, which provides essential services to the local residents. • The indigenous communities of One Arm Point and Djarindjin jointly own the nearby Kooljaman Resort. In February 2005, this resort won the National Tourism Award for Aboriginal and Torres Strait Island Tourism, the second time the resort has won this award. It has also won numerous other Western Australian Tourism Awards. Currently, the complex is managed by non-Aboriginal staff, under the guidance of a board of directors, but it is hoped that in future, the resort will be fully operated by the local indigenous communities. The hatchery focuses on providing development opportunities for indigenous people located on Aboriginal land at One Arm Point. These opportunities include: • employment in a commercial aquaculture venture; • aquaculture-based training, including trainees undertaking certificate courses in aquaculture at the Broome Aquaculture Centre at the Kimberley College of Technical And Further Education; • an income stream that will also support other initiatives in the Ardyaloon community; • using the hatchery as a teaching aid for the local Ardyaloon school to promote interest in the venture at the school level; and • community pride and ownership. The hatchery is also looking to diversify into other marine species, such as barramundi, clown fish, and other types of tropical fish.

RECENT DEVELOPMENTS IN WESTERN AUSTRALIA A ministerial review committee recently held meetings across Western Australia to seek feedback on a draft report of proposed amendments to

07 Fisheries Exploitation

157

10/28/09, 12:41 PM

158

Hilary Rumley

the state’s Fish Resources Management Act (FRMA), 1994, which governs Western Australia’s fisheries and aquaculture sectors. Issues relating to customary fishing are discussed in the review committee’s draft report, as well as the Aboriginal Fishing Strategy and proposed Indigenous Fishing Fund. The committee held meetings around the state in December 2006 and in January 2007. While a final report of the Aboriginal Fishing Strategy has been completed, it has not yet been formally released by the WA Government. Nevertheless, there have been several outcomes to date. These include: • Proposed amendments to the FRMA that are intended to define customary fishing as a separate fishing activity to commercial and recreational fishing, and provide for its management. • Customary fishing has been given priority in fisheries allocations — that is, when fish stocks are shared amongst recreational, commercial, and customary fishers, customary fishers get the first cut. • An Indigenous Fisheries Ranger Programme is underway. • A programme is being established to enable Indigenous people to access existing commercial fishing licences through the open market. • Indigenous fisheries consultation mechanisms are being developed that include advisory and joint management roles. The Aboriginal Fishing Strategy is not only about native title. It is primarily a fisheries management response to the needs of indigenous people and it is likely to provide far greater outcomes than native title is ever likely to. It also applies to the many indigenous people who cannot and will not receive native title rights.

CONCLUSION This chapter has concentrated on indigenous fishing in Western Australia, with a particular focus on the West Kimberley region. It has indicated the difference in perspective of “ownership” of the sea between indigenous and non-indigenous people. It has also shown how indigenous fishing has become increasingly regulated through a number of legal and statutory means. Recognition of native title has not brought the exclusive rights to areas of the sea adjacent to their country that many indigenous people

07 Fisheries Exploitation

158

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

159

hoped it would. There are threats to marine biodiversity and fisheries in the region from overfishing and recreational fishing. Yet there are also opportunities such as the increasing involvement of indigenous people in the management of fisheries and the development of aquaculture projects. While it is beyond the scope of this chapter, it would be worthwhile to examine in future studies such issues as: • Who are other “indigenous people” around the Indian Ocean engaged in fishing and how are they distinguished from others in their countries? • What is the indigenous view of fishing practices and sustainability compared with that of non-indigenous peoples? • How can indigenous fishing in Third World countries be compared with indigenous fishing in Western, developed societies, such as Australia? • What are the threats and opportunities to various indigenous fishing peoples in the Indian Ocean region?

Acknowledgements Thanks to the following people who assisted me by discussing a number of issues; drawing my attention to relevant documents and websites, and entering into e-mail contact with me: Ben Fraser, Vicki Gouteff, Dennis Rumley, Stephen Sparkes, James Tapueluelu, Guy Wright, Kathy Wright.

Note The term “indigenous peoples” has no universal, standard, or fixed definition, but can be used about any ethnic group who inhabit the geographic region with which they have the earliest historical connection. However, several widely accepted formulations, which define the term “indigenous peoples” in stricter terms, have been put forward by important internationally-recognized organizations, such as the United Nations, the International Labour Organization, and the World Bank. Drawing on these, a contemporary working definition of “indigenous peoples” has criteria which would seek to include cultural groups (and their descendants) who have an historical continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region either before its subsequent colonization or annexation; or alongside other cultural groups during the formation of a nation state; or independently or largely isolated from the influence of the

07 Fisheries Exploitation

159

10/28/09, 12:41 PM

160

Hilary Rumley

claimed governance by a nation state, and who furthermore have maintained at least in part their distinct linguistic, cultural and social/organizational characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation state. To the above, a criterion is usually added to also include peoples who are selfidentified as indigenous, and those recognized as such by other groups. Other related terms for indigenous peoples include aborigines, native peoples, first peoples, Fourth World, first nations, and autochthonous (this last term having a derivation from Greek, meaning “sprung from the earth”). Indigenous peoples may often be used in preference to these or other terms, as a neutral replacement where these terms may have taken on negative or pejorative connotations by their prior association and use. It is the preferred term used by the United Nations and its subsidiary organizations.

References Aboriginal and Torres Strait Islander Commission (ATSIC). Water and Fishing — Aboriginal Rights in Australia and Canada, 2004. Baker, R., J. Davis and E. Young. Working on Country: Contemporary Indigenous Management of Australia’s Lands and Coastal Regions, edited by R. Baker, J. Davis and E. Young. Melbourne: Oxford University Press, 2001. Campbell, B.C. and B.V.E. Wilson. “The Politics of Exclusion: Indonesian Fishing in the Australian Fishing Zone”. Indian Ocean Centre for Peace Studies, Monograph No. 5, Perth, 1993. Chase, Athol and Peter Sutton. “Hunter-gatherers in a Rich Environment: Aboriginal Coastal Exploitation in Cape York Peninsula”. In Ecological Biogeography of Australia, edited by A. Keast, pp. 1817–52. The Hague: W. Junk, 1981. Commonwealth of Australia. Ecologically Sustainable Development Final ReportFisheries. Australian Government Publishing Service, Canberra, 1991. Cordell, J. “Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres Strait Islander Marine Resources”. Report on Indigenous Fishing, Ecologically Sustainable Development Fisheries Working Group, Canberra, 1991. Department of Fisheries, Government of Western Australia. “A Quality Future for Recreational Fishing in the Pilbara/Kimberley; A Five-year Draft Strategy for Managing the Recreational Component of the Catch”. Proposals for community discussion by the Pilbara/Kimberley Recreational Fishing Working Group, Fisheries Management Paper No. 181, 2004. Everall, D. “Marine Farm Planning and Consultation Processes in Western Australia”. Fisheries discussion paper, No. 102, Fisheries Western Australia, 1997.

07 Fisheries Exploitation

160

10/28/09, 12:41 PM

Indigenous Fishing in the Kimberley Region of Western Australia

161

Franklyn, E.M. “Aboriginal Fishing Strategy ‘Recognising the Past, Fishing for the Future’ ”. Report to the Minister for Agriculture, Forestry and Fisheries. Fisheries Management Paper No. 168, Department of Fisheries, Government of Western Australia, 2003. Hill, R. et al. “Kimberley Appropriate Economies Roundtable Forum Proceedings”, edited by R. Hill et al. Convened 11–13 October 2005, Fitzroy Crossing, Western Australia. Cairns: Australian Conservation Foundation, 2006. Lawson, B. Aboriginal Fishing and Ownership of the Sea. Fisheries Division, Department of Primary Industries, Canberra, 1984. National Native Title Tribunal website: . Native Title Act 1993 Attorney General’s Department, Australian Government Publishing Service Canberra, 1994. Peterson, N. and B. Rigsby. Customary Marine Tenure in Australia. AIAS Canberra, 1998. Resource Assessment Commission. Coastal Zone Inquiry. Australian Government Publishing Service, 1993. Robinson, Natasha and Patricia Karvelas. “Land Rights Reach into the Sea”. The Australian newspaper, 31 July 2008, p. 3. Smyth, D. “Fishing For Recognition: The Search for an Indigenous Fisheries Policy in Australia”. Indigenous Law Bulletin 130, 2000. Smyth, D. “Management of Sea Country: Indigenous People’s Use and Management of Marine Environments”. In Baker et al., op cit. Sparkes, S. “Sea Related Native Title and Other Associated Cases — A Legal Update”. National Native Title Tribunal, 2006. Tedesco, L. and S. Szakiel. “Indigenous People in Aquaculture”. ABARE (Australian Bureau of Agricultural and Resource Economics) Research Report 06.9, 2006. Wright, G. and S. Sparkes. “Integration of Native Title Interests in Fishing and Coastal Management in Western Australia”. Research Report National Native Title Tribunal, 2002. Some Useful Websites: Australian . Western Australia . Australian .

07 Fisheries Exploitation

161

10/28/09, 12:41 PM

162

Hilary Rumley

Western Australia .

(for copies of the Proposed amendments to the Fish Resources Management Act 1994 — draft report of the Ministerial Review Committee). .

07 Fisheries Exploitation

162

10/28/09, 12:41 PM

163

The (In)Security of Fishermen in South Asia

8 THE (IN)SECURITY OF FISHERMEN IN SOUTH ASIA A. Subramanyam Raju

This chapter examines the security of the fishermen who fish in Indo-Sri Lankan and Indo-Pakistani waters. The chapter does not focus on fishermen who fish in Indo-Bangladesh waters because clashes between them are very minimal. Since fishing is a source of livelihood, and 90 per cent of fishermen live below the poverty line, fishermen go in search of fish wherever they are available. In their pursuit, they can hardly respect maritime boundaries. As is the case everywhere, so it is the case with South Asian fishermen. For instance, Indian fishermen cross maritime boundaries and enter Pakistani, Sri Lankan, and Bangladeshi waters. Similarly, Sri Lankan fishermen are crossing their boundary and entering Indian and Maldives waters, while Pakistani fishermen enter Indian waters for fishing. The increasing depletion of fish in the traditional catchment zones further contributes to fishermen crossing into their neighbour’s waters. As a result, they are being arrested and punished by authorities on the other side. It is to be noted that in South Asia, India and Sri Lanka have demarcated their maritime boundaries, whereas India is yet to demarcate its boundaries with Pakistan and Bangladesh.

08 Fisheries Exploitation

163

10/28/09, 12:42 PM

164

A. Subramanyam Raju

THE PROBLEMS OF FISHERMEN IN INDO-SRI LANKAN WATERS Before analysing the problems of fishermen in Indo-Sri Lankan waters, it is worthwhile to discuss how India and Sri Lanka demarcated their maritime boundaries. India and Sri Lanka signed bilateral agreements on the Boundary in Historic Waters in June 1974, and on the maritime boundary in the Gulf of Mannar and the Bay of Bengal in March 1976.

Kachchativu Island Kachchativu Island, located just south-west of Delft Island in Palk Strait, had been used by the British since 1920 as a naval gunnery practice range. The island is one mile long, 300 yards broad, and has an area of 285.2 acres. It is a barren, uninhabited place, without drinking water. It is important to note that Indian fisherman built a Catholic Church here dedicated to Saint Anthony. The fishermen and pilgrims of both countries used to visit the church in March every year for a religious festival. Saint Anthony is considered to be the guardian of the fishermen, who believe that the saint will protect them from turbulent seas and inclement weather. People of both countries from northern Sri Lanka and Tamil Nadu used to share their culture and ideas, and, historically, the fishing communities of both countries have many similarities. They speak Tamil and have had relations for centuries. There was a free movement of people before independence and this continued until 1974. After the 1974 and 1976 agreements and the eruption of the civil war in Sri Lanka in 1983, the situation changed entirely and relations between the peoples of the two countries have undergone a transformation. Though the island is barren and uninhabited, its surroundings possess prawns in abundance. For the Indian government, the island is not strategically important. However, for Indian fishermen it is a very important place for their livelihood. In his speech in the Rajya Sabha in September 1960, Jawahar Lal Nehru, the then Prime Minister of India, said: “There was a claim on one of the old principal Zamindaris and it was part of the Zamindari. The Zamindari has gone now and I do not know where the matter stands.”1 In the Rajya Sabha, he replied to a question: “The Island is 18 miles east of Pamban. Where Pamban is I do not know.”2 One can understand that he did not have any interest in maintaining the island under Indian control.

08 Fisheries Exploitation

164

10/28/09, 12:42 PM

165

The (In)Security of Fishermen in South Asia

Later, Prime Minister Indira Gandhi said that, since both countries had cordial relations, it was not wise to raise a voice over the island.3 She felt that the island was a “sheer rock with no strategic significance”. She did not even bother to consult the Tamil Nadu government regarding the island. In 1974, India and Sri Lanka signed an agreement,4 which ensured the sovereign right of Sri Lanka over the island of Kachchativu. According to the 1974 agreement, Indian fishermen and pilgrims would continue to enjoy their traditional rights. However, the Sri Lankan government did not subscribe to the Indian government’s view. It argued that the agreement did not give any fishing rights, but only the rights to dry fishing nets, to rest, and for pilgrims to visit the island for religious purposes. The nets would only become wet, of course, when fishermen fish in and around the island. However, fishermen are now using nylon nets and they do not need to dry them. The agreement was drafted in such a way that it could lead to ambiguity. Later, in 1976, India and Sri Lanka entered into another agreement on the boundary in the Bay of Bengal and the Gulf of Mannar. Unlike the earlier agreement, this agreement did not deal with any disputed island. However, it deprived India of fishing rights in the Palk Straits. Both India and Sri Lanka had agreed that “after the determination of the maritime boundaries, fishing vessels and fishermen of one country shall not engage in fishing in the waters of the other…”.5 Therefore, the problems of ownership of the island of Kachchativu and Indian fisherman’s fishing rights in and around Kachchativu were resolved once and for all by the agreements of 1974 and 1976. This position was accepted by the central government of India. While demarcating the maritime boundary with Sri Lanka, India tried to have a trade-off between Kachchativu and the Palk Straits. However, this resulted in the sacrificing of the Indian fishermen’s fishing rights in both areas. The fact is that Indian fishermen will not easily give up their livelihood as they have been enjoying that for centuries. Indian fishermen are not being allowed to enter the island by the Sri Lankan navy. Furthermore, the Sri Lankan government has argued that the island has been used for illegal activities and hence it has been preventing the entry of foreign elements into Kachchativu. The Indian government has never raised its voice against the Sri Lankan move. The government in New Delhi has not taken due account of the problems of the fishermen of Tamil Nadu in its policy towards Sri Lanka. Rather, it has adopted some sort of an accommodative attitude towards its neighbour. However, the fishermen

08 Fisheries Exploitation

165

10/28/09, 12:42 PM

166

A. Subramanyam Raju

in Rameswaram and Pamban, in an interview given to the author, said that while they are not bothered about who controls the island, they are insisting on the restoration of their old right to fish around it.

The Problems of Indian Fishermen The short distance of 12 km between Rameswaram (India) and Talaimannar (Sri Lanka) makes it difficult to restrict fishermen crossing into their neighbour’s waters. In spite of the restrictions imposed by the Indian navy and attacks carried out by the Sri Lankan navy, Indian fishermen enter into Sri Lankan waters for fishing, as it is their only source of livelihood. Human rights are violated when trespassers are put on trial, and worse still, the treatment handed to them is justified in the name of nationalism. This is against Article 73 of UNCLOS-III, which forbids the imprisonment of fishermen who are found poaching. During the civil war, the Sri Lankan navy was not able to distinguish between fishing boats and boats involved in nefarious activities. Instead of identifying the boats engaged in illegal activities, the navy treated all boat activities as a threat to its security. Navy personnel used to fire at boats, which resulted in the killing of innocent fishermen, as they followed a policy of shoot first and ask questions later. They argued that they suspected the sailors to be the Liberation Tigers of Tamil Eelam (LTTE) forces and were unable to go closer to them for identification because the LTTE cadres might attack them. However, the number of incidents has decreased since 1998 because of the Indian navy’s persuasion not to kill the fishermen. After the Sri Lankan government lifted the ban on its fishermen fishing in their waters in February 2002, it was reported that the LTTE and Sri Lankan fishermen began attacking Indian fishermen who were crossing their waters. The Indian fishermen have many compulsions to cross over and fish in Sri Lankan waters. The author had an opportunity to meet the affected fishermen’s families in Tuticorin and Rameswaram districts and the housewives said that their whole families were dependent on fishing activities and did not have any other source of income. Since women cannot fish in the waters, they have to depend on their husbands only. Furthermore, they said that no one, including the owner of the boat, helped them when their men were arrested. Besides these fishermen, those within the region also face problems. There is a conflict between the fishermen who are using mechanized boats

08 Fisheries Exploitation

166

10/28/09, 12:42 PM

167

The (In)Security of Fishermen in South Asia

and those who are using country boats. Mechanized boats are powerful and are preventing country boats from fishing in the waters. There is a restriction on mechanized boats not to fish within three nautical miles from the shore, whereas country boats are allowed to fish in that area. However, mechanized boats are often violating the existing norms and fishing in the prohibited area. There have been fight between these two groups and navy personnel are not able to sort out their differences. The Tamil Nadu government has initiated certain measures to help fishermen, which include: the Marine Fishermen Free Housing Scheme; National Marine Fishermen Savings cum Relief Scheme; Fishermen Personal Accident Group Insurance Scheme; Marine Fishermen Accident Group Insurance Scheme; and the Supply of Inboard/Outboard Motors to traditional craft fishermen. However, the fishermen told the author that the welfare schemes are not reaching them and that they are depending only on fishing. In the following section an attempt is made to discuss the ways in which the Sea Tigers, the naval wing of the LTTE, are threatening fishermen.

Threats from Sea Tigers A few Indian Tamils, particularly fishermen, are believed to be sympathizers of the LTTE. However, when Sri Lankan naval authorities were arresting, prosecuting, and sometimes shooting fishermen from Tamil Nadu, the LTTE never showed any sympathy towards them. In February 2002, when the Sri Lankan government lifted the ban on its fishermen fishing in their waters, it was reported that the LTTE and Sri Lankan fishermen began attacking Indian fishermen who were crossing their waters. The LTTE group has become a threat to Indian fishermen as they have confronted them during fishing operations. Fishermen from different places in Ramnathpuram district told the author that the punishment of the LTTE is more severe than that of the Sri Lankan navy. The LTTE was responsible for attacking, destroying, damaging, or ship hijacking of boats owned by the Indians.6 There are reports that fishing groups from Sri Lanka were also involved in attacking Indian fishermen.7 After lifting the ban, the Sri Lankan fishermen were allowed to fish in their waters. They are against their Indian counterparts poaching in their waters. The incidents against Indian fishermen have increased in recent times. Furthermore, the fishermen feel that their

08 Fisheries Exploitation

167

10/28/09, 12:42 PM

168

A. Subramanyam Raju

fishing rights would be denied if the Sethusamudram Ship Canal Project were constructed.

The Sethusamudram Ship Canal Project The Indian Cabinet Committee on Economic Affairs approved a Rs.2,427 crore (Rs.1 million is 10 lakhs and 1 crore is 100 lakhs) Sethusamudram Ship Canal project on 2 September 2004.8 The project links the Palk Bay with the Gulf of Mannar on India’s east coast by dredging a shipping canal through Rameswaram. The canal starts from the Tuticorin port on the west, extends north-east in a straight line up to Mansfield patch south of Pamban island, cuts through the east of the Kodandaramaswamy temple, and then turns further north-east to join the Bay of Bengal channel. The whole project would be within Indian territorial waters. Since Palk Bay is narrower and the depth is not beyond 50 metres at any point, all ships from Chennai to the west coast are currently sailing via the Colombo harbour. Though India will have advantages9 through the construction of the canal, its fishermen will be affected. Fishermen from Tamil Nadu opposed the project as it would deny them their fishing rights. The livelihood of five lakh fishermen in 138 fishing stations along the five coastal districts would be severely affected. There is also concern over the impact of the project on the environment. It involves extensive dredging of the Pamban channel, where coral reef10 is available in abundance, and would lead to the depletion of the fish and the destruction of the marine ecology. The National Environmental Engineering Research Institute (NEERI), Nagpur, examined the viability of the project and in its report stated that the project was environmentally safe. However, it was silent on the impact of the project on the lives of the fishermen. Once the construction of the canal is completed, it would break the continuous limestone formation. This would cause a sudden tilting drift and gravitational pull and various other violent geologic processes. It seems that the Indian government has taken only the economic benefits of the project into consideration, while ignoring the ramifications, consequences, and calamities once the dredging of the sea is undertaken.

The Problems of Sri Lankan Fishermen On the Indian side, the authorities are arresting Sri Lankan fishermen who enter Indian waters. Once the fishermen are caught and brought before

08 Fisheries Exploitation

168

10/28/09, 12:42 PM

169

The (In)Security of Fishermen in South Asia

the authorities, it takes a long procedure to release them. Both Central and state governments are to be involved in the decision-making process. For instance, different departments — the Ministry of Home Affairs, Ministry of External Affairs, Ministry of Agriculture, and also State government’s departments — are involved. Unlike Sri Lanka, in India, the prosecution procedure takes longer. The Maritime Zone of India Act of 1981 (MZI) provides for an imprisonment term not exceeding three years, or a fine not exceeding Rs.15 lakhs, or both if foreign vessels are found in any area within the territorial waters of India, or for them to be punishable with a fine not exceeding Rs.10 lakhs.11 There are a few cases in which the courts have ordered payment of a fine of Rs.100,000. Apart from the penalty, they may be imprisoned for about six months. This is against the UNCLOSIII Article-73, which forbids the imprisonment of fishermen who are found poaching.

NGOs’ Role It is worthwhile to mention here that NGOs are playing a significant role in promoting the welfare of fishing communities in India and Sri Lanka. For instance, the Alliance for the Release of Innocent Fishermen (ARIF) is sincerely working for the release of fishermen from India and Sri Lanka and the author has met the people who are working for the release of the fishermen of both countries. In an interview, the author was informed that they provide information to the affected families on the whereabouts of their kin. They also meet and talk to the authorities of both countries to release the fishermen. The affected fishermen in Tuticorin told the author that only ARIF was concerned about their welfare, and they were being informed by ARIF about their kin’s whereabouts. Similarly, in Sri Lanka, there are a number of organizations that are involved in securing the release of arrested Indian fishermen. NGOs, trade unions, fishermen’s organizations, some of them in Sri Lanka, are working for their release. In Sri Lanka, these organizations are more effective; in India, the NGOs are not that influential and effective in securing the release of Sri Lankan fishermen, but they are still playing a significant role. The author was told by the staff of ARIF that the government often obtained help from them in dealing with fishermen’s issues.

08 Fisheries Exploitation

169

10/28/09, 12:42 PM

170

A. Subramanyam Raju

FISHERMEN PROBLEMS IN INDO-PAKISTANI WATERS Before discussing the fishermen’s problem in Indo-Pakistani waters, it is worthwhile to analyse briefly the maritime disputes between India and Pakistan.

Maritime Boundary Two principal issues are involved in the dispute between India and Pakistan — the delimitation of the boundary along the Sir Creek, and the demarcation of the maritime boundary in the Arabian Sea. The Rann of Kutch is located between the Sind province of Pakistan and Gujarat state of India. It is neither big enough to navigate nor farm. It has two distinct formations — that is, Great Rann and the Little Rann. Great Rann covers 18,000 sq. km and lies almost within Gujarat and extends 256 km. From west to east the width is between 40 and 100 km. Little Rann stretches from east to west for about 110 km and covers about 500 sq. km. In the north, the Rann lies in Sind, a province of Pakistan, and its south and east are the Kutch and Kathiawar regions of Gujarat state of India. The Rann is submerged in water of 4–5 feet deep during May to October, and the rest of the year it becomes a salty desert. Sir Creek is a 100 km long estuary in the marshes of the Rann of Kutch, which lies on the border between Gujarat and Sind. It is a fluctuating tidal channel and not a flowing creek. Until 1954, the border around Sir Creek between India and Pakistan was open, but later it became a contentious issue between them. Pakistan insists on demarcating the Creek boundary as a precondition for delimiting the maritime boundary. It demands the drawing of a line on the basis of the principle of equity, whereas India wants to draw a line along the middle of the Creek. Both countries are yet to resolve the problem. It is believed that the Creek has subsea oil and gas deposits. The Sir Creek dispute stems from maps drawn in 1914 and 1927 which demarcated different boundaries along the 100 km length of Creek. The 1914 map depicts the boundary on the east bank of the Creek, while the later map portrays the boundary along the midpoint of the Creek. India argues that there is no dispute in this sector, whereas Pakistan argues that it is a disputed area. India maintains that there was a dispute between the two sides on the Kutch-Sind border, that is, between the Sir Creek and Khori Creek. However, this dispute was settled in 1913. On the other

08 Fisheries Exploitation

170

10/28/09, 12:42 PM

171

The (In)Security of Fishermen in South Asia

hand, Pakistan argues that the entire Creek is on its eastern bank and is represented in the 1914 map as belonging to it. Pakistan claims about onethird of the Great Rann, about 3,500 sq. km, and argues that it was under the control of Sind. India opposes Pakistan’s view and maintains that the entire Rann of Kutch is a part of the Kutch region of Gujarat. The Kutch was acceded to India in 1947, and in 1950, it became part of the then State of Bombay, and later, in 1960, part of the State of Gujarat. After the war between India and Pakistan in 1965, both countries signed an agreement on 30 June 1965 for a ceasefire and status quo in the Kutch. Article 3(i) of the agreement declared: In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall…have recourse to the Tribunal referred to in (ii) below for determination of the border in the light of their respective claims and evidence produced before it, and the decision of the Tribunal shall be final and binding on both parties.12

The agreement provided a tribunal for the determination of the boundary. The tribunal announced its verdict on 19 February 1968 and awarded approximately 900 sq. km in the northern part of the Rann to Pakistan, and the rest to India. Pakistan was given the areas south of Rahim-ki-Bazar — that is, Pirol Valo Kun, Dhar Banni, and Chhad Bet, and the two deep inlets on either side of the Nagar Parker promontory. The tribunal verdict was based on three grounds: (a) the intensive Sind activity; (b) these areas were totally surrounded by Pakistani territory; (c) the paramount consideration of promoting peace and stability in the region.13 India was not happy with the verdict. If India agrees to Pakistan’s claim or vice versa, either country could lose or gain only about 250 sq miles of ocean and ocean floor.14 India and Pakistan had six rounds of talks during 1969–98, but could not come to an agreement. Under the Lahore Declaration of 1998, both agreed to “conclude an agreement on prevention of incidents at sea in order to ensure safety of navigation by naval vessels, and aircraft belonging to the two sides”.15 In other words, both countries realized the importance of maritime cooperation. From 1997–99, the naval forces of both countries had negotiations to promote cooperation between them since both countries face similar problems at sea. They should realize that there are far more serious threats to their national security. These two countries can keep the dispute aside and undertake joint initiatives to share benefits.

08 Fisheries Exploitation

171

10/28/09, 12:42 PM

172

A. Subramanyam Raju

Due to the undefined boundary between India and Pakistan, the fishermen of both countries, who stray into each other’s waters, are facing problems. The following section discusses the fishermen’s problems.

Indian and Pakistani Fishermen’s Problems Indian and Pakistani fishermen are being arrested/ killed by the authorities on the other side. Indian fishermen are suspected of collaborating with the Research and Analysis Wing (RAW), while Pakistani fishermen are suspected to be the agents of the Inter-Service Intelligence (ISI). The fishermen of both countries are often arrested for crossing borders and they are becoming victims of undefined boundaries. They are being treated as prisoners-of-war. The arrests of fishermen started from early 1987. Due to commercialization, thousands of fishermen have been displaced from their source of livelihood through the destruction of the Indus Delta. Many of them left with no option but to migrate to other places. Gujarat has the largest coastal area in India and has a rich heritage of live corals and coral islands in the Gulf of Kutch. The coral reefs play an important role in marine life. However, they are being dredged out due to various reasons. For instance, sand dunes and mudflats are being removed and this has led to damage to marine life. Up to now, the fishermen of each state have not been arrested on the grounds that they are carrying arms and ammunition on board. There is no clear policy regarding the release of the arrested fishermen. There have been incidents on both sides where the fishermen were arrested and kept in jails for years. For instance, by 1997, 180 Pakistani fishermen had been kept in jail in India for more than five years, and, similarly, 193 Indian fishermen had been kept in jail in Pakistan. Their release always depends on the state of relations between the two countries. Often the fishermen are released in equal numbers on both sides. The arrested fishermen from both sides suffer during their stay in jail as there are no proper sanitation facilities, there is a lack of privacy, and many of them are housed in crowded conditions.16 The fishermen’s mistake was to cross into their neighbour’s waters for their livelihood. They are socially and economically poor. Since both states are not able to come to an agreement on demarcating their sea boundaries, it is better that both states adopt a humanistic and sympathetic approach towards the fishermen who are crossing into each other’s waters. Karamat Ali, Director, Pakistan Institute of Labour Education and Research (PILER),

08 Fisheries Exploitation

172

10/28/09, 12:42 PM

173

The (In)Security of Fishermen in South Asia

rightly pointed out that: “It is a criminal negligence on the part of both the countries. There should be a demarcation according to UN Sea Conventions.”17 Though both countries are yet to demarcate their maritime boundary, the two governments could see the fishermen problems from a humanitarian viewpoint. For instance, though India and Sri Lanka demarcated their maritime boundary, the Sri Lankan government understood the problem of Indian fishermen who were poaching in its waters and its naval authority started handing over the fishermen to the Indian navy. From this one can see that the coastal fishermen’s fate always depends on the kind of relationship between neighbouring countries. The South Asian Labour Forum (SALF), trade unions, and labour support groups of both India and Pakistan have been pressurizing their respective governments to release the arrested fishermen. Muhammad Ali Shah, President of the Pakistan Fisher Folk for United Nations has said that: “Fishermen should not be made the victims of enmities and boundary disputes between two countries. Nowhere in the world such a practice is in place [sic]. This is the tragedy of this region where fishermen are treated like prisoners of war.”18 Fortunately, a breakthrough has been made by India and Pakistan to agree on a bilateral code of conduct minimizing interboundary crossovers by fishermen. Over the last five years, as part of the ongoing peace process, a maritime dispute mechanism has been consciously incorporated into the negotiation agenda. There is evidence from both countries of their adopting a benign and human approach in treating the maritime trespassers. Both countries are in favour of creating a buffer zone, extending five nautical miles into each other’s maritime boundary.19 The Indian Vice-Chief of the Naval Staff, Sureesh Mehta, said that: “Talks are progressing very well and in the interest of both sides, we are at the culmination stage and the final bit should be clinched in this round of talks. The Coast Guard has the full backing of the Navy in whatever steps it is planning to take.” He further said that: “The boundary is notional and no markers are possible on the high seas. Unable to afford costly direction finding equipment, fishermen stray into the maritime zone of the other country, where they are arrested. At the time of arrest, they cannot understand the gravity of their crime.”20 Also both states are in favour of setting up a hotline between the two sides. If a buffer zone is set up and a hotline installed, the problems of fishermen who cross into their neighbour’s waters would be reduced.

08 Fisheries Exploitation

173

10/28/09, 12:42 PM

174

A. Subramanyam Raju

Nevertheless, positive bilateral initiatives need to be translated into long-term plans to put an end to the arrest the fishermen, who cross into each other’s waters. Both countries should establish Maritime Risk Reduction Centres (MRRCs), which could provide a forum for resolving the fishermen’s problems if they were caught poaching in each other’s waters.

CONCLUSION For fishermen, survival is important and they do not believe in boundaries. For them, the whole ocean is a workplace. They cross maritime boundaries and enter into their neighbour’s waters. Sometimes, they unwillingly and unknowingly cross into the other’s territory because of engine failures, lack of clear demarcation, tidal currents, cyclones, and a lack of navigational aids. It is important that the governments of coastal states consider the concept that fishermen’s problems need to be viewed on humanitarian grounds. There has to be networking among the fishermen of South Asian countries to bring them to a platform where they can discuss their problems and share their experiences and ideas. The coastal states of South Asia have to think in terms of encoding a common maritime conduct and regional maritime law. This is necessary so that most of the problems of the fishermen can be addressed without much delay in case they enter each other’s waters. This can also protect the rights of fishermen and promote their welfare and security. However, this problem will remain so long as the political will for long-term solutions is lacking. In order to guarantee long-term regional security, South Asian countries must realize that it is essential to move from the security of boundaries to the security of people.

Notes 1. Rajya Sabha Debates (New Delhi: Parliament Secretariat, 1 September 1960), cols. 3049–50 2. Ibid., col. 3050. 3. Hindustan Times, 2 March 1968, cited in V. Suryanarayan, Kachchativu and the Problems of Indian Fishermen in the Palk Bay Region (Madras: T.R. Publications), p. 17.

08 Fisheries Exploitation

174

10/28/09, 12:42 PM

175

The (In)Security of Fishermen in South Asia

4. The 1974 agreement has two clauses, which protect a few activities of the Indian fishermen. Article 5 maintains “Subject to the foregoing, the Indian fishermen and pilgrims will enjoy access to visit Kachchativu as hitherto and will not be required by Sri Lanka to obtain travel documents or Visas for these purposes.” Article-6 of the agreement states “The vessels of Sri Lanka and India will enjoy each other’s Waters such rights as they have enjoyed therein.” 5. Cited V. Vivekanandan, “Crossing Maritime Borders: The Problem and Solution in the Indo-Sri Lankan Context”, in Forging Unity: Coastal Communities and the Indian Ocean’s Future, edited by K.G. Kumar (Chennai: International Collective in Support of Fishworkers, 2003), p. 79. 6. See Rohan Gunaratne, “Trends in Maritime Terrorism — The Sri Lankan Case”, . 7. The Hindu, 8 March 2003, p. 6. 8. The Proposal was not recent one and many proposals were considered from 1860 onwards. For more details, see A. Subramanyam Raju, “Sethusamudram Ship Canal Project: Problems and Prospects”, Indian Ocean Survey 1, no. 2 (July–December 2005): 105–08. 9. The canal will provide berthing facilities for many international vessels at Tuticorin port. It will promote economic development of the backward areas of the Ramanathpuram and Tirunelveli districts of Tamil Nadu. It will also avoid circumnavigation of ships around Sri Lanka and save fuel costs and standing charges associated with extra periods of voyages and improve operation of fishing vessels. Through this project, Tuticorin will regain its old commercial glory. It will promote coastal shipping. It will also generate employment opportunities. The canal can be used in transporting coal from Haldia, Paradeep, and Vishakapatnam ports for the thermal power plant in Tuticorin. This canal reduces the distance between the east and west coasts: the distance between Tuticorin and Chennai from 769 to 335 nautical miles; that between Tuticorin to Vishakapatnam can be 652 as against 1,028 nautical miles, and that between Tuticorin to Calcutta (Kolkata) can be 1,031 instead of 1,371 nautical miles. 10. A Coral Reef is the feeding and breeding ground for various marine organisms. It acts as carbon sink by absorbing carbon dioxide and converting it into calcium carbonate. It protects the seashore from tidal erosion. It provides people with living sea walls against tides, storm surges and hurricanes. 11. [The] Maritime Zones of India (Regulations of Fishing By Foreign Vessels), Act, 1981 (Act No. 42 of 1981), Chapter IV, no. 10. 12. R.P. Anand, “The Kutch Award”, India Quarterly 24, no. 3 (July–September 1968): 186. 13. The Indian nominee opposed the verdict and gave reasons for the opposition. For details, see Alok Kumar Gupta, “Other Territorial Disputes with Pakistan:

08 Fisheries Exploitation

175

10/28/09, 12:42 PM

176

14.

15. 16.

17. 18. 19.

20.

A. Subramanyam Raju Rann of Kutch and Sir Creek”, in Conflict and Peacemaking in South Asia, edited by P. Sahadevan (New Delhi: Lancers Books, 2001), pp. 272–95. K. Raja Menon, “Maritime Confidence Building in South Asia”, in Maritime Confidence Building in Regions of Tension, edited by J.R. Jummola, Report no. 21 (Washington, D.C.: The Henry L. Stimson, 1996), p. 78. Ibid. For the fishermen experience in jail, see Charu Gupta and Mukul Sharma, “Blurred Borders: Coastal Conflicts between India and Pakistan”, Economic & Political Weekly, 3 July 2004, vol. 39, no. 27, pp. 3010–13. Ibid., p. 3005. Ibid., p. 3012. Sandeep Dikshit, “Fishermen: India-Pakistan Deal in Sight”, The Hindu, 30 November 2004, cited in . Ibid.

08 Fisheries Exploitation

176

10/28/09, 12:42 PM

177

Fisheries in the French Indian Ocean Territories

9 FISHERIES IN THE FRENCH INDIAN OCEAN TERRITORIES Christian Bouchard

INTRODUCTION The main objective of this chapter is to present an overview and discussion of the fisheries in the French Indian Ocean territories, which are quite different from one administrative unit to another, and have been evolving rapidly since the end of the 1990s. It will be shown that fisheries generally represent an important activity in the small island states and territories. However, pressure on the fishery resource in French Indian Ocean waters is quite significant and overexploitation has resulted in a dramatic fall in the southern catch, and has forced the closure of the fisheries for several commercial species. The long-term sustainability of the fishery will largely depend on continued French involvement and success in preventing foreign illegal fishing in its EEZ, as well as on better knowledge and management of fish stocks. In the Indian Ocean, France exercises sovereignty over ten different island territories that can be regrouped into six distinct administrative units (Table 9.1 and Figure 9.1). Only two of these ten territories have a

09 Fisheries Exploitation

177

10/28/09, 12:43 PM

178

Christian Bouchard Table 9.1 The French Indian Ocean Territories

Administrative Unit

Island territory Bassas da India

FSAL, District of the Scattered Islands

Land area (sq. km)

Permanent EEZ area population (sq. km)

1

0

123,700

Crozet Islands

FSAL, District of Crozet

340

0

658,000

Europa Island

FSAL, District of the Scattered Islands

30

0

127,300

Glorioso Islands

FSAL, District of the Scattered Islands

7

0

48,350

Juan de Nova Island

FSAL, District of the Scattered Islands

5

0

61,050

Kerguelen Islands

FSAL, District of Kerguelen

7,215

0

564,000

Mayotte

Departmental collectivity of Mayotte

374

201,000

50,000

Réunion

Overseas Department and Region of Réunion

2,512

788,000

312,360

Saint-Paul & Amsterdam Islands

FSAL, District of Saint-Paul & Amsterdam

66

0

502,500

FSAL, District of the Scattered Islands

1

0

280,000

Tromelin Island

Note: FSAL: French Southern and Antarctic Lands (Terres australes et antarctiques française, TAAF). Main sources: TAAF (2006), Ministère de l’Outre-Mer (2006), CIA (2006).

permanent population and form a main administrative unit of their own: Réunion Island (also known as La Réunion) in the Mascarene Archipelago, which is both a France Overseas Department (DOM) and an Overseas Region (ROM);1 and Mayotte, in the Comoros Archipelago, which now has the status of an Overseas Collectivity of the French Republic (COM).2 The eight other island territories are administratively linked to the French Southern and Antarctic Lands (FSAL)3 of which they form four of its five

09 Fisheries Exploitation

178

10/28/09, 12:43 PM

179

Fisheries in the French Indian Ocean Territories Figure 9.1 The French Territories in the South-west and Southern Indian Ocean

Source: Christian Bouchard.

09 Fisheries Exploitation

179

10/28/09, 12:43 PM

180

Christian Bouchard Table 9.2 Fish Catch in the French Indian Ocean EEZ (2001 and 2005).

Mayotte Reunion (1) FSAL (1) Total Notes:

2001 Catch Live weight (tons)

2005 Catch Live weight (tons)

2001 Catch Value (million Euros)

2005 Catch Value (million Euros)

3,100 3,597 3,078 9,775

2,050 3,289 4,815 10,154

— 10.3 24.4 —

7.2 13.6 52.5 73.3

(1)

Official Reunion Island statistics binds the French Southern and Antarctic Lands fisheries to those of the island. Sources: IEDOM (2006a and 2006b).

districts, namely Crozet, Kerguelen, Saint-Paul and Amsterdam, and the Scattered Islands (Îles Éparses).4 While the first three FSAL districts are made up of unique island groups located in the Southern Indian Ocean, the Scattered Islands are made of five very small and isolated island features in the vicinity of Madagascar (Bassas da India, Europa I., Glorioso Is, Juan de Nova I., and Tromelin I.). From these territories, France claims a total of 2.7 million sq. km of exclusive economic zone (EEZ) in the South-west and the Southern Indian Ocean (which represents an area larger than the Indian EEZ claim of some 2.2–2.3 million sq. km). Fisheries in the French Indian Ocean territories include local fisheries and aquaculture in Mayotte; artisan, coastal, and longline fisheries with some aquaculture in Réunion (including some fishing in the Scattered Islands and Madagascar EEZs); and a large industrial fishery in the southern Indian Ocean (also based in Réunion). Overall in 2005, the marine fisheries represented some 10,154 tons of fish caught with a a value of 73.3 million Euros (Table 9.2), while aquaculture represented a production of 325 tons with a value of some 1.7 million Euros.

FISHERIES IN MAYOTTE Located in the northern entrance of the Mozambique Channel, Mayotte is the oldest of the four volcanic islands forming the Comoros Archipelago. Encircled by a very extensive barrier reef, it possesses one of the largest

09 Fisheries Exploitation

180

10/28/09, 12:43 PM

181

Fisheries in the French Indian Ocean Territories

and richest lagoons in the Indian Ocean. Fishing is a traditional activity on this island where the population has for a long time harvested the lagoon of some 1,000 sq. km for a significant proportion of its food. Today, the island has entered an accelerated phase of development (relying primarily on state assistance and public services expansion). Fishing remains at a low technical level (fishing equipment, boat engines, navigation and fishing techniques), but efforts are actually being made by both public authorities and some fishermen to improve the situation. Public subsidies for new equipment, a professional school (École d’Apprentissage Maritime — EAM), and two professional associations (COPEMAY, COVIPEMM) contribute to the modernization of the sector. Nevertheless, fishing remains predominantly a subsistence activity with about half of the fishermen households consuming all their captures (IEDOM 2005b, p. 86). In 2005, the fish catch was estimated to be 2,050 tons with a turnover of 7.2 million Euros (IEDOM 2005b, pp. 85–87). Reef species account for about 80 per cent of the production while the pelagic species are usually fished outside of the lagoon. Even if production is quite low in the lagoon, three-quarters of the fishermen do not cross the reef (which necessitates a larger distance and an engine). Open sea fisheries are encouraged by the territorial authorities that have invested in fish-aggregating devices (FAD). For now, there are eleven FAD installed outside the reef at a mean distance of five nautical miles off the island coast. In all, the total fish catch only meets 80 per cent of local demand while the lagoon can no longer sustain the increasing needs of a very rapidly growing population (94,400 inhabitants in 1991, 160,300 in 2002, about 200,000 today). Mayotte fisheries are complemented by a rather important marine aquaculture activity. In 2005, this sector included four fish farms and one nacre (mother-of-pearl) producer. It produced 163 tons of croakers (ombrine in French), of which 78.5 per cent was exported (IEDOM 2005b, pp. 87–89). With a value of 676,000 Euros, aquaculture fish represents the first export product of the island (11.5 per cent of the total exports; 7.8 per cent for ylang). The penetration of farmed croakers into the local market is made difficult because of its much higher price than sea caught fish. To diversify and increase production, the farming of cobia began in 2006 with imported larvae from the United States. Together, fishing and aquaculture represent an important economic activity in this small and relatively less developed French territory. There are now some serious concerns about the intensity of the fishing inside the

09 Fisheries Exploitation

181

10/28/09, 12:43 PM

182

Christian Bouchard

lagoon as the maximum sustainable yield has been reached, if not already exceeded. At the same time, there is strong potential for increasing the yield in the open sea, around the fish attracting devices, or even further into the exclusive economic zone. Thus, a transfer of a great share of the fishing activity from the lagoon to the open sea is not only possible, but also necessary to safeguard the reef and lagoon resources. Some fishing is already carried out as far as the Banc du Geyser,5 at 125 km east of the island, where another FAD has been installed. Mayotte fishermen and authorities are also looking at the possibility of operating further from the island in the vicinity of the Glorioso Islands, or even in the other French Mozambique Channel Islands’ EEZs. However, this would mean a considerable investment in new vessels and land infrastructure to support an industrial fishery that currently remains only at the potential level.

FISHERIES IN THE SCATTERED ISLANDS Fisheries in the Scattered Islands’ EEZs are not very important in term of total catch, but represent a noteworthy issue in the south-west Indian Ocean. The problem here arises from the fact that the sovereignty over all five individual island territories that constitute the Scattered Islands is contested. When Madagascar gained its independence in 1960, France, mainly for strategic reasons, kept these small uninhabited islands under its control.6 This was not contested before 1973 when, in the wake of the formalization of the EEZ concept, Madagascar officially claimed Bassas da India, Europa Island, Juan de Nova Island, and the Glorioso Islands.7 In the case of Tromelin, Mauritius claimed the island in 1976 on the basis that it was still listed by the British authorities as a Dependency of Mauritius prior to its independence in 1968 (and since 1826). The island, which is also known as Sandy Bank of Tromelin, was officially incorporated by the Mauritius government into its national territory in 1982. Even if these territorial claims formally concern the sovereignty over the islands, and thus land, the maritime dimension is what is now really at stake. Considering the extremely small size of these islands (some 44 sq. km altogether), their very limited resources, and the difficulty to settle there, the interest in them rests mostly on the marine resources around them. For the Scattered Islands alone, France claims some 640,000 sq. km of exclusive economic zone, which represents more than double the Réunion EEZ and nearly two-thirds of its total EEZ claims in the south-west Indian Ocean (excluding French EEZ claims around the FSAL islands). If strategic

09 Fisheries Exploitation

182

10/28/09, 12:43 PM

183

Fisheries in the French Indian Ocean Territories

considerations can now be considered of lesser importance, scientific, meteorological, and environmental considerations have emerged. An administrative decree of 18 November 1975 has created a natural reserve including four of the five island territories, but Juan de Nova has been considered as such since that time. In this integral reserve, all economic activities are prohibited, access to the islands is strictly controlled, and fishing is totally prohibited in the territorial sea (Oraison 2006). Nevertheless, for Madagascar and Mauritius, it is the EEZ and its resources that are of great interest. Apart from small-scale fishing by Mayotte fisherman in the Glorioso EEZ, legal fishing in these waters is actually carried out by French longliners operating from Réunion Island, Spain’s (some under a Seychelles flag) and France’s purse seiners operating from Seychelles, as well as from other French vessels disembarking in the neighbouring countries (especially Madagascar). This large pelagic fishery targets tuna (skipjack, yellowfin, bigeye, albacore) and swordfish. Until the integration of the Scattered Islands into the FSAL (February 2007), French fishing vessels could operate freely in their EEZ and fishing by foreign vessels was limited to Spain’s purse seiners under a bilateral agreement. In 2007, thirty Spanish-owned vessels obtained a fishing licence and this fleet caught some 3,000 tons of large pelagic fish in 2006. From now on, every vessel fishing in these waters requires a specific licence (foreign vessels) or a permit (French vessels); has to report its entry, exit, position (satellite tracking system), and operations in the zone; has to allow an onboard fishing observer; and has to report catches to the FSAL authorities (TAAF Decree no. 2008-06 of 1 February 2008).8 In 2008, the fishing season for tuna and other pelagic species ran from 15 February to 31 December, but the southern bluefin tuna (Thunnus maccoyii) fishery is banned due to stock depletion (TAAF Decree no. 2007-164 of 12 November 2007). Fishing quotas (total allowable catches) have not yet been fixed, either by fishing zones or by species, but this should come in the next few years as scientific knowledge of these resources improves and the fish catches are better compiled. However, illegal fishing has been a problem since the 1990s in the Mozambique Channel. In response, the French Navy increased its patrol and surveillance. It intercepted and arrested the Japanese vessel Fukuseki Maru 7 in Europa’s EEZ in February 2004, as well as the New Fortune that was operating in Glorioso Islands’ EEZ in May 2005. A more serious incident occurred in September 2004 when a French surveillance plane detected six Japanese vessels in the north of Tromelin’s EEZ. Finally, two

09 Fisheries Exploitation

183

10/28/09, 12:43 PM

184

Christian Bouchard

vessels, Koryu Maru 38 and Chokyu Maru 38, were intercepted and rerouted to Réunion Island to face justice. These vessels had official fishing permits from the Mauritius authorities, but the permits were not recognized by the French authorities who clearly showed their firm intention to safeguard their sovereign rights over Tromelin’s EEZ resources. At the 1999 Indian Ocean Commission Summit, President Chirac of France proposed the principle of regional co-management for the Scattered Islands. Later bilateral negotiations with both Madagascar and Mauritius failed and the status quo has remained until now. At the moment, French authorities are working towards the classification of the Scattered Islands on the UNESCO World Heritage list. At the same time, the fish stocks of the EEZ are now seen as very valuable economic resources that should be able to sustain quite intense exploitation, if managed carefully. This is the rationale for both the actual development of Réunion’s longliner industry (which contributes to the growing marine product transformation activities of the island) and the development of better scientific knowledge of these resources (which necessitates regional and international cooperation through, for instance, the Indian Ocean Tuna Commission, the Indian Ocean Commission, the South-west Indian Ocean Fisheries Commission, and the South West Indian Ocean Fisheries Project).

FISHERIES IN LA RÉUNION Fisheries in Réunion Island have evolved dramatically since the implantation of the first fish aggregating devices (FAD) in 1988, and the development of a local longline fishery in the 1990s. In 2005, the Réunion catch amounted to 8,104 tons with a value of 66 million Euros (IEDOM 2005a, p. 117). This is about the same volume as that of 2000 and 2004, which were the two best years of the 2000–04 period. In 2005, 59.4 per cent of this catch came from the large industrial fishery that operates in the cold waters of the Crozet, Kerguelen, and Saint-Paul and Amsterdam EEZs. All the legal catch coming from this area was from French vessels that had to land in Réunion Island. As the southern fisheries are dealt with in the next section, we will focus here on artisan fishery (or small coastal fishery) and open sea fishery (coastal and longline fisheries) that account for the other 40 per cent of the overall island catch. In artisan fishery, fishermen operate close to shore, inside the twelve nautical mile limit of the territorial sea, and are out at sea for less than

09 Fisheries Exploitation

184

10/28/09, 12:43 PM

185

Fisheries in the French Indian Ocean Territories

twenty-four hours. The main species harvested are tuna and dorado (Coryphaena hippurus), but a very large number of other fish are also brought to land (pelagic and dermersal) and are sold in the local market. This artisan fishery has grown significantly in the 1990s with the development of the FAD, of which there are now more than thirty in Réunion’s coastal waters (up to 15 nautical miles). In 2005, the catch amounted to 997 tons, which is about the 2000–04 average (990 tons), and represented 12.3 per cent of the overall island catch of 2005. In the context of a limited size exploitable area, this small coastal fishery is facing and complaining about strong competition from a well-developed recreational fishery (specializing in big game fishing: black marlin, tunas, sailfish, barracuda, sharks, dolphin-fish, and so on) that operates in the same waters and around the FAD, as well as the prevalence of informal fishing activities (Bourjea 2007). In the wake of an important fall in the catch in 2006 (714 tons; INSEE-RÉUNION 2007, p. 185), urgent measures are necessary to safeguard artisan fishery, which can only remain healthy if both fishing activities and all stocks in the coastal area are better managed. This means the development of a responsible coastal fishery (best practices, efficient management, regulations, and implementation), the designation of marine protected areas, the regularization of informal fishermen, and the accounting for recreational fishing catch in fisheries management. In open sea fishery, vessels are out at sea for between twenty-four and ninety-six hours (coastal fishery) or between five to twenty-one days (longline fishery). The two targets are swordfish and tuna that are either processed on land (coastal fishery) or on board (longline fishery). In 2005, the catch amounted to 2,292 tons, which is about the 2000–04 average (2,145 tons) and represented 28.3 per cent of the overall island catch of 2005. In 2006, the catch increased to 2,781 tons (an increase of 21 per cent from 2005) and accounted for 33.6 per cent of the island total (INSEE-RÉUNION 2007, p. 185). The vessels that participate in this open sea fishery operate less than 20 nautical miles from shore (30 per cent), in the rest of the island EEZ (35 per cent), in Madagascar EEZ (20 per cent), as well as in Tromelin and the French Mozambique Channel Islands’ EEZs. About half of the longline fish catch is exported, while the coastal fish catches are mostly destined for the local market. The longline fishery is still undergoing expansion with the delivery of six new vessels at the end of 2006, and new port infrastructure installed in 2007 (two new wharfs, warehouse space, and reclaimed land). The Réunion open sea

09 Fisheries Exploitation

185

10/28/09, 12:43 PM

186

Christian Bouchard

fishing fleet is still expected to grow in the coming years as local operators look forward to accessing a greater share of the large regional pelagic resource. A fast developing aquaculture completes the island fisheries sector. In 2005, it produced 162 tons of fish with a total value of 1.1 million Euros. This represents a volume increase of 218 per cent since 2000. The main products are croakers and tilapia. Of less importance, rock fishing and spearfishing are also quite popular and add to the general pressure on the fish resources of the littoral zone. There is also a local and spectacular tradition of fishing for “bichique” (Sicyopterus lagocephalus). This freshwater fish inhabits some rivers of the island, but the hatching and larval stages occur at sea. The fries, i.e. recently-hatched fish, are intensely harvested in the few days when they return from the sea to the rivers. Finally, and despite the vitality of its fishery sector, Réunion Island is far from able to meet its domestic needs with regard to marine products. In 2005, it exported 3,939 tons of marine products, but imported 10,100 tons, giving it a trade tonnage deficit of 6,161 tons. As its exported products are of high value, the trade value imbalance is much less pronounced, with exports amounting to 43.5 million Euros and imports amounting to 48 million Euros. The main exported products are frozen Patagonian Toothfish, fresh, refrigerated, or frozen fish fillets, and spiny lobsters. Imported products are very diverse and range from shrimp to salmon and a variety of fresh, refrigerated, frozen, dry, or salted fish and fish preparations.

FISHERIES IN THE SOUTHERN EEZs Nowadays, French southern fisheries’ catches include the Patagonian Toothfish (Dissostichus eleginoides) caught in the Crozet and Kerguelen EEZs, as well as spiny lobster (Jasus paulensis) caught in Saint-Paul and Amsterdam territorial sea and EEZ. No foreign activity has been legally carried out in these waters since the end of the bilateral fishing accords previously contracted with the USSR in 1998, and continued with the Ukraine, as well as with Japan and South Korea. Nevertheless, illegal fishing of the Patagonian Toothfish has been a very serious problem, and one that has grown through the 1990s. From 1997 to 2000, twenty ships have been inspected by the French Navy and rerouted to Réunion Island where shipowners and captains were prosecuted (TAAF 2008).

09 Fisheries Exploitation

186

10/28/09, 12:43 PM

187

Fisheries in the French Indian Ocean Territories

In the last fishing season, six French companies were authorized to operate in the French Southern EEZs with a total of eight vessels. The total allowable catches (TAC) have remained stable over the period and were fixed for the 2007–08 season at 6,000 tons for the Patagonian Toothfish (5,000 tons in the Kerguelen EEZ; 1,000 tons in the Crozet EEZ)9 and to 390 tons for Spiny Lobster (260 tons in coastal waters; 130 tons in deep waters).10 In Saint-Paul and Amsterdam waters, where Spiny Lobster harvesting occurs, an additional 100 tons of fish capture is allowed in the territorial sea, as well as 35 tons in the EEZ. The three other fish species caught are Hapuku (Polyprion oxygeneios, 50 tons), Antarctic butterfish (Hyperoglyphe Antartica, 60 tons), and striped trumpeter (Latris lineate, 25 tons). The fishing quotas are established annually by the French Southern and Antarctic Lands Superior Administrator (located in Réunion Island), with the scientific assistance of the French National Museum of Natural History (Muséum national d’histoire naturelle), and with due consideration for the CCAMLR11 conservation measures in the Convention area (Figure 9.1). In this latter regard, France is privy to a particular status that allows convention measures to be applied only on a voluntary basis, but the Superior Administrator’s decisions usually fully comply with the CCAMLR conservation measures (TAAF 2006). In 2005, catches in the southern EEZs amounted to 4,815 tons with a total value of 52.2 million Euros (IEDOM 2005a, p. 117). The catches remained at that level in 2006 with a total of 4,770 tons. In addition to the Patagonian Toothfish, notable by-catches have been valorized and commercialized, including grenadier (Macrourus carinatus), rays (Bathyraja eatonii, Bathyraja irrasa, and Raja taaf), blue shark, and even octopus (FRANCE 2001; TAAF 2006). All catches are processed and frozen on board and have to be unloaded in Réunion where the ships are also serviced. Almost all of these southern catches, including Spiny Lobster, are exported to Asian (Japan, China, and Singapore), United States, and French markets. A few years ago, it is estimated that pirate vessels were catching up to 26,000 tons of Toothfish a year in the Crozet and Kerguelen EEZs, which is about four times the legal quota granted to French fishermen (ESA 2005). The importance of this illegal fishing has forced French authorities to react strongly by: (1) increasing its naval presence in the area (the patroller Albatros being deployed annually for 250 days at sea); (2) affecting in December 2003 a new fishing surveillance ship to the zone (the Osiris,

09 Fisheries Exploitation

187

10/28/09, 12:43 PM

188

Christian Bouchard

which operates annually for 150 days at sea); (3) implementing a radar satellite surveillance system based on Envisat and Radarsat-1 imagery, which has been operational since February 2004 (ESA 2005), and, finally (4) cooperating with South Africa and Australia that are challenged by the same illegal activities around Prince Edward Islands and Heard & MacDonald Islands (bilateral treaty between France and Australia in 2003, new accord between these two countries in August 2006). As a result of these actions, although illegal Toothfish fishing has not been totally eradicated in the southern waters, pirate ships are now more careful in the area and operate outside the French EEZ. The last interception for illegal fishing in French Southern EEZs was that of the Apache, a vessel sailing under the Honduran flag and found in June 2004 with 60 tons of Patagonian Toothfish in its holds. Thus, the fishing campaign of 2004–05 was the first year in a long time that pirate vessels did not operate in French southern waters, but the depleted stocks of the continental plateaus of Crozet and Kerguelen have not yet fully recovered from the massive illegal fishing that occurred in the 1990s (Reuillard 2005). This fishery is also confronted with other difficulties that include sea birds by-catches, and, in Crozet waters, the Orca (Orcinus orca) appetite for fish on lines. Finally, new scientific assessment is underway to determine how the stocks of other commercial species have recovered since the closure of their exploitation at the end of the 1990s. These species include Mackerel icefish (Champsocephalus gunnari), Marbled rockcod (Notothenia rossii), Grey rockcod (Lepidonotothen squamifrons), and Unicorn icefish (Channichthys rhinoceratus).12 An eventual stock recovery and the reopening of their industrial harvesting would be a very positive development for the Réunion fisheries sector. An exploratory fishing campaign for Grey rockcod13 was authorized in the Kerguelen EEZ from 15 October 2007 to 29 February 2008, with a TAC of 900 tons. Overall, it is expected that the total allowable catch in the French Southern EEZ could be raised to 20,000 tons in the near future, a figure that represents a three-fold increase from the current harvest.

CONCLUSION Fisheries generally represent an important activity in the small island states and territories. This is certainly the case in Mayotte and Réunion where they contribute to the local economy and exports, as well as in the case of the Scattered Islands and the Southern Islands, where they represent

09 Fisheries Exploitation

188

10/28/09, 12:43 PM

189

Fisheries in the French Indian Ocean Territories

the only commercial activity. The sustainability of these fisheries is largely dependent on French success in preventing foreign illegal fishing in its EEZ, as well as on better knowledge and management of its fish stocks. However, there are also regional issues that are now tackled on a wider scale by different international bodies such as the Indian Ocean Tuna Commission (IOTC),14 the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),15 the Indian Ocean Commission (Commission de l’Océan Indien, COI),16 and the Southwest Indian Ocean Fisheries Commission (SWIOFC).17 With its six components (Data and Information; Crustaceans resources; Demersal resources; Pelagic resources; Non-consumptive resources; Management), the recently established South West Indian Ocean Fisheries Project (SWIOFP)18 seems to bring some momentum to regional cooperation that has until now not achieved very much in this specific Indian Ocean area. Overall, the pressure is already quite significant on fish resources in French Indian Ocean waters. Overexploitation has resulted in a dramatic fall in southern catch and forced a closure of fisheries for several commercial species. Even the stocks of Patagonian Toothfish have to recover from the very intense illegal fishing that occurred in the 1990s. In Mayotte, the lagoon and reef resources are declining as well as the catches. Even if the Scattered Islands’ resources are said to represent good potential, little is known about them and they have also been targeted by pirate fishing vessels since the 1990s. In Réunion, coastal resources are under great pressure from both artisan fishery and recreational fishing. On the other hand, the situation looks a little better for the open sea resources harvested in the Réunion and Tromelin EEZs due to the installation of fish aggregating devices, and illegal fishing eradication. However, what Réunion operators are looking for is a larger share of the pelagic resources harvested in the Scattered Island EEZ, which is actually mostly granted to Spanish and other French vessels (unloading in neighbouring countries). Mayotte also is looking to increase its catch from this zone (especially in the Glorioso EEZ), but the island is not yet ready to develop a large-scale industrial fishery. On the regional scale, maximum yield of large pelagic fishes is more likely to be reached in the South-west Indian Ocean, and this raise the issue of achieving sustainable fisheries. Thus, a significant increase of the local captures would only be possible if both the foreign and illegal captures are lowered. Réunion operators are also expecting a significant increase in TAC in the Southern islands’ EEZ in the coming years. Thus, French Indian Ocean Territories catches definitely

09 Fisheries Exploitation

189

10/28/09, 12:43 PM

190

Christian Bouchard

have the potential to grow substantially from their current 10,000 tons. Nevertheless, this will only be possible if the local fishing industry can remain competitive in a world integrated market where competition is fierce. The European Union, the French government, and local collectivities are all asked to help secure the health and development of this important industry for the two small islands (Réunion and Mayotte). Thus, more than ever, France is an active and interested player in Indian Ocean fisheries — both as a local player and as a foreign actor. In addition to developing the large-scale fishing activities of Réunion (in the SWIO and the French Southern EEZ), and on a much lower level, in the Mayotte fisheries, French fishing activities also include the operation of several other vessels carrying the French flag (seiners and longliners) in the EEZ of many East African countries (Comoros, Madagascar, Mauritius, Mozambique, and Seychelles). These are fisheries that fall under bilateral agreements between each of the countries and the European Commission. In addition to harvesting different fish stocks in various waters, French interests and contributions to the fisheries in both the southwest and the southern Indian Ocean extend to illegal fishing eradication, imparting scientific knowledge of the resources, vessel operation and catch monitoring, stocks and fishing management, port activities (landings, fleet maintenance, and servicing), safety and rescue at sea (for example, La Réunion Maritime Rescue Coordination Centre), marine products on land, processing and exports, as well as regional and international cooperation in marine resources exploitation and management issues.

Notes 1. DOM: Département d’outre-mer (overseas department); ROM: Région d’outremer (overseas region). Réunion is at the same time both an overseas department and an overseas region of the French Republic, just like French Guyana, Guadeloupe and Martinique. 2. COM: Collectivité d’outre-mer (overseas collectivity). Since the law of 11 July 2001, its formal name is “Collectivité départementale de Mayotte” (which can be translated in English to Deparmental Collectivity of Mayotte). It became an overseas collectivity by the constitutional revision of 28 March 2003, while its status has been actualized by the law of 21 February 2007 (French law no. 2007-224). 3. In French TAAF: Terres australes et antarctiques françaises. Its old status as an overseas territory (TOM: territoire d’outre-mer) has been eliminated by the

09 Fisheries Exploitation

190

10/28/09, 12:43 PM

191

Fisheries in the French Indian Ocean Territories

4.

5.

6.

7. 8.

9. 10. 11. 12. 13.

constitutional revision of 28 March 2003. The FSAL are now considered as collectivity sui generis as they neither are a DOM, a ROM or a COM (under the French law no. 2007-224 of 21 February 2007). In addition to its four island districts, the FSAL also includes the district of Adelie Land (Terre d’Adélie in French) in the Antarctica (Law of 6 August 1955), but this French territorial claim is not recognized by the international community as Adelie Land falls under the area of competence of the Antarctic Treaty System (Antarctic treaty of 1959). The Scattered Islands have been integrated into the FSAL in February 2007 (French law no. 2007-224 of 21 February 2007) and now constitute its fifth district under the official administrative name of “Îles Éparses de l’océan Indien” (TAAF, Arrêté 2007-18 bis of 23 February 2007), which translates into English as “Scattered Islands in the Indian Ocean”. Nevertheless, the short form is usually used “Scattered Islands” in English, “Îles Éparses” in French. Banc du Geyser (or Banc du Geysir) is a mostly submerged reef located about halfway between Mayotte and the Glorioso Islands. It is considered to be located in the exclusive economic zone of the Glorioso Is. “It is a dangerous oval-shaped reef 8 km long and 5 km wide, becoming exposed only at low tides, excluding some rock formations in the southern part of the reef. The rocks are generally 1.5 to 3 metres in height. The largest rock is South Rock, with a height of 8 meters, similar to a boat under sail. In the eastern part of the reef there are some sandy cays, 1 to 3 metres in height covered with grass and small bushes.” (Wikipedia, 2007) On 1 April 1960, the islands “came under the authority of the Minister in charge of overseas possessions. On 19 September 1960 by decree, the islands were transferred to the charge of the Prefet of Réunion where they remained until 3 January 2005 when they were transferred by another decree to the Senior Administrator of the Territory of the French Southern and Antarctic Lands (TAAF).” (CIA, 2007, World Factbook) In 1980, Comoros declared that it would officially claim the Glorioso Islands when it regained Mayotte. All national and local legislations and regulations related to the French Southern and Antarctic Lands are available on the FSAL Website (TAAF, 2008, ). TAAF, Decree no. 2007-100 of 26 July 2007. TAAF, Decree no. 2007-158 of 26 October 2007. Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). In French : poisson des glaces, colin austral, colin des Kerguelen, et grandegueule. Identified in the official TAAF decree as Colin austral (Notothenia squamifrons). TAAF, Decree no. 2007-98 of 18 July 2007.

09 Fisheries Exploitation

191

10/28/09, 12:43 PM

192

Christian Bouchard

14. “The Indian Ocean Tuna Commission (IOTC) is an intergovernmental organization mandated to manage tuna and tuna-like species in the Indian Ocean and adjacent seas. Its objective is to promote cooperation among its Members with a view to ensuring, through appropriate management, the conservation and optimum utilisation of stocks and encouraging sustainable development of fisheries based on such stocks.” (IOTC, 2007) 15. “The Convention on the Conservation of Antarctic Marine Living Resources came into force in 1982, as part of the Antarctic Treaty System, in pursuance of the provisions of Article IX of the Treaty… The Convention establishes a Commission to manage the marine living resources of the area for which it is responsible. The resources specifically exclude whales and seals, which are the subject of other conventions — namely, the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals.” (CCAMLR, 2007) 16. Established in 1984, the Indian Ocean Commission promotes regional cooperation between its five island members that are Comoros, France (for Réunion), Madagascar, Mauritius, and Seychelles. It now runs several programmes in relation to fisheries (surveillance, control and monitoring of large pelagic fish stocks; tuna tagging) and the marine environment (sustainable management of coastal zones; surveillance of coral reefs; marine protected area network; marine pollution prevention). (COI, 2007) 17. Established by the FAO Council at its 127th Session, November 2004, under Article VI(1) of the FAO Constitution. “The main objective of the Commission is to promote the sustainable utilization of the living marine resources of the South West Indian Ocean region, by the proper management and development of the living marine resources, without prejudice to the sovereign rights of coastal States and to address common problems of fisheries management and development faced by the Members of the Commission.” (SWIOFC, 2008) 18. “The SWIOFP is an ambitious multinational research project with an overall goal that will see the West Indian Ocean’s marine resources ecologically managed for sustainable use and benefit by the region’s riparian countries. The project forms part of the Large Marine Ecosystem Programme approach (LME) and is supported by the Global Environment Facility (GEF) as a contribution to its international waters programme.” (SWIOFP, 2008).

References Bourjea, J. “Le Secteur des Pêches à La Réunion: Présent et Perspectives”. Horta Fayal (Azores): A Situação des Pescas nas Regiões Ultraperiféricas no horizonte 2013 (14 September 2007).

09 Fisheries Exploitation

192

10/28/09, 12:43 PM

193

Fisheries in the French Indian Ocean Territories

CCAMLR. The Commission for the Conservation of Antarctic Marine Living Resources: Official Website. URL: (accessed 24 January 2007). CIA. “Iles Eparses”. The World Factbook 2007. URL: (accessed 24 January 2007). COI. Indian Ocean Commission: Official Website. URL: (accessed 24 January 2007). ESA. “Envisat Radar Surveillance Protects Endangered Prehistoric Fish”. European Space Agency, ESA Observing the Earth. URL: (accessed 2 January 2007). FRANCE. CCAMLR — Rapport des Activités des Membres — France, 2000–2001. URL: (accessed 12 January 2007). IEDOM. La Réunion en 2005. Paris (France): Institut d’Émission des Départements d’Outre-Mer, 2006a, p. 262. IEDOM. Mayotte en 2005. Paris (France): Institut d’Émission des Départements d’Outre-Mer, 2006b, p. 176. INSEE-RÉUNION. Le Tableau Économique de La Réunion édition 2007–2008. Saint-Denis (La Réunion): Institut National de la Statistique et des Études Économiques. URL: (accessed 29 March 2008). IOTC. Indian Ocean Tuna Commission: Official Website. URL: (accessed 24 January 2007). Lack, M. and G. Sant. “Patagonian Toothfish”. TRAFFIC Bulletin 19, no. 1 (2001). MINISTÈRE DE L’OUTRE-MER. Ministère de l’Outre-Mer (French Department for Overseas). Official Website, URL: (accessed 4 January 2007). Oraison, A. “À Propos de la Réserve Naturelle Instituée sur les Îles Éparses”. Témoignages, 2 January 2006 (part 1) and 3 January 2006 (part 2). Reuillard, E. “Bilan de la Saison des Pêches 2004–2005: Optimisme Autorisé”. Saint-Pierre (Réunion): TAAF, Terres Extrêmes No. 21 (2005): 1. SWIOFC. Southwest Indian Ocean Fisheries Commission: Official Website. URL: (accessed 30 March 2008). SWIOFP. South West Indian Ocean Fisheries Project: Official Website. URL: (accessed 30 March 2008). TAAF. Terres Australes et Antarctiques Françaises (French Southern and Antarctic Lands — FSAL): Official Website. URL: (accessed 30 March 2008). WIKIPEDIA. “Banc du Geyser”. Wikipedia, The free encyclopedia. URL: (accessed 24 January 2007).

09 Fisheries Exploitation

193

10/28/09, 12:43 PM

194

Jean Houbert

10 MAURITIUS: A SEAFOOD HUB? Jean Houbert

HISTORICAL INTRODUCTION: FROM SEA TO SUGAR Mauritius today is made up of the main island of the same name (20-15S.57-35E.) — 1,865 sq. km, 1.2 million inhabitants; of the island of Rodriguez — 110 sq. km, 35,000 inhabitants and 560 km to the east; the small islands of Agalega — 260 inhabitants and 1,250 km to the north; and Saint Brandon — 8 sq. km, no permanent inhabitants, 390 km to north-east. Historically, the island of Réunion, 150 km to the west, now a French Département d’Outremer, and the Seychelles, were also part of Mauritius. Over the years, the islands entity has been dismembered to suit the interests of the colonial rulers. The most recent dismemberment of Mauritius was the hiving off of the Chagos archipelago on the eve of its independence. Diego Garcia, the main atoll of the Chagos, is now the pivotal military base of the United States in the Indian Ocean. Mauritius claims the Chagos and the island of Tromlin. France uses Tromlin as a meteorological station administered from Réunion. Although the total land area (2,040 sq. km) is small, Mauritius, with its outlying islands, has a very large Exclusive Economic Zone (EEZ) of 1.9 million sq. km of the Indian Ocean. Were the claims to Chagos and Tromlin to be successful, its EEZ would be further extended.

10 Fisheries Exploitation

194

10/28/09, 12:43 PM

195

Mauritius: A Seafood Hub?

The islands are referred to as African islands, Africa being the nearest continent. However, the islands are quite distinct from the continent and are truly oceanic islands. Among the islands of this part of the Indian Ocean, however, a categorical distinction must be made between Comoros, Madagascar, and Maldives on the one hand, and Mauritius, Réunion and Seychelles on the other hand. While the islands in the first category have been peopled from countries on the rim of the Indian Ocean and have developed cultures of their own well before the arrival of European colonizers in the Indian Ocean, those in the second category had no human inhabitants when the Europeans arrived. Their populations, social structures, economies, polities, their very flora and fauna, to a large extent, are all the direct result of settler colonization in the last four hundred years. The islands are, therefore, “settler-colonies”. However, they are settler-colonies with a difference: the vast majority of the settlers were “unwilling immigrants”, slaves from Madagascar and Africa, and later, somewhat more willingly, indentured labourers from India. In the beginning, Mauritius was much involved with the sea.1 This involvement was not for fishing. European colonizers had not entered the Indian Ocean to fish, but to conquer and trade by sea. Mauritius was France’s principal trading and military base in the Indian Ocean in the eighteenth century. The islands were used to challenge Britain’s sea power over the Indian Ocean and its position in India. Réunion and Rodriguez provided food for the base in Mauritius, while Seychelles and Chagos provided timber for repairing the ships and gave early warning of the presence of the English fleet. After the capture of the islands in 1810, Britain had hegemonic sea power in the Indian Ocean. The army of the Raj gradually imposed imperial land power over the Indian subcontinent and eventually in most of the countries on the rim of the Indian Ocean. With such an entrenched position, Britain had little need for Mauritius as a trading and military base. Réunion, to the leeward of Mauritius and thus posing no threat to security in the days of sail, was returned to France. The wealthy Creoles — corsairs and traders — were encouraged to turn to the land, and Mauritius became a sugar plantation. Thus, with the exception of some of the poor Creole ex-slaves who became artisanal fishers, Mauritius turned away from the sea almost completely. Very few Britons went to settle in Mauritius. The few British colonial administrators grafted themselves at the top of the Creole social pyramid. When slavery was abolished, large numbers of indentured labourers were brought in from India. The arrival of the Indians drastically and

10 Fisheries Exploitation

195

10/28/09, 12:43 PM

196

Jean Houbert

permanently changed the ethnic composition of the population of the main island of Mauritius. The Indians replaced the slaves in the sugar fields. The Creole ex-slaves thus became redundant and moved to the coast. In Port Louis, the main town, they worked at loading sugar on to ships, as drivers, and carriers. Many poor Creoles survived by fishing in the lagoons, using primitive equipment. Some went to Rodriguez and the other smaller islands. To this day, the Creole fishermen have remained the poorest of the poor groups in Mauritius. The Creoles in Rodriguez are, if anything, even poorer. In Chagos, the whole population was expelled to make way for the American military base.2 Colonization on the islands early on was associated with a “creolization” process whereby the slaves lost their cultures of origin and adopted and transformed the French culture of the slave owners. The settlers of European origin were themselves affected by the creolization process. In time, pyramid-shaped Creole societies emerged on the islands, in which social class has remained closely associated with skin colour and language. Creole languages are now used throughout the islands. The French language, however, has not disappeared. Upwardly mobile individuals on the islands, irrespective of ethnic origin, become bilingual in Creole and French. To be monolingual in Creole is a sure sign of being uneducated and usually poor. The traditional fishermen of the island of Mauritius are in that category. So are the entire populations of Rodriguez and the other smaller islands.3 Mauritius today is “plural” in a multi-ethnic sense. Some 70 per cent of the population of the main island of Mauritius is of Indian decent. Rodriguez and the other smaller islands, however, are peopled by Creoles. Seychelles is also inhabited by Creoles and so is the majority of the population of Réunion. Mauritius main island, predominantly “Indian”, is thus in an immediate Creole neighbourhood. France, the original colonizer in all of these islands, has remained present as the patron of that little oceanic Creole world.4 In the rigid plantation social structure of colonial Mauritius, some upward social mobility was nevertheless possible through the acquisition of sugar cane land. Unlike the Creole ex-slaves, who to this day have remained at the bottom of the social ladder, some Indians, from very early on, through hard work and savings, through the exploitation of fellow Indians, and via favours from the sugar barons, were able to amass money and buy cane land. With cane land in their possession, these Indians were able to finance the education of their sons for jobs in administration and in

10 Fisheries Exploitation

196

10/28/09, 12:43 PM

197

Mauritius: A Seafood Hub?

the professions. Thus, gradually at first, and much more rapidly since the Second World War, a new elite of Indo-Mauritians emerged from the exindentured labourers. This new bourgeoisie existed in parallel with the older Creole one, but did not merge into it. With decolonization, British administrators groomed elements of that new elite to succeed them in political power, based on the suffrage of the large Indo-Mauritian sugar proletariat. Economic power at the very top, however, remained by and large with the white Creole “plantocracy”. Mauritius, unlike other small plantation colonies, had its own national bourgeoisie, well capable of extracting and accumulating capital locally. In the sugar islands of the West Indies, for instance, the sugar barons did not live and accumulate locally, but in the metropolis, in England. In Mauritius, for historical and cultural reasons, the plantocracy never fully identified with the British rulers. They stayed on the islands and identified themselves as Mauritians.5 The balance between economic and political power has contributed to stability. Mauritius is a functioning democracy, elections take place regularly, and there have been several changes of ruling coalitions since independence. Economic power has played its part in delivering growth, employment, and diversification away from sugar. Sugar had dominated colonial Mauritius through economies of scale. As the sugar industry grew, it created a number of institutions: banking, insurance, research, marketing, that in turn led to more growth until virtually all the agricultural land of the island was under one crop. Activities not associated with sugar became uneconomical and withered. The colonial rulers were quite satisfied with the situation and were not interested in pressing for diversification of the economy. The taxes collected from the sugar economy paid for the administration. After Mauritius attained political independence in 1968, however, Indo-Mauritians with state power were keen on new developments besides sugar. Because of universal suffrage it was imperative to find employment for the growing population of young voters. The sugar industry could not employ any more labour as there was already over-employment. Indeed, the sugar industry could only continue to grow by shedding labour, and putting in more capital. Textile manufacturing for export was seen to be the answer.

DIVERSIFICATION AND DEPENDENCE For a time, the mass production of garments in the Export Processing Zone (EPZ), based on tax concessions and relatively cheap labour, was an

10 Fisheries Exploitation

197

10/28/09, 12:43 PM

198

Jean Houbert

outstanding success. Mauritius, it was thought, was well on the way to emulating the newly industrialized countries (NIC) of Southeast Asia and becoming the “Tiger of the Indian Ocean”. Capital was available. Some foreign direct investment (FDI) came in, notably from Hong Kong, but the bulk of the capital invested was locally owned. In good years, the sugar industry made substantial profits. Under colonial rule the profit was reinvested in sugar or conspicuously consumed. Now the government was encouraging the sugar barons to diversify their investments and they saw that it was in their interest to do so. Textile and sugar, however, were both dependent on external markets over which Mauritius had no control. In the past, Mauritius benefited from the Commonwealth Sugar Agreement (CSA) for the entry of its sugar into the British Market. When Britain joined the European Common Market (now the European Union [EU]), London as well as Paris gave their strong support to Mauritius, which got the lion’s share of African, Caribbean, and Pacific (ACP) sugar entering the European Union with prices well above those in the free market.6 Likewise, garments made in Mauritius had protected entry in the European Union in that the MultiFibre Agreement (MFA) restricted exports from countries with lower production costs. With globalization, however, assured markets and guaranteed prices were threatened. The World Trade Organization (WTO) is pressing for free trade and an end to protectionism. The European Union is phasing out its guarantees to the ACPs, albeit providing compensation to give developing economies time to adjust.7 The cost of producing sugar in Mauritius is at present time too high for it to be able to compete in an open free market. With far-reaching restructuring, it is thought, the industry might be competitive. Mauritius has now drawn up a plan for sugar that has been presented to the European Union for approval.8 The plan involves the reduction of the number of sugar factories to six from the present eleven; this means a considerable reduction in employment. As this is a politically very sensitive question, the plan provides for a Voluntary Redundancy Scheme (VRS). Under the VRS, sugar workers, Indo-Mauritians for the most part, will receive compensation in land as well as money. Some sugar factories already produce electricity for the national grid using bagasse mixed with imported coal. More electricity will be produced from bagasse, the pulp residue from cane sugar extraction. It is also in the plan to produce ethanol from sugar cane. Cars can be run on a mixture of ethanol and petrol and thus there will be some saving on imported fuel. It is estimated that some

10 Fisheries Exploitation

198

10/28/09, 12:43 PM

199

Mauritius: A Seafood Hub?

30 million litres of ethanol could be manufactured for use in blended gasoline products. Mauritius will produce less raw sugar and more special sugars that fetch a higher price on the international market. Mauritius already produces seventeen types of speciality sugars for niche marketing. The costly restructuring plan of the sugar industry calls for considerable external help from the European Union. Textile producers are also in trouble. With the end of the MFA, garments from Mauritius are not able to compete in international markets where cheaper producers in China, Bangladesh, and elsewhere participate.9 The cost of labour in Mauritius went up with full employment when it benefited from protected external markets. Even when the crisis was already looming, from 2000 to 2004 average wages grew by 36 per cent. On the other hand, Mauritius cannot benefit from the European Union’s “Anything but Arms” initiative that gives goods from the least developed countries (LDC) a free entry in Europe.10 The “success” of Mauritius puts it outside the category of LDC.11 Indeed, Mauritius will be penalized by the entry of LDC produced sugar and garments in the European Union. The United States is also unwilling to allow garments produced in Mauritius, with non-African third-party raw materials, to enter its market under the Africa Growth and Opportunity Act (AGOA). Some of the Mauritian textile firms have relocated to Madagascar and Mozambique, where labour is cheaper, and where they can also benefit from AGOA. Mauritian sugar barons have invested US$130 million in a plantation in Mozambique that produces 100,000 tons a year. As Mozambique qualifies as an LDC, some of this sugar can enter Europe under the “Everything but Arms” initiative. A few of the textile firms are going upmarket, producing more sophisticated garments for a niche market in Europe where they might be able to hold their own. The threats in the markets for sugar and textile producers could not have come at a worse time. The sharp rise in the price of imported oil has added to the already deteriorating economic situation. All the macroeconomic indicators point to a crisis in the would-be “Tiger of the Indian Ocean”. Unemployment is above 10 per cent; the current account has deteriorated as tourism cannot offset the increasing merchandise trade deficit. Domestic public debt has increased rapidly and the debt-to-GDP ratio is now over 72 per cent. The budget deficit at 6.2 per cent of GDP is unsustainable. A recent IMF Report12 stressed that unless the government reduces its overall budget deficit to about 3 per cent of GDP through a combination of revenue-enhancing and expenditure-reducing measures,

10 Fisheries Exploitation

199

10/28/09, 12:43 PM

200

Jean Houbert

the debt-to-GDP ratio could go above 80 per cent, threatening macroeconomic stability. The one bright spot in the gloomy picture is that Mauritius is turning again to the sea after centuries of the land-based domination of sugar.

SEAWARD ORIENTATION — PORT LOUIS Several activities connected with the sea have already been adopted and more are planned. The outstanding ones are the resurgence of Port Louis, Offshore Services, and coastal tourism. The Seafood Hub is underway and a Land-based Oceanic Industry is proposed. Formerly neglected coastal zones and outer islands, left to the poor Creole fishers, are now seen as the most valuable natural assets of Mauritius. In the past, sugar-dominated Mauritius placed little or no importance to its outlying islands. Rodriguez, unsuited for sugar plantation, was virtually ignored. Saint Brandon had some guano and this was taken to Mauritius to fertilize the sugar fields. Interests linked to the sugar industry exploited coconut plantations in Agalega and Chagos for some copra. A measure of the insignificance formerly accorded to the islands was that Chagos was given away and the islanders expelled with the full collaboration of Mauritius. Now, however, Mauritius is keen to recover Chagos, which would further extend its immense EEZ. There are projects to develop the outlying islands to cater for visitors seeking “unspoilt” tropical islands.13 Even in the days of plantation hegemony, Port Louis remained important as all the exported sugar had to go through it. But in the days when Sugar was King, Port Louis was no longer the raison d’être of Mauritius that it had been originally.14 Activities connected with the sea have now renewed the central role of Port Louis, the capital and only port of Mauritius. The port has been enlarged on reclaimed land from the sea and now has an important container park with more than 11,350 containers handled in 2004–05. The principal global container carriers, such as Maersk-Sealand, P and O Nedloyd, and the Mediterranean Shipping Company (MSC), are regular users of Port Louis. Dry docks, ship repairs, and shipbuilding facilities are available. Ship chandling, bunkering, vessels husbandry, ships agency, are all well developed. A freeport has been established with warehouses and more than 80,000 cubic m of cold rooms representing a storage capacity in excess of 22,000 tons for the storage of fresh, chilled, and frozen products.

10 Fisheries Exploitation

200

10/28/09, 12:43 PM

201

Mauritius: A Seafood Hub?

Cargoes can be unpacked, stored, and re-exported without custom duties. Goods in transit can undergo different stages of processing, thus adding value to the goods, before being taken out of Mauritius to their final destination. The government has a one-stop-shop facility inside the port for the rapid processing of formalities for investors. Companies operating in the free zone benefit from a package of incentives, including corporate tax incentives, dividends that are not taxable, and reduced port handling charges for all goods destined for re-export. Foreign investors can be 100 per cent owners of properties. Profits can be freely repatriated. Companies and ships can be registered with the minimum of delay and bureaucratic formality. Port Louis intends being a centre, a “hub”, for breaking bulk of goods from Europe and Asia which are then re-exported to Africa. Mauritian membership in the Southern Africa Development Community (SADC) and the Common Market of Eastern and Southern Africa (COMESA) are used to entice shippers to use Port Louis. Banking, insurance, and other financial services are all well developed. Besides communication by satellite, Mauritius has the capacity for broadband internet access. The Southern Africa Far East (SAFE) optical fibre cable links Portugal to Malaysia via South Africa and Mauritius. Mauritius had 180,000 internet users in September 2005, providing the highest internet penetration rate (14.2 per cent) in Africa. “Offshore” financial activities (now renamed Global Business) are thriving. At the end of October 2002, 20,111 companies were registered in the offshore sector. Regulations exist against money laundering, drug dealing, the arms trade and terrorism. There is an Independent Commission Against Corruption (INCAC).15 The Indo-Mauritian elite of Mauritius, with its background on the land, has now turned state power outwards to the sea. Creoles with economic power, likewise, are looking beyond the plantations. It is the poor Creoles of the coast in Mauritius and the people of Rodriguez who have been left behind. The artisanal fishers of Mauritius and Rodriguez have not benefited from the new developments oriented to the sea. In some ways, their situation has worsened because industrialization, coastal urbanization, and tourism are in conflict with traditional fishing. These conflicts are exacerbated by colour of skin and ethnic differences. There is a real malaise créole that has, on occasion, given rise to outbursts of communal violence.

10 Fisheries Exploitation

201

10/28/09, 12:43 PM

202

Jean Houbert

FISHING IN THE LAGOONS AND ON FAD There are several types of fishing that are carried out in the waters of Mauritius: traditional or artisanal fishing, semi-industrial fishing on the fishing banks, sport fishing, and industrial fishing. Mauritius, unlike Madagascar or Comoros, did not have pre-colonial artisanal fisheries. The artisan fishers of Mauritius are, for the most part, descended from slaves who became redundant with the mass arrival of indentured Indians. These ex-slaves left to their own devices on the coast had to invent “traditional” fishing. Fishing practice has basically remained one of subsistence, but as Mauritius has developed an entirely cash economy, it is vital for the fishers to sell some of their fish to earn money. Except for a short stretch on the west coast and a longer one in the south, Mauritius is almost entirely surrounded by fringing coral reefs. Between the coastline and the reefs are lagoons of varying width from 0 to 8 km, and mostly less than 3 metres deep. Like Mauritius, Rodriguez is of volcanic origin, and in this case, completely surrounded by fringing reefs. Despite being a much smaller island, Rodriguez’s lagoon (240 sq. km) is almost as large as that of Mauritius (250 sq. km). The smaller islands — Agalega, Chagos, Saint Brandon — are coral atolls. The traditional fishing for all the islands is done in the lagoons. Early visitors to Mauritius remarked on the abundance of fish, sea turtles, and dugongs. Bernardin de Saint Pierre wrote in 1773 that: “There are lobsters and crawfish of monstrous size”.16 Now, however, the lagoons are virtually empty. With deforestation in Mauritius and Rodriguez, the torrential rains that accompany the cyclones have carried soils down the mountains to the rivers and deposited sediments in the lagoons that have been further polluted by coastal urbanization in Mauritius. The lagoon fisheries, without capital investment, have remained archaic. The fishing gear that the Creole fishers use is elementary: handlines and fish hooks, nets, woven bamboo fish traps, and harpoons. There are about 1,000 open boats, six to ten metres long, built in wood by local boat builders who are sometimes also fishers. The boats are too light to confront the wind and sea outside the reefs with any confidence. In the shallow lagoons the boats can be propelled with a long wooden pole. Sails are also used, but are giving way more and more to outboard engines. The disinclination to go fishing in the open sea has meant that the lagoons have been overexploited and the average catch now is less than 4 kg per

10 Fisheries Exploitation

202

10/28/09, 12:43 PM

203

Mauritius: A Seafood Hub?

fishermen-day. There are some 2,256 artisanal fishermen in Mauritius catching a total of 699 tons a year in the lagoons. About the same number of fishers in Rodriguez caught 1,500 tons in 2004.The catch includes groupers, rabbitfish, parrotfishes, mullet, and octopus. In Mauritius, part of the catch is sold for cash on the beach to a “Bayan”, usually an IndoMauritian, who takes the fish and resells it fresh in the inland markets. The Bayan may sometimes own the boats and almost invariably gives money advances to the fishermen who thus become dependent on him. In Rodriguez, some of the catch is salted and dried in the sun and then exported to Mauritius. In Chagos and Agalega, fishing was an auxiliary activity of Creole workers employed by the copra company. When Chagos was excised from Mauritius, the copra company was compensated and the workers-fishermen expelled. Saint Brandon does not have a permanent resident population. Workers from Mauritius and Rodriguez were taken to Saint Brandon to dig guano and load it on ships for the sugar industry in Mauritius. These same workers also caught and salted fish for Mauritius. Guano digging has now ceased and deep freezing has now replaced salting fish in Saint Brandon. Besides being over-fished, the lagoons have been badly polluted in Mauritius, and to a lesser extent, in Rodriguez. The sugar industry uses a lot of fertilizers and pesticides; some of this seep into the rivers and get carried into the lagoons. The overgrowth of algae in the lagoons has been attributed to nutrition from fertilizer run-off. The industries of the EPZ — textiles, soap, galvanizing, and food canning, among others — are located near the coast and effluent is discharged untreated into the sea through 600 metre long outfalls. The discharges from the dye factories and those making “wash-jeans”, in particular, are lethal to the fish and corals of the lagoons. In some parts of the coast, the coral reefs have died off altogether. Corals in Mauritius have not suffered much from the warmth of El Nino that bleached those in many parts of the Indian Ocean in 1998, and the island was not affected by the tsunami at the end of 2004. Damage to the corals in Mauritius is overwhelmingly caused by activities on land. This is very grave because the coral reefs are not only vital for the lagoon fishery and for sustaining biodiversity, but also because, without the protection of the reefs waves from the open sea, the coastline would be endangered during the cyclones. The white sand beaches would disappear and the tourist industry, on which so much is staked, would go with them.17

10 Fisheries Exploitation

203

10/28/09, 12:43 PM

204

Jean Houbert

Coastal urbanization and the tourist industry have added to the pollution of the lagoons. Some of the hotels, those with more than seventyfive rooms, are required to have wastewater treatment plants, but they are often inadequate. Moreover, many of the smaller hotels have no treatment plants at all. Solid wastes are also often dumped in the lagoons. Urban and tourist developments have led to a considerable reduction in wetland areas. The important functions of wetlands, in terms of filtering polluting run-off and acting as buffers against flooding, are being lost. Also, the removal of mangroves to make room for buildings has exposed areas of the coast to accelerated erosion. Some measures have belatedly been taken to mitigate the deterioration of the coastal zone of Mauritius. Until quite recently, large quantities of sand were extracted from the lagoons to be used in the building industry. In 2001, this was stopped and it is now forbidden to collect corals and seashells. Fishing with dynamite is also outlawed as is the use of spearguns. In some months of the year, fishing with nets is not allowed. The mesh of nets has to be of a size that would not catch immature fish. In light of the rapid transformation of the coastal zone of Mauritius, more comprehensive measures are required for the conservation and rejuvenation of the lagoons and coral reefs.18 It has long been known that drifting objects such as logs, branches, and other flotsam aggregate fish around them. In the Southeast Asia region and in the Pacific, important quantities of fish are caught around flotsam in certain seasons. Fishermen in these regions have constructed more permanent devices, known as fish aggregating devices (FAD), to aggregate fish. In the islands zone of the Indian Ocean, trunks of banana trees have been used in Comoros early on as a kind of FAD. In Mauritius, FAD-associated fishing started in 1985. Several models of FAD were built and tried in the 1980s with help from UNDP and FAO. The important consideration was to obtain good longevity of the device at the lowest cost. Because of the frequency of cyclones and strong currents at times, the construction had to be sturdy. The FAD model that was developed in Mauritius and is now in use in all the islands, as far as Zanzibar and Maldives, consists of a raft made of high resistance floats strung on a rope, a mast, and a good anchor system. Several of the twenty-one FADs in operation in Mauritius and Rodriguez have had life spans in excess of 900 days. Experts recommend that FADs should be at least ten miles away from the 200-m isobaths, and 12 to 15 miles from each other in order to

10 Fisheries Exploitation

204

10/28/09, 12:43 PM

205

Mauritius: A Seafood Hub?

avoid interaction. However, FADs must be located such that they remain accessible to fishermen. In Mauritius, as a compromise, some FADs were placed within reach of the artisanal fishing villages to start with, and other FADs were gradually moored further out. As the fishermen became accustomed to the nearshore FADs, some of them ventured to the far out ones where the catch rates were higher. At present, in Mauritius and Rodriguez, FADs are located from 1.5 nm to 12 nm from the coast in waters from 400 to 3,000 metres deep. The catch per fishermen/day on the FADs is over 10 kg, which is more than double the less than 4 kg in the lagoons. About 300 fishermen are fishing around FAD, of whom about 50 per cent are regulars. The yearly catch is 700 tons. The catches are pelagic fishes: yellow-fin tunas, skipjack, albacore, marlin, and sailfish. Sports fishermen also fish on the FADs. The fishing techniques, as well as the species caught by the sports fishermen, tend to differ from those of the artisan fishers. Sports fishers are after skipjacks to be used as bait to catch marlins; they use longlines and trolling. The artisans use handlines. Although the improved FAD was first developed in Mauritius, landings of the traditional fishers using the device in Comoros are much higher. Fishing experts attribute this to the conservativeness of the Mauritian fishers who are “slow in accepting new challenges and hesitant in changing ingrained habits. The slightly higher investment in fishing gear and improvements in boats for safer navigation further offshore cools down any motivation they may have”.19 The FADs were put in place to encourage artisan fishers to leave the over-fished lagoons and go out into the open sea. All the FADs are owned and maintained by the government. Perhaps because of abusive use of the devices by sports fishers and entrepreneurs with larger boats that take tourists out fishing on the FADs, the government has now imposed a fee of about £100 a year per boat, plus £2 per person, to fish on the FADs. Anyone fishing on a FAD must obtain a licence from the government or risk a fine and imprisonment. This is very unpopular among the fishermen who complain that the government has delivered permits to foreign boats to fish in the EEZ of Mauritius. The foreign boats are supposed to keep at least fifteen miles from the coastline. However, according to the local fishermen, the foreign boats approach within 7 miles of the coast. And in any case, they argue, the long liners and purse seiners frighten the fish that are making for the coast so that catches on the FADs have been substantially reduced.20

10 Fisheries Exploitation

205

10/28/09, 12:43 PM

206

Jean Houbert

TOURISM VERSUS LAGOON FISHERIES There is a belt of coastal land from high water to 81.21 metres inland, known as pas géométriques, practically all round Mauritius, that belongs to the government.21 This is a legacy from the days when France had fortified the island in expectation of an English invasion. In Rodriguez, virtually all the land belongs to the government, which also owns all the land in the smaller islands. Until the arrival of tourism and urbanization of the coast in Mauritius, the pas géométriques was not much valued. The government used to give long-term leases on the pas géométriques for campements (holiday homes) to a few rich Creoles for negligible sums of money. Fishing villages on the coast in Mauritius and in Rodriguez generally paid next to nothing. Now, the value of coastal land has soared. Hotel developers are cornering the best sites. Tourism brings in foreign currency and provides employment. It is one of the major growth points. Foreign earnings from tourism now exceed earnings from sugar. Some 755,000 tourists, the majority French, visited Mauritius in 2005. Five new hotels, representing an investment of four billion rupees, came on stream in 2006. Up to now, the policy has been to target the upper end of the tourism market, which is high-spending, with low ecological impact.22 However, other avenues are now being investigated, such as making Mauritius a “Duty Free” destination, and promoting it as a business and shopping place, besides being a “Tropical Paradise”. The air access policy is being re-thought. Because of the distance from Europe — the principal source of tourists — the policy had been upmarket tourism with a limited number of flights. Landing rights were negotiated between governments, with Air Mauritius having the lion’s share of passengers. Now the idea is a gradual liberalization of air access. A second French carrier and a second Indian carrier have been granted landing rights and there are discussions for a second carrier from the United Kingdom. State power as well as economic power in Mauritius is heavily involved with tourism. The government, as well as investors, would like to see the number of tourists go up to two million a year. Besides luxury hotels, the government is now encouraging the development of an Integrated Resort Scheme (IRS) on the coast. An IRS combines a hotel complete with golf course, all the beach facilities, thalasotherapy, and a number of luxury villas. A rich foreigner who invests a minimum of US$0.5 million in a villa

10 Fisheries Exploitation

206

10/28/09, 12:43 PM

207

Mauritius: A Seafood Hub?

can obtain a residence permit to stay in Mauritius for as long as he/she keeps the villa.23 Fishing villages occupying coastal land are being squeezed out. Even the relatively rich Mauritians who have leases in the pas géométriques are now feeling the squeeze, as government will only renew the thirty-year leases on condition of hefty price increases. Hotel developers dredge the lagoons, develop waterski lanes, build walls and jetties; the numerous speed-boats and catamarans in the lagoons all add up to making it next to impossible for the fishermen to catch anything. Some of the lagoon fishermen have found work in the hotels. The female relatives of the fishermen have been more readily employed than the men folk. The government is making an effort at retraining lagoon fishers for work on the high seas. It is not evident that lagoon fishers can be successfully reemployed in the industrial fishing industry.

SEMI-INDUSTRIAL FISHING ON THE MASCARENE PLATEAU There has been a semi-industrial fishery for some time in the vicinity of Mauritius. Mauritius itself is a volcanic island rising from the abyss, with next to nothing of a “continental” shelf. The sea reaches depths of 3,000 m within 20 km of the coastline. However, there are two fishing banks — Saya de Malha, 28,350 sq. km, and Nazareth, 7,625 sq. km, with shallow waters, 30 to 60 m — on the nearby Mascarene Plateau.24 The Mascarene Plateau to the east of Mauritius stretches from Seychelles to Cargados Carajos Shoals, which is 2,950 sq. km in area and is also known as Saint Brandon Rocks. The fishing banks are not entirely within the EEZ of Mauritius, but there is an agreement with Seychelles for fishing on the banks. The fishing technique on the banks is that of handlines from small boats. A number of dories, each carrying two or three men fishing with hand lines, operate from a “mother ship”. The catch of demersal fish is made up of 90 per cent Dame Berri and Caya, and the remaining, Carangues, Vacoas, and Vielles. The fish are cleaned and frozen on board and taken to Mauritius and Seychelles. A fishing trip can last from thirty to sixty days. The fishermen do not own the ships; they are workers employed by the shipowners. The Mauritian owners employ some artisan fishermen from Mauritius, but they prefer to employ fishermen from Seychelles (more skilled) and Madagascar (cheaper). Some of the owners have even put their ships under the Madagascar flag.

10 Fisheries Exploitation

207

10/28/09, 12:43 PM

208

Jean Houbert

Fishing on the banks has passed its peak. In 1995, there were fifteen ships catching 5,200 tons. In 2004, there were eight ships from Mauritius fishing on the banks and catching 2,680 tons. The catch per fisherman/day in 2004 was 74 kg. Since 1995, the government has imposed a Total Allowable Catch (TAC), which has been reduced by 9 per cent annually with a view to allowing the recuperation of the fishery.25 With the help of the FAO, the government is now undertaking a survey of the banks that will be the base for a management plan for the banks fishery.26

SPORT FISHING AND THE SWORDFISH FISHERY Sport fishery is very active in Mauritius. It is an important activity for the promotion of tourism, and various international big game fishing competitions are held every year in Mauritius. Sport fishery supplies the local market with an estimated 350 tons of fish that includes marlin, swordfish, and sharks. The frequent catch of swordfish by sportsmen led the Indian Ocean Commission (IOC) in 1996 to support the development of a semi-industrial swordfish fishery in its member states. The IOC members are: Madagascar, Mauritius, Seychelles, Comoros, and France. France is a member because of Réunion. All the other islands have at one time or another been French colonies. France supports them all directly and through the European Union. In 1996, a research vessel and the consultancy of a master fisherman to demonstrate fishing, handling, and processing of swordfish are provided. Commercial fishing for swordfish started in Mauritius in 1999 with a small longliner. In 2003, there were six longliners from Mauritius fishing for swordfish and catching 602 tons. The gear consists of a mainline 3.6 mm in diameter, extending from 25 to 50 km, with up to 1,500 hooks. The longline is normally set after sunset and hauled after sunrise. Squid is mostly used as bait. The number of days at sea varies according to vessel size and weather conditions. The smaller vessels of less than 20 metres in length stay fairly near to Mauritius and are at sea for four to five days. The larger boats, a couple of them over 40 metres long, may stay out for up to ninety days. The fishing areas where more of the swordfish are caught are far to the south and east of Mauritius, between 30 to 35 S, and 85 to 90 E. Predation by marine mammals, especially by pilot whales, is quite severe. Loss of catch due to predation may reach up to 20 per cent. Swordfish are consumed fresh locally. There is a small industry of smoked marlin for the local market and for export

10 Fisheries Exploitation

208

10/28/09, 12:43 PM

209

Mauritius: A Seafood Hub?

to the European Union. There is room for growth in the swordfish industry with possible joint ventures with foreign investors.27

THE SEAFOOD HUB AND THE EUROPEAN UNION Industrial Fishing Mauritius is not particularly well located for industrial fishing. The South West Indian Ocean, indeed the Indian Ocean as a whole, is not rich in fish.28 Plankton, the basis of life in the sea, and the start-off point of the food chain, requires sunlight and nutrients. There is no shortage of sunlight in tropical Indian Ocean, but nutrients are not plentiful. Photosynthesis in the sea only takes place in the top hundred metres where there is sufficient sunlight penetration and warmth. The main importance of temperature is its effect on the stability of the water column. If there is no mixing between the cold deep water at the bottom and the warm water at the top, there will be no supply of nutrients to the surface layer. For this reason, the higher surface temperature in the tropics actually tends to reduce primary production in these regions and make them less productive than the cooler temperate waters.29 In the tropics the oceanic water column has a strong thermocline. That is a thin layer of warm water overlaying a much cooler subsurface water mass. The water column, therefore, tends to be very stable. Except where this stability is disturbed, for instance, by strong currents, the epipelagic zone, that is, the top layer, does not get an adequate supply of nutrients. In contrast in the very cold near polar latitudes the water column has no significant thermocline and, therefore, remains relatively unstable. This instability means that currents can bring nutrient-rich water to the surface from a considerable depth. This makes the Antarctic waters among the most productive in the world. The exceptions to the general nutrient poverty of tropical and subtropical waters are where strong currents disturb the stability of the water column causing an upwelling of nutrient-rich cold water. This is the case off the Northwest and Southwest of Africa in the Atlantic, off Somaliland and Arabia in the Indian Ocean, and off Peru and California in the Pacific. Whereas off the coast of Oman the distribution of zooplankton, measured in milligrams per cubic metres in the upper 100 metres of the ocean, is more than 500, for Mauritius it is less than 50.30 The typical deep blue of the Indian Ocean near Mauritius, which looks

10 Fisheries Exploitation

209

10/28/09, 12:43 PM

210

Jean Houbert

so lush and attractive — and lures tourists to the islands — is, in terms of fish food, almost a desert. The major exception to the general poverty of the fishing grounds in the vicinity of Mauritius is the presence of varieties of tunas and tuna-like species such as swordfish and marlins. Tunas are a highly mobile fish that move across the Indian Ocean and indeed from one ocean to another. Tunas need warm water to spawn. It is this need rather than food that attracts tunas to the part of the Indian Ocean where Mauritius is located. Actually the principal migration route of the tunas is well to the north, near the equator, closer to Seychelles than to Mauritius. Seychelles has been a “hub” of seafood earlier than Mauritius. In all the oceans now there are international agreements over tuna fishing, and international bodies have been set up to monitor the stocks. The Indian Ocean Tuna Convention (IOTC), an FAO body, is based in Seychelles. The IOTC relies on information provided by its member states to ascertain fish stock in the zone, and trends in fishing. The largest segment of the European Union’s (EU) distant water fisheries fleet is now based in the Seychelles. Port Victoria, the capital of Seychelles, is now the biggest tuna trans-shipment and landing port in the world.31 Tunas have been fished for countless centuries in the littoral countries of the Indian Ocean by artisan fishers. Many poor coastal communities are dependent on tuna as a source of animal protein. It is not the littoral countries of the Indian Ocean that are the principal beneficiaries of the major catch of tunas today. It is the distant-waters fishing states (DWFS) that harvest tunas in the Indian Ocean for the benefit of the rich northern hemisphere. Tunas — fresh, frozen, and canned — are in high demand in the markets of Europe, North America, and East Asia. Between them, these three regions account for 80 per cent of fish imports in the world. The long distance water fleets (LDWF) of industrial states have entered the Indian Ocean in part to reduce pressures on the fisheries in the Atlantic and the Pacific, and because the Indian Ocean is surrounded by countries that mostly do not have advanced industrial fishing technologies. However, thanks to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the fishing fleets of the developed North now have to pay to get access to the coastal waters of the developing South. Small states in particular — and the majority of very small states are islands — have benefited hugely from UNCLOS, which is possibly the most far-reaching development concerning the sea in the structure of the international system.32 Almost 90 per cent of exploitable fish resources

10 Fisheries Exploitation

210

10/28/09, 12:43 PM

211

Mauritius: A Seafood Hub?

has been brought under the control of coastal states. Mini-states of tiny size in terms of land area, based on archipelagos, have acquired enormous Exclusive Economic Zones (EEZ) over the sea. In some cases, the EEZ is out of all proportion to both their land area and the size of their population. Mauritius, with a land area of 1,865 sq. km and a population of 1.2 million, has 1.9 million sq. km of EEZ. However, Mauritius is a relative giant compared with Seychelles, with 444 sq. km of land and a population of only 80,000, that is, less than half the size of the population of the town of Port Louis. Yet it has an EEZ of 1.7 million sq. km of the Indian Ocean. These vast EEZs can be the most valuable assets of the oceanic ministates, provided that they contain resources in high demand. A mini-state would be most fortunate if oil were found in its EEZ. One or two major oil companies have searched in vain near Mauritius. At one time there were also talks that polymetallic nodules might be mined. Oil and nodules aside, there are tunas, arguably better than mining, for fish is a renewable resource. Mauritius does not yet have an industrial fishing fleet to harvest tuna in its EEZ. The government in Port Louis has been talking of building one.33 In the meantime, the government sells licences that allow foreign vessels to fish in the EEZ. This is easiest for the government since it only has to collect fees from the foreigners. Rent collecting, however, is not an activity that makes for growth and development. Fish as a renewable resource has to be monitored and tended carefully. Using the wrong type of gear, catching immature fish, and overfishing can deplete the resource, which in the long-term ceases to renew itself. Moreover, the foreign boats might take out more fish than they are entitled to.34 Indeed, some may fish in the EEZ without licences. Mauritius has less than adequate means to police its huge EEZ. France, India, and now the European Union, provide some help to Mauritius in this respect. The government that came into office in 2005 said that a Vessel Monitoring System (VMS) has been set up in Mauritius and is now operational. That “Government has negotiated a protocol for the satellite monitoring of EU vessels fishing in our EEZ”. Mauritius will thus be in a better position to deter illegal, unregulated, and unreported (IUU) fishing.35 Mauritius is itself not without reproach in respect of IUU. In the 1990s, on several occasions, Greenpeace ships have followed boats fishing Patagonian toothfish in the Southern Ocean all the way to Port Louis where they trans-shipped their illegal catches.36 Because of the publicity that Greenpeace generated and also pressure from France and Australia,

10 Fisheries Exploitation

211

10/28/09, 12:43 PM

212

Jean Houbert

Mauritius has now officially barred the transfer in Port Louis of illegally caught Patagonian toothfish. In 2003, there were twenty-three fishing vessels flying the Mauritius flag as a flag of convenience (FOC) that were fishing tuna in the Indian Ocean. None of them was on the list of IOTC vessels authorized to fish tuna and tuna-like fish in the region. The most economically important species of tunas are referred to as market tunas. The principal market tunas are albacore, bigeye, bluefin, skipjack, and yellowfin. Albacore represents about 7 per cent of all tuna caught worldwide. Most are caught in the Pacific. The white meat of albacore is appreciated for canning in the United States and Japan. Bigeye tuna represents about 8 per cent of all tuna caught. Bigeye tunas swim deep in cold water and are, therefore, fat and that makes bigeye attractive for the Japanese sashimi market. Northern and southern bluefin tunas taken together represent less than 2 per cent of all tunas. Both varieties of bluefin have been overexploited. The southern variety, in particular, is considered the ultimate delicacy in Japan, where the best variety of fresh tuna for sushi and sashimi can fetch up to US$500 per kg. Bluefins grow slowly and can live up to twenty-five years. About 65 per cent of southern bluefin is caught in the Indian Ocean. Skipjack is the largest species of tunas, representing close to 60 per cent of all tunas caught. It has a high reproduction rate and lives for a maximum of three years. Skipjacks swim in the upper layer of the sea and are mostly caught with purse seine nets. Skipjacks are primarily used for canning. Prices can go down to US$1 per kg. About 20 per cent of the catch of skipjack is in the Indian Ocean. Yellowfin is the second largest tuna species in terms of volume, representing about 35 per cent of all tunas caught. Yellowfins are often found together with skipjacks in the Indian Ocean, which has some 25 per cent of the catch. Like skipjack tunas, yellowfins are also mainly used in canning. These two varieties are used extensively in the canneries of Mauritius and Seychelles. Short-lived tuna species such as skipjack and yellowfin are particularly resistant to exploitation due to their very high fecundity and wide geographical distribution, so the present level of catches can probably be sustained.37

The European Union and ACP Fisheries The European Union was not the first external body to be involved with fishing in Mauritian waters. Japan has long fished for tunas in the Indian

10 Fisheries Exploitation

212

10/28/09, 12:43 PM

213

Mauritius: A Seafood Hub?

Ocean and Japanese boats were the first of the long-distance fishing vessels to use Port Louis as a base, way back in 1965. The first tuna cannery in Mauritius in 1970 had Japanese interests. The cannery in Port Louis had some difficulties sourcing its fish supply and was later bought by a British company, Princess Limited, and now operates as Princess Tuna (Mauritius Limited) with Mauritius having retained a minority one-third share in the company. Japan represents a large market for tunas (100,000 tons), but is well behind Europe (530,000 tons), the largest in the world. The Japanese were not interested in catching low-quality tunas to be canned in Mauritius and then exported to Japan. The Japanese boats were predominantly longliners fishing for high-quality bluefin, bigeye, and albacore tunas. The fish caught were taken to Port Louis and trans-shipped into refrigerated ships for Japan. Longliners from Taiwan are now more numerous in Port Louis than Japanese boats. The Taiwanese boats, sometimes under flags of convenience, also fish for high quality tunas for the Japanese market. Japan has helped Mauritius with research on fish, and is now also training Mauritian fishers. The Mauritius’ Albion Fisheries Research Centre (AFRC) was constructed in 1981–82 with assistance from the Japanese Government. In 1986, a shrimp culture centre was constructed with a grant-in-aid from Japan. The AFRC comes under the Ministry of Agro Industry and Fishery and its facilities include biological, chemical, bacteriological, and marine ecological laboratories. The activities that are carried out at the Centre are, among others, monitoring of fishing activities, ecological surveys to collect data on coral reefs, collaborating with international organizations, such as the IOTC and the Indian Ocean Commission (IOC), for the management of tuna stocks, and monitoring the import and export of fish and fishery products. In 1995, a new Marine Conservation Centre was established, again with Japanese assistance. Between 1995 and 2000, Japan further helped the ARFC with a new project to strengthen its research capabilities in coastal fisheries and the coastal ecosystem. It is not with Japan, however, but with the European Union (EU) in mind, that Mauritius is envisaging being a Seafood Hub. Mauritius has long had close historical, cultural, economic, and political ties with Europe. The country, with the support of France, had been associated with the European Economic Community (EEC) and was thus one of the small British ex-colonies that was well placed to become a member of the African, Caribbean and Pacific Group of States (ACP) when Britain joined “Europe”. ACP countries have a special relationship

10 Fisheries Exploitation

213

10/28/09, 12:43 PM

214

Jean Houbert

with the European Union under the Cotonou Agreement. The Cotonou Agreement provides for the free entry into the European Union of fish products from the ACP. The European Union negotiates fishing agreements with individual members and not with the ACP as a whole. Thus, in 1990, a fishing agreement was signed between the European Union and Mauritius to allow EU vessels to operate in Mauritian waters. Since then, five protocols have been signed, each effective for three years. The present protocol was signed in 2003. Mauritius receives 487,500 euros from the European Union as “Cash for Access”. Since 1984, a substantial part of the long-distance fishing fleet from Europe, which was previously in the Atlantic, has moved into the Indian Ocean. This move has resulted in more tunas now being caught in the Indian Ocean than in the Atlantic. The relocation of the European boats to the Indian Ocean was a consequence of the European Union Common Fishing Policy (CFP) of finding new sources of fish for the growing European market as the fishing grounds nearer home were being fished to capacity. The main objective of the CFP is to further the interests of the European fishing states, that is, to meet the increasing demand of European consumers for seafood, obtain a sufficient supply of fish for processing in European industries, and generate employment for fish workers ashore and on the boats. With increasingly high technologies built into the boats, the fishing fleets of Europe have overcapacity as fewer boats can catch the same amount of fish. The deployment of the European boats — Spanish and French mostly — in the Indian Ocean may further the interests of Europe, but does it serve the interests of the islands as well as the region? The European Union is involved in three ways in Mauritius with regard to fishing. Under the Cotonou Agreement, it is committed to facilitate the development of the fishing industry of Mauritius. It also provides financial compensation in return for access to the waters of Mauritius. Thirdly, and most importantly, the fish products of Mauritius have free entry into the European Union. For the time being, Mauritius does not have the means to harvest the tunas that are in its waters. Port Louis receives the “financial compensation” from Brussels for allowing European boats to fish in its waters, and on top of that, obtains licence fees from the owners of the fishing vessels.38 Furthermore, Mauritius has shore facilities that European boats use which bring substantial benefits to the island. Besides its older cannery, Princess Tuna, which processes some 50,000 tons for the European Union, Mauritius has acquired a new

10 Fisheries Exploitation

214

10/28/09, 12:43 PM

215

Mauritius: A Seafood Hub?

facility, Thon des Mascareignes, for canning pre-cooked tuna loins, that will produce some 50,000 tons annually, almost entirely for the European market. It would seem then that the interests of Mauritius and the EU fishing interests are complementary. Yet, there is a conflict between the European Union and the ACP on the question of the Rules of Origin (ROO) of fish and fish products.39 To have free entry into the European Union the fish products must have been made up entirely of fish caught — by boats of any nationality — in ACP territorial waters, that is, within 12 nautical miles of the coast. Under UNCLOS, the EEZ is not part of the territorial waters for states that do not have sovereignty in EEZ, but only exclusive rights to the resources. Fish that are caught in the EEZ, or beyond on the high seas, do not qualify under the ROO unless they have been caught by an EU or an ACP vessel. Outside territorial waters, it is the nationality, ownership, and crew of the boat that caught the fish, and not where the fish are caught, that decide the origins of the fish. The definitions are so stringent under the ROO that it is next to impossible for small ACP to qualify.40 In particular, the requirement that at least 50 per cent of the crew, including the officers, must have the same nationality as that of the boat, cannot be met by Mauritius for the time being — at least not for a whole fleet of boats to catch sufficient fish for the canneries. The EU boats, on the other hand, fully meet the criteria of ownership and crew. In order for the fish products to qualify for free entry into the European Union, the canneries in Mauritius have no choice but to use the fish that are landed by the European boats. The EU boats are not the most competitive for fishing tunas in the Indian Ocean. Their running costs are high in terms of crew wages, standard of security, food, and comfort on board. The fish that the EU boats land in Mauritius are not cheap. However, free entry of the fish products into the European Union is so advantageous to Mauritius that the canneries are willing to pay a high price for their raw fish. Non-ACP states such as the Philippines and Thailand, which are very efficient producers, have to get over a 24 per cent hurdle in tariff duties to put their fish products on the EU market. These two states, and Indonesia, have had tariffs reduced to 12 per cent for entry into the European Union, but only for a limited quota of canned tunas, after the WTO supported their complaint of unfair discrimination.41 Mauritius and other ACP producers of fish products would like to see a change in the ROO so that it is where the fish are caught, rather than who

10 Fisheries Exploitation

215

10/28/09, 12:43 PM

216

Jean Houbert

catches them, which becomes the criterion for origin. Fish caught in the EEZ and landed in Mauritius, irrespective of the nationality of the boats by which they are caught, would thus qualify as originating in Mauritius. Such a change of the ROO would enable the canneries to buy fish from the most efficient fishing boats at the most competitive prices. The canneries in Port Louis would have the choice of buying fish from Taiwanese boats, for instance, and their fish products would still have free entry into the European Union. Brussels, however, does not agree. Such a change would be against the interests of the EU boats. The CFP looks after the interests of European boats and it also works in the interest of the fish industry on shore in Europe. For while the ROO insists on the nationality of the fish that are used in the canneries of the ACP, the fish that are processed ashore in Europe benefit from free entry, irrespective of where they have been caught, and the nationality of the ships that caught them. Consequently, fish processors in Europe obtain their fish from the most competitive fish catchers while the canneries in ACP have to buy from uncompetitive European boats. The European Union is at present revising the terms of its relations with the ACP. With regard to fishing, the existing “Cash for Access” — which is the payment of financial compensation in return for access for EU fishing vessels to the waters of ACP — is to be replaced by Fisheries Partnership Agreements (FPA) whereby the EU “contribution will be justified by the mutual interest of the two parties to invest in a sustainable fisheries policy and not just as a payment for access rights to fishing possibilities”.42 It is unlikely, however, that the ROO will be changed overnight in the face of powerful political and economic interests in Europe to keep them in place. As globalization is eroding all special relationships built on subsidies and protection, Mauritius will in the end have to face, in regard to fish products — like it already has in textiles — free competition in the European market of efficient producers such as Thailand. If the European Union is really in earnest about the FPA, it should be helping Mauritius to develop its fishing industry, instead of subsidizing European boats that have lost comparative advantage in catching fish in the Indian Ocean. For a real performing fishing industry whose products can compete successfully in a global free market, the efficient port and canneries of Mauritius must be complemented afloat with modern boats and trained crews. The present government is talking of “a feasibility study…for the

10 Fisheries Exploitation

216

10/28/09, 12:43 PM

217

Mauritius: A Seafood Hub?

development of a longline fishery for Mauritius”43 and some efforts are being made at retraining artisan fishers. The longline fishery is more concerned with swordfish than with supplying tuna to the canneries. The retraining of the artisan fishers is more concerned with fishing on the FADs and with fishing on the banks than with industrial fishing for tuna. The relatively cheap skipjack tunas that are used in the canneries are caught by purse seiners and not by longliners. Modern industrial fishing vessels call for large capital investment. Capital in Mauritius is invested in cold rooms and canneries,44 but there are no signs as yet of willingness to invest in a fleet of modern fishing vessels. It is perhaps not impossible, but it will not be easy to retrain the Creole fishers of the lagoons into crews of modern industrial fishing vessels.

FISH FARMING According to the FAO, consumption of fish and fishery products increased from approximately 38 million tons in 1960 to 137 million tons by 2003, an increase of 260 per cent. Most of this increased demand has been met by growth in capture or “wild fisheries”.45 Experts are saying that this rate of increase cannot be sustained. Global fisheries are in crisis: 70 per cent of world fish stocks are either overexploited or fully exploited. According to a major scientific study published in the journal Science, “this century is the last century of wild seafood”.46 Fishing is, like hunting and gathering, an age-old mode of production. The Neolithic Revolution that ushered in the domestication of animals and settled agriculture on land bypassed fishing. Although high technology is used in industrial fishing, as a mode of production it remains antiquated. The principal reason for this is that fish are overwhelmingly carnivorous animals and that the food chain at sea is very long compared with the case on land. Animals that are raised for food on land are herbivorous. The food chain, therefore, is short. At sea, the animals that feed on phytoplankton, the equivalent of the herbivorous on land, are the microscopic zooplankton. The total annual world production of phytoplankton is estimated to be around 30 billion tons of carbon. The total annual world production of fish is estimated at 30 million tons of carbon. This is only about 0.01 per cent of the phytoplankton production. With transfer efficiencies of no more than 10 to 20 per cent in the four or five stages of the food chain between the phytoplankton and the higher

10 Fisheries Exploitation

217

10/28/09, 12:43 PM

218

Jean Houbert

carnivorous, the loss of material between the lower and upper levels is enormous. If human seafood were phytoplankton or zooplankton instead of tuna or lobster, much more food would be available. Baleen whales feed on krill, which is a species of zooplankton. The food chain in this case is short and, therefore, much less is lost. However, overfishing of baleen whales has led to a complete ban on catching this kind of whale. Krill is exploited directly, but mostly to turn into animal feed, some of which is used in fish farming or aquaculture. Global seafood supplied through aquaculture has increased from about 10 million tons in 1984, to 47 million tons in 2003. According to the FAO, aquaculture could be producing 50 per cent of world’s seafood supply by 2025. Aquaculture is not without problems. The first of these problems is that fish farming is mostly of the carnivorous species that require vast quantities of wild-caught fish as feed: on average, 2–5 kg of wild fish biomass to produce a single kg of the kind of farmed fish that are in high demand in the rich world. Farming up the food chain for high-quality fish leads to fishing down the food web. As wild catches of large, valuable carnivorous fish such as tunas slow down, there has been a gradual shift to the harvesting of smaller, less valuable species such as anchovy that are ground into fishmeal or fish oil for use in manufacturing feed for farmed fish. Currently, about one third of the total harvest of capture fisheries is used to produce fishmeal, one third of which is used by the aquaculture industry.47 The heavy fishing pressure on small pelagic fish for fishmeal, in turn, has led to the depletion of food for wild carnivorous fish such as tuna. The farming of fish depends on fry (larvae) collected from the wild or reared in hatcheries from eggs of wild broodstock. Fish fry are caught in coastal waters using fine-meshed nets that trap large quantities of fish, including the wrong fry as well as the good ones. The discarded bycatch of fish and wrong fry is wasteful. The amount of fry bycatch destroyed globally “is staggering and could have major consequences for biodiversity and capture fisheries production”.48 Aquaculture often involves the monocultural production of alien species. If they escape into the wild they can cause the loss of genetic diversity if inbreeding occurs between farmed and wild species.49 A kind of fish farming has existed in Mauritius for some 200 years. Some of the sugar plantations near the coast had built stone enclosures in the lagoons that are called barachois. These have been used to fence in species of demersal fish and grow oysters. Currently, barachois produce some 45 tons annually. There is a project for combining the fish rearing in

10 Fisheries Exploitation

218

10/28/09, 12:43 PM

219

Mauritius: A Seafood Hub?

the barachois with tourism. A species of giant fresh water prawn known as camaron is considered a delicacy in Mauritius and has long been cultivated on some of the sugar estates. The farming of both freshwater and sea fish is envisaged in the Seafood Hub project. A Marine Farm in Mahebourg (FMM), on the east coast of Mauritius, is already operational, producing 500 tons of demersal fish of the varieties known locally as ombrine, cordonnier, and gueule pavee. The plan for the FMM is to produce 3,000 tons of fish eventually for the local market and the tourist hotels, and also for export to Dubai and Switzerland.50 In March 2006, the private and public sectors in Mauritius organized an international conference on the theme — Mauritius as a Seafood Hub — that was well attended. As a follow-up, the Commonwealth Secretariat has agreed to help with research on the comparative advantages of Mauritius as a seafood producer, including aquaculture producer. The Hellenic Centre for Marine Research and the Federation of Greek Aquaculture are also going to help. Under the Hellenic Aid programme, the Hellenic Ministry of Foreign Affairs will finance the construction of a fish landing and auctioning facility in Port Louis and the promotion of sustainable aquaculture. The government is drawing up an Aquaculture Master Plan.51

SUMMARY AND CONCLUSIONS Mauritius is a small-islands entity that was born of European colonial expansion in the Indian Ocean. The objectives of the colonizers were not based around fisheries, but rather the military and commercial domination of the Ocean. The change from French to British colonial rule led to a reorientation of Mauritius from the sea to the land for the production of sugar. This was associated with a radical change in the ethnic composition of the population on the main island of Mauritius as indentured labourers from India replaced the slaves of Malagasy and African origins in the sugar fields. Many of the redundant exslaves moved to the coast and the other islands, fishing in the lagoons as a mode of survival. Without capital investment, the lagoons fishery remained archaic. Ill-equipped to face the open sea beyond the coral reefs, the Creole fishers overexploited the lagoons that were further impoverished by siltation and run-off from the sugar plantations. Recently, urbanization and the development of the tourist industry in the coastal zone have amplified the problem.

10 Fisheries Exploitation

219

10/28/09, 12:43 PM

220

Jean Houbert

Mauritius developed to the limits of the capacity of the mono-crop sugar economy, but could not provide sufficient employment for the growing population. The Indo-Mauritian elite who inherited political power at independence encouraged the Creole sugar barons who retained economic power to diversify their investments, and for a time, Mauritius was “a success story”, manufacturing garments for exports. Sugar and textiles, however, were both dependent on assured markets in the European Union over which Mauritius had little control. As the globalization of the world economy now threatens its protected markets, Mauritius looks to the sea for salvation. The assets are not negligible. The blue lagoons, white sandy beaches, and the “unspoilt” tropical islands attract growing numbers of European tourists. The location of Port Louis, that once gave Mauritius a geopolitical significance in the Indian Ocean, might serve its ambition of being a “hub” of services and trade between Europe, Asia, and Africa. “Offshore” financial services are already thriving. Mauritius, with its widespread outer islands, has an immense Exclusive Economic Zone. The area of the Indian Ocean where Mauritius is located is not particularly rich in fish, except for the highly migratory tuna and tuna-like species, such as marlin and swordfish. The incentive of larger catches on the FADs has only been partly successful in getting the lagoon fishers to move to the open sea outside the reefs; it is not evident that they can be retrained into industrial fishing in the EEZ. Mauritius does not yet have a fleet of modern vessels to harvest tunas in its EEZ. For the time being, Mauritius receives financial compensation for allowing foreign vessels to fish in its waters. Fish products from Mauritius have free access to the European Union market. This has led investors to create a tuna canning and loining industry in Port Louis. The industry is constrained in its development by the Rules of Origin of the European Union, which insists that for free access, the products must have been made entirely from fish caught by EU or Mauritian boats. These Rules of Origin in effect provide protection to the EU boats that do not have a comparative advantage in fishing for tunas in the Indian Ocean. The new Fisheries Partnership Agreements that are currently being negotiated between the European Union and ACP are not likely to remove the ROO overnight. The tuna canning industry of Mauritius on shore needs to be supported afloat by an efficient competitive industrial fleet. If the FPA helps in this, Mauritius will benefit more from the access of its fish products in the European Union. Mauritius, however, must not

10 Fisheries Exploitation

220

10/28/09, 12:43 PM

221

Mauritius: A Seafood Hub?

remain dependent on preferential access to the EU market. Protected markets are on the way out as the global economy moves towards free trade. The EU tariffs that penalize the fish products of efficient producers such as Thailand and the Philippines will not last forever. To be a real, world-class Seafood Hub, Mauritius will have to be able to compete in the world market without a safety net.

Notes 1. Historical background in Auguste Toussaint, Histoire de l’Ocean Indien (Paris: PUF, 1960). By the same author, Histoire des iles Mascareignes (Paris: Berger Levrault, 1972). 2. Jean Houbert, “Colonization and Decolonization in Globalization, the Creole Islands of the Indian Ocean”, in Globalisation and the Southwest Indian Ocean, edited by Evers and Hookoomsing (Leiden and Mauritius, 2000), pp. 191–211. 3. On the term Creole and on creolization, see Robert Chaudenson, Les Creoles (Paris: PUF, 1995). On the Creole islands of the Indian Ocean, see the authoritative thesis of J.F. Dupon, Contraintes Insulaires et Fait Colonial aux Mascareignes et aux Seychelles (Paris: Honore Champion, 1976). 4. For Mauritius as a plural society, see Burton Benedict, Indians in a Plural Society (London, 1961) and Mauritius, the Problems of a Plural Society (London: Pall Mall, 1965). Also by the same author Stratification in Plural Societies, in American Anthropologist 64 (1962): 1235–45. On the special relations of Europe with the islands of the Indian Ocean, see L’Europe et l’Océan Indien (AixMarseille: CERSOI, GRECO Ocean Indien du CNRS, 1984). 5. Jean Houbert, “Décolonisation et Dépendance: Maurice et La Réunion”, in Annuaire des Pays de l’Océan Indien, vol. VIII, 1981 (Aix-en-Provence, 1983), pp. 103–23. 6. Mauritius sugar export price to the European Union has been guaranteed at more than three times world market levels for its quota of 507,000 tons of sugar during the past decade. 7. The EU-ACP Agreement, referred to as the Cotonou Agreement, was signed for twenty years (2000–20).Because the Cotonou Agreement is a non-reciprocal trade agreement, it had to secure a waiver under WTO rules and this waiver expired on 31 December 2007. Negotiations under article 20 of the WTO Agreement on agriculture began in early 2000. In November 2001 the Doha Declaration was adopted. With regards to agriculture, Doha called for fundamental reform. On 1 August 2004, a WTO Framework Agreement was arrived at. It calls for an end to all forms of export subsidies in all sectors including sugar, and reductions in import tariffs, both of which will result in

10 Fisheries Exploitation

221

10/28/09, 12:43 PM

222

8. 9.

10.

11.

12. 13.

14.

Jean Houbert a substantial reform of the EU sugar regime. In 2003, Australia, Brazil, and Thailand challenged the legality of the EU Sugar Regime. They argued that this included the 1.6 million tons imported from the ACP. The WTO Appellate body confirmed both complaints in April 2005. The European Commission (EC) then proposed the reduction of prices paid to ACP sugars, starting in 2007 and culminating in a 39 per cent cut in 2009. In 2005 the EU Commission proposed accompanying measures for a period of eight years for the ACP countries that will be affected by the reform of the sugar regime. For 2006 the accompanying measures will amount to a quantum of Euro 40 million for all the eighteen Sugar Protocol countries. For the remaining period of 2007–13 the sum has not yet been decided. Mauritius is arguing that the Euro 40 millions for 2006 should be shared out among the eighteen countries in the same proportion as the quantity of sugar each sends to the European Union. This is because Mauritius has the lion’s share of the quota it should also get the biggest share of the money. Government of Mauritius, A Roadmap for the Mauritius Sugarcane Industry for the 21st Century (2006). In 2002 Mauritian textile sector workers were paid US$1.33 an hour, compared with rates of US$0.25 in Bangladesh and US$0.57 in India. The gap has got wider since 2002. Economist Intelligence Unit, Mauritius Economy: Sugaring the Pill (London: The Economist, 5 July 2006). Andrew L. Stoler, Mauritius: Co-operation in an Economy Evolving for the Future, Managing the Challenges of WTO Participation: Case Study 26. . GDP per capita of US$13,542 (in PPP terms) in 2005. Mauritius ranks sixtyfifth in the world and second in Africa (after Seychelles) on the Human Development Index. In African Economic Outlook 2005–2006 . IMF Country Report No. 06/209. There has been talk of using wave power to produce electricity on the island. “Power Play in Mauritius”, Energy in Africa Magazine, Feb–Apr 2006, in Africa. A South African firm, Arcon Africa, has proposed to spend US$450 to develop Agalega as a tourist resort (L’Express [Mauritius] 30 November 2006). There is a rumour that secret negotiations have taken place between Mauritius and India for leasing Agalega to India for military purposes. This had been reported by Associated Press. Questioned in parliament the prime minister of Mauritius, Navin Ramgoolam, denied any military connotation, but confirmed that India was interested in the tourist potential of Agalega. Historical background in Auguste Toussaint, Une Cite Tropicale Port Louis de l’Ile Maurice (Paris: PUF, 1966).

10 Fisheries Exploitation

222

10/28/09, 12:43 PM

223

Mauritius: A Seafood Hub?

15. Mauritius Freeport Portal, 2006, . 16. Cited in John Turner and Rebecca Klaus, Coral Reefs of the Mascarenes, Western Indian Ocean, Philosophical Transactions of the Royal Society A, 363 (2005), pp. 229–50. 17. Ibid. Also Thomas J. Goreau, Mauritius Marine Management Notes (Global Reef Alliance, 2005), . R.T. Ramessur, Anthropogenic-driven Changes with Focus on the Coastal Zone of Mauritius, Southwestern Indian Ocean (Spinger-Verlag, 2002). 18. The government that took office after the general elections in 2005 published a Five-Year Fishery Development Plan. The document referred to conclusions that had been reached in 1998 to the effect that “limited potential exists for further development of marine capture fisheries in Mauritius except for the offshore highly migratory pelagic species such as tuna and swordfish”. Therefore emphasis should be placed on “Sustainable use of existing resources and protection of the marine environment” (Ministry of Agro Industry and Fisheries, 2005). 19. A. Venkatasami and Sheik Mamode, Fish-Aggregating Devices as a Tool to Enhance Production of Artisanal Fishermen: Problems and Perspectives (Albion Fisheries Research Centre, Mauritius). Also A. Venkatasami, SWIOP/SW/49Introduction of Fish Aggregating Devices in the Southwest Indian Ocean (a case study) (FAO, Victoria, 1990). The present Five-Year Fishery Development Plan provides for the training of 1,000 fishers to fish on the FADs. To increase the security of the fishers, cellular phones will be made available to each owner of a boat involved in FAD fishing. The Plan says that Government will give incentive for procurement of vessels for fishing in the off-lagoon areas. In the same line, the development of a shipbuilding industry aimed at coastal and low tonnage high sea fishing and that of fishing equipment for the local and regional market, will be encouraged. 20. Le Mauricien, 17 November 2006. 21. The total length of the coast in Mauritius is 323 km. Of this, hotels now occupy 41.9 km (13 per cent), campements 52 km (16 per cent), public beaches 26.6 km (8.2 per cent). These three occupiers are now in a fierce rivalry for although between them they have only 37 per cent of the total length of the coast, it is the best part, which overlooks sandy beaches and the best lagoons. The remainder of the coastline is under vegetation, buildings, or are cliffs. See R.T. Ramessur, Anthropogenic-driven Changes with Focus on the Coastal Zone of Mauritius, Southwestern Indian Ocean (Springer-Verlag, 2002). . Also I. Fagoonee, Coastal Marine Ecosystems of Mauritius Hydrobiologia, 208 (Belgium, 1990): 55–62. 22. Mauritius, however, does not have unlimited fresh water and the five-star

10 Fisheries Exploitation

223

10/28/09, 12:43 PM

224

23.

24.

25. 26.

27. 28.

29. 30. 31. 32. 33.

34.

Jean Houbert hotels use 1,000 litres per person per day. The domestic water consumption is between 180 to 220 litres per day per person. The Environment in Mauritius: Water, Resources, Uses and Pollution (Mauritius, 1998). L’Express, one of the leading newspapers in Mauritius, has numerous articles on hotel and IRS developments. For latest update, L’Express 1 January 2007, 3 January 2007. Geological formation and description of Mascarene Plateau in Rolph Payet, Research, Assessment and Management on the Mascarene Plateau: A Large Marine Ecosystem Perspective, Philosophical Transactions of Royal Society A, 363 (2005), pp. 295–307. Pierre de Boucherville Baissac, Marine Science Country Profiles, Mauritius (Western Indian Ocean Marine Science Association, UNESCO, 1995). Ministry of Agro Industry and Fisheries, Five-Year Fishery Development Plan, 2005, . D. Norungee, Y.T.N. Wan Sai Cheong et al., Evolution of the Swordfish Longline Fishery of Mauritius (IOTC, 2004). Coastal fishing yield along the entire western boundary of the Indian Ocean, including the islands, represent less than one per cent of the global landing of fish. In spite of this most of the coastal fish stocks of the region are considered to be fully exploited or overexploited. FAO, Review of State of the World Fishery Resources, Marine Fisheries 8, Western Indian Ocean, FAO Circular No. 920 FIRM/C 920 (Rome, 1997). For life in the oceans generally, see Alistair D. Couper, ed., The Times Atlas and Encyclopaedia of the Sea (London: Times Book, 1989), in particular, pp. 68–78. Primary productivity of the sea around Mauritius is only 0.15 g/sq m/day (FAO/IOP, 1978). Philippe Michaud, Seminar on ACP-EU Fisheries Relations: Towards a Greater Sustainability ACP (Belgium: Secretariat Brussels, 7–9 April 2003). Yves Lacoste, Questions de Géopolitique, l’Islam, La Mer, L’Afrique (Paris: Poche, 1988). Five-Year Fishery Development Plan, op. cit. Mauritius has been erratic over the years in this respect. Early on, in 1970–71, it had an ocean going longliner. In 1986 it had two small longliners. But by 1995, it had none. In 1979 Mauritius had one purse seiner and got two more by 1991. But by 1995 one of the vessels was chartered to a foreign company and landing catches in Thailand. And another was sold in 1997. In ACP-EU tuna agreements, the method used for calculating access fees leads boat owners to under report catches. The owner pays a fee according to the quantity of tuna caught, the less he reports, the less he pays. Although there is provision for observers to be on-board, the owner can avoid this by paying

10 Fisheries Exploitation

224

10/28/09, 12:43 PM

225

Mauritius: A Seafood Hub?

35. 36.

37.

38.

39.

40.

41.

a small fee to the local authorities. When an observer is on-board he is paid by the boat-owner and, therefore, the objectivity and accuracy of his report on the quantity of fish caught is questionable. Five-Year Fishery Development Plan, op. cit. See the Greenpeace publication Ocean Press, Amsterdam, for 12, 14, 16, 18, 30 March 1999, with the title “Mauritius: Indian Ocean Heaven for Pirate Fishing Vessels”. Greenpeace published a list of no fewer than twenty ships that regularly trans-shipped illegally caught toothfish in Mauritius. Most of the ships had the flags of Belize or Panama as flags of convenience. The CCAMLR estimated that 12,280 ton of toothfish were transhipped in Mauritius in 1998, and 16,393 tons in 1997. In all some 63 per cent of the total of Southern Ocean caught toothfish trans-shipped in Mauritius. The government of Mauritius claimed that it had no means of knowing if the toothfish were caught on the high seas or in the EEZ of France or Australia in the Southern Ocean. FAO Review of the State of the World Fishery Resources: Marine Fisheries, Special Topics, Global Resources of Tuna and Tuna-like Species, FAO Fisheries Circular No. 920 FIRM/C920, Rome, 1997. Also Tuna Species Datasheet, 2004. . The overall amount paid, that is the European Union and the boat owner together, is Euro 100 per ton of tuna. Of this sum, the boat owner pays Euro 25 per ton. It is the EU taxpayer, not the boat owner, who carries the bulk of the burden. The EU-ACP fisheries agreements cost the EU taxpayer Euro 145 million a year. IFREMER has calculated that for each Euro invested by the European Union in a fishery agreement there was a benefit of Euro 3 for the EU operators. For an excellent analysis of the Rules of Origin question, see Lindsey Block and Roman Grynberg, EU Rules of Origin for ACP Tuna Products (London: Commonwealth Secretariat, 2005). Also Beatrice Gorez, ACP EU Fisheries Relations: Towards Greater Sustainability, Report of meeting held at the ACP Secretariat, Brussels, 7–9 April 2003. To qualify, the fish must be caught in vessels that are registered in an EU or ACP state and sail under its flag, are at least 50 per cent owned by one or more of these states, and have at least half of their crew drawn from them. Thailand and the Philippines objected to the granting of the WTO waiver for the Cotonou Agreement because, they claimed, the provisions on tuna discriminated against them. The parties went to mediation and in December 2002 the mediator concluded that the European Union should offer Thailand, the Philippines, and Indonesia a quota of 25,000 tons, within which they would pay the reduced tariff of 12 per cent. Christopher Stevens and Jane Kennan, Comparative Study of G8 Preferential Access Schemes for Africa (London: Institute of Development Studies, April 2004).

10 Fisheries Exploitation

225

10/28/09, 12:43 PM

226

Jean Houbert

42. European Commission —Fisheries — About the Common Fisheries Policy. . 43. Five-Year Fishery Development Plan, op. cit. 44. Ireland Blyth Ltd (IBL) , a Creole Mauritian firm despite its name, was the first to coin the term Seafood Hub. The companies concerned with fisheries that are part of IBL are: Thon des Mascareignes for pre-cooked tuna loins, Froid des Mascareignes for cold rooms, and Mer des Mascareignes, in partnership with French interests in Réunion, which will specialize in the export of fish steaks and fillets by air. IBL is associated with the Spanish firm Echebaster that has a 25 per cent share in Thon des Mascareignes. L’Express, 7 January 2006 and 25 August 2006. 45. Christopher Lischewski, head of the American seafood giant Bumble Bee, at a conference in Mauritius in March 2006, to launch the Seafood Hub project. 46. Reported in BBC News Website recently. . 47. Patrick Ronnback, Ian Bryceson and Nils Kautsky, Coastal Aquaculture Development in Eastern Africa and the Western Indian Ocean: Prospects and Problems for Food Security and Local Economies, Ambio Vol. 31 No. 7–8 December 2002, Royal Swedish Academy of Sciences, 2002. 48. Ibid., op. cit. 49. C. Lischewski, op. cit. 50. L’Express, 30 January 2006. 51. Five-Year Fishery Development Plan, op. cit.

10 Fisheries Exploitation

226

10/28/09, 12:43 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

227

11 THE IMPACT OF SHIP BALLAST ON THE AQUATIC-BASED FOOD SUPPLY CHAIN Vijay Sakhuja

INTRODUCTION Over 80 per cent of the world’s cargo is moved over the ocean and billions of tonnes of ballast water are filled in one part of the ocean and discharged at another. In the process, large numbers of marine species enter or leave the ships ballast tanks, thus travelling large distances on a daily basis. These organisms range from microscopic bacteria to large plants and freeswimming fish. The introduction of marine organisms alien to local ecosystems through ship hulls and ballast water is referred to as marine bioinvasion and poses threats to human, animal, and plant life, as well as the marine environment. This has serious consequences for native biota, fisheries, and the overall coastal ecosystem, and can have harmful effects on local flora and fauna through their oxygenic, proliferate, and overcompetitive characteristics. The introduction of new species can have a direct impact on society and human health by affecting fisheries and causing health hazards. Also, biodiversity may now be on the verge of

11 Fisheries Exploitation

227

10/28/09, 12:45 PM

228

Vijay Sakhuja

collapse due to non-adherence of best practices for ocean governance. Regulations aimed at solving these problems are easily circumvented and ships continue to violate international laws with impunity. The oceans and seas represent about 70 per cent of the earth’s surface. These large bodies of water are intrinsically linked to human and organic life cycles on earth as they provide 15–20 per cent of the animal protein in the diet of people worldwide. Also, as the traditional raw material resources on land are depleted due to overexploitation, resources at sea have attracted great interest throughout the world. The pressures of population growth and food shortages have forced humankind to look towards the sea to meet the growing demand; thus, sea-based resources are now being increasingly exploited to support economic and industrial development. It would be significant to mention that in the long cycle exploitation of resources, the seas have become the last reservoir of resources, be it living or non-living. However, non-adherence to best practices in ocean governance has led to uncontrolled depletion of resources and that remains a cause for concern. Bioinvasion is among several issues ocean governance is concerned with because of future aquatic-based food resources. This phenomenon, resulting from the unfettered movement of harmful non-natives, plant and animal species through the marine transportation system, has led to the destruction of natural marine habitats such as coral reefs, fish breeding grounds, and marine ecoreserves. Ships and marine craft have been responsible for transporting — through ballast water that vessels pump in and discharge to maintain stability, and the marine growth on their hull — a variety of non-native microscopic marine life such as eggs, larvae, and marine plants, and causing significant damage to marine ecosystems, native marine flora and fauna, and regional economies. Some of the invasive species are able to adapt quickly to the new environment and act as powerful predators. These organisms are also able to destroy the defence mechanisms of native marine species and, in some cases, the invasion may lead to the disruption of the aquatic-based food supply chain. To an extent, this chapter attempts to examine the impact of ship ballast on the aquatic-based food supply chain. It explains the ship ballast operation and the process of transporting non-native marine life to distant waters and impacting the marine ecosystem. The chapter also examines technological developments aimed at overcoming problems of ballast, as well as technologies being developed for keeping the ship’s hull clear of

11 Fisheries Exploitation

228

10/28/09, 12:45 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

229

barnacles. As the issue is global in nature, the chapter highlights the International Maritime Organization (IMO)-initiated Globallast Partnership Project.

SHIP BALLAST It is instructive here to recall the Archimedes Principle, which states that a body immersed in a fluid is buoyed up by a force equal to the weight of the displaced fluid. With that in mind, all ships are designed in recognition of the fact that the weight of a ship is balanced by the weight of the fluid displaced by the watertight hull, which is called the buoyancy. In the early days of ocean-going shipbuilding, vessels carried stones/ metal pieces to weigh down a ship to make it stable.1 Over a period of time, with the transformation in ship design and shipbuilding, wooden hulls gave way to metal ships and sea water began to be used to replace stones as ballast. Ballast tanks on board modern ships are watertight compartments that are filled with and emptied of sea water to provide stability to the vessel, and are designed to prevent the vessel from heeling over due to lateral forces that could arise from waves, high speed winds, unsymmetrical loading, or centrifugal forces resulting from a high speed turn. Furthermore, ballast ensures that the propeller is fully submerged in the water in order to obtain full efficiency of its rotation and avoid drag. Clearly, particular ballast needs and the nature and volume of ballast intake or discharge vary according to the type of vessel and the operation that the vessel is performing (Table 11.1). The ballast tanks on-board ships are connected to one another by means of pipeline systems that facilitate flooding or deflooding the compartment, using compressed air blowers and valves that facilitate the opening and closing of the connecting lines. Ballast tanks are designed differently for different ships, based on the type and condition of cargo carried. For instance, ballast tanks on-board cruise ships provide comfort to the passengers, and on-board research vessels, they facilitate a steady and stable platform for research equipment. Container ships, on the other hand, are generally top heavy and ballast provides stability. Oil tankers are stable when they are with cargo, but an empty oil tanker is most unstable, so ballast water offers the desired stability. Depending on the type of the ship, the tanks are loaded with, or emptied of, hundreds of thousands of litres of seawater to provide stability and trim to a ship. For instance, modern oil tankers carry from 100,000 to

11 Fisheries Exploitation

229

10/28/09, 12:45 PM

230

Vijay Sakhuja Table 11.1 Ballast Needs and Vessel Types

Ballast Needs

Vessel Types

Typical Pumping Rates (m3/h)

Ballast replaces cargo Ballast required in large quantities, primarily for return voyage.

Dry bulk carriers Ore carriers Tankers Liquefied-gas carriers Oil bulk ore carriers

5,000–10,000 10,000 5,000–20,000 5,000–10,000 10,000–15,000

Ballast for vessel control Ballast required in all loading conditions to control stability, trim, and heel.

Container ships Ferries General cargo vessels Passenger vessels Roll-on, roll-off vessels Fishing vessels Fish factory vessels Military vessels

1,000–2,000 200–500 1,000–2,000 200–500 1,000–2,000 50 500 50–100

Ballast for loading and unloading operations Ballast taken on locally in large volumes and discharged in same location.

Float-on, float-off vessels Heavy lift vessels Military amphibious assault vessels Barge-carrying cargo vessels

10,000–15,000 5,000 5,000 1,000–2,000

Notes:

The three categories of ballast needs are not mutually exclusive. For example, a vessel in which ballast replaces cargo may also require ballast to control stability. Source: Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ships’ Ballast Water (1996), Commission on Engineering and Technical Systems, available at .

10,000,000 tons of oil and must carry similar volumes of ballast water when returning after delivering their cargo at their destination.

BIOINVASION Over 95 per cent of world trade moves over the seas, and by some estimates, more than 12 billion tons of ballast water are drawn from one part of the ocean and discharged at the other.2 During the process of ballast operations, a variety of marine species can enter or leave the ship’s ballast tanks, thus

11 Fisheries Exploitation

230

10/28/09, 12:45 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

231

travelling large distances on a daily basis.3 These organisms range in size from infinitesimal bacteria to microscopic algae and small fish. The introduction of marine organisms alien to the local ecosystem through ship hulls and ballast water is referred to as marine bioinvasion4 and this can pose a threat to human, animal, and plant life, with a resultant impact on the marine environment. For example, some eighteen foreign species of animals and plants have been found along the Indian coasts and these have the potential to have harmful effects on local flora and fauna.5 Research has shown that several invasive marine organisms have posed a serious threat to the existence of the precious coral reefs of the Andaman and Nicobar and Lakshwadeep Islands. For instance, Mytlopsis saleii, a kind of shellfish and a native of tropical and subtropical Atlantic waters, have been found in Mumbai and Vishakhapatnam ports. This species reportedly invaded Indian waters some time during the 1960s and has established itself on a large scale. Similarly, the Green crab (Carcinus meanas) with its origins in Europe, has been reported in Indian waters. This crab preys on molluscs and crustaceans, which now face the danger of extinction. Similarly, a giant water fern (salvinia molesta), an alien and dangerous plant from South America, has been seen in Ho Chi Minh City in Vietnam.6 Besides the economic chaos7 it can create, it can also facilitate the spread of diseases such as malaria, dengue fever, and encephalitis. According to David Pimentel, professor emeritus of ecology and evolutionary biology at Cornell University in the United States, aquatic invasive species can cost the United States $9 billion annually and the invasion by Zebra and Quagga mussels alone costs around $1 billion annually.8 There is also an invasion by marine organisms such as barnacles that firmly stick to the hulls and are in a constant state of movement from port to port like secret underwater stowaways. Significantly, this carpet of sea life steadily grows on standing or moving hulls and is unwittingly ferried across the globe into seas, lakes, rivers, and oceans as aliens and can be found where they do not belong. Alien species invasion can also take place through aquaculture. Since fish is an important component of human diet and global stocks are declining fast due to overexploitation, aquaculture is emerging to be an important source of seafood. According to the Food and Agriculture Organization (FAO) of the United Nations, aquaculture is on the increase to support global food requirements, and currently accounts for nearly

11 Fisheries Exploitation

231

10/28/09, 12:45 PM

232

Vijay Sakhuja

50 per cent of the world’s food fish, and apparently has the greatest potential to mitigate the growing demand for aquatic food.9 The FAO also notes that with the projected population growth over the next two decades, 40 million tons of aquatic food will be required to maintain the current per capita consumption. Today, the global aquaculture industry represents 29 per cent of this volume and 38 per cent of the value of global fish and seafood landings.10 Significantly, 9.7 per cent of aquaculture production is based on introduced species and varies among the regions. For example, 97.1 per cent of crustacean production in Europe and 96.2 per cent of fish production in South America are of introduced species.11 The FAO “code of conduct for responsible fisheries” in its “aquaculture development’s section does refer to the introduction and transfer of alien organisms and it has produced a number of technical guidelines related to the application of the precautionary approach and alien species.12 Bioinvasion can also result in health hazards that are generally caused by a build-up of toxins in the food chain. Most algae or phytoplankton found in the seas are not dangerous and serve as energy producers in the food web, without which higher life would not exist. However, a small number of these can be poisonous and can produce powerful neurotoxins that can be transferred through the food web and destroy higher forms of life such as zooplankton, shellfish, fish, mammals, and even humans, either directly or indirectly.13 Harmful Algal Blooms (HAB), which are microscopic, are also referred to as Red Tides and Red Tide-related incidences have been increasing the world over. These toxic algae occur naturally in the coastal areas and can easily find their way into the food chain so virtually no one is free of risk.

RESPONSE BY THE INTERNATIONAL MARITIME ORGANIZATION (IMO) The IMO and the World Health Organization have expressed their concern over marine biodegradation due to ballast water and its impact on the food chain. The 1992 United Nations Conference on Environment and Development (UNCED), in its Agenda 21, called on the IMO to consider the adoption of appropriate rules on ballast water discharge to prevent the spread of non-indigenous organisms.14 It also noted that the existing guidelines do not provide a complete solution towards the total prevention of the introduction of harmful aquatic organisms and pathogens, and

11 Fisheries Exploitation

232

10/28/09, 12:45 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

233

urged that the focus should be directed towards measures aimed at minimizing the risks to the marine environment. The IMO has called on State Marine Administrations to take any necessary initiatives to conduct risk analyses of severe outbreaks or infestations of harmful aquatic organisms which may pose a risk. The states must also notify shipping companies and agents the specific domestic requirements for ballast discharge, and provide copies of any regulations, standards, exemptions, or guidelines being applied. A part of ballast discharge management also rests with the ship’s crew. Ships masters and crews should follow instructions on the application of ballast water, sediment management, and treatment procedures as stipulated by domestic laws. Besides, ships must also maintain records and logs. Governments should also include ballast training as part of the syllabus in their marine training schools. While governments respond to the IMO stipulations and set standards for ballast management, the shipping industry has experienced difficulty in complying with standards that vary considerably from country to country. For example, John Berge, Vice-President of the Pacific Merchant Shipping Association, has noted: “Ours is an international industry…To suddenly be in a situation where you have to meet different standards throughout the world, it can create an untenable situation.”15

TECHNOLOGICAL SOLUTIONS Naval architects have been conscious of the impact of ship ballast on the marine environment and have been engaged in research to come up with an optimal ship hull design that can provide the balanced requirements of light cargo conditions, stability, bow and stern underwater conditions, propeller submergence, a reduced freeboard for sufficient manoeuvrability, and so on. These technical challenges are indeed complex for an efficient ship design that can effectively manage ship ballast. There are studies in progress that aim to redesign the ship’s hull and do away with taking in seawater altogether for the purpose of stability. The Ballast-Free Ship concept is based on a new paradigm that manages ballast operation as the reduction of buoyancy, rather than the addition of weight to get the vessel to its required ballast drafts. The U.S. Pat. No. 6,053,121 awarded to Teekay Shipping Corporation of Nassau, Bahamas, accomplishes ballast exchange by using “piping from high pressure at the

11 Fisheries Exploitation

233

10/28/09, 12:45 PM

234

Vijay Sakhuja

bow of the ship and connected to each ballast tank to drive a flow-through ballast exchange process”. On the high seas, the conventional ballast tanks are “sequentially lowered to a hydrostatic balance level and then connected to the bow high pressure. The bow pressure forces flow through the tank to a low discharge at the forward bottom of the tank. After a period of flow-through, each ballast tank is isolated and pumped back full using the ballast pump”.16 While the construction modification of ships may be suitable, ballast management still remains a major challenge and calls for further research in ship design and technology. Some of the probable techniques for managing ballast water include filtration, heat, ultra-violet light, ozone, deoxygenation, electro ionization, and chemical biocides. 17 These technologies are in an experimental and developmental stage and none has been tested for full-scale on-board application. As far as the barnacles are concerned, antifouling measures for ship hulls have been in use for a very long time. Antifouling paint, when coated on a boat’s hull, reduces biofouling, but these paints are known to contain tributyltin, a chemical that is toxic to marine life and which has caused deformity in molluscs and oysters.18 This has forced the marine industry to look for other materials and technologies as antifouling alternatives. The marine industry is examining “non-stick” organic polymers that would not allow organisms to latch onto the hull. Similarly, scientists at the University of Wisconsin-Madison have attempted to coat hulls with thousands of microscopic titanium electrodes that would gently zap any organisms that come near. However, the challenge is to produce a “blanket” of electrodes that would cover the entire hull of the boat.

THE GLOBAL BALLAST WATER MANAGEMENT PROGRAMME (GLOBALLAST) PROJECT The IMO has acknowledged that “invasive aquatic species are one of the four greatest threats to the world’s oceans, and can cause extremely severe environmental, economic and public health impacts”.19 With the primary objective of reducing the transfer of harmful aquatic organisms in ships’ ballast water, the IMO has instituted the Global Ballast Water Management Programme (GloBallast) project. As part of the project, the IMO, in conjunction with the Global Environment Facility (GEF), the United Nations Development Programme (UNDP), has assisted several countries in implementing the existing IMO guidelines. The broad

11 Fisheries Exploitation

234

10/28/09, 12:45 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

235

development objectives of the programme include: (a) reduce the transfer of harmful organisms from ships’ ballast water; (b) implement the IMO ballast water guidelines, and, (c) prepare for the implementation of the newly-adopted IMO Ballast Water Convention. At a Diplomatic Conference in London on 13 February 2004, the IMO adopted the International Convention for the Control and Management of Ships Ballast Water and Sediments by consensus. Representatives of seventyfour states, one Associate Member of IMO, observers from two intergovernmental organizations, and eighteen non-governmental international organizations attended the Conference. The first phase of the programme (1 March 2000 to 31 December 2004) involved six initial demonstration sites located in Brazil, China, India, Iran, South Africa, and Ukraine. In India, the Mumbai Port was chosen as a pilot site for the Globallast study. The Directorate of General of Shipping was the focal point for this activity and the National Institute of Oceanography (NIO), Goa, was the lead Research and Development organization, which together with coastal residents, was working under the supervision of IMO. In October 2003, the final report, “Ballast Water Risk Assessment for Mumbai and Jawaharlal Nehru Ports” was released and was adjudged the best international environmental project. The GloBallast Programme itself was awarded the Queen of England’s Golden Jubilee Medal. On 1 April 2005, the Globallast Partnership Project with funding of around US$700,000 entered a new phase.20 This project, spread over eighteen months and expected to provide the groundwork for the fullscale Globallast Partnerships entitled “Building Partnerships to Assist Developing Countries to Reduce the Transfer of Harmful Aquatic Organisms in Ships’ Ballast Water”, became operational in 2006–07. The project aims to assist vulnerable countries and regions to enact legal and policy reforms to meet the objectives of the IMO’s February 2004 International Convention for the Control and Management of Ships Ballast Water and Sediments. The Convention requires ratification by thirty states, representing 35 per cent of the world’s merchant shipping tonnage, in order to come into force.21 Essentially, by way of the Convention, ballast water standards are being established. From 2009 onwards, all vessels with a ballast capacity of 5,000 cubic metres or less when built must have ballast water treatment systems, and from 2012 onwards, vessels with a ballast capacity of above 5,000 cubic metres must have ballast water treatment systems. Also,

11 Fisheries Exploitation

235

10/28/09, 12:45 PM

236

Vijay Sakhuja

vessels built before 2009 with a ballast capacity of between 1,500 and 5,000 cubic metres will have to retrofit treatment systems by 2014, and those with a capacity of less than 1,500 cubic metres or more than 5,000 cubic metres must become Convention-compliant and be retrofitted with such systems by 2017. Furthermore, in accordance with the guidelines to be developed by the IMO, ballast water exchange is to take place at least 200 nautical miles from the nearest land, in water of at least 200 metres depth, and where it is not possible to perform this operation, it should be undertaken at least 50 miles from land. The Convention further seeks Port state(s) to designate suitable areas for discharging ballast where geography does not permit these stipulations.

CONCLUDING REMARKS The oceans represent about 70 per cent of global biodiversity and this biodiversity may now be on the verge of collapse due to non-adherence to best practices by the shipping industry. Some of the problems facing aquatic life are due to the destruction of natural habitats such as coral reefs, pollution leading to damage to natural habitats, and the unfettered transportation of all kinds of invasive species across the globe, which impact negatively on the aquatic-based food chain. The consequences of marine bioinvasion cover a wide spectrum of concerns ranging from enormous harm to marine biodiversity to impacts on the human aquatic food supply chain. These consequences have been recognized by states, governments, environmentalists, and biodiversity experts. There are also fears that bioinvasion has the potential of spreading epidemic disease bacteria. It is estimated that ships ballast water is set to increase threefold over the next decade as a result of the increase in global shipping activity. Developing countries and small island states are the most vulnerable. In addition, the globalization of the world economy will place greater stress on ports and shipping and this will naturally impact on the environment. Capacity building, technical innovation, improved ship design, and, above all, a thorough knowledge of the impact of ship ballast on the environment, are inescapable. If the most vulnerable countries and regions are to be protected from the increasing risks of marine bioinvasions, then the maritime community must be proactive in the governance of ship ballast.

11 Fisheries Exploitation

236

10/28/09, 12:45 PM

Impact of Ship Ballast on Aquatic-Based Food Supply Chain

237

Thus, ballast management is an issue of transnational interdependence that requires states and maritime agencies to cooperate effectively.

Notes 1. Artefacts from the wreck of El Nuevo Constante show that the ship carried ballast stones in the bottom of the hull to give it stability. A layer of ballast stones up to 3 feet thick covered much of the wreck. The stones removed from the ship weigh a total of several tons. Most are round, granite, river cobbles. Their average size is between 8 and 10 inches in diameter. For more details see “Introduction to the artifacts”, available at (accessed 19 December 2006). 2. A. C. Anil, K. Venkat, S. S. Sawant, M. Dileepkumar, V. K. Dhargalkar, N. Ramaiah, S. N. Harkantra and Z. A. Ansari, “Marine Bioinvasion: Concern for Ecology and Shipping”, Current Science, Vol. 83, No. 3, 10 August 2002. (Accessed 19 December 2006). 3. By some estimates, the numbers could be as much as 3,000. 4. A. C. Anil et al., “Marine Bioinvasion”. 5. Ibid. 6. “Dangerous Water Fern Appears in Vietnam” available at . (Accessed 19 December 2006). 7. Giant water ferns grow very quickly, creating thick layers up to 60 cm, that cover the whole water surface. This layer prevents light and oxygen from penetrating the water. It can create a huge volume of living mass, up to 400 tons per hectare. The disintegration of this volume of living mass makes the content of oxygen in water fall, creating a bad environment for aquatic animals. The encroachment of the giant water fern may cause heavy economic losses because it can block water flows of irrigation works or water supply and drainage systems, affect water transport and aquatic resources, and cause difficulties for catching fish. 8. Moises Velasquez-Manoff, “Look at What the Cargo Ship Dragged In”, The Christian Science Monitor, 18 October 2006. 9. For details, see “State of World Aquaculture 2006”, Inland Water Resources and Aquaculture Service, Fishery Resources Division, FAO Fisheries Department, FAO Fisheries Technical Paper No. 500, available at . 10. For more details, see, “Aquaculture: Global Trends”, available at . 11. Ibid.

11 Fisheries Exploitation

237

10/28/09, 12:45 PM

238

Vijay Sakhuja

12. “State of World Aquaculture 2006”. 13. “What are Harmful Algal Blooms (HABs)?” available at . 14. AGENDA 21, United Nations Conference on Environment & Development, Rio de Janerio, Brazil, 3–14 June 1992, available at . 15. Ibid. 16. “Ballast-free Ship System”, available at . 17. For more details, see “1st International Ballast Water Treatment R&D Symposium, IMO London 26–27 March 2001”, available at . 18. Paroma Basu, “Barnacle Busters: Tackling a Shipping Industry Headache”, available at . 19. “Global Ballast Water Management Programme”, available at . 20. Adnan Awad, “Globallast Enter New Phase”, GISP News (Global Invasive Species Programme), Issue 4, June 2005, available at . 21. Ibid.

11 Fisheries Exploitation

238

10/28/09, 12:45 PM

239

Geopolitics of Biological Prospecting

PART III Fisheries Policy Directions

12 Fisheries Exploitation

239

10/28/09, 12:45 PM

240

12 Fisheries Exploitation

Sanjay Chaturvedi

240

10/28/09, 12:45 PM

241

Geopolitics of Biological Prospecting

12 GEOPOLITICS OF BIOLOGICAL PROSPECTING Emerging Perspectives on Antarctica and the Southern [Indian] Ocean Sanjay Chaturvedi

Bioprospecting is an inappropriate term and an inappropriate process. It is derived from prospecting for minerals and fossil fuels. However, unlike fossil fuels, living resources are not useless unless exploited by global commercial interests for global markets. Biodiversity is the basis of living cultures. It is the foundation of the living economies of two-thirds of humanity, who depend on biodiversity for their livelihoods and needs. (Shiva 2007, p. 307) Bioprospectors are starting to turn their attention to many of the world’s last frontiers, such as hydrothermal vents, the deep seabed, the water column of the high seas and polar ice caps. Indeed, these frontiers have the potential to create a 21st Century “gold rush” — with bioprospectors trying to find and exploit the unique genetic and biochemical riches of “extremophiles,” organisms that have evolved unique characteristics to survive in Earth’s most hostile environment. (Zakri and Johnston 2004)

12 Fisheries Exploitation

241

10/28/09, 12:45 PM

242

Sanjay Chaturvedi

INTRODUCTION One of the major attractions of Antarctica lies in its extreme geographical location, its exceptional wildlife, and flora. Antarctica’s rich biodiversity has of late invited attention not only of the scientific community, but also the commercial-corporate sector. The complex issues related to the emergence of bioprospecting as a “new frontier” for commercially-driven scientific research in the pristine and fragile ecology of Antarctica, and the current inadequacy of the Antarctica Treaty System (ATS) to regulate bioprospecting in the southern polar region, demand serious consideration by India and other countries of the Indian Ocean region. The Indian Ocean and its three most important coastal and marine ecosystems (namely mangroves, sea grass beds, and coral reefs) support and sustain the region’s fisheries by functioning as nurseries and feeding grounds for many commercial species. These marine ecosystems, currently threatened by a number of factors, also sustain the livelihood of coastal communities along the Indian Ocean (Basiron and Zubir 2007). The World Atlas of Biodiversity describes the Indian Ocean as an “endemic rich area at higher risk” (Groombridge and Jenkins 2002). According to the Western Indian Ocean Marine Science Association (see ), the most important concern for the future in the region is the maintenance of biological diversity and the ecological functions of the coastal and marine environments to meet production levels for human food, protecting biodiversity on which future productivity depends, and the development of strategies to resolve conflicts and address threats to resources and the environment in general. In the current context of international trade and intellectual property regimes, it is vital for Indian Ocean states to acquire a better understanding of biodiversity in areas both within and outside their jurisdiction, especially in the southernmost expanse of the Ocean.

BIOPROSPECTING IN THE SOUTHERN POLAR REGIONS: GEOPOLITICS, SCIENCE, AND MARKET At the beginning of the twenty-first century, the industrial world stands on the edge of a new revolution in the field of biotechnology. As such, the industries of the future have tapped increasingly into the materials and processes in plants, animals, and microorganisms. They have drawn on the chemicals and genetic material of the world’s biological resources to

12 Fisheries Exploitation

242

10/28/09, 12:45 PM

243

Geopolitics of Biological Prospecting

provide new feedstocks and new modes of manufacture. In the steadily growing industry of biological prospecting, tropical rain forests and coral reefs have received the most attention. Some of the key sectors involved in this industry include agriculture, biotechnology, cosmetics, pharmaceuticals, and waste management. In 2003, the global biotechnology industry consisted of 4,284 companies (3,662 private and 622 public) in twenty-five states, generating $35 billion in annual revenues, and employing some 188,000 people (UNU/IAS 2003). For example, in Australia, it has been noted that “the world’s biota represents a source of raw materials that has the potential to replace petrochemicals as an industrial feedstock and to provide novel chemicals for use in drugs and other products” (Green and Nicol 2003). In common parlance, the aim of bioprospecting is to develop marketable biotechnological inventions generally under the protection of patents. In other words, bioprospecting represents a market-driven search for bioactive components in such living organisms as animals, plants, microorganisms (bacteria, microbes), or fungi to develop new commercial products. Critically conceived, bioprospecting, says Vandana Shiva (2007, p. 308), “is a term that was created in response to the problematic relationship between global commercial interests and the biological resources and indigenous knowledge of communities — and to the epidemic of biopiracy, the patenting of indigenous knowledge related to biodiversity”. According to Green and Nicol (2003), bioprospecting comprises four phases: (1) sample collection; (2) isolation, characterization, and culture; (3) screening for pharmaceutical activity; and (4) the development of product, patenting, trials, sales, and marketing. Some analysts have argued that bioprospecting is both progressive and innovative, carrying great promise for the development of new products that might prove beneficial to humankind. Consequently, it should be encouraged and commercial enterprises should be rewarded for their investment in such activity in the form of patent rights over the end products. On the other hand, the argument is that claims to patent rights should not be entertained at the cost of freedom of scientific research, and some ways and means must be worked out to share the benefits that come from the commercial use of biological resources. In global commons areas such as the Antarctic and the high seas, geopolitical considerations of access and ownership, combined with issues of sovereignty and jurisdiction, make bioprospecting matters extremely complex. Out of a range of critical issues surrounding bioprospecting in

12 Fisheries Exploitation

243

10/28/09, 12:45 PM

244

Sanjay Chaturvedi

Antarctica, there are at least three that deserve special attention and analysis (Green, and Nicol 2003). Firstly, the commercialization of publicly funded science is likely to place “inappropriate” limits on the freedom of scientific investigation in both the Antarctic and in the high seas. Secondly, the imposition of mutually agreed limitations on ownership rights over biological resources in global commons areas would be needed in order to ensure that benefits are shared equitably by the entire humanity. Thirdly, a consensus will have to be negotiated and sustained by the various stakeholders on how best to regulate bioprospecting in areas outside national jurisdiction. One of the important features of the bioprospecting industry is that research into (and the development of) new products often involves collaborative contractual arrangements between public institutes and the private sector, which provide for access to collections of samples in exchange for financial support. As pointed out in the Report by UNU/IAS, (2003, p. 16) on “the International Regime for Bioprospecting: Existing Policies and Emerging Issues for Antarctica”: So far, biological prospecting activities in Antarctica have been carried out by universities, research centres, and biotechnology and pharmaceutical companies, such as the University of Bordeaux (France), the Australian Academy of Technological Sciences and Engineering, Genencor International (multinational), and Merck Sharp & Dohme (multinational). Bioprospecting activities in Antarctica tend to be carried out by consortia comprising a mixture of public and private bodies, making it difficult to draw a clear distinction between scientific research and commercial activities.

The Report further points out that private companies such as MICROMAT, for example, are academic-industrial consortia, whose partners in this case include the University of Nottingham (United Kingdom), University of Liège (Belgium), University of Ghent (Belgium), University of Bordeaux (France), Genencor International (multinational), Deutsche Sammlung von Mikroorganismen und Zellkulturen GmbH (Germany), Merck Sharp & Dohme (multinational), and BioSearch Italia SPA (Italy). In addition to public-private consortia, scientists working on a strictly academic project may identify and exploit an organism’s valuable use, thus blurring the line between scientific research and commercial activity (UNU/IAS 2003).

12 Fisheries Exploitation

244

10/28/09, 12:45 PM

245

Geopolitics of Biological Prospecting

There are at least two reasons behind the current bioprospecting interest in Antarctica. First, the considerable lack of knowledge surrounding the Antarctic biota provides a unique opportunity to discover and explore potentially valuable new organisms. Secondly, the extremophiles (novel life forms capable of withstanding extreme cold, aridity, and salinity) are the most sought after microorganisms by the industry. The application of extremophiles is found in industrial processes such as lipsomes for drug delivery and cosmetics, molecular biology, the food industry, and waste treatment (UNU/IAS 2003). In other words, Antarctica offers the industry a largely untapped source of valuable extremophile microorganisms. According to Dr Hamid Zakri, Director of the United Nations Institute of Advanced Studies, Tokyo, “there is growing evidence that biological prospecting for extremophiles is already occurring and is certain to accelerate in Antarctica and the southern oceans” (cited in Zakri and Johnston 2004). Among several examples of commercially useful compounds discovered is a glycoprotein, which functions as the “antifreeze” that circulates in some Antarctic fish, preventing them from freezing in their sub–zero environments. It was in the early 1970s that the glycoprotein was discovered by the National Science Foundation (NSF) funded research conducted by Chi Hing C. Cheng and Liangbiao Cheng of the University of Illinois. Further research is in progress on the application of this glycoprotein in a range of processes, including increasing the freeze tolerance of commercial plants, improving farm-fish production in cold climates, extending the shelf life of frozen food, improving surgery involving the freezing of tissues, and enhancing the preservation of tissues to be transplanted. Here it is important to emphasize that this discovery, based on research carried out in the Southern Ocean, underlines the importance of both Antarctica and the Southern Ocean as repositories of commercially useful genetic resources. Other discoveries include the enzyme-producing ability of an Antarctic fungus, based on research carried out in 1995 by M. Fenice, L. Selbmann, L. Zucconi and S. Onofri of the University of Tuscia (UNU/ IAS 2005). Against the backdrop of several commercial pharmaceutical companies asserting property rights to the flora and fauna in Antarctica, as of 2004, more than forty patents had been granted worldwide on bacteria and other organisms found in Antarctica. In 2004, more than ninety additional patent applications were pending in the United States

12 Fisheries Exploitation

245

10/28/09, 12:45 PM

246

Sanjay Chaturvedi

alone (Stix 2004). Large collections of species are being created. One example is the Australian Collection of Antarctic Micro-Organisms (ACAM), which houses around 300 species collected from the Antarctic (Green and Nicol 2003). Similar Antarctic bioprospecting activity is being undertaken by public institutes, in partnership with commercial enterprises, in a number of other states (Green and Nicol 2003). Attracted by such potentially useful discoveries, the private sector has started to include Antarctic flora and fauna in its product development programmes. Examples of companies’ growing interest and activities include a contract signed way back in 1995 between the Antarctic Cooperative Research Centre, University of Tasmania, Australia, and AMRAD Natural Products, an Australian pharmaceutical company. According to the contract, AMRAD is given the right to screen some 1,000 Antarctic microbial samples per year in its search for natural antibiotics and other human pharmaceutical products. Cerylid Biosciences, an Australian biotechnology company, is also looking for new lead compounds for the development of new anti-cancer and anti-inflammatory medicines. Cerylid bases its discovery work on a biodiversity library containing 600,000 extracts from naturally occurring sources, which includes samples of plants, microbes, and marine organisms collected in Antarctica. Genencor International, a global biotechnology company (with more than $300 million in revenue in 1999, and over 3,000 owned and licensed patents and applications) also sources materials from Antarctica. One prominent Antarctic scientist is of the view that the private sector has provided at least $1 million funding for Antarctic microbiology and biotechnology since 1997 (UNU/IAS 2005). It is to be expected that in order to protect their investment, commercial enterprises will claim intellectual property rights in the form of patents over biological resources sourced from Antarctica and the Southern Ocean, or at least, over the downstream products resulting from further research and development. Preliminary investigation of the Database of the European Patent Office has revealed that as many as sixty-two patents had relied on samples drawn from Antarctic biodiversity. The U.S. Patent Office Database contains over 300 references to Antarctica. A patent was granted in 2002 by the Spanish Patent Office for the wound healing, and skin, hair, and nail treating characteristics of a glycoprotein extracted from the Antarctic bacteria Pseudoalteromonas Antarctica (UNU/IAS 2005). Patents applied for or granted so far, based on the bioprospecting of Antarctic biota, are manifold.

12 Fisheries Exploitation

246

10/28/09, 12:45 PM

247

Geopolitics of Biological Prospecting

A patent database search, which is not deemed exhaustive but indicative of existing patents, has revealed that companies applying for patents include: Bayer AG (Germany), Henkel KGAA (Germany), SmithKline Beecham, Astra, Novonordisk (Denmark), Du Pont (United States), Chisso Corporation (Japan), Loders Croklaan (The Netherlands), Haarmann & Reimer GmbH (Germany), Unilever (United Kingdom), Lysi HF (Iceland), DSM NV (The Netherlands), Jujo Paper Co. Ltd. (Japan), Mitsubishi Gas Chemical Company Inc. (Japan), Higashimaru Shoyu Company Ltd. (Japan), Tokuyama Corporation (Japan), Lion Corporation (Japan), and Nippon Soda Company Ltd. (Japan). Out of the eighteen companies that have applied for Antarctic-based patents, most applicants are Japanese-based companies, followed by German ones (UNU/IAS 2005) — the two leading actors on the Antarctic scientific-political scene. Should private companies be allowed to profit from species unique to the Antarctic as yet another “peaceful” use of Antarctica and the Southern Ocean is a difficult, but unavoidable, question. It needs to be noted that ever since the Antarctic Treaty came into force in 1961, the term “peaceful uses” of Antarctica has been steadily expanded beyond scientific research to include commercially-driven activities such as fishing in the Southern Ocean and tourism. We might also recall the saga of the rise and fall of the mining issue during the 1980s, a decade marked by the growing focus on the resource geopolitics of the Southern Polar Region. On the one hand, it is possible to argue that, provided there is a proper regulatory regime in place, bioprospecting could be treated like other activities such as fishing and/or tourism, if it does not harm the environment, and benefits humankind as a whole. On the other hand, one could argue equally forcefully that since Antarctica is set aside under the 1991 Environment Protocol to the Antarctic Treaty as a protected area dedicated to open science and environmental protection, allowing a free-for-all on bioprospecting is a violation of these values, including the long-standing imperative within the ATS of sharing all scientific information freely. Let us turn to a more detailed discussion of the complex issues involved in this debate.

TOWARDS AN ANTARCTIC BIOPROSPECTING POLICY REGIME: IMPERATIVES AND IMPEDIMENTS It is useful to note at the outset that the Antarctic Treaty System (ATS) does not directly regulate biological prospecting activities. Nevertheless,

12 Fisheries Exploitation

247

10/28/09, 12:45 PM

248

Sanjay Chaturvedi

there are certain provisions relevant to bioprospecting in the Antarctic Treaty (1961), the Protocol on Environmental Protection (the so-called 1991 Madrid Protocol), and the Convention on the Conservation of Antarctic Marine Living Resources (1982). The 1988 Convention on the Regulation of Antarctic Mineral Resources Activities (which was eventually jettisoned in favour of the Madrid Protocol) also contains certain guidelines that might be of some help in developing measures for regulating bioprospecting activities. Those who wish to intervene in the debate on bioprospecting in Antarctica in a meaningful way might derive some solace from the argument made by some analysts and observers that, at least in the near future, bioprospecting is likely to remain mostly confined to the act of collecting and discovering novel biological resources — an activity that is largely scientific even though most of it is for some ultimate commercial purpose. Accordingly, bioprospecting activities will fall within the remit of Article III (a)–(c) of the Antarctic Treaty. Under these provisions, Contracting Parties agree that, to the greatest extent feasible and practicable: a.

information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy of and efficiency of operations; b. scientific personnel shall be exchanged in Antarctica between expeditions and stations; c. scientific observations and results from Antarctica shall be exchanged and made freely available (Hand Book of Antarctic Treaty System 1990). In short, Article III of the Antarctic Treaty underlines the need for cooperation with regard to scientific programmes, scientific personnel, scientific observations, and results. It is possible, therefore, to express concerns about reconciling the desire for commercial confidentiality and patents with the legal requirements of Article III. In this regard, it is worth recalling that intellectual property rights are generally understood as a mechanism to promote and encourage the exchange of scientific information. Such an understanding, however, does not run parallel to the definition and the consequences that result from it, as specified in the TRIP Agreement of 1994 (Connolly-Stone 2005; World Trade Organization, TRIP Agreement 1994).

12 Fisheries Exploitation

248

10/28/09, 12:45 PM

249

Geopolitics of Biological Prospecting

Article IV of Antarctic Treaty states that “[n]o acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica”. This moratorium on sovereignty was a necessary component of the original Treaty in order to neutralize the then existing unstable political situation caused by the overlapping territorial claims in Antarctica of several treaty states (Chaturvedi 1996). The fundamental absence of national sovereignty under ATS stands out in sharp contrast to the “national sovereignty” approach that forms the basis of the Convention on Biodiversity “bioprospecting” policy, as well as that of UNCLOS, except in the high seas and deep seabed (Herber 2006). Furthermore, in the context of bioprospecting, most research coming from Antarctica requires a considerable investment of resources that are to a greater extent financed by biotech industries. As a result, issues such as the ownership of genetic resources and the need to ensure that the resources have been legitimately acquired, deserve attention. A lack of clarity about these matters has an important bearing on companies’ involvement in work on the genetic resources found in Antarctica. In determining ownership and the relevant existing policies governing bioprospecting, jurisdictional issues are, therefore, of crucial importance. Accordingly, Article VI acquires relevance, stating that the Antarctic Treaty applies to the area south of 60° South Latitude, including all ice shelves, but this does not prejudice or affect the rights of any state under international law with regard to the high seas within that area (UNU/IAS 2003, p. 9). We will return to this point shortly.

THE MADRID PROTOCOL OF 1991 AND BIOPROSPECTING IN THE ANTARCTIC The Madrid Protocol of 1991 has a link to bioprospecting via its comprehensive mandate to protect the Antarctic environment and dependent and associated ecosystems. The Protocol designates Antarctica as a natural reserve, devoted to peace and science, and places a moratorium on mineral exploitation (Article 1, Madrid Protocol 1991). The Protocol sets out a series of environmental principles, which, inter alia, stipulate that activities in the treaty area are to be planned and conducted so as to limit adverse environmental impacts and avoid detrimental change in the

12 Fisheries Exploitation

249

10/28/09, 12:45 PM

250

Sanjay Chaturvedi

distribution, abundance, or productivity of species or populations of species of fauna and flora. The Protocol accords “priority to scientific research, and to preserve the value of Antarctica as an area for the conduct of such research”. This, in turn, calls for cooperation in the planning and conduct of scientific activities and the sharing of information. Furthermore, Article 6 of the Protocol reinforces the Antarctic Treaty’s provisions on cooperation, noting that Parties shall cooperate in the planning and conduct of activities, where appropriate undertake joint expeditions, and share the use of stations and other facilities, and, to the extent possible, share information that may be helpful in planning and conducting activities. Along with this, the Protocol includes provisions on environmental impact assessment, outlined in Annex I to the Protocol. Thus, prior assessments of the environmental impacts of activities planned pursuant to scientific research programmes, tourism, and all other governmental and non-governmental activities, must be carried out. By virtue of the reasoning underlying the provisions mentioned above, bioprospecting activities in the Antarctica will need to be subjected to an assessment of any potential environmental impacts they may have on the Antarctic environment. It is worth noting in this context, that, according to Article 8 of the Madrid Protocol, as well as Article VII 5(a) of the Antarctic Treaty, an Environmental Impacts Assessment (EIA) is the responsibility of the state whose nationals undertake the expedition, or of the state on whose territory the expedition is organized or proceeds from.

RELEVANCE OF CCAMLR AND CRAMRA FOR ANTARCTIC BIOPROSPECTING The Convention on the Regulation of Antarctic Marine Living Resources (CCAMLR), which came into force in 1982, is according to some analysts, relevant to bioprospecting in the Southern Ocean adjacent to Antarctica. As noted earlier, bioprospecting in Antarctica is being carried out in the Southern Ocean, as well as on the continent. The provisions of the CCAMLR apply to the Antarctic marine living resources of the area south of 60° South latitude, and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence, which form part of the Antarctic marine ecosystem. Even though bioprospecting seems unlikely to threaten marine resources populations in a significant manner, the reporting requirements of CCAMLR include bioprospeting activities

12 Fisheries Exploitation

250

10/28/09, 12:45 PM

251

Geopolitics of Biological Prospecting

(UNU/IAS 2005). Although harvesting for the purposes of bioprospecting is unlikely to affect populations to such an extent as to fall under the scope of Article 2 of the CCAMLR, the Convention’s reporting requirements outlined in Article 2 could include bioprospecting. As noted before, ownership and right to use are important issues. However, jurisdictional questions of the Southern Ocean are made complex due to the various overlapping and competing claims on the continent of Antarctica. The Antarctic Treaty parties have had a good deal of experience with regard to the difficulties involved in the management of “Antarctic resource use”. The decision to develop an instrument such as the CRAMRA (Convention on the Regulation of Antarctic Mineral Resource) 1988 was based on the premise that if mining were to be conducted in the Antarctic, it would be prudent to have in place a means of regulating it before it develops into an industry. The Antarctic Treaty consultative parties did acknowledge at the time that any agreement to regulate mining would need to incorporate inter alia an explicit means of allocating property rights because commercial investors would demand such assurances (Chaturvedi 2005). The Antarctic Treaty parties did eventually agree on the legal regulation of mineral resource activities through the CRAMRA, which arguably contained some of the most innovative and wide-ranging environmental provisions of its time. However, for a number of the Antarctic Treaty parties (especially two of the claimants, Australia and France), the final instrument was unacceptable, resulting in their refusal to sign. The Antarctic Treaty parties were thus forced to go back to the negotiating table with a fractured consensus and rising uncertainty over CRAMRA’s future. Then, within a couple of years, the issue was turned around completely by a decision to prohibit absolutely any activity (other than scientific research) related to mining, through the mechanism of the Madrid Protocol, and more specifically, Article 7. It is to state the obvious perhaps that this decision to turn the Antarctic “green” was a compromise solution. There seemed to be no chance of reconciling the contradictions that contested sovereignty had raised, such as, who should profit from commercial mining in a commons area, providing protection from subsidized (unprofitable) mining, payment of licence fees and royalties to claimants without overtly acknowledging their sovereign rights to such monies, and an allocation of compensation for environmental damage. The notion that the Antarctic was a global

12 Fisheries Exploitation

251

10/28/09, 12:45 PM

252

Sanjay Chaturvedi

commons, the resources of which were not open to property rights, was indeed paramount. Currently, the Madrid Protocol prescribes limits on resource use to the extent that only regulated, marine living resources harvesting shall be carried out, and mineral resource activity is banned for at least half a century. Although CRAMRA was negotiated to manage and regulate an altogether different commercial enterprise in Antarctica, namely mining, the instrument is nevertheless worth considering, in particular, its provisions regulating mineral resource activities, its institutional structure, and the manner in which it addresses the problems of sovereignty. The manner in which CRAMRA was designed to treat data and information with potential commercial value might also provide insights on how to approach similar issues related to bioprospecting (UNU/IAS 2003). With regard to the availability and confidentiality of data and information, Article 16 of CRAMRA provides that data and information shall be made freely available to the greatest extent feasible, but that data and information of commercial value gained through prospecting may be retained by the Operator in accordance with Article 37. Finally, Article 16(b) notes that with regard to data and information deriving from exploration or development, the Commission shall “adopt measures relating, as appropriate, to their release and to ensure the confidentiality of data and information of commercial value”.

ANTARCTIC TREATY CONSULTATIVE MEETINGS (ATCMS) AND THE CHALLENGE OF BIOPROSPECTING The question of biological prospecting, or bioprospecting, was first discussed at the 25th Treaty Consultative Meeting (ATCM) in 2002, with the introduction of a Working Paper (WP043) by the United Kingdom. At the 27th ATCM, the Committee on Environmental Protection (CEP) established “Biological Prospecting” as an agenda item (7) and considered two information papers — the joint UK/Norway Information Paper on Bioprospecting presented to the 26th ATCM (IP075), and a New Zealand Information Paper (IP047). The CEP, after due deliberations, adopted a resolution, which reminded the Contracting Parties of their obligations under Article III of the Antarctic Treaty, and urged them to bring this to the attention of their respective research institutes. Furthermore, it proposed that any additional work

12 Fisheries Exploitation

252

10/28/09, 12:45 PM

253

Geopolitics of Biological Prospecting

undertaken by the ATCMs should focus on ascertaining what, if any, additional problems specific to bioprospecting exist, and whether these require regulation within the Antarctic Treaty System. The CEP underlined at the same time that the ATCM should be aware of relevant developments in other international fora, taking into account the unique nature of the Antarctic Treaty System (ATCM 2005b). The 2003 Report of the Committee notes the following issues as having been raised within the ATS. • The value of the precautionary ecosystem approach to issues raised by biological prospecting in Antarctic marine areas and the fact that CCAMLR encompassed all living organisms in the Southern Ocean; • The view that the current environmental impact of bioprospecting in Antarctica was small and the EIA procedures in Annex I of the Protocol could be used to assess bioprospecting proposals; • The view that it was important to differentiate between fundamental scientific research and commercial bioprospecting activities, and that a definition of what is meant by bioprospecting might be useful in further considering the issue. • The view that bioprospecting could raise important issues of freedom of scientific research if confidentiality required by commercial developers limited opportunities for scientific publication. • The concern that in the maritime environment there could also be potential for harvesting slow growing species containing compounds of pharmaceutical or other commercial interests. The CEP also noted that bioprospecting raised “many complex legal and political issues” and emphasized the need to deliberate further on such issues in greater detail and in a systematic manner. At the 28th ATCM held in Stockholm (2005), New Zealand presented a working paper (WP13), on biological prospecting in Antarctic. It was pointed out in this document that, “it is unlikely that a bioprospecting activity at the sample collection stage will have any more than a minor or transitory impact, although this would depend on the particular circumstances” (emphasis mine). A number of other papers have also raised the question of the relationship of the Convention on Biological Diversity (CBD) with the Antarctic Treaty System, and questions of access and benefit sharing. The 27th Meeting of the Scientific Committee on Antarctic Research (SCAR) held in Shanghai, China, in July 2002, also noted that, “although

12 Fisheries Exploitation

253

10/28/09, 12:45 PM

254

Sanjay Chaturvedi

bioprospecting had been discussed… previously, this issue requires further attention…the ATS might need to be extended to include regulation of bioprospecting, and indeed all the provisions of the Convention on Biological Diversity” (UNU/IAS 2005, p. 20). At the New Delhi ATCM, held in May 2007, the UNEP submitted a comprehensive information paper on biological prospecting in Antarctica and pointed out that, whereas undoubtedly the Antarctic Treaty parties are interested in monitoring the issue, in addition, many Parties feel they need more domestic engagement, information, analysis, and preparation to address this complex issue at the international level (ATCM XXX, IP67). “Several European Parties have given some thought to convening a domestic meeting on this issue. Some developing country Parties have also indicated that they are interested in convening domestic and international meetings on the topic. Market trends and the momentum in other fora support the need to be more informed about bioprospecting activities. The IPY [International Polar Year 2007–08] will provide further momentum to scientific studies that contribute to the appeal of bioprospecting and may also result in a new level of interest in the commercial potential of Antarctic biodiversity” (ATCM XXX, IP67). According to UNEP (ATCM XXX, IP67): Yet no comprehensive or adequate study of Antarctic bioprospecting currently exists, and the reviews conducted thus far have been preliminary and ad hoc in nature. The level of commercial activity that has been brought to the attention of the ATCM to date has been anecdotal. Further research and study is needed to provide a solid informational basis for considering this complex subject, which encompasses scientific and commercial interests, environmental concerns, ethics and equity, and considerations relating to international law and policy, including the adequacy of the Antarctic Treaty System to fully address bioprospecting.

In the light of the above, the analysis to follow examines the relevance and applicability of both the CBD and the 1982 United Nations Convention on the Law of the Sea for the purposes of regulating bioprospecting in Antarctica. While examining the possible applicability of the CBD to Antarctica, it is worthwhile noting that, with the exception of the United States, the provisions of both treaties bind all Antarctic Treaty Consultative Parties, which also happen to be the Contracting Parties to the CBD. The difficulty in determining the applicability of the CBD to Antarctica arises from the differing views about whether

12 Fisheries Exploitation

254

10/28/09, 12:45 PM

255

Geopolitics of Biological Prospecting

Antarctica lies outside of the scope of national territories and thus national jurisdiction (UNU/IAS 2003).

THE CONVENTION ON BIOLOGICAL DIVERSITY AND ITS RELEVANCE FOR THE ANTARCTIC Signed by the representatives of 150 countries at the 1992 Rio Earth Summit, the Convention on Biological Diversity (CBD) is dedicated to promoting sustainable development. It is also conceived as a practical tool for translating the principles of Agenda 21 into reality (Convention on Biological Diversity 2005). The Convention identifies three main goals — the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of genetic resources. The legal regime it creates is based on the access granted by states to the components of biological diversity within the limits of their national sovereignty or jurisdiction. According to Article 4 of the CBD on jurisdictional scope: subject to the rights of other States, and except as otherwise expressly provided in this Convention, the provisions of this Convention apply, in relation to each Contracting Party: (a) in the case of components of biological diversity, in areas within the limits of its national jurisdiction; and (b) In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdictional control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.

Furthermore, according to Article 5 of the CBD: Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity (Convention on Biological Diversity 2005).

On the face of it, the above mentioned provisions do not seem to cover bioprospecting in Antarctica due to the sharp disagreement on the issue of sovereignty in Antarctica. Yet it needs to be pointed out that Article 5 has been used to develop regional efforts to apply the provisions of the CBD. It has also been used as the basis for considering whether the CBD could be applied to regulate the use of marine genetic resources from the high seas and deep seabed.

12 Fisheries Exploitation

255

10/28/09, 12:45 PM

256

Sanjay Chaturvedi

Bioprospecting in Antarctica raises two sets of complex legal issues (ATCM 2006a). The first set of questions relates to the modalities of the activity. Is access to Antarctic biological diversity limited? Is it subject to environment protection requirements? The second set of questions concerns the results obtained from this activity: how one can reconcile the possible utilization of results, with the Antarctic Treaty’s requirement that scientific results be made freely available. As pointed out earlier in this chapter, the ATCPs have no doubt set up a regime highly protective of the environment in the form of the 1991 Madrid Protocol. In case the Madrid Protocol is expected to regulate the issues of both access and use of biological diversity in the Antarctica, it would be necessary to define in the first place, the competent authority to oversee bioprospecting activities, and also to specify in unambiguous terms the environmental requirements for this activity. Article 15(1) of CBD does recognize the sovereign rights of states over their natural resources, as well as their authority to determine access to genetic resources, subject to national legislation. This clearly suggests that the final authority to determine access to genetic resources rests with the state. In areas such as the high seas and Antarctic, where there is neither territorial sovereignty nor sovereign rights over resources, access is likely to remain a free-for-all. Under the Madrid Protocol, all human activity carried out in Antarctica needs to be environmentally evaluated. Interestingly, as of now, this does not include bioprospecting. The EIA is to be based on the expected impact of the activity in question on the environment: the greater the impact, the more detailed the evaluation (Article 8). The assumption that bioprospecting can be carried out under environmentally acceptable conditions in the Southern Polar Region needs scrutiny, to say the least. Furthermore, much will also depend on the number of samples collected from the region; whereas collection of just a few samples is unlikely to have any considerable impact on the environment, this may not be the case if full-scale collection is attempted (Green and Nicol 2003).

“INTELLECTUAL PROPERTY”: RIGHTS OR OBLIGATIONS? The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) guarantees recognition and enforcement on intellectual property rights backed by the authority of the WTO’s dispute settlement mechanism. The CBD provides that the genetic resources of plants and

12 Fisheries Exploitation

256

10/28/09, 12:45 PM

257

Geopolitics of Biological Prospecting

animals are under the sovereignty of the state in which they are located, and developing countries have the right to benefit from the development of these resources, as well as from the transfer of technology relevant to the development and use of genetic resources. The CBD also calls for the recognition “as far as possible and as appropriate” of the rights of “indigenous and local communities” in “innovations and practices” relevant to the conservation and use of biological diversity. These two agreements contain the seeds of potential conflicts with vast implications, not only for the environment, but also for the biotechnology, pharmaceutical, and agricultural industries. The TRIPS Agreement and the CBD were developed at the same time, but by different delegations, in different fora, with different objectives, and with almost no consultation or even communication between the two sets of negotiations. Even though many years have elapsed since both negotiations were completed, there has been almost no systematic analysis of the potential issues. Since the Biodiversity Convention is in force and accepted by over 160 states, and the WTO/GATT by over 140, conflicts are most likely to arise between states that have accepted both treaty regimes. In such cases, Article 22 of the Biological Diversity Convention adopts the following rule priority: 1.

2.

The provisions of this Convention shall not affect rights and obligations of any Contracting Party deriving from existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.

Terms such as “serious damage or threat” to biological diversity are obviously vague and difficult to apply because they can be interpreted in different ways. One of the most complex issues with regard to bioprospecting in Antarctica is the issue of patents that are regulated by Intellectual Property Rights and are contradictory to the principle of free availability of scientific results (or, in other words, freedom of scientific research) as enshrined in the Antarctica Treaty. In conventional understanding, benefits from natural resources development flow directly from sale of collected components.

12 Fisheries Exploitation

257

10/28/09, 12:45 PM

258

Sanjay Chaturvedi

However, in the case of “bioprospecting” it is somewhat different since the true value does not intrinsically lie in discovered components, but in the knowledge derived therefrom. Therefore, the biotech industry draws benefits from the resultant “knowledge”. It is also possible to patent genetically-encoded proteins, bacterial substances (Noiville 1997), or even chemical substances such as enzymes, as synthesized by microorganisms. As such, the holder of such a patent enjoys a monopoly on the patented components of his/her invention. In the case of Antarctica, as far as the issue of patent is concerned, the critical question that needs to be answered is this: to what extent are intellectual property rights compatible with the Madrid Protocol that commits the Parties to “the comprehensive protection of the Antarctic environment and dependent and associated ecosystems” and designates Antarctica “as a natural reserve, devoted to peace and science” (Article 2). Article 27 of TRIP Agreement categorically states that patents are available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application, whereas Article 29 says that a patent implies the disclosure of an invention. However, the most critical point here is that the patent innovation presupposes that the invention will not be made public prior to its registration (Connolly-Stone 2005). Since the registration process takes considerable time, commercially financed scientific genetic research may impose a confidentiality agreement on the scientist to keep her/his discovery a secret until completion of the patent registration (ATCM 2006). Furthermore, the patent holder is granted usage over his patent for twenty years (as per Article L. 613 of French Code on Intellectual Property). Also, he/she is free to exploit it personally or issue licenses to a third party. Such provisions of TRIP Agreement with regard to patents are in conflict with the spirit and provisions of both the Antarctic Treaty and the Madrid Protocol.

UNCLOS III AND THE ANTARCTIC It has been observed by some scholars that the Southern Ocean legal regime is based on both the Antarctic Treaty System (ATS) and the U.N. Conventions on the Law of the Sea, as supplemented by international environmental law such as the Convention on Biological Diversity (Rothwell 2005). The 1982 United Nations Convention on the Law of the

12 Fisheries Exploitation

258

10/28/09, 12:45 PM

259

Geopolitics of Biological Prospecting

Sea (UNCLOS), which came into force on 16 November 1994, was adopted in order: to establish a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.

In order to organize and control activities in the Area concerned with seabed minerals, UNCLOS establishes the International Seabed Authority (ISA), notably with a view to administering its resources (Articles 156–57, UNCLOS). The “deep seabed” segment of the high seas or “The Area”, as defined in Part XI (Articles 133–40) is the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Declared as the common heritage of humankind (Part XI, Article 136), its exploration and exploitation is to be carried out for the benefit of humankind as a whole, irrespective of the geographical location of states. States can neither claim nor exercise sovereignty over “the Area” and its resources, nor appropriate any part of it (Part XI, Article 137). Here it is important to note that the specific application of this concept under UNCLOS III is to the exploitation of minerals and not to the bioprospecting of biological and genetic resources (Herber 2006). Furthermore, UNCLOS has established an instrument which authorized the International Seabed Authority (ISA) to regulate mining in “The Area” (Part XI, Articles 156–58). However, as far as bioprospecting is concerned, this body does not have definitive jurisdiction, though it is presently attempting to establish such authority (Part XI, Articles 156–58). Although bioprospecting in the deep seabed is not specifically regulated by ISA at present, “there is an inextricable factual link between the protection of the deep seabed environment, including its biodiversity, marine scientific research, and bioprospecting” (Scovazzi 2004). For example, the sampling of biological resources may occur in the course of exploration of mineral deposits in “The Area” (United Nations Environment Programme 2005). Moreover, several features of the seabed regime outlined in UNCLOS may be extended to, or may become the basis of, a specific bioprospecting policy regime in “the Area” (United Nations Environment Programme 2005). In any case, the deep seabed area is highly relevant to the formation

12 Fisheries Exploitation

259

10/28/09, 12:45 PM

260

Sanjay Chaturvedi

of bioprospecting policy in Antarctica since it is an area without national sovereignty. Moreover, a deep seabed, as such, also exists in the Antarctic Treaty area, south of the 60° South.

CONCLUDING OBSERVATIONS: ANTARCTICA AS A GLOBAL KNOWLEDGE COMMONS? Integral to biological prospecting is the search for knowledge in the domain of diverse biological and genetic resources. This search for knowledge also reflects the general characteristics of the existing international geopolitical economy. Whether or not such knowledge falls into the category of public good would depend largely on the extent to which it is available (or made available) to people at large in a manner that is non-rival and non-exclusive in terms of both access and consumption (Herber 2006). It has been argued by some scholars that “the benefits of knowledge in biodiversity are ‘non-rival’ because diverse species and ecosystems in one part of the world may also yield important benefits to persons in other parts of the world, without causing a reduction in benefits to persons in the first location” (Herber 2006, p. 140). In other words, ideally speaking, a number of people, irrespective of their geopolitical location, should be in a position to consume the benefits of knowledge (biodiversity), collectively or jointly, without reducing the consumption of each other. As opposed to such a notion of public good, economic characteristics of a private good are “rival” in nature and are consumed by only one person or social unit at a time. There is indeed considerable evidence to show that obstacles in the way of widespread dissemination of knowledge do exist in an international political system characterized by asymmetries. As far as the Southern Polar Region is concerned, it is possible to argue that the Preamble to the Antarctic Treaty of 1961 (and the overall spirit that has dictated and driven the ATS over the past five decades and more) demands that the non-rival (collective) consumption of a public good should prevail. The Preamble to the Antarctic Treaty does recognize that: “it is in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”. Accordingly, reference in the Preamble to the effect that Antarctica shall not become an object of international discord can also be interpreted to mean that whatever peaceful activities are being undertaken in the

12 Fisheries Exploitation

260

10/28/09, 12:45 PM

261

Geopolitics of Biological Prospecting

Antarctic Treaty area, those engaged in such activities are under an obligation to ensure a “zero marginal cost” also for those not directly involved in the Antarctic Treaty System, to enjoy the benefits of such knowledge. In other words, a private good principle is not only in disharmony with the dominant ethos of the ATS, but it is also against the principle of global knowledge commons. Put another way, the production, dissemination, and sharing of knowledge (biodiversity in this case) cannot be allowed to be guided solely on a commercial basis by the private sector in the Southern Polar Region. The vast humanity bordering the Indian Ocean (described by some as the “Third World Ocean”), therefore, also has a stake in the biodiversity of the Southern [Indian] Ocean. Even though it continues to be upheld by some that many of the benefits of knowledge (biodiversity) are “global” in scope in the sense of non-rival consumption by all world citizens, regardless of national residency, it might be useful for the nascent debate within the ATS on biological prospecting to refine further the classification of knowledge into “national” and “global” public good categories. Such a distinction, as Herber (2006) points out, could be made depending on whether the control of property rights over knowledge falls under the control of a state (national public good), or an international legal authority (global public good). It has also been pointed out by one of the influential Antarctic Treaty consultative members (ATCM 2005b, p. 3) that, “the patenting of bioactive substances, resulting from bioprospecting in Antarctica, is not inconsistent with Article III(1) of the Treaty [exchange of scientific information, observations and results from the Antarctic]. One of the fundamental requirements is that scientific observations, and results be exchanged and made freely available. This requirement is qualified by words “to the greatest extent feasible and practicable”. The proverbial billion dollar question here is this: how do we ensure that the corporations engaged in bioprospecting willingly adhere to a set of principles and practices that question a culture of secrecy and demand transparency and accountability? From the standpoint of the public good principle of non-exclusion (a principle reflected in the Preamble to the Antarctic Treaty), even if a person does not voluntarily pay for it, he or she should not excluded from the consumption of that knowledge. Yet, as pointed out earlier, exclusion is possible by manipulation. For example, both trade secrets and patents can be used to appropriate private property rights. Patents associated with medicines obtained from biologically diverse resources may, for

12 Fisheries Exploitation

261

10/28/09, 12:45 PM

262

Sanjay Chaturvedi

instance, be used (for a specified period of time) to provide exclusive intellectual property rights to an inventor. An important international instrument for protecting such rights, as already discussed in this chapter, is the World Intellectual Property Organization (WIPO), which administers twenty-three international treaties for the protection of intellectual property rights (UNU/IAS 2003). Thus, what the patents do in practice is that they take some knowledge out of the public domain and place it in the private domain by assigning property rights to an inventor. Furthermore, in the process, the possibility of private sector profits is generated because “when such intellectual property rights are created, the public good becomes ‘mixed’ with private good characteristics and, hence, the resulting economic good may be more appropriately termed an ‘impure’ or ‘quasi’ public good rather than a pure public good” (Herber 2006, p. 140). Every so-called innovation or invention makes use of previously accumulated knowledge; that is, it draws on the “global commons of preexisting knowledge”. A question that acquires additional significance as well as complexity in the case of the Antarctic is this: how much of the returns to the innovation should be credited to the innovator and how much to the use of the global knowledge commons? In the case of Antarctica, scientific research has historically been characterized by publicly funded and internationally open knowledge, a classic example of global public good. It is important to note that the principle of global knowledge commons is often evoked (compelling the global bioprospecting industry to pay attention) when private firms prospect for valuable drugs in natural settings (such as the Circumpolar North) that involve the cultural geographies and histories of local populations. Such conditions are lacking in the uninhabited Southern Polar Region. Consequently, the global knowledge commons principle throws up unique challenges in the Antarctic. For the years to come, it is worth exploring the prospects of a future Antarctic bioprospecting regime built around the long established Antarctic scientific tenets of public funding and international openness. Among other things, this would demand not only the sharing of information and knowledge among those (state and non-state actors) engaged in biological prospecting in utmost transparency (something easier said than done), but also the adoption of stringent environmental regulations and impact assessments. Such a pursuit might even compel the ATCPs to rethink and

12 Fisheries Exploitation

262

10/28/09, 12:45 PM

263

Geopolitics of Biological Prospecting

modify some of the provisions of the Madrid Protocol and its annexes. Needless to say, perhaps such prospects are likely to be challenged by the hegemony of transnational liberalism, aggressive market forces, and ruthless corporate globalization. It is important to be reminded that the Antarctic region has been governed for more than four decades by an international regime that is based on three pillars of principles: safeguarding international peace, ensuring freedom of scientific research, and protecting the fragile environment. If inadequately regulated, this industry could have a negative effect on any or all of these three pillars, and subsequently on the entire regime of governance in the southern polar region. As shown in this chapter, biological prospecting is taking place in the Antarctic, some Antarctic life forms have already been “protected” with patents, and these activities are developing without any specific regulation so far. The absence of clear rules governing the use of genetic resources from Antarctica restricts use of these resources and affects the behaviour of stakeholders in significant ways. For industry, for example, the uncertainty about the use and ownership of samples inhibits its support for Antarctic research. For scientists, a lack of clear protocols with regard to exchanging information arising from commercial activities inhibits their ability to work with companies and adapt to the changing nature of basic research around the world. For governments, it is likely to prove difficult to negotiate how benefits of commercially orientated research could be adequately shared. The Association of Southern Ocean Coalition (ASOC) has taken the position that “creeping commercialization associated with the as yet unregulated bioprospecting industry poses significant problems that must be dealt with by the Antarctic Treaty System” (ASOC, Internet Source). It has expressed concerns on several occasions in the ATCMs over the consequences of commercial sensitivity for scientific cooperation and the capacity of the ATS to manage the industry. Furthermore, ASOC has also questioned the legal basis on which a state could grant bioprospecting rights (and any subsequent patents or other intellectual property rights) in an area marked by contested sovereignty. ASOC has further argued that commercial bioprospecting should not be accepted as a fait accompli, and that the governments concerned should make certain unambiguous choices in order to regulate this activity with legitimacy, authority, and effectiveness.

12 Fisheries Exploitation

263

10/28/09, 12:45 PM

264

Sanjay Chaturvedi

With regard to the high seas, there has been some academic commentary as well as formal international discussion on the question of how biological prospecting could be regulated. These issues are not new. However, to date, the Antarctic Treaty parties have not accorded a high priority to the discussion on bioprospecting. The Antarctic Treaty parties will have to be proactive in formulating a policy for the regulation of bioprospecting in the Antarctic, while upholding the fundamental principles of freedom of scientific research and cooperation. Quite conspicuous by its absence are the informed public opinions and policy pronouncements on this vital subject from the countries of the Indian Ocean Region. Although the nature and extent of the physical impact of bioprospecting on Antarctic ecosystems and biodiversity are being currently addressed by the ATCPs, the task of putting into place (through consensus-based negotiations) a sound legal-political arrangement (one that resists, restricts, and regulates the commercialization of polar biodiversity, in harmony with the principles of equity and fairness) is much more complex than often assumed by both scholars and policymakers. Indeed, developing sound and sustainable measures on bioprospecting in Antarctica would require some basic conceptual agreement on the overall goals of any regulation, and the type of management system that is desirable, practical, and most importantly, equitable. Since bioprospecting is an activity with potentially both environmental and resource implications, the Antarctic Treaty Parties need to work out, sooner rather than later, a more comprehensive policy position, if not a regulatory framework. Coordination with other international legal fora is seemingly an inevitable aspect of the formation of a comprehensive Antarctic Bioprospecting Policy regime. Whereas it seems appropriate that the Antarctic Treaty System (ATS) should “lead the way” in this endeavour, the fact of the matter is that Antarctica is now increasingly exposed to global forces and the ATS appears under pressure. Commercial competition is beginning to displace scientific cooperation as the principal driver of policy into the region. This is not to suggest that the ATS is going to collapse tomorrow, but it does appear to be in relative decline, and power is slowly, but surely, shifting from state to non-state entities, and particularly to commercial interests. It is imperative that while seeking answers to the following critical questions, the concerns and priorities of the countries of the Indian Ocean Region receive the attention that they demand and deserve:

12 Fisheries Exploitation

264

10/28/09, 12:45 PM

265

Geopolitics of Biological Prospecting

1. 2. 3.

4. 5. 6.

7.

Who owns the biological and genetic resources in Antarctica and its associated islands and ocean waters? Who owns the commercial products that are developed from these resources as a result of bioprospecting? How can the fundamental “public good” characteristics of Antarctic scientific research, as established by Article III of the Antarctic Treaty, be reconciled with the commercial “private good” aspects of bioprospecting? How should the transfer of technology be regulated? Should a benefit-sharing scheme be adopted? How can the design of an Antarctic bioprospecting policy regime be reconciled with the existing (though still evolving) bioprospecting policies of CBD and UNCLOS? How can the vague and largely undefined CBD and UNCLOS policies toward bioprospecting in the high seas and deep seabed be reconciled with each other, as well as with a future ATS bioprospecting regime?

While we are looking ahead (and while seeking answers to the questions posed above) it is important to be aware that, “nature’s biodiversity and diversity of knowledge systems are undergoing a major process of destabilization with the expansion of patents and intellectual property rights into the domain of biodiversity via the Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement of the World Trade Organization. The whole notion of TRIPs has been shaped by the objectives and interests of trade and transnational corporations” (Shiva 2007, p. 309). To conclude, the debate has just begun, and it is critically important that it remains open and accountable to a diversity of voices, perspectives, and priorities from both the North and the South.

References ASOC Report on the 28th ATCM. Stockholm, Sweden, 6–17 June 2005. . ASOC. Biological Prospecting. . ATCM. “Biological Prospecting in Antarctica”. XXVIII ATCM/IP008 (Submitted by Spain), 2005a. ———. “Biological Prospecting in Antarctica”. XXVIII ATCM/WP13 (Submitted by New Zealand and Sweden), 2005b.

12 Fisheries Exploitation

265

10/28/09, 12:45 PM

266

Sanjay Chaturvedi

———. “Biological Prospecting in Antarctica: Review, Update and Proposed Tool to Support a Way Forward”. XXX ATCM/IP 67 (Submitted by UNEP), 2007. ———. “In Search of a Legal Regime for Bioprospecting in Antarctica”. XXIX ATCM/IP 13 (Submitted by France), 2006. Basiron, M. N. and Zubir, M. “Environmental Security Issues in the Indian Ocean: A Preliminary Analysis”. In The Security of the Sea Lanes of Communication in the Indian Ocean Region, edited by D. Rumley, S. Chaturvedi and M. Taib, pp. 196– 204. Kuala Lumpur: MIMA, 2007. Dodds, K. J. Geopolitics of Antarctica: Views from the Southern Oceanic Rim. Chichester: John Wiley and Sons, 1997. Chaturvedi, S. The Polar Regions: A Political Geography. Chichester: John Wiley and Sons, 1996. ———. “The Antarctic Geopolitics: Continuity and Change”. In India in the Antarctica: Scientific and Geopolitical Perspectives, edited by S. Chaturvedi, N. Khare and P.C. Pandey, pp. 1–50. New Delhi: South Asian Publishers, 2005. Connolly-Stone, K. “Patents, Property Rights and Benefit Sharing”. In Antarctic Bioprospecting, edited by A.D. Hemmings and M. Rogan-Finnemore, pp. 69– 97. Christchurch: Gateway Antarctica, 2005. Convention on Biological Diversity. “Proposals by Switzerland Regarding the Declaration of the Source of Genetic Resources and Traditional Knowledge in Patent Applications”. Item 4 of the Provisional Agenda. Third Meeting of Ad Hoc Open-ended Working Group on Access and Benefit-sharing, Bangkok, 2005: 14–18. . Green, J. A. and D. Nicol. “Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the. Southern Ocean”. Melbourne Journal of International Law 4, no. 1 (2003): 76–111. Groombridge, B. and M. D. Jenkins. World Atlas of Biodiversity. Prepared by the UNEP World Conservation Monitoring Centre, University of California Press, Berkeley, 2002. Heap, John, ed. Hand Book of Antarctic Treaty System. 7th ed. Scott Polar Research Institute. Cambridge: Polar Publications, 1990. Herber, B. P. “Bioprospecting in Antarctica: The Search for a Policy Regime”. Polar Record 42 no. 221 (2006): 139–46. International Union for Conservation of Nature and Resources — World Conservation Union (IUCN), 2004. Noiville, C. “Ressources Génétiques et Droit — Essai sur le Régime Juridique des Ressources Génétiques Marines”. Paris: Pédone, 481 (1997): 113. Rothwell, D. “Southern Ocean Bioprospecting and International Law”. In Antarctic Bioprospecting, edited by A.D. Hemmings and M. Rogan-Finnemore, pp. 207– 32. Christchurch: Gateway Antarctica, 2005.

12 Fisheries Exploitation

266

10/28/09, 12:45 PM

267

Geopolitics of Biological Prospecting

Shiva, V. “Bioprospecting as Sophisticated Biopiracy”. Signs: Journal of Women in Culture and Society 32, no. 21 (2007): 308–13. Stix, G. “Staking Claims — Patents on Ice: Antarctica as a Last Frontier for Bioprospectors — and Their Intellectual Property”. Scientific American, 1 May 2004. . Scovazzi, T. Tenth Anniversary Special Session with Expert Panel in Future Directions. United Nations: International Seabed Authority. Press Release SEA/1799, 2004. The Madrid Protocol on Antarctic Environment Protection, 1991. . The United Nations Environment Programme’s Governing Council. “Report of the Executive Director on State of the Environment and Contribution of the United Nations Environment Programme to Addressing Substantive Environmental Challenges”. UNEP/GCSS.IX/10, 22 December 2005. United Nations University Institute of Advanced Study (UNU/IAS). “Report on the International Regime for Bioprospecting: Existing Policies and Emerging Issues for Antarctica”. Tokyo, Japan, 2003. . ———. “Report on the Bioprospecting in Antarctica”. Tokyo, Japan, 2005. . World Trade Organization, TRIP Agreement, 1994. . Zakri, H. and S. Johnston. Report: Accelerate Global Agreement to Oversee Exploitation of South Pole “Extremophiles”: Ownership of Genetic Materials, Environmental Consequences in Question as 21st Century Bio-prospecting Gets Underway in Antarctica. 2004. .

12 Fisheries Exploitation

267

10/28/09, 12:45 PM

268

Mohd Nizam Basiron

13 ISSUES IN POLICY AND LAW ON THE CONSERVATION OF MARINE BIODIVERSITY A Malaysian Case Study Mohd Nizam Basiron

INTRODUCTION Malaysia’s rich and diverse marine life is threatened by a variety of human activities such as overfishing, development on land, and the use of destructive fishing methods. While policies and policy statements on the need to conserve marine biodiversity exist and laws protecting marine biodiversity have been enacted, the threats persist and the decline in marine biodiversity continues. This is due to a number of factors, namely, difficulties in translating policies into action, inadequacy of the scope of existing laws, problems in enforcing current regulations, less focus on marine biodiversity vis-à-vis terrestrial biodiversity, and lack of awareness concerning marine biodiversity among policymakers. No single action could address the wide range of problems afflicting Malaysia’s marine biodiversity. A more comprehensive approach in the form of a national

13 Fisheries Exploitation

268

10/28/09, 12:46 PM

Policy and Law on the Conservation of Marine Biodiversity

269

marine biodiversity action plan comprising national, state, and local actions is urgently needed to address the continuous decline of marine biodiversity and effect a “quantum leap” in marine biodiversity conservation in Malaysia.

MARINE BIODIVERSITY BEYOND THE CLICHÉS Much has been said about Malaysia’s marine biodiversity and biodiversity in general so much so that many of the statements have become clichés: Malaysia is among the twelve megadiversity countries in the world; Malaysia is located within the coral triangle with high coral and marine life diversity (Table 13.1); Malaysia has had a National Biodiversity Policy since 1998; and that since 1994, forty areas have been designated as marine parks. These platitudes however, belie some more important questions concerning Malaysia’s marine biodiversity. What is the true extent of Malaysia’s marine life? What are the threats? How successful have Malaysia’s policies and laws been in protecting the marine biodiversity? What future plans does Malaysia have for conserving the marine biodiversity? Why does Malaysia conserve marine biodiversity? The 2005 Millennium Ecosystems Assessment categorizes the functions provided

Table 13.1 Extent of Malaysia’s Marine Biodiversity

Marine Life Marine fishes Marine food fish Turtles Terrapins Coastal birds Mangroves* Corals Seagrasses

Number of Species 2,200–4,000 (estimated)a 300a 4b 1b 127b 42c 519d 18e

Note: *Numbers indicate true mangrove species. Source: a Mokhsin and Ambok (1996); b Economic Planning Unit (1993); c Geisen et al. (2006); d Zahaitun Mahani Zakariah et al. (2001); e Tan Kim Hooi and Mohd Nizam Basiron (2004).

13 Fisheries Exploitation

269

10/28/09, 12:46 PM

270

Mohd Nizam Basiron

by ecosystems in the coastal zone as regulating, provisioning, cultural, and supporting, and these are summarized in Table 13.2. The significance of some of these functions was readily apparent in the aftermath of the tsunami of 26 December 2004, which prompted a flurry of initiatives, some commendable, some misguided, to replant and rehabilitate mangroves throughout the region. Malaysia, or Malaya at the time, made an early start towards marine biodiversity conservation. Its early fisheries laws dated as far back as 1918 when the Matang Forest Reserve was established in 1902. Since then, marine parks have been established and endangered marine species protected. Yet, marine biodiversity continued to decline. Why? Five factors have been identified as the principal threats to global marine biodiversity (Norse 1993). They are overexploitation, alteration Table 13.2 Ecosystem Functions in the Coastal Zone

Ecosystem Functions

Coral Reefs

Mangroves

Regulating

Protection of beaches and coastlines from storm surges and waves Reduction of beach erosion Formation of beaches and islands

Protection of beaches and coastlines from storm surges, waves and floods Reduction of beach and soil erosion Stabilization of land by trapping sediments Water quality maintenance Climate regulation

Provisioning

Subsistence and commercial fisheries Fish and invertebrates for ornamental aquarium trade Pharmaceutical products Building materials Jewellery and other decorations

Subsistence and commercial fisheries Aquaculture Honey Fuelwood Building materials Traditional medicines

Cultural

Tourism and recreation Spiritual and aesthetics appreciation

Tourism and recreation Spiritual – sacred sites

Supporting

Cycling of nutrients Nursery habitats

Cycling of nutrients Nursery habitats

Source: Millennium Ecosystem Assessment 2005.

13 Fisheries Exploitation

270

10/28/09, 12:46 PM

Policy and Law on the Conservation of Marine Biodiversity

271

of the physical environment, pollution, introduction of alien species, and climate change. Table 13.3 provides an illustration of these threats within the Malaysian context. This chapter seeks to examine the above questions from the point of view of the policies and laws towards biodiversity conservation in Malaysia, and proposes ideas for future efforts in this area. The chapter draws from earlier works to evaluate the policy framework for marine park management in Peninsular Malaysia and to analyse the development of marine environment laws in the country.

THE POLICIES National Policy on Biological Diversity (NPB) Malaysia formulated the National Policy on Biological Diversity (NPB) in 1998 as part of its obligation to meet the recommendation of the Convention on Biological Diversity for countries to “develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity”. In a nutshell, the NPB provides the direction for implementing strategies, action plans, and programmes for the conservation of

Table 13.3 Threats to Marine Biodiversity

Global Threats

Local Threats

Overexploitation

– Unlicensed gears – Destructive fishing practices – Encroachment

Alteration of the physical environment

– Development in the coastal zone and on islands – Modification of habitats

Pollution

– Land-based pollution – Vessel-based pollution

Introduction of alien species

– Ballast water discharge – Aquaculture – Ornamental fish

Climate change

– Bleaching – Natural disasters

Source: Norse (1993).

13 Fisheries Exploitation

271

10/28/09, 12:46 PM

272

Mohd Nizam Basiron

biodiversity, with the objective of using resources in a sustainable manner. At the “heart” of the NPB is a fifteen-point strategy with measures to improve scientific knowledge, strengthen the institutional framework for biodiversity conservation, integrate biodiversity conservation into sectoral planning, review legislation, minimize human impact on biodiversity, and enhance awareness. The NPB is a generic document. Its strategies and plans of actions are “universal” enough to be applicable to both terrestrial and marine biodiversity. The lack of specifics is perhaps the main bone of contention where the NPB and marine biodiversity is concerned, and this has meant that there is no clear-cut programme which is proposed to address threats to marine biodiversity and enhance its conservation. Notwithstanding this, the NPB did make several important observations concerning marine biodiversity conservation: (i) the lack of consideration given to the land mass adjoining marine parks in the gazettement of marine park areas. This has indeed caused the perennial problem of marine parks being adversely affected by development activities on land; (ii) species conservation efforts focus too much on large and “charismatic” terrestrial species. Some emphasis should also be given to marine species, particularly fish species; and, (iii) there is a lack of regional and international cooperation for the protection of transboundary protected areas. The NPB has been in existence for ten years now and it is perhaps an opportune time to evaluate its content and implementation. In 2006, the Ministry of Natural Resources and Environment (NRE) initiated a review of NPB implementation. It will be interesting to see the outcome of this review when it is published.

NATIONAL MARINE PARKS MALAYSIA: POLICY AND CONCEPT The National Marine Parks Malaysia: Policy and Concept document was prepared in 1990 and to date remains the only document which outlines the philosophy behind the establishment of marine parks, and the broad management objectives for these areas. The document also proposes

13 Fisheries Exploitation

272

10/28/09, 12:46 PM

Policy and Law on the Conservation of Marine Biodiversity

273

management approaches such as zoning for multiple uses. However, the document by itself is insufficient for the purpose of the day-to-day management of marine park areas, and is in need of updating, considering the changes which have occurred in the marine parks and the areas surrounding them. The updating of the document should, among other things, consider reviewing the objectives of the establishment of the marine parks to reflect more clearly the important role which marine parks in Malaysia play in conserving marine biodiversity. In addition, due consideration should also be given to resolving the quandary over the function of marine parks as a tool for conservation, and their role as a venue for tourism activities. Similarly, the revision should take into account the potential role of marine parks as fisheries “refugia”, in the interests of sustaining the fisheries industry by ensuring that nursing and feeding grounds are protected. The third possible issue for consideration is the status of marine parks as “notake-zones”. With better zoning of marine park areas, it is possible to allow local communities to benefit from small-scale fisheries in marine parks, many of which were traditional fishing grounds prior to being designated as marine protected areas. This idea, however, needs to be carefully considered as it would require a considerable change in mindset among regulators and local communities alike, not to mention education and awareness building to ensure that such privileges are not abused. Apart from the document, other documents related to marine parks management should be reviewed. These would include the Conceptual Plan for Marine Parks Management report and others.

MALAYSIA PLANS The need to conserve marine biodiversity was first noted in the Sixth Malaysia Plan (1991–95) document. During this period, emphasis was given to the establishment of Fisheries Prohibited Areas for the conservation of marine biodiversity and the promotion of tourism and scientific research. The Sixth Malaysia Plan further noted the importance of coral ecosystems to the conservation of marine biodiversity, and warned of the dangers of uncontrolled sewage discharge, land clearing and clearing of mangroves, and the impact that these activities have on the marine environment. Following on from the Sixth Malaysia Plan, the Seventh Malaysia Plan (1996–2000) saw the completion and acceptance of the National Policy on

13 Fisheries Exploitation

273

10/28/09, 12:46 PM

274

Mohd Nizam Basiron

Biological Diversity. Where marine biodiversity is concerned, a change of status was effected to the Fisheries Prohibited Areas, which were gazetted as Marine Parks, thus according these areas better protection. The Seventh Malaysia Plan also called for the expansion of the protected area system to include more critical habitats. As part of an overall national effort to protect coastal zones, a draft National Coastal Zone Policy was also completed during this period. The government has, in principle, accepted this policy for implementation in the Ninth Malaysia Plan. There was also a proposal to establish a National Islands Development Board to coordinate development on islands and reduce the detrimental impact of island development on the marine environment. The status of this proposal, however, is not known. The Seventh Malaysia Plan also saw the start of efforts to implement the NPB, although, as noted earlier, these were mostly for terrestrial biodiversity. Recognizing this problem, the Eighth Malaysia Plan called for an expansion of the NPB implementation programme to include all Malaysian States. Presumably, this would include marine biodiversity conservation in marine parks as well. Equally important, the Eighth Malaysia Plan also called for a comprehensive review of the management of Malaysia’s maritime affairs, which would also provide an opportunity to review marine biodiversity conservation in the country. The Ninth Plan has as one of its targets the implementation of the National Integrated Coastal Zone Management Policy which, among other things, promotes better physical planning in the coastal areas, the sea immediately adjacent to them, and the islands. This would accord a degree of protection to coastal and marine ecosystems. Apart from this point, however, the only other mention made in the Ninth Plan directly related to marine biodiversity is the intensification of efforts to protect critical habitats by reviewing and strengthening existing management plans.

THE LAWS Ecosystems Conservation and Species Protection under the Fisheries Act, 1985 The major provision in the Fisheries Act where ecosystems conservation is concerned is the incorporation of the provisions for the establishment of Marine Parks under the Establishment of Marine Parks and Marine Reserves Order 1994. This was subsequent to the earlier provisions of the

13 Fisheries Exploitation

274

10/28/09, 12:46 PM

Policy and Law on the Conservation of Marine Biodiversity

275

Fisheries Act, which provided for the establishment of the Fisheries Protected Area and the Fisheries Prohibited Area. The primary objective of this amendment to the Fisheries Act was to ensure the protection of marine ecosystems, specifically coral reefs around islands, in order to guarantee the availability of nursing and feeding grounds for fisheries and endangered species. As an added measure, the amendment also prohibits fishing activity of any kind within the confines of the Marine Parks. To date, the waters around forty islands have been gazetted as Marine Parks under this provision. The establishment of the Marine Parks was not without controversy. Initially, this was in the form of resistance from local communities who were denied their traditional fishing grounds when the boundaries of the Marine Parks were established. In more recent years, controversy over the Marine Parks has resulted from the increasing pressure to develop the island land mass adjoining the Marine Parks as tourism attractions. Critics of the provisions have also argued that the Marine Parks accorded direct protection to corals, and not related ecosystems and habitats, such as seagrass beds. In addition, the protection is only applicable to the ecosystems within the Marine Parks limits and not outside (Ahmad 2000). However, the Fisheries Act does accord a layer of protection to selected areas outside of Marine Parks. These areas, known as Fisheries Prohibited Areas, are in effect quasi-Marine Parks with prohibitions on fishing and the collection of shells, molluscs, and corals. The most recent amendment added to the Fisheries Act is the regulation for the protection of endangered species. Under the Fisheries (Control of Endangered Species of Fish) Regulations 1999, a total of twenty-five species are accorded protection from activities that “disturb, harass, catch, kill, take, possess, sell, buy, export or transport”. The 1999 regulation protects species from five groups — namely, dugongs, whales, dolphins, whale sharks, and giant clams. The regulation came about partly as the result of the much publicized deaths of dugongs in the same year (United Nations Environment Programme 2002). The 1999 regulations complement existing regulations on the protection of turtles which have been in place since 1985 at the Federal level, and much earlier, at the State level. In many ways, the Fisheries Act 1985 serves as a “surrogate” marine biological diversity conservation law for Malaysia as it now encompasses provisions for the conservation of ecosystems and species protection. In the longer term, however, the efficacy of the Fisheries Act 1985 regarding these functions should be examined in detail in view of the pressing need for

13 Fisheries Exploitation

275

10/28/09, 12:46 PM

276

Mohd Nizam Basiron

marine biodiversity conservation, increasing development pressure, and growing demand for marine resources. As laws are often enforced to implement policies (Yates 1994), it is evident that the Fisheries Act, whether it is intended or not, has contributed towards the implementation of the National Policy on Biological Diversity. This relationship should be reinforced in the proposed marine park law which is currently being drafted.

WALKING THE TALK — IMPLEMENTING POLICIES AND ENFORCING LAWS IN BIODIVERSITY CONSERVATION Having national laws, enforcing them, and ensuring compliance with them are theoretically interlinked, but, in practice, disparities are evident. Randall (2004) noted that in the case of the United States’ federal fisheries laws, enforcement is very much an afterthought, and not part of the overall legal development process. It is widely acknowledged that enforcement is an expensive venture requiring assets and human resources, which, in turn, need to be deployed over a large seascape. In Malaysia, this translates into protecting and conserving marine life and ecosystems in a sea area which is almost twice the size of the land mass, together with managing marine parks in forty disparate locations. This is indeed a tall order, given the lack resources provided for the work. The 2003 creation of the NRE Ministry and the placement of the Marine Parks Section under its administration offered opportunities to strengthen the organization responsible for managing Peninsular Malaysia’s marine parks. This is gradually happening with the proposal of a new law to upgrade the section into a full-fledged department in the offing. On the policy front, there is a need to review all NPB strategies and action plans vis-à-vis marine biodiversity. This could be done as part of an overall review of the document or as a specific exercise aimed at improving marine biodiversity conservation in the country. What is important, though, is for the exercise to relate to the threats which marine biodiversity in Malaysia faces at all levels. This means developing a national plan of action for marine biodiversity conservation supported by management plans at the protected area level. This would be in line with the decisions made at the Eighth Conference of Party to the Convention on Biological Diversity (COP 8) which, among other things, called on countries to improve on-site protected area planning and management by 2012. The development and implementation of these plans could be funded under the mid-term review for the Ninth Plan. The rather ambiguous language

13 Fisheries Exploitation

276

10/28/09, 12:46 PM

Policy and Law on the Conservation of Marine Biodiversity

277

concerning biodiversity adopted in the Ninth Plan is in itself a concern and reflects the lack of comprehensive planning for the conservation of biodiversity in Malaysia. The preparation of the action plan could take into consideration approaches such as ecosystem-based management and decisions made at COP 8, concerning marine and island biodiversity, and protected areas. Enforcing existing laws, drafting new ones, and reviewing current policies towards marine biodiversity conservation in Malaysia are not ground-breaking initiatives. These are, however, fundamental steps which could effect a “quantum leap” in marine biodiversity conservation in Malaysia. Such a leap is much needed given the pressure on the ecosystems and habitats, species, and resources that provide sustenance and functions. It is also required to move marine biodiversity management in Malaysia away from the “business-as-usual” approach which now seems to be in operation.

CONCLUSIONS There is a need to review marine biodiversity conservation efforts in Malaysia. This is important if the efforts currently being made are to progress beyond designating marine parks and protected areas. Granted, these were important steps towards conserving Malaysia’s marine biodiversity and remain integral and essential components of any such efforts. However, what has been truly achieved since the gazetting the parks and formulating the National Policy on Biological Diversity? The relevance of the policy in relation to marine biodiversity conservation should be considered after ten years of its existence, with a view to making it more relevant to the current realities and threats to marine biodiversity. This is a good time to do so as there are proposals to establish a marine parks department and to draft new marine park regulations. In addition to looking at policy and law, there is also a pressing need for a plan of action to conserve Malaysia’s marine biodiversity and management plans for most of the marine parks. These could form the building blocks of Malaysia’s marine biodiversity conservation efforts in the future.

References Ahmad, A.R. et al. Conservation of Biodiversity in Marine Parks of Peninsular Malaysia. Review of Institutions and Policies. Unpublished report for the UNDP-GEF

13 Fisheries Exploitation

277

10/28/09, 12:46 PM

278

Mohd Nizam Basiron

Project on Conservation of Biodiversity in Marine Parks of Peninsular Malaysia, 2000. Bujang, Japar Sidik, Muta Harah Zakaria and Aziz Arshad. “Distribution and Significance of Seagrass Ecosystems in Malaysia”. Aquatic Ecosystem Health & Management 9, no. 2 (2006): 203–14. Division of Early Warning and Assessment. United Nations Environment Programme. Dugong Status Report and Action Plans for Countries and Territories. Nairobi: UNEP, 2002. Economic Planning Unit, Prime Minister’s Department. National Conservation Strategy for Malaysia. Volume 2. Administration. Kuala Lumpur: Economic Planning Unit, 1993. Giesen, W, Stephan Wulffraat, Max Zieren, and Liesbeth Scholten. Mangrove Guidebook for Southeast Asia. Bangkok: Food and Agriculture Organisation and Wetlands International, 2006. Government of Malaysia. Eighth Malaysia Plan. 2001–2005. Putrajaya: Government of Malaysia. ———. Ninth Malaysia Plan. 2006–2010. Putrajaya: Government of Malaysia. Mohsin, A.K. Mohammad, and Mohd Azmi Ambak. Marine Fishes and Fisheries of Malaysia and Neighbouring Countries. Serdang: University Pertanian Malaysia Press, 1996. Norse, E. A. Global Marine Biodiversity. A Strategy for Building Conservation into Decision Making. Washington, D.C.: Island Press, 1993. Randall, J. K. “Improving Compliance in U.S. Federal Fisheries: An Enforcement Agency Perspective”. Ocean Development and International Law 35 (2004): 287– 317. Tan Kim Hooi and Mohd Nizam Basiron. National Seagrass Report. Kuala Lumpur: Department of Fisheries Malaysia, 2004. Yahaya, J. “Fisheries Law and Enforcement Programmes, Practices and Problems in Malaysia”. In Proceedings of the Fourth Conference of the International Institute of Fisheries and Trade. Esbjerg: University Centre of South Jutland, 1990. Yates, B. F. “Implementing Coastal Zone Management Policy: Kepulauan Seribu Marine Park, Indonesia”. Coastal Management 22 (1994): 235–49. Zakariah, Zahaitun Mahani et al. “National Corals and Coral Reefs Report”. Putrajaya, Department of Marine Parks Malaysia, 2004.

13 Fisheries Exploitation

278

10/28/09, 12:46 PM

279

Regional Cooperation

14 REGIONAL COOPERATION A Case Study of the Western Indian Ocean Tuna Fisheries Jane Mbendo and Martin Tsamenyi

INTRODUCTION The Western Indian Ocean (WIO) is one of the largest fishing areas among those classified as such by The Food and Agricultural Organization of the United Nations (FAO). The region has maintained a steady rate of increase in fish landings mainly as a result of increased harvests of tuna species by distant-water fishing states since the 1990s. The highly migratory nature of the tuna stocks calls for management cooperation among coastal states in the WIO, taking into account principles and provisions in recent international instruments. This chapter reviews the broad organizational framework in the WIO with regard to tuna fisheries management, and particularly, the Indian Ocean Tuna Commission (IOTC). We examine the challenges faced by the IOTC in the management and conservation of tuna, and the measures being taken to implement international fishery instruments, with a view to enhancing the coordination and cooperation of WIO coastal states at a regional level.

14 Fisheries Exploitation

279

10/28/09, 12:46 PM

280

Jane Mbendo and Martin Tsamenyi

Tunas are one of the most economically important marine species globally and their demand has been on the increase, with tuna fishing around the world intensifying especially since the 1990s.1 The global catches of tuna increased from 400,000 tons in 1950 to over 4,000,000 tons in 2002,2 with the greatest catches being made in the Pacific Ocean by Japan, which amounted to 550,000 tons in 2002.3 International trade in tuna has mainly served the canning industries and the sashimi market.4 The 1982 United Nations Convention on the Law of the Sea (hereafter LOSC) categorizes tuna and tuna-like species as highly migratory,5 since they move across exclusive economic zones (EEZs) of several coastal states and into the high seas, which are not under the jurisdiction of any state. Their migratory nature makes them vulnerable to overfishing. Vessels fishing for tuna are just as highly mobile, moving between the Oceans using various gears during their operations as they follow the tuna. This makes effective management of tuna stocks a significant challenge. Recognizing this biological nature of tunas, international law imposes obligations on coastal states and states fishing on the high seas to cooperate to ensure the effective conservation and sustainable use of tunas.6 International cooperation among coastal states fishing tuna and tunalike species is achieved through five tuna Regional Fisheries Management Organizations (RFMOs), which aim to manage tuna resources in a sustainable manner. The tuna RFMOs include the Commission for the Conservation of Southern Bluefin Tuna (CCSBT),7 Inter-American Tropical Tuna Commission (IATTC),8 the International Commission for the Conservation of Atlantic Tuna (ICCAT),9 Indian Ocean Tuna Commission (IOTC),10 and the Commission on the Conservation and Management of highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC).11 The IOTC has the mandate to manage tuna and tuna-like species in the Indian Ocean and adjacent seas.12 Cooperation among its members is geared towards instituting appropriate management and conservation measures for the optimum utilization of stocks while encouraging the sustainable development of the same. Several measures have been instituted by IOTC for the management and conservation of tuna in the region. However, IOTC is still faced with many challenges in meeting its obligations. This chapter outlines the role of the IOTC with regard to the regional management of tuna and the challenges it faces, with much of the emphasis being laid on the WIO region,13 which has had increased fishing

14 Fisheries Exploitation

280

10/28/09, 12:46 PM

281

Regional Cooperation

pressure from distant-water fishing nations (DWFNs) since the 1980s. The proposal to change the current status of the IOTC as an FAO body to enhance the efficiency and effectiveness of the operations of the Commission is discussed.

THE WESTERN INDIAN OCEAN Although the IOTC area of competence includes both the Western and Eastern Indian Ocean regions (FAO areas 51 and 57, Figure 14.1), this chapter limits its discussion to the tuna fisheries of the WIO and the operations of the IOTC as a whole, for statistical purposes. Emphasis on the WIO region is purposed by the recent increase of DWFNs into the region since the onset of a new purse seine fishery in the 1980s, when part of the fishing effort in the eastern Atlantic was shifted to the Indian Ocean.14 The region has not received much attention with regard to research Figure 14.1 The IOTC Convention Area

Source: FAO, .

14 Fisheries Exploitation

281

10/28/09, 12:46 PM

282

Jane Mbendo and Martin Tsamenyi

compared with the other regions,15 and it still faces challenges with regard to statistical data, making stock assessment difficult and this affects the overall management of tuna in the region. The WIO area is one of the largest fishing areas classified by FAO as Statistical area 51 of the marine fisheries (Figure 14.2). The surface area of the WIO is about 30 million km2 with 6.3 per cent of this representing the shelf area.16 This area accounts for 8 per cent of total marine waters.17 The exclusive economic zones of the WIO countries are presented in Table 14.1. Although the WIO is the site of some of the most dynamic and variable large marine ecosystems in the world, the countries of the region are neither able to estimate the potential of their marine ecosystems, nor draw sustainable long-term benefits from them at their current state of development.18 Most of the fishing in the WIO can be categorized as subsistence and is mostly made up of artisanal fishers who depend on the fisheries resources for income and fish protein. Examples given by Rudy et al. (2005) indicate that, in Mozambique, only 17 per cent of fishers are involved in industrial fishing, while Tanzania has only 5 per cent active industrial fishers. South Africa, however, has only 10 per cent of the 27,000 fishers engaged in artisanal fishing. In some of the island states such as the Seychelles, the situation differs in that artisanal and semi-industrial fisheries contribute significantly towards food security and foreign exchange earnings.

Table 14.1 Exclusive Economic Zones of WIO States

Country Kenya Tanzania Mozambique Seychelles Madagascar Mauritius Comoros

Area of EEZ (km 2) 104,056 204,294 493,672 1,288,643 1,079,672 1,274,638 161,993

Source : World Resources Institute, 2006. Earthtrends, “Environmental Information”, (accessed 30 December 2006).

14 Fisheries Exploitation

282

10/28/09, 12:46 PM

283

Regional Cooperation Figure 14.2 The Western Indian Ocean (Major Fishing Area 51)

Key:

Red Sea (Subarea 51.1) {1} , Gulf (Subarea 51.2) {2}, Western Arabian Sea (Subarea 51.3) {3}, Eastern Arabian Sea, Laccadives (Subarea 51.4) {4}, Somalia, Kenya and Tanzania (Subarea 51.5) {5}, Madagascar and Mozambique Channel (Subarea 51.6) {6}, Oceanic (Subarea 51.7) {7}, Mozambique (Subarea 51.8) {8} Source: FAO Fishery Information, Data and Statistics Unit (FIDI)

14 Fisheries Exploitation

283

10/28/09, 12:46 PM

284

Jane Mbendo and Martin Tsamenyi

Oceanic fisheries in the region are dominated by DWFNs from Europe (Spain and France) and East Asia (Japan, Korea, and Taiwan),19 mostly targeting high-value tuna. The Indian Ocean accounted for less than 8 per cent of the world tuna production before the 1980s, but it currently averages 20 per cent of the world’s total, most of which comes from the WIO.20 The mainland states of Kenya, Tanzania and Mozambique are at different levels of development in their tuna industries, although Mozambique, Seychelles, Madagascar, and Somalia have had an early history of involvement with industrial tuna fishing since 1980,21 earning resource rent from licences and agreements for fisheries access by foreign vessels. The industrial tuna fishery is especially important as an economic activity for the island states in the WIO. The small island developing states (SIDs) are vulnerable with respect to their size and location, are isolated from major markets, and have limited resources and options for social and economic development, making their base for revenue generation relatively narrow. Yet the areas of their EEZs with productive waters provide prospects for the tuna industry (see Table 14.1). Seychelles, Mauritius, and Madagascar carry out tuna processing and canning. Foreign fishing fleets are also maintained within their ports and trans-shipments are known to take place in Mombasa, Kenya; Port Louis, Mauritius; Réunion, France; and Victoria, Seychelles. Canned tuna accounts for 90 per cent of the total fish export for Mauritius,22 while in Seychelles, out of the total fish products amounting to 42,945 metric tons in 2002, canned tuna represented 80 per cent of this.23 In 2002, the revenue generated from tuna-related activities in Seychelles amounted to US$57 million.24 Seychelles has developed to become the regional hub for industrial tuna fisheries and is privileged to be hosting the IOTC headquarters. The development of industrial tuna fisheries in Seychelles has encouraged the development of infrastructure for the reception and handling facilities for fisheries in general. The species targeted by DWFNs and local industrial fishers include bigeye (Thunnus obesus), yellowfin (Thunnus albacares), and skipjack (Katsuwonus pelamis).25 Both yellowfin and skipjack are tropical species while bigeye is subtropical. Tropical tuna are highly productive, have high fecundity, and a wide geographical distribution.26 Bigeye has a high fat content for insulation as it thrives in deeper colder waters, making it suitable for sashimi. Yellowfin and skipjack are used more for canning, though yellowfin targeted by longliners are also used for sashimi.27 Skipjack

14 Fisheries Exploitation

284

10/28/09, 12:46 PM

285

Regional Cooperation

makes up the greater part of global tuna catches, followed by yellowfin and bigeye with their commercial importance in the same order.28 According to the IOTC scientific committee, total catches of yellowfin in 2003 and 2004 were above the maximum sustainable yield, and it advised that effort and catch limits should not be further increased above 2000 levels, while bigeye stocks reflect possible overfishing.29 Skipjack catches reflect possible overfishing in the southwest Indian Ocean, with indications of unsustainable catch levels.30 With the increasing pressure from foreign fleets, increasing catch trends, and the migratory nature of tuna, it is essential for IOTC to provide the necessary support with regard to sustainable management and conservation of the stocks, whilst encouraging regional cooperation and compliance of the regulatory requirements that IOTC has put in place.

BACKGROUND TO THE IOTC CONVENTION The need for the establishment of an organization devoted to the management of Indian Ocean Tuna was prompted by the significant increase in the catch of tuna and tuna-like species in the 1980s.31 This stimulated discussions by the Indian Ocean Fisheries Commission (IOFC) committee at its ninth session, especially since IOFC had no regulatory powers. A series of meetings led to the first conference for the adoption of a Draft Agreement for the establishment of the Indian Ocean Tuna commission under Article XIV of the FAO constitution in May 1989. The Agreement for the Establishment of IOTC was finally concluded and adopted under Article XIV of the FAO Constitution in 1993, circulated in 1994, and came into force on 27 March 1996, enabling the IOTC to become fully operative. The Agreement gives the IOTC power to adopt binding conservation and management measures and makes provisions for the implementation of such measures. It also includes provisions for dispute settlement and the financing of IOTC under an autonomous budget.

The Agreement The principles of the 1982 United Nations Convention on the Law of the Sea that are relevant for the IOTC Agreement are to be found in three articles.32 The Agreement acknowledges the need for cooperative measures to be undertaken by both the coastal states of the Indian Ocean and other

14 Fisheries Exploitation

285

10/28/09, 12:46 PM

286

Jane Mbendo and Martin Tsamenyi

states harvesting tuna and tuna-like species in the region, if sustainable utilization of the resources is to be realized. The IOTC Agreement was established within the framework of the Food and Agriculture Organization of the United Nations (FAO) and identifies the Area of competence as FAO statistical area 51 and 57 (Figure 14.1). This area covers the Indian Ocean and adjacent seas, north of the Antarctic Convergence.33 The link with FAO was seen as a position that would allow the Commission to benefit both financially and technically from FAO. Membership of the Commission is limited to Indian Ocean coastal states, various categories of members or associates of FAO or members of the United Nations, or of any of its specialized agencies fishing for tuna in the area and who fulfil the conditions in Article IV(2) of the Agreement.34 The Responsibilities of the Commission are identified in the Agreement, the underlying principle being one of cooperation among its members in management, conservation, and optimum utilization of tuna and tunalike stocks,35 while achieving sustainability. General aspects of the Commission such as sessions, administration, and attendance of meetings by observers are also outlined in the Agreement. Each contracting party has a single vote for the purpose of decision making and a two-thirds majority principle is applied for the adoption of binding measures.36 More important are the procedures concerning conservation and management measures. These are supported by the establishment of subsidiary bodies that have specific roles.

Structure of the Commission Parties qualified to accede to the IOTC Agreement deposit with the Director General of FAO an instrument formally accepting to be bound by the Agreement. The Commission holds its sessions annually and office bearers are elected from the delegates to hold office for two years. IOTC membership has been on the increase and currently includes Australia, China, Comoros, Eritrea, European Community, France, Guinea, India, Islamic Republic of Iran, Japan, Kenya, Republic of Korea, Sultanate of Oman, Madagascar, Malaysia, Mauritius, Pakistan, the Philippines, Seychelles, Sri Lanka, Sudan, Thailand, United Kingdom, Vanuatu, and the Cooperating non-contracting parties of Belize, Indonesia, Senegal, and South Africa.37 Significantly, WIO coastal states missing are Mozambique,

14 Fisheries Exploitation

286

10/28/09, 12:46 PM

287

Regional Cooperation

Tanzania, Comoros, and Somalia. The Commission is at liberty to establish subsidiary bodies as it deems necessary.38

COMPLIANCE MEASURES AND RESOLUTIONS OF IOTC The effectiveness of fisheries management organizations depends on several issues, one of them being the commitment to implement regulatory and other measures, both by members, or countries that are not parties to the conventions or agreements, but allow their vessels to fish in the adjacent high seas. IOTC has put in place regulatory requirements for the achievement of conservation and management of tuna resources in its area of competence as stated in its objectives.

Data Management Statistical reporting is mandatory for Contracting Parties,39 to which the data confidentiality policy also applies.40 Parties without scientific capabilities have access to relevant information since the Secretariat maintains capability in stock assessment.

Combating Illegal, Unreported and Unregulated Fishing Contracting Parties and Non-contracting Parties cooperating with IOTC are responsible for ensuring that large-scale tuna longline vessels on their registry do not engage in illegal, unreported, and unregulated (IUU) fishing activities and that flag of convenience vessels are refused landing and trans-shipment if their fishing activities undermine IOTC regulations.41 They should also regulate activities of any other vessels flying their flag such that they are not in violation of IOTC resolutions.42 A scheme to promote compliance has been established to ensure that any vessels involved in activities that undermine IOTC conservation and management measures are dealt with accordingly and that port states conduct port inspections of non-member vessels.43 Contracting Parties and Noncontracting Parties cooperating with IOTC must have prior authorization for at-sea or in-port trans-shipment and the trans-shipments must be consistent with the reported catch when validating statistical documents.44 A bigeye statistical documentation programme has been established for the monitoring of trade with a view to detecting any illegal activities.45

14 Fisheries Exploitation

287

10/28/09, 12:46 PM

288

Jane Mbendo and Martin Tsamenyi

IOTC has committed to exchange information on IUU vessels,46 and has established a list of authorized vessels,47 and put in place a compliance committee to monitor compliance by members and also to monitor and recommend actions in relation to IUU fishing.48

Monitoring Control and Surveillance National observer programmes have been proposed with plans to cover 10 per cent of vessels.49 A Vessel monitoring system programme is mandatory for vessels more than 15 m long.50

Species Conservation and Ecosystems Management Fishing capacity limits are placed on large-scale vessels fishing for tuna in the IOTC area of competence for the purpose of sustainability. The precautionary approach is particularly applied with regard to bigeye tuna stocks which are in danger of being overexploited.51 The exchange of data on seabird interactions is encouraged in order for mitigation measures to be adopted for incidental catches.52 A working party on by-catch has been established to address any aspects of non-target species.

CHALLENGES FOR THE IOTC Article 13 of the United Nations Fish Stocks Agreement (UNFSA) requires states to cooperate to strengthen existing subregional and regional fisheries management organizations and arrangements in order to improve their effectiveness in establishing and implementing conservation and management measures for straddling fish stocks and highly migratory fish stocks. The UNFSA provides a framework for the management and conservation of these stocks relevant to the states parties of IOTC, which are obliged to enforce the conservation and management measures which they have adopted. For the sustainability of such stocks, cooperation among and between WIO coastal states is crucial. The implementation of the FAO International Plan of Action to Prevent, Deter, and Eliminate IUU Fishing is essential as far as highly migratory and straddling stocks are concerned. Although IOTC has put several resolutions in place since its inception for the management and conservation of tuna resources in the Indian Ocean, it still falls short in several areas, however. For example, effective

14 Fisheries Exploitation

288

10/28/09, 12:46 PM

289

Regional Cooperation

participation in meetings by representatives of developing countries remains wanting.53 The Commission is obliged to offer the necessary support to developing states to achieve this goal as states may have capacity constraints. Regarding the requirement by UNFSA for all fishing states operating in the IOTC area and coastal states to be members of the relevant regional fisheries body, several countries within the IOTC area of competence are not yet members and some of them being fishing states.54 Other coastal states with more minor catch levels have also not joined. Although decision making within IOTC can be reached by a two-thirds majority, this is weakened by the fact that members are not bound by that decision if they register an objection to it.55 The Commission continues to face challenges with regard to inadequate statistics (particularly on catch and effort and size data) since members and Cooperating Non-contracting Parties do not submit them, or they are submitted late, making it difficult for working parties to provide up-todate advice on stocks to the Commission and also having detrimental effects on stock assessment.56 In 2002 only three out of twenty-one member states submitted partial data on time,57 while the scientific committee noted the continued deterioration in data submission in 2004 and 2005.58 The IOTC has not established catch quotas despite the Scientific Committee having given several recommendations separately on the status of stocks, such as the need to reduce catches of bigeye, yellowfin, and swordfish.59 Considering the role of IOTC in the conservation of tuna and tuna-like species in the region, one would expect that the resolutions relating to fish stocks would be more substantive.60 Although the Commission has authorized collection of data on nontarget, associated, and dependent species, few data are available as logbook programmes of Contracting and Cooperating Non-contracting Parties do not currently cover these species. Data on by-catch are usually incomplete and most available data relate to sharks.61 There are no bycatch mitigation measures or minimum sampling requirements in place. National observer programmes have been proposed, but since they are not mandatory, their coverage in the Indian Ocean is low and observer data have not been supplied by any of the members. The requirements of such a programme have not been established and neither have observer data standards.62 Although the Scientific Committee has advised on the need for the reduction of by-catch of juvenile tunas, no research has been carried out on the impact of by-catch on non-target species and neither

14 Fisheries Exploitation

289

10/28/09, 12:46 PM

290

Jane Mbendo and Martin Tsamenyi

have any requirements for mitigation measures to reduce bycatch been established.63 Although IOTC had established measures to combat IUU, there is need for the implementation of an effective at-sea and port inspection scheme. There are no provisions for at-sea boarding and inspection and currently there is no requirement for the port inspection of vessels of member states and the implementation of a vessel monitoring system (VMS) is still at a pilot stage covering 10 per cent of vessels. It is a requirement under the UN Fish Stocks Agreement that States should implement vessel monitoring systems. This should require installing VMS equipment on board their fishing vessels to enable monitoring of the vessel’s activities.64 The existing documentation scheme for bigeye is oriented towards trade and, therefore, may not serve the purpose of tracking IUU fishing activities. At the 6th Session of the Commission in 2001, it was agreed to establish a Control and Inspection Committee. A number of Resolutions were also adopted to implement minimum control measures on a provisional basis until the integrated control and inspection scheme is adopted. IOTC does not have specific provisions dealing with the precautionary approach and, therefore, there is need to develop and implement precautionary and ecosystem approach measures.

MEETING THE CHALLENGES In its endeavour to address the improvement of its effectiveness and efficiency, thereby achieving its objectives, IOTC is in the process of considering the need for a change in the relationship between the Commission and the FAO, and the mechanisms of doing so.65 The intention is for IOTC to be removed from the framework of FAO, but still maintain a close relationship with it. Some of the reasons leading to this consideration include administrative and financial accountability and transparency. Another reason is the relationship IOTC has with Taiwan as a fishing entity. The Commission has not established an effective mechanism for Taiwan’s participation because of Taiwan’s status within the framework of the UN. Taiwan is represented at Commission meetings by “invited experts” who are considered as observers and can only speak after members have spoken.66 This status does not allow them to represent their country or make any commitments on the implementation of management measures under consideration by IOTC.67 Although there have been allegations over

14 Fisheries Exploitation

290

10/28/09, 12:46 PM

291

Regional Cooperation

the years that Taiwanese fishing vessels have violated IOTC measures,68 the Commission has fallen short of taking measures to sanction Taiwanese vessels over practices which undermine its efforts in meeting its conservation objectives. For these kinds of fishing activities to be controlled, it is necessary that IOTC incorporate Taiwan into its management regime one way or another. This is also necessary for the sake of acquiring fisheries data from Taiwan’s fishing operations. IOTC convened a special session to address its relationship with FAO for the purpose of exploring ways of achieving effectiveness and efficiency as had been agreed during the ninth session of the Commission. During the deliberations of the third special session of the IOTC, the members reached a consensus on the text of the amendments to the IOTC Agreement. A cooperation agreement was also proposed to maintain a strong and effective relationship between the IOTC. The report of the third special session of the Commission was adopted on 19 May 2006. The proposed draft amendments from the third special session were referred to FAO’s Committee on Constitutional and Legal Matters (CCLM) and the FAO Council by the Director-General.69 An Informal Group of Legal Experts was then convened between 23–24 October 2007 in accordance with a decision of the Council of FAO at its 132nd Session of 18–22 June 2007, to deliberate on the “possible change in status of the IOTC”.70 The report of the Legal Experts was presented by the CCLM at IOTC’s Twelfth Session in June 2008; however, the CCLM could not reach agreement on the recommended change in IOTC’s status. During its Twelfth Session, the IOTC emphasized the need for further deliberations on the matter after the results of an IOTC performance review. The performance review concluded that the participatory limitations of the IOTC deriving from its legal status as an FAO body “conflicts with the provisions of the UN Fish Stocks Agreement and prevents major fishing players in the Indian ocean from discharging their obligations to cooperate in the work of the Commission”.71

CONCLUSION IOTC has made significant progress in establishing conservation and management measures for tuna and tuna-like species in the Indian Ocean, considering that it has not been in existence for a long time. Its membership has continued to grow over the years, although a good number of WIO states have not yet joined the organization. This is a matter of concern

14 Fisheries Exploitation

291

10/28/09, 12:46 PM

292

Jane Mbendo and Martin Tsamenyi

especially since these countries are not part of the decision making on the management of tuna resources in the region and neither do they submit data, hence negating the efforts of the Commission to enhance regional cooperation. The IOTC needs to enhance its resolutions with regard to the precautionary approach, regional cooperation on inspection and boarding, and also port-state enforcement and high seas authorizations. In addition, there is a need to provide for the compatibility of conservation and management measures for EEZs, and those adopted for the high seas area in the IOTC area of competence. More significantly, IOTC needs to find a solution to the problem of Taiwan’s participation to ensure the effectiveness of the organization.

Notes 1. FAO Fisheries Proceedings No. 2 on the Management of Tuna Fishing Capacity: Conservation and Socio-economics, 15–18 March 2004, Madrid, Spain, p. 3. 2. Ibid. 3. Ibid, p. 4. 4. Special Japanese dish of sliced raw tuna meat, fresh or frozen, traditionally prepared from bluefin, bigeye, and yellowfin tunas. 5. Annex 1. Law of the Sea Convention (1982). 6. See Articles 63 and 64, pp. 116–19, of LOSC; Articles 7 and 8 of the U.N. Fish Stocks Agreement. 7. Established May 1994 to manage a single stock — see text of Convention at . 8. Established March 1950 — see text of Convention at . 9. Established March 1969 — see text of Convention at . 10. Established March 1996 — see text of convention at . 11. Established December 2004 — see text of convention at . 12. (accessed 27 December 2006). 13. The WIO region in this chapter refers to the islands of Madagascar, Comoros, Mauritius, Seychelles, Reunion (France), and coastal States of Somalia, Kenya, Tanzania, Mozambique, and South Africa. 14. FAO, Historical Trends of Tuna Catches in the World, Fisheries Technical Paper No. 467, Rome, 2004. 15. Rudy van der Elst, “Local Solutions to Challenges of West Indian Ocean Fisheries Development”, NAGA, WorldFish Center Quarterly 26, no. 3 (Jul–Sep 2003). 16. FAO, Review of the State of World Marine Fishery Resources, Fisheries Technical Paper 457, Rome, 2005. 17. Rudy van der Elst, “Local Solutions to Challenges”.

14 Fisheries Exploitation

292

10/28/09, 12:46 PM

293

Regional Cooperation

18. (accessed 1 January 2007). 19. See, for example FAO, Review of the State of World Marine Fishery Resources, Fisheries Technical Paper No. 457, Rome, 2005; FAO, Trends in Oceanic Captures and Clustering of Large Marine Ecosystems, Fisheries Technical Paper No. 435, Rome 2002, p. 20. 20. FAO, Managing Fishing Capacity of the World Tuna Fleet, Fisheries Circular No. 982, Rome, 2003. 21. Seychelles Fishing Authority Technical Report, WIO Tuna Fishery from 1980– 1985. 22. UNEP, IOC, EU. Western Indian Ocean Environment Outlook, 1999, p. 20. 23. Robinson. J, Jude Shroff, The Fishing Sector in Seychelles: An Overview, with an Emphasis on Artisanal Fisheries. Seychelles Medical and Dental Journal, Special issue, vol. 7, no. 1, November 2004. 24. Ibid. 25. (accessed 15 December 2006). 26. FAO, Review of the State of World Marine Fishery Resources, Fisheries Technical Paper no. 457. Rome, 2005, p. 169. 27. FAO, Historical Trends of Tuna Catches of the World, Fisheries Technical Paper no. 467, Rome, 2004. p. 43. 28. FAO, Review of the State of World Marine Fishery Resources, Fisheries Technical Paper no. 457, Rome, 2005, p. 167. 29. IOTC, Report of the Tenth Session of the Indian Ocean Tuna Commission. Goa, India, 22–26 May 2006. 30. (accessed 1 January 2007). 31. FAO, Process for the Establishment of the Indian Ocean Tuna Commission, Fisheries circular No. 913, Rome, 1996. 32. See LOSC Article 56 — defining rights, jurisdiction, and duties of the coastal State in the Exclusive Economic Zone (EEZ); LOSC Article 64, addressing highly migratory species; LOSC Article 116 to 119, addressing conservation and management measures of living resources of the high seas. 33. (accessed 1 January 2007). 34. For full text of the Agreement see, . 35. Yellowfin tuna, skipjack, bigeye tuna, albacore tuna, longtail tuna, kawakawa, frigate tuna, bullet tuna, narrow barred Spanish mackerel, Indo-Pacific blue marlin, black marlin, Indo-Pacific, king mackerel, striped marlin, Indo-Pacific sailfish, swordfish. (accessed 1 January 2007). 36. (accessed 1 January 2007). 37. IOTC — Report of the Tenth Session of the Indian Ocean Tuna Commission. Goa, India, 22–26 May 2006.

14 Fisheries Exploitation

293

10/28/09, 12:46 PM

294

Jane Mbendo and Martin Tsamenyi

38. These include sub-commissions that deal with any of the listed stocks, providing a forum for consultation and cooperation on their management, with a view to making appropriate recommendations; scientific committee that advises the Commission and sub-commissions on research and data collection, on the status of stocks, and on management issues; working parties to analyse in more detail, technical problems related to the management goals of the Commission. 39. IOTC Resolution 01/05; Resolution 00/01. 40. IOTC Resolution 98/02. 41. IOTC Resolution 99/02. 42. IOTC Resolution 01/02. 43. IOTC Resolution 01/03. 44. (accessed 5 January 2007). 45. IOTC Resolution 01/06. 46. IOTC Resolution 01/07. 47. IOTC Resolution 05/02. 48. IOTC Resolution 02/03. 49. See, for example, IOTC Resolution 01/01; C. Small. Regional Fisheries Management Organisations; Their Duties and Performance in Reducing Bycatch of Albatrosses and Other Species, 2005. 50. IOTC Resolution 06/03. 51. See, for example, IOTC Resolution 99/01; Resolution 01/04. 52. IOTC Resolution 06/04. 53. See, for example, IOTC — Report of the tenth session of Commission. Goa, India, 22–26 May 2006; Report of the Ninth session of Commission. Victoria, Seychelles, 30 May–3 June 2005; Report of the Eighth session of Commission. Victoria, Seychelles, 7–12 December 2003; Report of the sixth session of the Scientific committee, Mahe, Seychelles, 3–6 December 2003; Report of the seventh session of the Scientific Committee, Victoria Seychelles. 8–12 November 2004. 54. The Maldives, Myanmar, Yemen, and Arab Emirates are major non-member fishing states. 55. C. Small. Regional Fisheries Management Organisations: Their Duties and Performance in Reducing Bycatch of Albatrosses and Other Species, 2005. 56. See, for example, IOTC — Report of the seventh session of the Scientific Committee, Victoria, Seychelles, 8–12 November 2004; Report of the tenth session of the Commission. Goa, India, 22–26 May 2006. 57. IOTC — Report of the fifth session of the working party on Data collection and Statistics, Victoria Seychelles, 1–2 December 2003. 58. See, for example, IOTC — Report of the seventh session of the Scientific

14 Fisheries Exploitation

294

10/28/09, 12:46 PM

295

Regional Cooperation

59. 60. 61. 62. 63. 64.

65. 66. 67.

68. 69. 70. 71.

Committee, Victoria Seychelles. 8–12 November 2004; Report of the eighth session of the Scientific Committee, Victoria, Seychelles, 7–11 November 2005. IOTC — Report of the eighth session of the Commission, Victoria Seychelles, 7–12 December 2003. As at September 2006, only four resolutions mention the target species ie; Resolutions 99/01, 02/08, 03/06, 05/01. IOTC — Report of the Second Session of the Working Party on Bycatch. Seychelles, 31 July–1 August 2006. C. Small. Regional Fisheries Management Organisations: Their Duties and Performance in Reducing Bycatch of Albatrosses and Other Species, 2005. Ibid. COFI, 2003. Report of the Twenty-fifth session of the Committee on Fisheries. Rome, 24–28 February 2003. FAO Fisheries Reports 702 Cited in C. Small, Regional Fisheries Management Organisations: Their Duties and Performance in Reducing Bycatch of Albatrosses and Other Species. 2005. IOTC — Report of the third Special Session of the Commission, Goa, India, 17–19 May 2006. Edeson, W. Some Future Directions for Fishing Entities in Certain Regional Fisheries Management Bodies. Ocean Development & International law 37: 245–64, 2006. Ho. Peter, S. C. The Impact of U. N. Fish Stocks Agreement on Taiwan’s Participation in International Fisheries Fora. Ocean Development & International Law, 37: 133– 48, 2006. IOTC — Report of the ninth session of the Commission, Victoria Seychelles, 30 May–3 June 2005. IOTC — Report of the Eleventh Session, Grand Baie, Mauritius, 13–18 May 2007. IOTC — Information relating to agenda item 4 — Consideration of actions to achieve a more effective and efficient Commission, INFO1 [E]. Anonymous (2009), Report of the IOTC Review Panel: January 2009.

References Edeson, W. “Some Future Directions for Fishing Entities in Certain Regional Fisheries Management Bodies”. Ocean Development & International Law 37 (2006): 245–64. FAO Fisheries Circular No. 913. Process for the Establishment of the Indian Ocean Tuna Commission. Rome, 1996. FAO Fisheries Circular No. 940. Review of Measures Taken by Regional Marine Fishery Bodies to Address Contemporary Fishery Issues. Rome, 1999. FAO Fisheries Technical Paper No. 435. Trends in Oceanic Captures and Clustering of Large Marine Ecosystems. Rome, 2002, p. 20.

14 Fisheries Exploitation

295

10/28/09, 12:46 PM

296

Jane Mbendo and Martin Tsamenyi

FAO Fisheries Circular No. 982. Managing Fishing Capacity of the World Tuna Fleet. Rome, 2003. FAO Fisheries Proceedings No. 2 on the Management of Tuna Fishing Capacity: Conservation and Socio-economics. 15–18 March 2004. Madrid, Spain. FAO Fisheries Technical Paper No. 467. Historical Trends of Tuna Catches in the World. Rome, 2004 FAO Fisheries Technical Paper 457. Review of the State of World Marine Fishery Resources. Rome, 2005. Ho, Peter S.C. “The Impact of U.N Fish Stocks Agreement on Taiwan’s Participation in International Fisheries Fora”. Ocean Development & International Law 37 (2006): 133–48. IOTC. Report of the fifth session of the working party on Data collection and Statistics, Victoria Seychelles, 1–2 December 2003. ———. Report of the eighth session of the Commission. Victoria, Seychelles, 7–12 December 2003. ———. Report of the sixth session of the Scientific Committee. Mahe, Seychelles, 3–6 December 2003. ———. Report of the seventh session of the Scientific Committee, Victoria, Seychelles, 8–12 November 2004. ———. Report of the ninth session of the Commission. Victoria Seychelles, 30 May–3 June 2005. ———. Report of the eighth session of the Scientific Committee. Victoria, Seychelles, 7–11 November 2005. ———. Report of the third Special Session of the Commission. Goa, India, 17–19 May 2006. ———. Report of the Second Session of the Working Party on Bycatch. Seychelles, 31 July–1 August 2006. ———. Report of the tenth session of Commission. Goa, India, 22–26 May 2006. ———. Text of IOTC Resolutions available at . Robinson. J., Jude Shroff. “The Fishing Sector in Seychelles: An Overview, with an Emphasis on Artisanal Fisheries”. Seychelles Medical and Dental Journal, Special issue, 7, no. 1 (November 2004). Rudy van der Elst, B. Everret, N. Jiddawi, G. Mwatha, P. S. Alfonso, and D. Boulle. “Fish, Fishers and Fisheries of the Western Indian Ocean: Their Diversity and Status. A Preliminary Assessment”. Philosophical Transactions of the Royal Society 363 (2005): 263–84. Rudy van der Elst, “Local Solutions to Challenges of West Indian Ocean Fisheries Development”. NAGA, WorldFish Center Quarterly 26, No. 3 (Jul–Sep 2003). Small, C. Regional Fisheries Management Organisations: Their Duties and Performance in Reducing Bycatch of Albatrosses and Other Species. 2005. UNEP, 1999. Western Indian Ocean Environment Outlook. Available at (accessed 30 December 2006).

14 Fisheries Exploitation

296

10/28/09, 12:46 PM

297

Regional Cooperation

United Nations Convention on the Law of the Sea 1982 text available at (accessed 5 January 2007). Western Indian Ocean Tuna Fishery from 1980–1985. Seychelles Fishing Authority Technical report. Online Sources Cited (accessed 30 December 2006). (accessed 5 January 2007).

14 Fisheries Exploitation

297

10/28/09, 12:46 PM

298

Timothy Doyle and Marcus Haward

15 REGULATORY AND MARKETBASED INSTRUMENTS IN THE GOVERNANCE OF FISHERIES AND MARINE PROTECTED AREAS IN THE INDIAN OCEAN REGION In Search of Cooperative Governance Timothy Doyle and Marcus Haward

INTRODUCTION There are several elements to the general trend of the use of market measures in natural resource management. In the case of Marine Protected Areas (MPAs), in some of the more developed parts of the Indian Ocean Region (IOR), such as Australia, a particularly virulent form of neoliberal environmental management — wise use — has replaced the more statebased regulatory approach of multiple use. While the use of market-based instruments in oceans’ governance is most clearly identified in resource extraction sectors such as fisheries and oil and gas, these tools are

15 Fisheries Exploitation

298

10/28/09, 12:47 PM

299

Governance of Fisheries and Marine Protected Areas

increasingly being directed at broader marine environmental management. A more consumer-directed approach is the use of eco-labels to provide greater community information as to the environmental effects of products, with a particular focus on the by-catch of marine wildlife. The creation and domestic implementation of certification programmes initiated under the umbrella of the Marine Stewardship Council (MSC), the Food and Agriculture Organization (FAO) and the International Organization for Standardization (ISO) is an interesting development — though not without faults in theory and practice — linking market-based eco-labelling with catch or product certification. In the international arena, the increased use of World Trade Organization (WTO) disciplines and rules (as highlighted in the Tuna-Dolphin and Shrimp-Turtle cases) have seen increased attention given to measures that conditioned market access on being compliant with environmental protection protocols. Much of this chapter is devoted to providing the overall background of fisheries and marine management in the IOR to lead on to an exploration of both good and poor models of marine management in the Indian Ocean. It concludes that any sustainable oceanic future in the Region must include a strong role for nation states (and partnerships among states), as well as partnerships with non-state partners, whilst stressing the limits of neoliberal natural resource economic management models. The outcomes of the United Nations Conference on Environment and Development (UNCED) in 1992, most notably, the Rio Declaration and Agenda 21 (particularly Chapter 17), as well as the Biodiversity Convention and the agenda established by the World Summit on Sustainable Development (WSSD) in 2002, have had significant impacts in the development of oceans’ governance. A decade and a half later, key postRio principles — sustainable development, integration, the precautionary principle/approach, and intergenerational equity — have introduced new approaches to the management of marine living resources. Since this time, we have seen the increasing use of economic instruments in the management of marine resources. These developments highlight new areas of governance where “market” approaches shape policies and practices. These tools and approaches have developed at a time when traditional, regulatory-based management arrangements have been seen to have “failed”. As well as encouraging the use of market-based tools, concern with such regulatory failures has prompted the reintroduction of concepts such as cooperative management as the basis for alternative approaches

15 Fisheries Exploitation

299

10/28/09, 12:47 PM

300

Timothy Doyle and Marcus Haward

to governance. Cooperative management has long been advocated as a means to counter regulatory failure, including non-compliance with laws and regulations. The linking of market-based measures to alternative governance models such as co-management provides a range of alternative approaches to management and an opportunity to reappraise the role of the state and regulatory frameworks. Rather than indicating a declining role for the state, the introduction of economic instruments reinvigorates state processes in the setting of standards and assessment or evaluation of performance. What is clear from our analysis is that each geopolitical region exhibits as many similarities as it does differences. Before we can embark on broader arguments about appropriate models of management and governance, we must first provide the background which explains the unique position of the IOR in relation to its marine habitats, and the place of this discussion in broader environmental security and food sovereignty debates.

THE IOR — ENVIRONMENTAL SECURITY AND SOVEREIGNTY IN A MARINE ENVIRONMENT “In pre-colonial times the Indian Ocean was a crucible for a first global economy…” (Muecke 2003). Now the Indian Ocean is a crucible for global survival. The Indian Ocean Region (IOR), including its littoral states, has been correctly described as the “Heart of the Third World”, or the “Ocean of the South” (Chaturvedi 1998). This chapter comes out of a larger IORG research project which seeks to address key issues which are vital to determining the region’s human and environmental security.1 The ramifications of environmental security in the Indian Ocean Region, if not achieved, will be dire on a global scale, not purely on a regional one. This larger project focuses on the four fundamental elements needed to provide human beings with the most basic forms of environmental security: Earth (land, food, biodiversity), Wind (air, climate), Fire (energy), and Rain (water, marine); and as such, these four elements provide its conceptual structure. In a sense, these elements are thrown into this project’s crucible, and it is hoped the alchemy which ensues will begin to go some way towards articulating the key environmental issues confronting this Region, which makes up approximately one third of the globe’s population (Doyle and Riseley 2008).

15 Fisheries Exploitation

300

10/28/09, 12:47 PM

301

Governance of Fisheries and Marine Protected Areas

Research in the more affluent and powerful minority world (Doyle 2005) has been heavily biased towards the Atlantic and Pacific Ocean regions. This wider IORG (Indian Ocean Research Group) project on environmental justice and security sets out to define a tangible identity for this neglected geopolitical sphere, seeking a workable concept while recognizing the immense diversity of the region. The region is defined not simply on the basis of geographical factors, but more importantly, as a series of complex organic and human relations and conditions that bind it. For example, in terms of the subject matter of this particular volume, biological factors such as the bluefin tuna migrations and meteorological phenomena such as the monsoons are examples of these unique and dynamic relations. Human trade and migration routes provide additional levels of palimpsests, drawn over ecological maps. The IOR has suffered, therefore, within a void of cultural interpretation, pre- and post-colonization. The IOR has been correctly recognized by some researchers such as Chaudhuri (1990), Subrahmanyam (1997), Frank (1998), and editors Ghosh and Muecke (2000) as a communication hub for civilizations established well before the rise of Europe. In pre-colonial times, the Indian Ocean was a “crucible” for a first global economy involving Chinese, South Asian, and Middle Eastern trade (Frank 1998). Nature was dominant and sacred. It was with colonization and technological mastery that nature disappeared from view (Muecke 2003). There is a growing recognition from within the IOR of the need to listen again to the arguments of nature and to its people to expand our “oceanic knowledge” (Muecke 2003). The concept of environmental security that informs this chapter is based on the assumption that all nation states within the IOR share a common interest in ascertaining and maintaining a secure environmental future. Today, the deterioration of air, water, energy, and biodiversity, for example, is causing increasing degradation of the environment and human health. It is widely recognized that these problems disproportionately burden poor communities, raising the issue of environmental justice for the peoples of Indian Ocean. The authors of this chapter affirm the right of all people inhabiting the region to live and work in a peaceful environment with clean air, fertile land, healthy and abundant water, and sufficient food; along with the right to have the voices of the region’s people heard, and, ultimately, to influence decision making which impacts on their existence.

15 Fisheries Exploitation

301

10/28/09, 12:47 PM

302

Timothy Doyle and Marcus Haward

Environmental security is one of the most important shared interests of the region, and thus a policy-oriented dialogue is essential in creating partnerships among governments, industry, NGOs, and the broader communities. This work seeks to establish a heightened level of regional transparency of goals for improving regional and global relations. It recognizes the benefits of regional cooperation and collaboration within the IOR. Many of the risks associated with securing environments cannot be addressed as issues within the limited frame of the nation state. Instead, they are oceanic. Depending on the disciplinary paradigm, whether it be international relations, critical geopolitics, military security, or environmental politics, definitions of environmental security are as numerous as definitions of what constitutes the “environment” itself. In recent environmental security literature, issues which fall under its rubric are multifarious and diverse. Some of these include: biological and ecological security; the greening of military operations; climate change, desertification, biodiversity; human population and migration; fisheries; forests; energy; water; nutrition; shelter; and poverty. Two categories can be used to arrange this cacophony of issues in the first instance. First, most environmental security issues are still cast around the “security” of the nation state. Secondly, a more inclusive definition, one which transcends nation state boundaries, relates to conditions which secure individual access to a basic infrastructure for survival in a geopolitical region defined by shared environmental boundaries. Indeed, it is this latter definition which informs the following pages: environmental security, in this vein, is reliant on shared understandings of ecological conditions leading to potential and real conflicts, as well as developing a more sustained, peaceful, and resource-secure regional future (Doyle 2005). The tsunami of 26 December 2004 that struck coastal areas of the Indian Ocean littoral states with such devastation and loss of life provided a graphic example of the forces of nature, and the effects of such forces on coastal communities. The effects of the tsunami were felt around the Indian Ocean Region, with major loss of life in the area near the epicentre of the undersea earthquake off Aceh in Indonesia, in the southern parts of Thailand, the Maldives, and the Andaman Islands (Kay 2005). The tsunami also affected the east African coastline and its effects were even felt at Australian stations in the Antarctic (Brolsma 2005, p. 13). The effects and impacts of the tsunami in destroying coastal areas and communities provided clear evidence of the significance of the coastal zone to the

15 Fisheries Exploitation

302

10/28/09, 12:47 PM

303

Governance of Fisheries and Marine Protected Areas

economic and social fabric of the region. The coast is the location for a vast majority of the region’s population, industrial development, and communications infrastructure — ports, roads, railway systems, and airports. The coastal zone (including its marine and terrestrial components) has many uses and an equally diverse range of users. Marine resources provide important sources of food and food security for coastal communities and the activities of users have a number of impacts — direct and cumulative — on the coastal and marine environment.

FISHERIES AS A SUBSET OF FOOD SECURITY AND FOOD SOVEREIGNTY Food security, therefore, is inextricably linked to biodiversity and is defined by the United Nations as “…the physical and economic access, for all people at all times, to enough food for an active, healthy life” (UN Food and Agriculture Organization). Significant global conventions, such as the Convention on Biological Diversity (CBD) and the World Food Summit in Rome in 1996, made commitments to enhancing biodiversity, and in the case of the latter, to try and reduce world hunger by 50 per cent by 2015. There is still too little being done, however, and hunger has increased every year since the Summit. For example, in 2004, there were 852 million gravely undernourished people in the world — up 10 million from the previous year (FAO 2004). In addition to this, every day, more than 17,000 children under the age of five die from hunger-related diseases (WFP 2004). Most of these deaths occur in the IOR. In Eastern Africa, nowhere is the nexus between food security and traditional security more obvious. Shaw writes: In Zambia, wildcat strikes among mine workers protested, among other things, recessionary moves made by the regime. In Kenya, deteriorating standards of living in Nairobi furnished the backdrop for the abortive coup attempt of August 1982. Somali troops clashed with civilians in the northern part of the country after a demonstration was held to protest the ill effects of economic crisis (Shaw 1988, p. 6).

Despite this desperate situation, the efforts and resources spent on the international alliance to alleviate hunger and poverty remain meagre, particularly when compared with the billions of dollars spent on the “War Against Terror”. The amount of aid being provided for famine relief is decreasing as funds are redirected towards strengthening traditional

15 Fisheries Exploitation

303

10/28/09, 12:47 PM

304

Timothy Doyle and Marcus Haward

national security through growing military resources (United Nations 2005). For example, In Ethiopia, it has been reported that the World Food Programme reduced daily food rations for the 126,000 refugees from the Sudan, Eritrea, and Somalia living in Ethiopian refugee camps because the aid was redirected towards the War against Terror (United Nations 2005). It is the case, therefore, that while biodiversity, and more particularly food security, is an essential element of human survival, increasingly it is taking second place to more traditional security agendas. In addition, it is becoming a commodity under the free market control of global entities such as the World Trade Organization (WTO) and transnational corporations (TNCs). It is also rapidly becoming the foundation of major economic markets through, for example, biotechnologies and the patenting of genetic materials. This current world view has led to three major revolutions since the 1950s — the “Green Revolution”, the “Blue Revolution” and the “Gene Revolution”. The Green Revolution of the 1950s and 1960s saw the transfer of Western industrialized agriculture from wealthy first world states to poorer developing countries. The same world view that led to the Green Revolution saw the world fish catch increase by about 500 per cent between 1950 and 1997, and has consequently been referred to as the “Blue Revolution” (Bowden 2002). As we later detail, exports from the IOR to Japan and Europe increased dramatically in the decade to 1997. It is not surprising, therefore, that serious concerns have been raised about fish stocks being depleted too rapidly. There has been an increase in commercial fishing vessels from Japan, the Russian Federation, South Korea, and Taiwan (Nizam 2007). Nizam goes on to state that there is now more commercial fishing where there used to be small-scale artisanal fishing, leading to the destruction of an important food source and threatening community livelihoods. Fishing is critical for export income for Indian Ocean states and, as Haward elsewhere observes (Haward 2008), it is the mainstay of many IOR economies, such as the Maldives. This is becoming increasingly threatened. Of particular note is the increase in commercial tuna fishing efforts by states outside of the IOR. This has received significant media attention in Australia recently. The Australian Fisheries Management Authority has been reported to have accused Japanese fishers of illegally catching tuna worth $2 billion and systematically hiding their haul over the last twenty years (Darby 2006). Australian and New Zealand authorities

15 Fisheries Exploitation

304

10/28/09, 12:47 PM

305

Governance of Fisheries and Marine Protected Areas

believe that this has had extremely detrimental effects on the fishery. However, one of the major concerns among commentators is the lack of data on catches in the region and the consequent challenges in monitoring stocks in the IOR. This difficult topic is explored later in this chapter. The Indian Ocean contributes six million tons of marine fish production per annum. Most of the fishworkers live in coastal communities which are often considered risk communities due to “their isolation, fragile resource base, and, often, poorer levels of education and health” (Chaturvedi 1998, p. 713). The traditional and customary rights of coastal fishing communities have been eroded by the expansion of large-scale coastal tourism and industrial development. In their eagerness to secure valuable external earnings, states such as Indonesia and Thailand have frequently ignored the basic needs of local coastal communities, and local women workers have subsequently migrated from, for instance, Sri Lanka, to the Maldives in search of work in the fish processing plants (Chaturvedi 1998, p. 713). The Indian Ocean occupies a basin of 73 million sq. km, bordered by thirty-eight coastal states on four continents (Kwiatowska 1994). These coastal states have declared territorial seas and 200 nautical mile exclusive economic zones (EEZs) as permitted in the Law of the Sea Convention (LOSC) of 1982, providing them with important areas of maritime jurisdiction. Outside these EEZs are areas of high seas that, under the LOSC, can be fished by any state. The majority of coastal states support artisanal or small-scale commercial fisheries that are important sources of food and protein. Although relatively small in relation to other areas, the Indian Ocean has experienced significant growth in its commercial fishery and has attracted vessels displaced from the Pacific and other regions towards pelagic fisheries, particularly in relation to tuna species. Aquaculture, a multinational industry, is also changing the fabric of lives in these coastal communities, converting and destroying the ecological security of coastal farmlands and mangrove systems which sustain life, and replacing them with globalizing monocultures. The power of aquaculture industries is immense as they have been allowed to develop almost unchecked. Even in the more affluent parts of the IOR, such as Australia, there are few regulations with teeth which effectively guide these industries. In some ways, this reflects the offshore nature of these activities, which are largely away from a critical or regulatory eye. In a hallmark case of Australia’s Environment, Resource and Development Court (ERD) in 1999, the Conservation Council of South Australia (CCSA)

15 Fisheries Exploitation

305

10/28/09, 12:47 PM

306

Timothy Doyle and Marcus Haward

challenged the South Australia State government in conjunction with the powerful tuna fishing industry over tuna feedlots in Louth Bay in the Spencer Gulf. Despite a successful outcome, with the CCSA proving that the industry did not adhere to the principles of environmentally sustainable development (ESD), the State government overrode the court ruling, in favour of continued questionnable aquacultural practices. As in the South Pacific, the commercial tuna fishing effort in the region is dominated by distant-water fishing nations (DWFNs) which either fish in the high seas areas, or negotiate access agreements to fish in coastal states’ EEZ. The Indian Ocean has witnessed an increasing build-up of vessels from the 1990s. These fleets include some of world’s largest “superseiners” — extremely large purse-seine vessels targeting high seas tuna and skipjack stocks. North Asian purse seiners are now being joined by European purse seiners from Spain and France, and the European Union has negotiated access agreements with a number of Indian Ocean coastal states, including the Seychelles, Madagascar, Mauritius, and Mozambique. Fishing remains critical for both food security and export income for Indian Ocean states. In the case of the Maldives, for example, fishing is a mainstay of the economy, with 70 per cent of its export earnings derived from fishing and related activities. India, too, has seen considerable fisheries development from the mid-1980s. Fishing effort is generally confined to inshore areas through artisanal, traditional, mechanized sectors, comprising 93 per cent of production. Deep sea fleets, operating to the edge of India’s EEZ, only contribute 7 per cent of production, mostly in prawn trawling. Despite this emphasis on coastal and inshore areas, production has increased by a factor of six in the last fifty years. Scope for increasing the already fully-exploited coastal and inshore fisheries is, however, considered limited. Exports to Japan and Europe, major world markets, increased dramatically in the decade to 1997, prior to significant barriers being placed on the onward expansion of India’s export focus.

THE MARINE ENVIRONMENT AND COASTAL MANAGEMENT OF THE IOR The Indian Ocean region contains diverse coastal and marine environments vulnerable to development pressures. Mangrove areas are found around the region as are seagrass beds, both being critical habitats for a range of

15 Fisheries Exploitation

306

10/28/09, 12:47 PM

307

Governance of Fisheries and Marine Protected Areas

species. Development on the coastline leads to loss of mangroves. The region contains a range of coral reefs that provide an important source of food for local communities and are of major commercial importance for fisheries and tourism (NOAA 1995). Destructive practices, such as excavations of coral and coral sand, sand mining, illegal fishing practices, including the use of explosives and poisons, have damaged these reef systems. It has been estimated that 20 per cent of coral reefs and 5 per cent of seagrass beds have been destroyed, yet there is little documentary evidence of the extent of this damage (NOAA 1995). Environmental disturbances are “exacerbated by rapidly increasing coastal populations, widespread poverty that in turn promotes the unsustainable use of coastal resources, poorly planned economic development; under-resourced government institutions; and weak implementation of existing laws and policies” (Francis and Torrell 2004, p. 300). Coastal development poses challenges even for developed countries within the region that have relatively effective governance arrangements (Haward 1995; Glazewski and Haward 2005) such as Australia. For other developing Indian Ocean states, coastal management is clearly even more of a challenge. The Maldives — an archipelago on the North Indian Ocean — comprises 1,190 islands and twenty-six atolls stretching over 870 km in a roughly north-south orientation. The islands are low in elevation, many rising less than a metre above sea level, making them vulnerable to extreme events — as shown in the tsunami of December 2004. India, in contrast, has a coastline of 8,129 km and an EEZ (declared in 1976) of approximately 2 million sq. km, with its coastal zone heavily populated and the location of major industry. On the Western Indian Ocean, Kenya has a coastline of 600 km, with its coastal zone supporting 9 per cent of the country’s population (McClanahan et al. 2005). South Africa has a coastline of 3,000 km, with the western coast highly productive from an upwelling ecosystem. An estimated 30 per cent of South Africa’s population lives within 60 km of the coast, with the additional challenge of the unprecedented growth of informal settlements in the coastal zone (Glazewski and Haward 2005). Coastal zone management has increased in salience over the past thirty years, supported by initiatives at the international, regional, national, subnational, and local government/community levels. These initiatives have centred on a shift from sectoral to integrated approaches to management of the coast, and increased recognition of the problem of cumulative impacts. Internationally, the focus on integrated coastal zone

15 Fisheries Exploitation

307

10/28/09, 12:47 PM

308

Timothy Doyle and Marcus Haward

management (ICZM) gained traction though the work of the World Commission on Environment and Development (WCED), also known as the Brundtland Commission, and its report Our Common Future (WCED 1987/1990). This report noted that the use of coastal areas for settlement, industry, energy facilities, and recreation will accelerate, but that these areas would suffer increasing damage unless action was taken (WCED 1990, p. 307). Coastal and marine areas were also a focus of the United Nations Conference on Environment and Development (UNCED) held in Rio De Janerio, Brazil, in 1992. Agenda 21, the “global action plan” that was developed at UNCED, reinforced the need for more integrated approaches to coastal management in Chapter 17. UNCED also served to initiate further action, with the World Coast Conference in 1993 held in Noordwijk in the Netherlands being an immediate and significant response (Haward and Hildebrand 1996). This conference, supported by the World Bank, helped develop the Noordwijk Guidelines for Integrated Coastal Zone Management that have provided a useful framework for the development of coastal management programmes and plans in the Indian Ocean region (see Francis and Torell 2004). The translation of broad global objectives into feasible programmes at the regional, national and provincial levels is not a simple matter, since, even if effective programmes are devised, implementation becomes a significant problem in itself (Davis and Haward 1994, p. 156).

INTERNATIONAL INSTRUMENTS The Law of the Sea Convention (LOSC) provides a key framework for ocean management. While it is less directly concerned with coastal management, the Convention encourages states to cooperate in a range of areas, including marine environmental protection. The key areas of the convention provide the basis for delimitation of maritime zones, including the territorial sea and exclusive economic zones (EEZ), thereby enhancing rights (and their concomitant obligation) of coastal states. The LOSC provides the legal basis for regimes for the exploitation of both living and non-living resources of the sea and below the seabed (with the resources outside national jurisdiction seen as the “common heritage of humankind”). This focus on exploitation is balanced by commitments towards protection of the marine environment, and urges states to collaborate over management and conservation of marine resources and

15 Fisheries Exploitation

308

10/28/09, 12:47 PM

309

Governance of Fisheries and Marine Protected Areas

the marine environment. The LOSC provides significant powers to coastal states in relation to their EEZs, and this has been an important factor in managing fisheries. A number of other relevant international instruments can anchor coastal and marine environmental protection. The Convention on Biological Diversity (CBD), developed under the auspices of the U.N. Environment Programme (UNEP) came into force in December 1993. This Convention was developed in recognition of the present and future value of biological diversity, including marine biodiversity (Norse 1993), and its significant reduction around the world. Biological diversity is defined in the Convention as “the variability among living organisms from all sources including terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are a part: this includes diversity within species, between species and of ecosystems”. Each party to the Convention has the responsibility for the conservation and sustainable use of its own biological diversity, and is to cooperate in implementing the Convention in areas beyond national jurisdiction, such as the high seas. The CBD gave more explicit focus to marine and coastal issues through the “Jakarta Mandate”, which was negotiated at the second meeting of state parties to the CBD in 1995, and provided a programme of action that would focus on implementing the provisions of the Convention as they relate to marine and coastal environments. Ship-sourced pollution has attracted considerable international attention, first in response to the accidental discharge of pollutants, and second from the dumping of wastes (including ballast water and plastics and other material) from vessels. Ship-sourced pollution is regulated under two international conventions — MARPOL 1973/78 (the International Convention for the Prevention of Pollution from Ships), and the London Dumping Convention (International Convention on Offshore Dumping 1975). The International Maritime Organization (IMO) is responsible for the administration of MARPOL, and has developed a Global Programme for the Protection of the Marine Environment, addressing basic principles of “safer ships and cleaner seas”. Annexes to MARPOL deal with different ship-sourced pollutants, with Annex V (governing garbage) totally prohibiting the disposal of plastics, including fishing gear, into the sea. Other environmental instruments include the Convention on Migratory Species of wild Animals (CMS or the Bonn Convention) and the Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES). While the CMS has addressed issues related to the impacts of incidental catch of

15 Fisheries Exploitation

309

10/28/09, 12:47 PM

310

Timothy Doyle and Marcus Haward

seabirds associated with fishing, CITES appears to provide opportunities to monitor and regulate trade for some fish species. This Convention regulates trade in species that are threatened with extinction or may become so as a result of international trade driven by commercial demand (Kimball 2001, p. 33). Article II of CITES provides for the inclusion in Appendix I of species threatened with extinction that are or may be affected by trade. Listing on Appendix I prohibits international trade in wild specimens, but does not prohibit the harvest of, or domestic sale of, fish caught by recreational or commercial fishers within a state’s EEZ.

REGIONAL INITIATIVES The Indian Ocean Region contains a number of regional initiatives directed at building capacity and supporting coastal and ocean management. These initiatives can link with, or are developed under the auspices of, international agencies such as the United Nations Environment Programme (UNEP), the United Nations Food and Agriculture Organization, and the World Bank. The World Bank, for example, supports a number of regional programmes, including the Coral Reef Degradation in the Indian Ocean (CORDIO) programme, to respond to the environmental damage to coral reefs in the region (World Bank 2004). The UNEP Regional Seas programme has been an important catalyst for ocean and coastal management in the Indian Ocean Region. UNEP, headquartered in Nairobi, Kenya, provides significant capacity for developing regional strategies and supporting national actions. The Regional Seas Programme was established in 1974, and covers thirteen marine regions, and, for each region, can include an action plan, an intergovernmental agreement, and detailed protocols dealing with particular environmental problems (Yearbook of International Cooperation on Environment and Development 2004). There are two regional seas programmes in the Indian Ocean region — the South Asian Seas and the East African Seas Programmes. The South Asian Seas programme is established under an Action Plan, while the East African Seas programme is established under the Nairobi Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the East African Region. Countries that are members of the Nairobi Convention are Somalia, Kenya, Tanzania, Mozambique, South Africa, Comoros, Madagascar, Mauritius, Réunion, and Seychelles.

15 Fisheries Exploitation

310

10/28/09, 12:47 PM

311

Governance of Fisheries and Marine Protected Areas

The Bay of Bengal Programme was established by FAO in the mid1970s, with a range of projects being undertaken on marine resource management and marine environmental protection. In 1999, participating governments established a formal intergovernmental organization to replace the original FAO programme, and, at the same time, enable a broadening of the original aims (the development and management of small-scale fisheries). The Bay of Bengal Programme has a central mission to ensure development based on responsible fishing practices and environmentally sound management programmes (Bay of Bengal Programme 2005). Members of the Bay of Bengal Inter-Governmental Organization are Bangladesh, India, Sri Lanka, and the Maldives. The Western Indian Ocean Marine Science Association (WIOMSA) promotes educational, scientific, and technological aspects of marine sciences throughout the western Indian Ocean region (WIOMSA 2005). The Association holds conferences and workshops, provides grants to support research as well as training activities, and works with the UNEP (UNEP 2003). In addition to these regional institutions, there are a number of regional fisheries organizations within the Indian Ocean Region. These include the Indian Ocean Tuna Commission (IOTC), responsible for management of tuna and tuna-like species in the Indian Ocean and adjacent seas, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), responsible for management of marine living resources in the Southern Ocean, approximately Latitude 45° South, and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), responsible for the management of southern bluefin tuna throughout its range, which includes the Indian Ocean. A South West Indian Ocean Commission is under development. The Western Indian Ocean Tuna Organization (WIOTO) has no regulatory powers, but aims to strengthen cooperation and coordination among coastal states in the western Indian Ocean.

NATIONAL INITIATIVES States bordering the Indian Ocean vary considerably in the size and scale of coastal management policies and practices. Despite these differences, there is broad agreement on problems facing states, and responses needed. These responses include improving the integration of resource management with community development, incorporating local ecological knowledge

15 Fisheries Exploitation

311

10/28/09, 12:47 PM

312

Timothy Doyle and Marcus Haward

into coastal zone planning, involving stakeholders, building partnerships, and integrating science into resource management (see Francis and Torell 2004; Clemett 2003). Initiatives that address these key elements will also address key dilemmas of environmental security as they affect the marine and coastal environment. Sri Lanka established its first coastal zone legislation in 1981 and has pioneered a shift towards an integrated approach that included increased attention to community participation, in the 1997 revisions of the policy (Clemett 2003, p. 1). Sri Lanka’s 1997 Coastal Zone Management Policy is one example where the policy attempts to identify local priorities, but retains a focus on resource management rather than on local community needs (Clemett 2003, p. 1). India’s amendments to its Environmental Protection Act in 1991 provided the basis for the regulation of various coastal zone activities (Clemett 2003). This led to the zoning of coastal areas and classification of these zones. The Government of India constituted a National Coastal Zone Management Authority in 1998 (Ministry of Environment and Forests 1998) and has begun a number of capacity building and integrated coastal management projects under the auspices of the Department of Ocean Development (Subramanian, n.d). Indonesia, with a vast archipelago, has significant coastal management challenges arising for the fourteen sectors that address aspects of coastal resources (Patlis 2005, p. 451). Governmental reform, devolving responsibility to the regional level for a large number of social, economic, and environmental issues (Patlis 2005, p. 451) has posed further challenges. These challenges include gaps and overlaps in sector-based laws and regulations, and between national and regional laws (Patlis 2005, p. 451). Broad features that can be identified at the national level in the north and north-east Indian Ocean are replicated in the western Indian Ocean. As noted by Francis and Torell, some eastern African countries such as South Africa, Tanzania, Mozambique, and Kenya have programmes to address coastal issues at the national level (Francis and Torell 2004, p. 303), but these programmes vary considerably. South Africa established a national integrated coastal management policy in 1999 (Francis and Torell 2004, p. 303). This policy reflected broad government objectives in the post-apartheid era by the democratically elected government. The South African coast has become increasingly popular for business, commercial, tourism, and recreational activities,

15 Fisheries Exploitation

312

10/28/09, 12:47 PM

313

Governance of Fisheries and Marine Protected Areas

with a corresponding increase in the coast’s proportionate contribution to total GNP (Glazewski and Haward 2005). The new government enacted a framework environmental act, the National Environmental Management Act, 1998 (NEMA), in 1998 that partially, but not completely, repealed the previous Environmental Conservation Act. NEMA is underpinned by the tenet of cooperative governance by laying down a set of environmental management principles for decision making on matters affecting the environment. One of these is devoted specifically to coastal areas that “require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure” (Glazewski and Haward 2005, p. 77). Kenya’s initial coastal management programmes, established in the early 1980s, were within the UNEP Regional Seas programme that provided training in integrated coastal management, but this early action was not supported by national level legislation or effective institutional arrangements (McClanahan et al. 2005). Legislative reform in 2000, with the enactment of the Environmental Management and Coordination Act (EMCA), provided necessary legislative support for coastal management and reinforced institutional arrangements for coastal management and resource use. While the legislative base has been established, the institutional framework has yet to implement fully an integrated approach to management (McClanahan et al. 2005, p. 910). Australia, bordering the east Indian Ocean, has a coastline of approximately 37,000 km in length, the longest ice-free coast in the world. This coastline transcends a number of biogeographic regions, each containing a diversity of marine habitats. The management of the Australian coast reflects a similar diversity (Haward 2003), with the Commonwealth (national or Australian), States, and local government all having responsibility for coastal zone policy. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) — that came into force in July 2000 providing domestic effect to the Biodiversity Convention and the Jakarta Mandate — provides legislative support to marine environmental protection in what are termed “Commonwealth Marine Areas”. Australia’s Oceans Policy (launched in 1998) introduced regional marine planning by the Australian government (Bergin and Haward 1999; Haward 2001). While the State governments retain major responsibilities for current coastal management, there is formal intergovernmental interaction through different intergovernmental

15 Fisheries Exploitation

313

10/28/09, 12:47 PM

314

Timothy Doyle and Marcus Haward

committees and meetings of relevant Ministers. The Australian Government has recently indicated that it is concerned with the problem of coastal development and has threatened to take a more activist role in this policy area. The preceding survey reinforces the fact that, while experience in national initiatives on coastal management varies markedly amongst coastal states within the region, it is clear that such initiatives are providing an important institutional framework for integrated coastal zone management. These frameworks, and the ICM processes and outcomes in turn, address central issues related to marine and coastal environmental security. There is a need to develop national-level integrated coastal management programmes, and more from pilot projects that often stay focused on a specific area (Francis and Torell 2004, p. 303).

MARKET-BASED INSTRUMENTS IN FISHERIES AND MARINE MANAGEMENT AND GOVERNANCE: THE AUSTRALIAN CASE The Australian case is salient here. There is no doubt that a state’s capacity to govern — that is its ability to collate baseline data, to legislate, and to moderate — is undoubtedly important. But even more so is the type of management model which the state operates within. In recent times, the Australian Government has moved to a purchaser-provider model of public service which, though cost efficient, often leads to industry-friendly outcomes. The case of marine management has provided some particularly pertinent examples as to what happens when states hand over basic responsibilities to markets. Australia adopted free market economic principles in the mid-1980s. It is a small, (largely resource) export-based economy, and, like New Zealand, is firmly embedded in the international economic system. Buhrs and Bartlett write: “Keeping (export) prices down, and maintaining conditions favourable to overseas investment, are the foremost politicaleconomic priorities. Getting these key economic indicators right is more important than the level of unemployment, the distribution of income, and the social and environmental effects of development…People and the environment are looked upon more as ‘resources’ for the economy than as ends in themselves” (Buhrs and Bartlett 1997). However, understanding a state as part of an economic system is different from operating from a premise that the market is in itself natural,

15 Fisheries Exploitation

314

10/28/09, 12:47 PM

315

Governance of Fisheries and Marine Protected Areas

and that nature is a market place. The move from multiple use models of marine management to wise use models, shows the move of Australia from a position in the 1970s, where it was at the vanguard of good environmental governance (where the state played an active and responsible role), to a current position where basic responsibilities are handed almost exclusively to the corporate sector. Gifford Pinchet championed the earlier, more state-centric “multipleuse” as a way of resolving land use conflicts. These models were firmly rooted in notions of nature as constituting a series of resources for human use. Nature itself was not of value outside of these utilitarian notions. Multiple use has been dominant as a resource allocation model in many parts of the world, including Australia. It emerged most vociferously in the language which framed the establishment of the Great Barrier Reef Marine Park in the 1970s. It was during the 1980s, however, when it became the key resource management strategy within the ideology of sustainable use. Multiple Use planning imagines nature divided into a pie. All possible uses of nature (as pie to be consumed) are known and explored, as all of nature is a commodity. In addition to nature being construed as a series of pie segments, so too is society itself. Multiple Use is very much reliant on pluralist and corporatist concepts of power and the state. The roundtable is a symbolic representation of the pie, the table itself being provided by the state. People, or the now more fashionable “stakeholders”,2 are physical manifestations of possible resource use and conflict. Environmental Managers using this multiple use model argue that most environmental processes are reversible, and that all sectors can pursue diverse goals for resource use without unnecessary conflict. All it takes to succeed is that conflicting sectors produce end positions based on compromise and negotiation (Doyle 2001). Multiple use decision making has weaknesses. In true pluralist terms, all interest groups are perceived as equal stakeholders, whilst the state perceives and portrays itself as an objective middle person, attempting to provide a working compromise between conflicting sets of “values”. Values, of course, are important, but by concentrating solely on reconciling values, power differentials between conflicting positions are almost totally denied and neglected. To be fair to multiple use resource allocation and decision making, however, when genuinely interpreted as a conservation regime, it can achieve results. What is essential to good multiple use decision making is the open recognition that some interests and some values are more paramount than others. Also, that, depending on context, sometimes not

15 Fisheries Exploitation

315

10/28/09, 12:47 PM

316

Timothy Doyle and Marcus Haward

all resource issues are “win-win” situations. In fact, on many occasions, certain interests are more successful than others (zero-sum). The example of Australia’s Great Barrier Reef is an excellent one. Central to the Reef’s management is the existence of marine national parks, or no-take areas (Prideaux et al. 1998, p. 15). The benefits of no-take areas are widely recognized by scientists attempting to maintain some “control” areas which allow the development of successful management strategies. The majority of the Barrier Reef is not so exclusively protected. Most of its Marine Protected Areas (MPAs) allow commercial interests to enter into the Reserve. Multiple use can only work from a conservation perspective when these multiple-access areas are coupled with a strong sample of representative habitats which are “no go zones” for commercial interests such as mining. Frameworks which do not explicitly provide any exclusiveness to any interests are, at best, ecologically useless; and, at worst, are promoters of commercial, anti-ecological interests. These systems cease to be multiple use and take on the tag — the more neoliberal version — of wise use. Under wise use decision making, these areas are now referred to as resource “lock-ups”. As mentioned, “no-take areas”, exclusion zones, scientific control zones, and ecological buffer zones, are now increasingly obsolete. Any ecological “use” is only considered after business interests have deemed it appropriate insofar as they have no further utilization for the areas in question. Other wise use jargon refers to this as sequential use, which promotes a strict hierarchy in the order of access to the “resources”. The biosphere, in this view, can be used over and over again, fulfilling all the demands placed on it by the multitude of stakeholders, with no longterm negative consequences.

FREE MARKET, WISE USE MODELS OF MARINE GOVERNANCE: THE CASE OF THE GREAT AUSTRALIAN BIGHT MARINE PARK AND THE MARINE STEWARDSHIP COUNCIL An excellent example of the absence of “no take zones” in wise use natural resource management occurs in the conservative government’s declaration of the Great Australian Bight Marine Park (GABMP) in 1998. Aquatic environments are often seen under wise use as three-dimensional domains, for different reasons, but for the same purpose — to provide resource extraction industries with unlimited access. In the GABMP, the Park is

15 Fisheries Exploitation

316

10/28/09, 12:47 PM

317

Governance of Fisheries and Marine Protected Areas

divided using sets of latitudinal and longitudinal lines, as well as horizontal and vertical ones. Two key management zones are proposed: the Marine Mammal Zone, and the Benthic (sea floor) Zone. Basically, this translates into certain practices being pursued in different surfaces areas, as well as at different depths. This means that activities such as mid-water trawling, demersal shark netting, and petroleum/gas extraction are allowed above and below the benthos, although these practices have obvious and significant impacts on the seabed. To add to this industry-friendly regime, there are zero no-take zones in the overall “park”. Grady writes: Without any “no-take” sanctuary zones in the Commonwealth waters, there are no control sites by which to access the effects of trawling, fishing (shark and lobster), mineral and petroleum extraction. Hence, the proposed research and monitoring program for the park will not be able to demonstrate the effects/benefits of the zones — as the zones do not actually prohibit any activities (Grady 1998, p. 130).

The then Minister for Environment under the former Howard Ministry, Robert Hill, has argued that “no-take zones” will no longer appear in his government’s resource management strategies. In an ABC radio broadcast from Port Lincoln in September 1998, Hill addressed the management of the Great Australian Bight, stating that “MPAs (Marine Protected Areas) which exclude use are an old-fashioned view…” (Hill 1998). GABMP is not a park at all; but an industry free-for-all, using the language of conservation as window dressing. This “park” will prove virtually useless in either protecting endangered species such as whales, dogfish, and Southern Ocean tuna, or providing Australia with a genuinely sustainable fishing industry. This complex map of smoke and mirrors, promotes all, and denounces nothing: it is wise use at its destructive best. The Marine Stewardship Council (MSC) is another example of neoliberal principles governing fisheries management. Initially established through the joint efforts of the World Wide Fund for Nature (WWF) and the major food group Unilever in 1997, it is now an “independent” authority that has established a set of “principles and criteria” for the certification of sustainable fisheries. Its mission is to become a global accreditation board that, through its label, will let consumers know which products are sourced from “sustainable” fisheries. MSC initially presented itself as a non-profit group which provided accreditation of certain fisheries. “Certification”, it argues, “uses market incentives to influence the way fisheries are managed in favour of

15 Fisheries Exploitation

317

10/28/09, 12:47 PM

318

Timothy Doyle and Marcus Haward

environmental standards… Consumers know that by buying products with the MSC Label, they are supporting healthier oceans and healthier environment” (Burton 2001). The MSC is attracting a range of fisheries to its programme, but has yet to certify any Indian Ocean fisheries. The MSC mission is contested, and has been slow to penetrate major seafood markets in Asia (see Potts and Haward 2007). The cost of certifying fisheries under the MSC is high and this may be a disincentive for broader acceptance of this approach. The MSC — and other ecolabelling arrangements — assume that through the promotion of the label, fishers, processors, marketers, and retailers secure benefits through marketing sustainable fisheries. A key challenge is the creation of suitable markets and promoting ongoing consumer interest to ensure that the incentive remains for commercial involvement. Increasing support for ecolabelling and certification of fisheries by European consumers, for example, through the MSC or similar processes (see Potts and Haward 2007), may have considerable impact on exports from the Indian Ocean Region. Increased certification of fisheries, and increased use of ecolabelling by markets in developed economies pose challenges for developing fisheries in the Indian Ocean Region. Concerns over the quality and safety of fisheries products from India and Bangladesh led to the European Union banning Indian imports in 1997, and demands for Hazard Analysis Critical Control Point (HACCP) standards for fish imports. This led to processing plants in India undergoing considerable efforts to achieve EU certification, and indicates increasing pressure from developed countries on food safety and certification of fisheries exported from Indian Ocean states, thus placing increasing costs on local producers. A common concern among commentators and the FAO is the lack of data on catches in the region and the concomitant problems in monitoring stocks. A considerable effort is being undertaken by a number of organizations to improve catch data, particularly in relation to tuna species. Demersal fisheries are also developing but at the same time are attracting interest from vessels flagged from European countries. Consumer sentiment in Europe cannot exclusively be used as an adequate governance tool in the IOR. Just because this model has emerged from the markets of the affluent world does not mean it is more advanced than, or even appropriate to an Indian Ocean context. It is usually imagined that more affluent countries have more resources to spend on good governance; but too often, good governance has been interpreted as handing over basic marine management responsibilities to the market.

15 Fisheries Exploitation

318

10/28/09, 12:47 PM

319

Governance of Fisheries and Marine Protected Areas

Wise use and overly neoliberal sustainable development work hand in hand with free market economics. As the market is deemed “natural”, the ecology of the ecosphere becomes “the market”. All inputs and outputs are given value in monetary terms and then, so it is argued, the ‘natural’, “real” and “essentialist” economy of ecology shall emerge, unfettered by the constraints of science and governmentality. The trickle down effect will benefit those species living on the lower rungs of the natural hierarchy, promoting widespread ecological health and forever doing away with, any notions of science-generated ecological safety nets thrown over the most disadvantaged — those species and habitats, those resources — most at risk. Nothing is irreversible; everyone and everything will win. This line of argument, of course, also fits neatly into the parameters of neo-Spencerism, promoting the notion that those human and non-human communities most likely to survive unfettered “natural” systems will be all the better for doing so, having weeded out those less able to survive.

CHALLENGES: IMPROVING POLICY CAPACITY AND COORDINATION Local action is critically important in ensuring effective coastal management. Such initiatives are, however, a necessary but not sufficient condition for effective management as local initiatives need to be nested within national or sub-national programmes. This “nesting” is important as it provides a basis for the integration of institutions and efforts, and also because locally-based activities or programmes may be limited in reach. Local programmes can be effective in encouraging community action and addressing direct impacts on coastal environments, but may be less effective in dealing with the causes of downstream impacts. Questions of coordination and policy capacity lead to consideration of the need to manage what Allison termed the “internal components” and “external constituencies” of organizations (Allison 1992, p. 285). Managing internal components within agencies with differing responsibilities, but with broad interests in coastal or marine management, may be complex, but is a critical element in coordination and enhancing capacity. Managing the relationships with external constituencies (non-government stakeholders such as industry and business as well as the more traditional NGOs) is often difficult, given that government objectives are not always shared by other stakeholders.

15 Fisheries Exploitation

319

10/28/09, 12:47 PM

320

Timothy Doyle and Marcus Haward

All governments have responsibilities for the development and implementation of policy, rather than just leaving marine environments to market pressures. The structures and processes developed to undertake these activities form core institutional arrangements. In relation to issue areas such as coastal zone management, these arrangements can influence the efficacy of policy responses. There is a vast range of organizational options available to address problems associated with coastal management. These options include establishing a specific agency, including responsibility for coastal management within a specified agency, or coordinating a number of relevant agencies through enhanced horizontal governance. An important additional factor is the way in which policy is implemented. This introduces the concept of “vertical” governance, the relationship between central and local agencies or governments. This relationship is central to establishing institutional arrangements to address problems associated with coastal management. The development of national “plans of action” and response strategies are examples of vertical governance. Such actions have utility in providing a national focus to the problem, but these plans and/or strategies must be able to address problems at a local level.

CONCLUSIONS: LESSONS FOR COASTAL AND MARINE MANAGEMENT Coastal and marine management involve a wide range of actors and stakeholders. Given that the involvement and interest of communities, governments, and firms at different levels is a fact of life in coastal management, attention should be drawn to ways in which a coordinated approach to coastal management can be implemented. The experience within the Indian Ocean Region highlights the importance of linking national initiatives to local action and enhancing the means by which local capacity can be improved. This can be done in a variety of ways, and it is important to reiterate that there in no single “one best fit” approach. What is clear from the range of government, academic, and NGO reviews on coastal and marine management within the region is that a more comprehensive and integrated approach should replace traditional, sectoral orientation to coastal management activities, and that increased interagency consultation and cooperation is required.

15 Fisheries Exploitation

320

10/28/09, 12:47 PM

321

Governance of Fisheries and Marine Protected Areas

Additional attention to the inclusion of local government and local communities as stakeholders will supplement these more inclusive governmental approaches (see Clemett 2003). Linking the work of universities and individual scientists with research undertaken by NGO and government agencies in coastal management will improve the baseline data and information for any future policy. This is essential work for the IORG. The development of national standards for areas such as water quality and coastal development may involve national government leadership, but should also include local government input and allow the range of coastal interests to be consulted during the decision making process. Ongoing assistance should be given to local government bodies, particularly in terms of providing training for coastal planners and facilitating public consultation in local coastal decision making. The last twenty years have seen an increase in attention given to coastal management processes, moving to the establishment of national coastal legislation and/or policy, shifting from sectoral to integrated management, as well as improving coordination and capacity (this has been included within local government and communities). These national initiatives, supported by ongoing regional cooperation, provide an opportunity to address growing threats, and enhance the environmental security of marine and coastal resources and coastal communities. The reality is, however, that the almost exclusive reliance on consumer sentiment and other such global market instruments in the affluent world is not sufficient to develop long-term environmental governance for the IOR. Successful governance must embrace ecological and market factors that emerge from within the Region itself.

Notes 1.

2.

This chapter forms part of an ongoing, larger research project under the auspices of the IORG, which both Haward and Doyle are involved in. Doyle is Convener of Human and Environmental Security for the Indian Ocean Research Group (IORG). Of course, “stakeholders” cannot be confused with “people” or “the public”. The concept of the stakeholder is often used to excuse fully any further dealings with “the public”. The choice of the appropriate stakeholders is an intensely political process which is rarely democratic or representative of broader interests.

15 Fisheries Exploitation

321

10/28/09, 12:47 PM

322

Timothy Doyle and Marcus Haward

References Allison, G. “Public and Private Management: Are They Fundamentally Alike in All Unimportant Respects”. Reprinted in R. J. Stillman Jr. Public Administration: Concepts and Cases, 5th ed., Boston, Houghton Mifflin (1992, pp. 292–98). Bay of Bengal Programme. “About BOBP” (accessed 1 August 2005). Bergin, A. and M. Haward. “Australia’s New Oceans Policy”. International Journal of Marine and Coastal Law 14, no. 3 (1999): 387–98. Bowden, R. Food Supply: Our Impact on the Planet. London: White-Thompson Publishing, 2002. Brolsma, H. “Tsunami Detected at Antarctic Stations”. Australian Antarctic Magazine, no. 8 (Autumn 2005): 13. Buhrs, T. and R.V. Bartlett. “Strategic Thinking and the Government: Planning the Future in New Zealand?”. Environmental Politics 6, no. 2 (1997): 72–100. Burton, B. Personal Correspondence, 16 April 2001. Chaturvedi, S. “Common Security? Geopolitics, Development, South Asia and the Indian Ocean”. Third World Quarterly 19, no. 4 (1998): 701–24. Chaudhuri, K.N. Asia Before Europe: Economy and Civilisation of the Indian Ocean from the Rise of Islam to 1750. Cambridge: Cambridge University Press, 1990. Clemett, A. Improving Policy-Livelihood Relationships in South Asia. Briefing Note 7, Stockholm Environment Institute, University of York, United Kingdom, 2003. Darby, A. “Japan forced to halve bluefin catch”. The Age, 16 October 2006. Davis, B. W. and M. Haward. “Oceans Policy and Overlapping Regimes”. In Coastal Zone Canada 94: ‘Cooperation in the Coastal Zone’ Conference Proceedings, edited by P. G. Wells and P. J. Ricketts, vol. 1, pp. 155–64. Dartmouth Nova Scotia: Coastal Zone Canada Association, Bedford Institute of Oceanography, 1994. Doyle, T. Green Power: The Environment Movement in Australia. Sydney: University of New South Wales Press, 2001. ———. Environmental Movements in Majority and Minority Worlds: A Global Perpective. New Brunswick, NJ: Rutgers University Press, 2005. Doyle, T. and M. Risely. Crucible for Survival: Environmental Security and Justice in the Indian Ocean Region. New Brunswick, NJ: Rutgers University Press, 2008. FAO (Food and Agricultural Organisation). The State of Food Insecurity in the World 2004. Rome, 2004. Francis, J. and E. Torell. “Human Dimensions of Coastal Management in the Western Indian Ocean Region”. Ocean and Coastal Management 47 (2004): 299– 307. Frank, A.G. ReORIENT: Global Economy in the Asian Age. Berkeley: University of California Press, 1998. Ghosh, D. and S. Muecke. “Commerce and Culture in the Pre-Colonial Ocean”. Rogue Flows: Trans-Asia Cultural Traffic, edited by S. Muecke et al. Hong Kong: Hong Kong University Press, 2000.

15 Fisheries Exploitation

322

10/28/09, 12:47 PM

323

Governance of Fisheries and Marine Protected Areas

Glazewski, J. and M. Haward. “Towards Integrated Coastal Area Management: A Case Study in Cooperative Governance in South Africa and Australia”. International Journal of Marine and Coastal Law 20, no. 1 (2005): 65–84. Grady, M. “S.A’s Biggest Park-Juggernaut in Low Gear”. Environment South Australia 7. no. 3 (1998): 13. Haward, M. “Institutional Design and Policy Making ‘Down Under’: Developments in Australian and New Zealand Coastal Management”. Ocean and Coastal Management 26, no. 2 (1995): 87–117. ———. “Developing Australia’s Ocean Policy”. Oceans Yearbook 15 (2001): 523–39. ———. “The Ocean and Marine Realm”. In Managing Australia’s Environment, editd by S. Dovers and S. Wild River, pp. 35–52. Sydney, Federation Press, 2003. ———. “Marine and Coastal Environmental Security in the Indian Ocean Context”. In Crucible for Survival: Environmental Security in the Indian Ocean Region, edited by T. Doyle and M. Risely, pp. 61–72. New Brunswick, NJ: Rutgers University Press, 2008. Haward, M. and L. P. Hildebrand. “Integrated Coastal Zone Management”. In Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives, edited by L. Kriwoken, M. Haward, D. VanderZwaag and B. Davis, pp. 141–72. London: Kluwer Law International, 1996. Hill, R. Minister for Environment, Robert Hill quoted in ABC Radio Interview, Port Lincoln, August 1998. Kay, R. icoast Newsletter, 13 July 2005. Kimball, L. A. 2001. International Oceans Governance: Using International Law and Organisations to Manage Marine Resources Sustainably. IUCN-The World Conservation Union, Gland Switzerland and Cambridge, UK. Kwiatowska, B. “Institutional Cooperation in the Indian Ocean Region: Resource Development and Environmental Protection”. Paper to Pacem in Maribus (PIM) XXII, Madras, 4–8 December 1994. McClanahan, T. R., S. Mwaguni and N. A. Muthiga. “Management of the Kenyan Coast”. Ocean and Coastal Management (2005): 901–31. Ministry of Environment and Forests (India). “Notification Constituting National Coastal Zone Authority”. F. No.17011/18/96-IA-III, 1998. (accessed 20 July 2005). NOAA (National Oceans and Atmospheric Administration). Regional Perspectives: Indian Ocean, 1995. (accessed 13 July 2005). Norse, E. Marine Biological Diversity: A Strategy For Building Conservation Into Decision Making, edited by E. Norse. Washington, D.C.: Island Press, 1993. Patlis, J. M. “The Role of Law and Legal Institutions in Determining the Sustainability of Integrated Coastal Management Projects in Indonesia”. Ocean and Coastal Management 48 (2005): 450–67. Potts T. and M. Haward. “International Trade, Ecolabelling, and Sustainable

15 Fisheries Exploitation

323

10/28/09, 12:47 PM

324

Timothy Doyle and Marcus Haward

Fisheries — Recent Concepts and Practices”. Environment, Development and Sustainability 9 (2007): 91–106. Prideaux, M., M. Horstman and J. Emmett. “Sustainable Use or Multiple Abuse”. Habitat 26, no. 2 (April 1998): 15. Shaw, T.M. and S.J. MacLean. “Civil Society and Political Economy in Contemporary Africa: What Prospects for Sustainable Democracy?”. Journal of Contemporary African Studies 14, no. 2 (July 1996): 247–64. Subrahmanyam, S. Merchants, Markets and the State in Early Modern India. Delhi: Oxford University Press, 1990. United Nations. “Economic, Social and Cultural Rights: The Right to Food. Reported a Special Rappoteur”. Jean Ziegler, January 2005, New York: United Nations Economic and Social Council. UNEP (United Nations Environment Programme). Regional Seas Status Report. WCED (World Commission on Environment and Development). 1987/1990. Our Common Future: Australian Edition. Melbourne: Oxford University Press, 2003. World Food Programme. World Food Program, 2004 World Hunger Map. Rome: WFP, 2004. WIOMSA. “About WIOMSA”. Western Indian Ocean Journal of Marine Science, 2005. (accessed 13 July 2005). World Bank. “Coastal and Marine Management: Coral Reef Degradation in the Indian Ocean”. (accessed 13 July 2005). Yearbook of International Cooperation on Environment and Development. “Conventions within the UNEP Regional Seas Programme”. Lysaker: The Fridtjof Nansen Institute, 2004.

15 Fisheries Exploitation

324

10/28/09, 12:47 PM

325

The Future for Indian Ocean Fisheries

16 THE FUTURE FOR INDIAN OCEAN FISHERIES Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

Man has taken fish from nature for millennia and millions still rely on fishing and fish for their income and nutritional quality of their diet. However, without a concerted effort of the global community to improve fisheries management, the world is under imminent threat of a collapse of some of its main fisheries, endangering the livelihoods of these millions, reducing foreign exchange earnings of several developing countries, and ravaging the health of the oceans. Public and international awareness has been raised by an ever increasing stream of evidence that many of the world’s fisheries are over fished, catches are declining, and fishers’ livelihoods are degrading along with natural ecosystems they exploit. (The World Bank, Saving Fish and Fishers, 2004)

A central message emanating loud and clear from this volume is that ecologically sustainable and socially just development and management of Indian Ocean fisheries demand and deserve nothing less than a paradigm shift in terms of both perceptions and policies of major stakeholders. A major policy challenge in the Indian Ocean (“Ocean of the South”) is to

16 Fisheries Exploitation

325

10/28/09, 12:47 PM

326

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

identify a collective regional interest for fisheries and develop accordingly integrated management policies that link ecology and society, and which incorporate individuals, communities, agencies, states, and regimes into a holistic cooperative endeavour. This sense of urgency is being further reinforced both by growing scientific evidence of climate change, and various ethical as well as geopolitical considerations arising out of it. Our overall intention in this chapter is to reflect briefly but critically on the problems and prospects of putting into place an Action Plan for sustainable Indian Ocean fisheries. All that we intend to do here is to visualize a new architecture of regional action plan with its major pillars resting on poverty reduction, equitable and socially just economic growth, and the protection of regional and global commons. Central to our endeavour is the argument that classical-traditional conceptualizations of sovereignty (along with its territorially trapped trinity of authority, legitimacy, effectiveness) are severely restricted in their capacity to “manage” or “govern” a resource that, by its very nature, is boundary defying, and would increasingly be so as climate change unfolds in its various ramifications. What we particularly aim at in this chapter is to focus sharply on climate change and its enormous impact on fisheries resource exploitation, as well as fisheries policy frameworks and directions in the Indian Ocean. The Food and Agriculture Organization (FAO) too has issued a note of caution on the repercussions of climate change on the fisheries and aquaculture within the broader and deeper context of food security, especially for developing countries, where about 42 million people work directly in the sector, and 2.8 billion depend on fish products for 20 per cent of animal protein. Southeast Asia has almost one-third of the world’s mapped coral reefs, many of which are already undergoing rapid habitat destruction. The impacts of climate change will further exacerbate that trend, and impact on millions of people dependent on those reefs (Macchi 2008). Erosion of fringing reefs would disturb lagoon ecology as lagoons become less distinct from surrounding oceans. Mangrove habitats might also be damaged. Such changes could reduce fishing potential to alarming levels, especially in the absence of proactive policies and effective implementation at various levels.

SEARCHING FOR A NEW PARADIGM: CHALLENGES BEFORE SUSTAINABLE INDIAN OCEAN FISHERIES As graphically brought out in considerable detail by the World Bank Report entitled, Saving Fish and Fisheries: Towards Sustainable and Equitable

16 Fisheries Exploitation

326

10/28/09, 12:47 PM

327

The Future for Indian Ocean Fisheries

Governance of the Global Fishing Sector (2004), it is against the backdrop of fisheries having noticeably declined or collapsed over the last decade that the developed as well as developing countries have demonstrated increasing willingness to improve their fisheries management policies and practices. The nature and scope of the fishing crisis worldwide is amply supported by the following: (a) The evidence of overfishing is steadily and forcefully accumulating even as global fish-catching capacity in many countries continues to increase. While global fish production from capture fisheries during the 1950s and 1960s grew at a rate of 6 per cent annually, catches of the most sought after marine fish species have actually been in decline since 1988. Moreover, the current level of declining capture fisheries production has been achieved only by fishing harder and by targeting smaller and less-valuable species, as the large fish species have disappeared and fishers continue to “fish down the food chain”. Evidence is accumulating from all levels. For example, the biomass of the global ocean’s valuable and predatory fish (such as cod, tuna, grouper and shark) is estimated to be down by 90 per cent of preindustrial levels fifty years ago. (b) In Asia, coastal fisheries’ biomass is now down by a similar margin, to 8 to 12 per cent of pre-fishing levels. Catch per hour of the same surveillance ship, with the same gear in the Gulf of Thailand, declined from 250 kilograms to 18 kilograms per hour between 1961 and 1999. Furthermore, the ecosystems that support these fish stocks are being increasingly degraded; for example, 88 per cent of the coral reefs in Southeast Asia is estimated to be at risk from human damage, particularly overfishing, aggravated by coral mining and global warming. A key challenge before the fisheries administrations and stakeholders in the Indian Ocean and beyond is not only to reverse the trend of poor fisheries sector governance, but also to acknowledge (as well as implement in their policies) the fact that sustainable fisheries is fundamentally a socio-political and economic process, requiring changes in institutional, legal, and regulatory frameworks, and a more participatory role of both the private-corporate sector and fishing communities. The World Bank Report emphasizes the importance of applying at the outset the ecosystem approach (addressing the biotic, abiotic, and human

16 Fisheries Exploitation

327

10/28/09, 12:47 PM

328

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

components of ecosystems and their interactions in a holistic fashion); a vision clearly articulated in the Code of Conduct for Responsible Fisheries, adopted in 1995 by the FAO member states. While the term “ecosystem approach” has been variously defined in different settings, “it focuses on biological interactions between all marine species in the same, as well as in neighboring zones, and the ecological conditions of physical surroundings” (Tanaka 2004, p. 497). Good governance of sustainable fisheries further demands strengthening co-management practices such as sharing of responsibilities between various stakeholders, including fishers and government agencies. Central to such a pursuit is a strong decision making, legal, and enforcement framework, which clearly identifies various participating agencies, their resources, and their access rights and obligations (Tanaka 2004, p. 497). In tropical developing countries, where large numbers of fishing communities use multiple gears to target multiple species, co-management systems require significant extension, education, and awareness campaigns. What is also required are technical assistance activities to empower communities and stakeholders to participate effectively in the governance of sustainable fisheries. According to the World Bank Report (Tanaka 2004), a good body of experience of successful, locally implemented, comanagement schemes is now available in some cases, including in India and Indonesia. Some such schemes have successfully drawn on the principles of Community-Driven Development (CDD), where again many donor agencies and non-governmental organizations (NGOs) have acquired a good deal of experience over the years. Other areas where improved governance of fisheries is needed relates to changing exploitation patterns (e.g., seasonal restrictions and gear restrictions), restocking, and stock enhancement programmes (e.g., releasing reared juveniles into open waters), and fishing capacity reduction (e.g., decommissioning fishing vessels or buying back licensees). Aquaculture will also increasingly demand greater attention in order to reduce the pressure on capture fishing. It is worth noting that fish farming has expanded dramatically over the years (now about 35 per cent of the global production) and has also resulted in a number of environmental and social problems. The shrimp farming sector has received criticism in recent years, for example, for excessive use of fishmeal in formulated feeds. While the use of fishmeal poses no present threat to the sustainability of marine fisheries, it is important to develop fishmeal substitutes over

16 Fisheries Exploitation

328

10/28/09, 12:47 PM

329

The Future for Indian Ocean Fisheries

time. Both governments and shrimp farmers will have to ensure that shrimp culture practices become systematic, eco-friendly, and socially responsible (Government of India 2002). “It is now generally agreed that good management practices can make shrimp farming highly sustainable and that procedures and methodologies for sustainable shrimp farming have been practiced in some countries with demonstrably effective results. These might include effective and holistic farm management practices; mandatory requirement for production of hatchery and disease resistant shrimp seed; domestication of brood stock; diversification including alternative candidate species; regulatory framework; community involvement; training and education; etc. (Government of India 2002).” There is also a growing recognition of the fact that efforts to reduce human pressure on overexploited resources should include creating alternatives to fishing for small-scale fishers and fishing communities faced with resource degradation, overcapacity, and the need for effort reduction. Issues such as those mentioned above are quite relevant in various parts of the Indian Ocean Region, notwithstanding national and subregional specificities. In Indonesia, one of the two major Indian Ocean “fisher states” (the other being India), the marine resources provide food to 60 per cent of the total 211.73 million population who live in the coastal areas. Approximately 63 million coastal residents (nearly 50 per cent of the total on the coastal population) are fishers (Flewwelling and Hosch 2006, p. 127). The value of the fishery, including mariculture, is steadily growing and in the mid-1990s stood at approximately US$4.2 billion (2.4 per cent GDP). It is estimated that 21 per cent of the national GDP of (US$172.9 billion) comes from the agricultural, coastal, and marine resources. Even though Indonesia is actively participating in several regional fisheries related organizations (including the new 27-country, Western Central Pacific Ocean Fisheries Commission), …the National Maritime Council concept is not effective due to lack of inter-agency cooperation, but this is a mechanism that has potential for future efforts, if given the appropriate leadership and mandate to control the maritime waters. The donor projects are making inroads on management planning and implementation in their respective sites, but these efforts have not yet become ensconced in local government processes, due in part to lack of capacity, as well as central resistance to devolution of authority to provinces and districts. (Flewwelling, P. and Hosch G. 2006, p. 140).

16 Fisheries Exploitation

329

10/28/09, 12:47 PM

330

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

Malaysia is seen as a leader in its commitment to the goal of managing its fisheries in a responsible and sustainable manner. It has developed an appropriate legislative framework that incorporates many current international fisheries principles and strategies (National Plans for IPOAs, and the Fisheries Code), and integrates new technologies for these purposes (VMS and radar). Malaysia has a comprehensive and thoroughly legislated fisheries management regime for both coastal and offshore commercial fisheries, centred mainly around a host of input controls. These mechanisms are supported by a strong and well-publicized penalty system. The planning and implementation of the management strategies for all its fisheries is an example for other countries in the region. These management plans are guided by the National Fisheries Development Plan that forms part of the National Agricultural Development Policy (1992–2010). Future challenges for fisheries management in Malaysia include overfishing in the coastal areas; ongoing attempts to further strengthen legislation and regulatory processes; overcoming current limitations of “hot pursuit” under Malaysian law that are more restrictive than international law (e.g., pertaining only to the EEZ); and implementation of port State obligations, such as the Indian Ocean Tuna Commission port inspections and data collection (Flewwelling and Hosch 2006). The challenges of curbing (a) illegal foreign fishing in Malaysian waters; (b) illegal domestic fishing (both unlicensed vessels and zone incursions); and (c) destructive fishing practices, remain a top priority. The challenges regarding fisheries exploitation and management in the Indian Ocean countries are not uncommon to those in other regions. Although one can discern an overall improvement in regulatory frameworks in terms of legislative reforms, the application of such reforms has remained somewhat limited. Furthermore, lack of effective monitoring, control, and surveillance (MCS) has undermined fisheries management. According to a major FAO review of world marine capture fisheries management in the Indian Ocean (De Young 2006, p. 7). Fisheries policies often remain development-driven and without consideration to economic, social, biological, and environmental sustainability criteria. This is not to suggest that there are no instances of attempts to apply holistic management approaches within the region. They do exist in some cases and could provide useful lessons for others in the region.

Yet another important feature of Indian Ocean fisheries is that conflicts between and among fisheries remain pervasive (De Young 2006, p. 19).

16 Fisheries Exploitation

330

10/28/09, 12:47 PM

331

The Future for Indian Ocean Fisheries

The number of small-scale vessels and fishers is quite high. Given the potential role of small-scale fisheries in poverty alleviation and prevention, it is absolutely vital that appropriate management practices for these fisheries are developed and implemented at various levels. It is equally significant to note that, “reliance on classical and costly stock assessment has limited the ability of countries to gather consistent stock data. Combined with the need for ‘hard’ data, fisheries planning capacities are often stalled at the status quo even whilst the qualitative data suggest that many stocks are fully- or over-exploited” (De Young 2006). Any worthwhile action plan for sustainable Indian Ocean fisheries would require the collection and sharing of data at national, subregional, and regional levels. A major lacuna in the Indian Ocean region in this regard is that socio-economic data are infrequently collected, or not at all. As a result, the contribution of small-scale fisheries to human well-being, food security, and poverty alleviation and prevention is inadequately understood, and the impact of potential management measures cannot be assessed. Also, just as information on shared and trans-boundary stocks is either not available or inadequate, the relevant institutions arrangements are also often missing. Besides, “integration of stakeholders in the fisheries management process has increased but remained limited; leading to continued difficulties in managing fishing capacity within all sub-sectors but specifically within the small-scale sub-sector. The multi-species nature of most fisheries has not been taken into consideration. Clearly defined priorities of objectives for each fishery are lacking, which lead therefore to inappropriate planning and increased conflicts within and among the fisheries” (De Young 2006). According to the FAO review (De Young 2006), actions that are needed to address the challenges described above include the following (reproduced more or less verbatim): (a) putting in place adaptive and cost effective management strategies, based on strengthened management structures with well-defined, prioritized goals; (b) a systematic application of ecosystem approach to fisheries management, thereby achieving sustainable use of ecosystems goods and services and maintenance of ecosystem integrity; (c) the realization of cost-effective data gathering methods for biological, economic, social, and environmental aspects of fisheries; (d) an effective enforcement of fishery laws and regulations; (e) regular monitoring and effective control over growth and expansion in fishing fleet capacity; (f) a greater harmonization of the definition and application of laws and regulations, where appropriate; (g) the development of fisheries management plans through dialogue with relevant stakeholders;

16 Fisheries Exploitation

331

10/28/09, 12:47 PM

332

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

(h) the development of national plans of action to address IUU issues; (i) an active participation in regional initiatives such as regional fishery bodies to assist in the control of IUU fishing; (j) the harmonization of fisheries laws and regulations, and of the development of consistent management measures with respect to shared and transboundary stocks; (k) and a greater involvement of stakeholders in management with consideration given to co-management schemes, especially at the local level, requiring the creation or strengthening of organizations to represent fishers and other interests. In our view, the recommendations made by the FAO review are extremely relevant for the Indian Ocean Region and deserve the full attention of both analysts and policy makers. That said, one does not find any serious reference whatsoever in this document to how climate change is going to impact both marine biodiversity and fisheries in the Indian Ocean. It is to this subject of growing importance and salience that we turn next.

CLIMATE CHANGE, MARINE BIODIVERSITY, AND CLIMATE JUSTICE IN THE INDIAN OCEAN REGION According to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2007), marine and coastal ecosystems in Asia (particularly South and Southeast Asia) are likely to be affected by sea level rise and temperature increases. Projected sea level rise is very likely to result in significant losses of coastal ecosystems, and a million or so people along the coasts of South and Southeast Asia will likely be at risk from flooding (high confidence). Seawater intrusions due to sea level rise and declining river run-off are likely to increase the habitat of brackish water fisheries, but coastal inundation is likely to affect the aquaculture industry and infrastructure seriously, particularly in heavily-populated mega deltas (high confidence). The stability of wetlands, mangroves, and coral reefs around Asia is likely to be increasingly threatened (high confidence). Recent risk analysis of coral reefs suggests that between 24 per cent and 30 per cent of reefs in Asia are likely to be lost during the next ten years and thirty years, respectively (medium confidence). According to 2008 UNEP Report entitled, In Dead Water: Merging of Climate Change with Pollution, Over-Harvest, and Infestations in the World’s Fishing Grounds (Nellemann, Hain and Alder 2008):

16 Fisheries Exploitation

332

10/28/09, 12:47 PM

333

The Future for Indian Ocean Fisheries With climate change, more than 80% of the World’s coral reefs may die within decades. In tropical shallow waters, a temperature increase of up to only 3°C by 2100 may result in annual or bi-annual bleaching events of coral reefs from 2030–2050. Even the most optimistic scenarios project annual bleaching in 80–100% of the World’s coral reefs by 2080. This is likely to result in severe damage and wide-spread death of corals around the World, particularly in the Western Pacific, but also in the Indian Ocean, the Persian Gulf and the Middle East and in the Caribbean.

Small Island States of the Indian Ocean and Global Warming According to the Fourth Assessment Report (Working Group II) of the IPCC on impacts, vulnerability, and adaptation (IPCC 2007), the regions where small island developing states (SIDS) are located (the Indian Ocean, South Pacific Ocean, and the Caribbean) registered temperature warming trends during the twentieth century, with some studies showing that this ranged from zero degree centigrade to one degree centigrade every two decades during 1971–2004. The report further points out that according to the scientific projection based on sophisticated climate models, in the twenty-first century, there will be a general warming trend in surface air temperatures in all small island regions. Consequently, rising sea levels are likely to pose unprecedented human-ecological security challenges to SIDS, especially low-lying ones, for the obvious reason that human settlements and industrial concerns tend to be concentrated in the coastal zones. Rising sea levels, besides adversely impacting the cultural assets of the SIDS, will also harm their tourism potential and existing facilities. The negative effects will also be felt by other industries, including fishing. As pointed out by Briguglio, Koshy, Nurse, and Wong (2008, p. 66), “unfortunately, the limited resource base of small island states constrains their adaptation and coping ability, especially when large overhead costs are involved”. Even though precautionary measures are being taken in most of the Indian Ocean islands to address climate change and sea level rise (Ragoonaden 2007), they face many constraints and need much greater regional and global support and resources to meet the challenge through mitigation, public awareness campaigns, competency building programmers, and community-centred adaptive strategies. As in the case of Seychelles, with the economy so firmly based on marine resources, government, fishery managers, and stakeholders will need to be

16 Fisheries Exploitation

333

10/28/09, 12:47 PM

334

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

increasingly proactive and decisive as the upper limits to resource exploitation are approached, in order to ensure long-term sustainability and reverse localized overexploitation where this occurs.

Critical Perspectives on Human-Ecological Security and Climate Justice It is useful to be reminded that the Indian Ocean is the “Heart of the Third World” or the “Ocean of the South”, with low per capita income and a low level of development in the majority of countries (Chaturvedi 1998). Most of the fishworkers live in coastal communities which are often considered risk communities due to their isolation, fragile resource base, and often, poorer level of education and health. It is to state the obvious that coastal areas, along with low-lying island communities, are most at risk from climate change. As Timothy Doyle (2004) puts it so succinctly, Originally climate change was considered as a classic environmental security issue in Northern terms…the North came to comprehend that it had to share the same atmosphere and oceans with the South, and a continued policy of laissez-faire would be detrimental for the more affluent world. Also climate change was a classic environmental issue portrayed as a natural “force”, rather than which directly related to people. Consequently, climate change has not traditionally been seen as a key issue in the majority world. In recent times, however, it has assumed greater prominence among the majority world environmentalists due to the fact that some of the biggest state polluters and/or reliers on fossil fuels have not signed the climate change protocols in Kyoto and Johannesburg. Further tensions have emerged due to the fact that both the island states in the Indian Ocean, as well as poor dwellers and coastal fish workers on the coastline, will be the principal victims in global climate change. In this manner, climate change has metamorphosed from an elite, scientific, Northern issue into one which can usefully fit into the environmental justice agenda of the South.

In short, as far as the Indian Ocean Region is concerned, notions related to environmental-climate justice are as important as the scientific evidence of wide-ranging manifestations of climate change and their multifaceted implications. According to the IPCC Technical Paper V on Climate Change and Biodiversity (see IPCC 2002), mangroves (e.g., those in the Sundarbans) and coral reefs are particularly vulnerable to climate change. The

16 Fisheries Exploitation

334

10/28/09, 12:47 PM

335

The Future for Indian Ocean Fisheries

Sunderbans supports a diversity of wildlife and is at greater risk due to rising sea level. The coastal mangrove forests provide habitat for species such as Bengal tigers, Indian otters, spotted dear, wild boars, estuarine crocodiles, fiddler crabs, three marine lizard species, and five marine turtle species. With a one-metre rise in sea level, the Sundarbans will disappear, which will spell the demise of the Bengal tiger and other wildlife, and could adversely affect local human populations. According to a study conducted by Professor Sugata Hazra, Director, School of Oceanographic Studies, Jadavpur University, Kolkata, islands called Lohachara and Suparibhanga, located in the Sunderbans delta area of West Bengal, have already been submerged by the rising sea levels (The Hindu, New Delhi, 5 June 2006). A few more are facing similar insecurities. In the process, hundreds of people were displaced from their homes and sought shelter in the four refugee colonies in adjoining Sagar Island. The study also points out that about 70,000 people will be rendered homeless by 2050. A majority of the four million residents of the Sunderbans area are below the poverty line and lack access to roads or proper health care facilities. These “environmental refugees” are also most vulnerable to diseases such as malaria and kala-azar. The increasing salinity of the water, resulting from a decrease in the availability of fresh water downstream, has tested the adaptability of wildlife as well. The Human Development Report (2007–08) rightly points out that while rich countries are preparing to adapt to climate change, it is developing countries that will be faced with the greatest and earliest burden in terms of adverse impacts on living standards, livelihoods, economic growth, and human vulnerability. As in the developed world, people in the poorest countries will have to deal with the consequences of a changing climate. However, there are two important differences. First, developing countries in tropical and subtropical regions will register some of the strongest climate change effects. Second, the incremental risks that come with climate change will be superimposed on societies marked by mass poverty and acute vulnerability

INDIGENOUS KNOWLEDGE SYSTEMS AND ADAPTIVE STRATEGIES In the growing body of knowledge about the impact and implications of climate change, what is so far conspicuous by its absence is the understanding about the potential impact of climate change on the

16 Fisheries Exploitation

335

10/28/09, 12:47 PM

336

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

livelihood and cultures of indigenous and traditional communities (Salick and Byg 2007). Hilary Rumley has forcefully argued in this volume (chapter 7) that there is a need to examine, in a comparative perspective, policies and practices relating to indigenous fishing and fisheries in other parts of the Indian Ocean. It is useful to bear in mind that indigenous peoples are not only actively trying to adapt to changing conditions, but they are also keen observers of climate change and have much to offer in terms of their own traditional knowledge systems. The exclusion of indigenous perspectives and concerns from the dominant understandings and discourses on climate change was responded to in the Declaration of the First International Forum of Indigenous Peoples on Climate Change held in Lyon, France, from 2–6 September 2000 (cited in Silori 2008, p. 17). We, the Indigenous Peoples, have historically played an active role in the conservation of eco-systems crucial to the prevention of climate change such as forests, wetlands and coastal and marine areas. Long ago, our sciences foretold the severe impacts of Western “development” models based on indiscriminate clear-cutting, oil exploitation, mining, carbonemitting industries, persistent organic pollutants and the insatiable consumption of the industrialized [sic] countries. These unsustainable models threaten the very life of Mother Earth and lives of all of us who are her children. The scientists of Western society have dismissed us as sentimental and superstitious and accused us of being an obstacle to development. Paradoxically, those that previously turned deaf ears to our warning about global warming, now are dismayed because their own model of “development” endangers our Mother Earth.

Bangladesh is known for the ethnic homogeneity of its population, of which about 897,828 people are indigenous, according to the census of 1981 (slightly more than 1 per cent of the population) (SDNP 2004). Bangladesh is also one of the most highly disaster-prone countries in the world (Srinivasan 2004) and is expected to be one of the most heavily impacted by sea level rise caused by climate change, as it is a flat, deltaic land vulnerable to inundation, and has a long coast. It is estimated that a 1.5 metre rise would affect 17 million people (about 15 per cent of the population) and 22,000 sq. km of land (about 16 per cent of total land surface) (UNEP/GRID 2007). Coastal peoples, whose livelihoods mainly depend on resources such as fisheries and

16 Fisheries Exploitation

336

10/28/09, 12:47 PM

337

The Future for Indian Ocean Fisheries

mangroves, are expected to be severely affected by the effects of climate change and natural hazards. C. S. Silori (2008) in a recent study on coping strategies adopted by indigenous people, using their traditional knowledge in aquaculture, gives the example of what is called Katha in Bangladesh. These are periphytonbased practices (also adopted in north-east India) that have developed independently and are used to catch fish in open waters in various parts of the world. Multipurpose ponds are put to diverse use by various households, including bathing, sanitation, irrigating fields and gardens, and for growing fish and rearing ducks. The fish are sold to earn additional cash income as well as consumed by the families. In order to enhance fish productivity in the ponds, what are used as substrate are bamboo stems and branches, jute sticks, the remains of sugar cane stalks, and tree branches. Various vertically installed stalks at the bottom of the pond, once colonized by plankton, microbes, invertebrates, and other organisms, make up the periphyton, which serves as feed for the fish. We had argued in Chapter 1 that a critical holistic evaluation of fisheries resource exploitation policy is essential in order to ensure a sustainable future for Indian Ocean fisheries. This new cooperative regional environmental strategy will have to take into account the value of traditional knowledge, including ways that indigenous peoples could be involved in programmes that support community-led mitigation and adaptation measures, and at the same time recognize the value of traditional knowledge of indigenous peoples that enabled them to maintain and interact with their environment in a sustainable way. Further research is also needed in order to gain further understanding of how to combine traditional and scientific knowledge, and how to translate this in decision making processes. Additionally, mapping out indigenous communities and their habitats, including most vulnerable island and coastal zones, would give a sense of the priority areas to deal with. The intervention and incorporation of indigenous peoples’ perspectives and knowledge systems into the dominant understandings of climate change might even reveal that, “concepts like ‘climate change’ and ‘environmental risk’ are creations of scientific and policy institutions and not unproblematic understandings of the natural world” (Connell 2008). Such critical interventions might also remind us that the local capacity in most of the Indian Ocean Region to intervene in such constructions at any level is rather weak.

16 Fisheries Exploitation

337

10/28/09, 12:47 PM

338

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

CONCLUSION The countries of the Indian Ocean Region need to be far-sighted and proactive in their pursuit of sustainable fisheries management frameworks, addressing both international norms and agreements, as well as adapting to each country’s specific situation and needs. Although there is no panacea for managing all fisheries, countries could benefit from the experiences of other countries in the same region, as well as elsewhere. A serious and systematic search for creative and cost-effective methods for managing fisheries in a holistic fashion is long overdue. In addition, regardless of the management framework chosen, if there is a lack of political will to implement the relevant laws and regulations and management measures, even perfectly designed frameworks will remain on paper. Finally, a better understanding of the effects of implemented management measures on fisheries (e.g. economic efficiency, social justice, and stock health) would greatly assist in the adaptive improvement of fisheries management. Whatever the nature and scope of a proposed action plan for sustainable Indian Ocean fisheries, climate-change-related considerations will have to be taken into account. Climate change, on the one hand, has the capacity to undermine improvements that have been made in environmental protection, for example in water quality, fisheries, and air quality. On the other hand, some of the dominant geopolitical discourses on global warming (and related geographies of fear) could make us oblivious to the fact that climate change is integral to corporate globalization, which has already contributed to the degradation of both terrestrial and marine ecosystems in various parts of the globe. It is in the Indian Ocean Region, in particular, that a very large number of people (especially coastal communities) are likely to be exposed to what O’Brien and Leichenko (2000) have described as “double exposure”. Their argument is that ongoing processes of economic globalization, with uneven effects, are modifying or exacerbating existing vulnerabilities to climate change. For them, double exposure refers to “cases where a particular region, sector, ecosystem or social group is confronted by the impacts of both climate change and economic globalization. It recognizes that climate impacts are influenced not only by current socioeconomic trends, but also by structural economic changes that are reorganizing economic activities at the global scale” (O’Brien and Leichenko, p. 227). Lack of consensus and limited adaptation and mitigation abilities in the Indian Ocean Region make it difficult for decision makers to plan for the impacts of climate change. Indeed, an almost complete lack of common

16 Fisheries Exploitation

338

10/28/09, 12:47 PM

339

The Future for Indian Ocean Fisheries

understanding and intersectoral dialogue on mitigation and adaptation issues is a major weakness. A lack of integration with social sciences also hinders progress in overcoming the challenge of climate change through the adoption, in the first place, of a truly holistic approach to understanding, managing, and mitigating against future impacts of climate change in the Indian Ocean marine environment. The complex nature of ocean ecosystems and the interactions across multiple changes induced by climate change would need holistic approaches to adaptation. One strategy is to choose policies that minimize stresses that can be reduced (e.g. pollution, fishing, invasive species) and maximize genetic, species, and habitat diversity (i.e. through the creation of Marine Protected Areas). Accordingly, strategies will have to gradually shift away from achieving specific targets such as fishery catches, and towards maintaining resilience and conserving marine biodiversity within ecosystem through initiatives such as the Bay of Bengal Large Marine Ecosystem Programme. However, the knowledge systems (that also draw on the indigenous knowledge systems) needed to provide advice on these management and policy decisions are not yet in place and present major new challenges to the marine science and policy communities throughout the Indian Ocean Region. As rightly pointed out by eminent Indian scientist M. S. Swaminathan (1995, p. 68), a multipronged strategy will have to be worked out to safeguard the remaining biodiversity-rich areas, as well as ecologicalhuman security in the Indian Ocean Region. Swaminathan (1995) makes certain recommendations that are worth quoting in full: 1.

2.

3. 4.

The genuine livelihoods needs of the people in coastal areas including fishermen families will have to be addressed. The conservation strategy should be people-centered, so that the concerned human population develops an economic stake in conservation. Work on the compilation of biodiversity inventories and monitoring will have to be intensified. An early warming system will have to be developed to identify threats to areas rich in genetic wealth. Simple bio-monitoring methods, if standardized, will be of immense help to citizens for monitoring the health of biodiversity rich ecosystems. Captive breeding of endangered fauna and flora may be initiated where necessary. Over-fishing should be prohibited. A few anticipatory research centres should be developed in the Indian Ocean area for the purpose of generating novel genetic combinations capable of conferring tolerance to sea water intrusion.

16 Fisheries Exploitation

339

10/28/09, 12:47 PM

340 5.

6.

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

A cadre of Conservation Promoters will have to be trained from among the youth of fisher families and from other coastal communities. Such young women and men can help to spread awareness among their own people about the vital importance of preserving coastal biodiversity and utilizing genetic resources in a sustainable manner. An integrated coastal area conservation and development strategy needs to be developed and implemented.

As various building blocks are being contemplated at various levels for a New Action Plan for the ecologically sustainable and socially just development and management of Indian Ocean fisheries (against the backdrop of uncertainty and complexity induced by the dynamic geographies of climate change), it is useful to bear in mind, as pointed out by Bill Edeson in this volume (Chapter 3), that many of the provisions in the modern law of the sea that concern fisheries and marine biodiversity are still being implemented only in a piecemeal way. It will be equally useful to be reminded of what Bill Edeson has emphasized in this volume (Chapter 3). According to Edeson it is of vital importance that “the contents are thoroughly scrutinized to ensure that they are truly groundbreaking in the sense that they say something that has not been said many times before. It is also vital that the objectives set out are realistic in order to avoid the fate of many such instruments. It is also important to get governments involved in their preparation”. It is unfortunate, but true, that despite the decade-long existence of the Indian Ocean Rim Association for Regional Cooperation (IOR-ARC), not much progress has been made in terms of concrete projects, and the character of the organization is badly in need of a review. Addressing the eighth meeting of the Council of Ministers of the IOR-ARC in Tehran, India’s Minister of State for External Affairs, E. Ahamed, is reported to have emphasized that it is time the character of the organization could be given a relook to bring out structural reform in order to move the IORARC actively forward, in view of lack of progress in concrete projects (Oneindia Newsletter, 4 May 2008). He added that concrete shape and direction needed to be given to the grouping. The Minister also pointed out that even though the prime focus of the grouping was to develop trade and economic cooperation, it should not try to replicate the efforts of other fora engaged in trade and economic facilitation. Instead, areas of common interest that bind the Indian Ocean Rim countries, such as ocean bed

16 Fisheries Exploitation

340

10/28/09, 12:47 PM

341

The Future for Indian Ocean Fisheries

exploration, hydrographic survey, disaster management and information sharing, shipping, coastal infrastructure, fisheries, weather forecasting, should be given priority. In the inaugural book of the Indian Ocean Research Group (IORG), Kenneth McPherson (2004, p. 118) raised a pertinent question: “the waning of enthusiasm for IOR-ARC has been reflected around the region and one is now forced to ask if IOR-ARC has anything to offer other than as an official annual forum at which regional trade ministries meet?”. His answer was: “…it does, but only if it reinvents itself by broadening its basis for cooperation…if the good ship of IOR-ARC is to survive, it needs to be reshaped and given new impetus by governments currently prepared to give it more than lip service”. We believe it is both timely and appropriate for IOR-ARC to take on its agenda the challenge of climate change, marine biodiversity, and fisheries, both for the sake of its long due rejuvenation, and for the sake of sustainable fisheries in the Indian Ocean Region.

References Briguglio, L., K. Koshy, L. Nurse, and P. P. Wong. “Climate Change and Small Island Developing States”. In Sustainable Development in Small Island Developing States-Issues and Challenges, edited by J. Strachan and C. Vigiliance. Economic Paper 80, Commonwealth Secretariat, pp. 65–77. Camilleri, J. A. and J. Falk. The End of Sovereignty? The Politics of a Shrinking and Fragmenting World. Aldershot: Edward Elgar, 1992. Chaturvedi, S. “Common Security? Geopolitics, Development, South Asia and the Indian Ocean”. Third World Quarterly, vol. 19, no. 4 (1998). Connell, J. “Losing Ground? Tuvalu, the Greenhouse Effect and the Garbage Can”. Asia Pacific Viewpoint 44, no. 2 (2003): 89–107. De Young, C., ed. “Review of the State of the World Marine Capture Fisheries Management: Indian Ocean”. FAO, Fisheries Technical Paper 488, Rome 2006. Doyle, T. “An Agenda for Environmental Security in the Indian Ocean Region”. In Geopolitical Orientations, Regionalism and Security in the Indian Ocean, edited by D. Rumley, D. and S. Chaturvedi, pp. 154–71. New Delhi: South Asian Publishers, 2004. ———. Environmental Movements in Majority and Minority Worlds: A Global Perspective. New Brunswick, NJ, and London: Rutgers University Press. 2005. Flewwelling, P. and G. Hosch. “Country Review: Indonesia”. In Review of the State of the World Marine Capture Fisheries Management: Indian Ocean, edited by C. De Young. FAO, Fisheries Technical Paper 488, Rome, 2006, p. 127.

16 Fisheries Exploitation

341

10/28/09, 12:47 PM

342

Sanjay Chaturvedi, Vijay Sakhuja and Dennis Rumley

Government of India. Aquaculture Authority News. Ministry of Agriculture, Volume 1, No. 1: 3. Haward, M. “IUU Fishing: Contemporary Practice”. In Ocean Management in the 21st Century: International Frameworks and Responses, edited by A. G. Oude and D. Rothwell. Leiden and Boston: Martinus Nijhoff Publishers, 2004. IPCC. Summary for Policymakers. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change; Intergovernmental Panel on Climate Change, Fourth Assessment, April 2007. Cambridge, United Kingdom: Cambridge University Press, 2007, p. 9. (accessed 13 November 2007). McPherson, K. I. “ ‘There was Once an Ugly Duckling…’ or, the Sad History of the Good Ship IOR-ARC”. In Geopolitical Orientations, Regionalism and Security in the Indian Ocean, edited by D. Rumley, D. and S. Chaturvedi, pp. 112–19. New Delhi: South Asian Publishers, 2004. Macchi, M. Indigenous and Traditional Peoples and Climate Change. Issue Paper. The International Union for Conservation of Nature IUCN, 2008. Nellemann, C., S. Hain, and J. Alder. In Dead Water: Merging of Climate Change with Pollution, Over-harvest, and Infestations in the World’s Fishing Grounds, edited by C. Nellemann, S. Hain and J. Alder. United Nations Environment Programme, GRID-Arendal, Norway, February 2008. . O’ Brien K. L. and R. M. Leichenko. “Double Exposure: Assessing the Impacts of Climate Change within the Context of Economic Globalization”. Global Environmental Change 10 (2000): 221–32. Salick, J. and A. Byg. Indigenous People and Climate Change. A Tyndall Centre Publication, Oxford: Tyndall Centre for Climate Change Research. 2007. Silori, C. S. “Climate Change: Indigenous Coping Strategies from South Asia. South Asian Journal, July–September 2008, pp. 8–23. Srinivasan, A. Local Knowledge for Facilitating Adaptation to Climate Change in Asia and the Pacific: Policy Implications. IGES-CP Working Paper Series 2004-02, IGES Climate Policy Project, 2004. . Suryanarayan, V. Conflict Over Fisheries in the Palk Bay Region. New Delhi: Lancer Publishers and Distributors, 2005. Sustainable Development Networking Programme (SDNP). “Indigenous peoples of Bangladesh”, 2004. . Swaminathan, M. S. “Biodiversity and Peace on the Ocean”. In Science and Technology Cooperation in the Indian Ocean Region and the Restructuring the United Nations, edited by K. Saigal, R. Rajagopalan, and L. S. Ganesh. Madras: International Ocean Institute Operational Centre (India), Indian Institute of Technology, Madras, 1995, pp. 63–69.

16 Fisheries Exploitation

342

10/28/09, 12:47 PM

343

The Future for Indian Ocean Fisheries

Tanaka, Y. “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea”. The International Journal of Marine and Coastal Law 19, no. 4 (2004): 497. The World Bank. Saving Fish and Fishers: Toward Sustainable and Equitable Governance of the Global Fishing Sector. Washington DC: Agriculture and Rural Development Department, Report No. 29020-GLB, May 2004. UNEP/GRID. 2007. .

16 Fisheries Exploitation

343

10/28/09, 12:47 PM

345

Index

Index A Abetz, Eric, 67 Aboriginal Fishing Strategy, 147, 152– 53, 158 aboriginal perspectives, 145–46 Advisory Committee on the Protection of the Seas, 35 Africa Growth and Opportunity Act (AGOA), 199 African-Asian Legal Consultative Committee, 108 African, Caribbean, and Pacific (ACP), 213 fisheries, and European Union, 212–17 sugar, 198, 221–22 African Indian Ocean Commission, 61 African islands, 195 Africa, poverty alleviation, 59 Agalega, 200, 222 Agulhas current, 42 Ahamed, E., 340 Alarm Shoals, 151 Albion Fisheries Research Centre (AFRC), 213 Ali, Karamat, 172 Alliance for the Release of Innocent Fishermen (ARIF), 169 AMRAD Natural Products, 246 Andaman Sea, 79, 86, 88, 114, 125

Antarctica as global knowledge commons, 260–65 bioprospecting in, 256 Antarctic, and relevance of Convention on Biological Diversity, 255–57 Antarctic Treaty Consultative Meetings (ATCMS), 252–55, 263 Antarctica Treaty System, see also ATS provisions, 248–50 Antarctic Bioprospecting Policy Regime (ABPORE), 14, 15, 247– 49, 264 Antarctic Cooperative Research Centre, 246 antifouling measures, for ship hull, 234 “Anything but Arms” initiative, 199 aquaculture, 2, 11–12, 73, 154–57, 186, 305 bioinvasion in, 231–32 global seafood supply through, 218 Aquaculture Master Plan, 219 aquatic-based food chain, 13 Arabian Peninsula, 79, 123 boundaries, 8 Arabian sea, 28–29, 34, 42, 170 Arafura sea, 106 Archimedes Principle, 229 archipelagic baselines, 115–16

345

17 Fisheries Ex Index

345

10/28/09, 12:48 PM

346

Index

Ardyaloon community, 157 artisanal fishing, 202–203, 282 by indigenous people, 142–45 artisan fishery, 184–85 ASEAN Marine Region Strategy, 85 Asia-Pacific Economic Cooperation (APEC), 45 Asia Pacific Fishery Commission (APFIC), 49 Association of Southern Ocean Coalition (ASOC), 263 ATS (Antarctica Treaty System), 15, 191–92, 242, 247, 251, 254, 257–58, 260–61, 263–65 Australia, 27, 47, 60–61, 80, 82, 85, 89– 90, 106 ban on whale products, 59 coastline, 313 conservationist lobby, 65 federal policies, 63 marine management, 314–16 maritime surveillance, 128–29 native title, 147–52 “new rules of engagement”, 66–67 Oceans Policy, 313–14 “pseudo-conservationist”, 62 straight baseline claim, 115 submission to CLCS, 118, 132 treaty with France, 188 treaty with Indonesia, 126, 134 Australia-Indonesia fishing dispute, 63–64 Australia-Indonesia Security Agreement, 64 Australia, Western fishing license, 68 indigenous fishing, 11, 141–42 indigenous people, 143–47, see also Australian Aborigines recent developments in, 157–58 West Kimberly region, 11, 141, 149, 151

Australian Aborigines, 141 political context, 146–47 see also indigenous people Australian Centre for International Agriculture Research (ACIAR), 155 Australian Collection of Antarctic Micro-Organisms (ACAM), 246 Australian Customs Service, 90 Australian Exclusive Economic Zone, 129 Australian Fisheries Management Authority, 90, 304 Australian Quarantine and Inspection Service, 90 Australian Shelf, North-west, 42 Australian Shelf, West Central, 42 B ballast-free ship, 233 Banc du Geyser, 182, 191 Bangladesh, 25, 34, 75, 79, 318 boundary negotiations with India, 124 climate change, effect of, 336–37 coastline, 112 ethnic homogeneity, 336 straight baseline claim, 113, 119 unilateral claim, 119 Bardi community, 155, 157 Bardi Jawi native title claim, 149–51 barnacles, 14 baselines, 109–16, 122 see also straight baselines Baselines of Maritime Zones Act, 114 Basiron, Nizam, 15 Bassas da India, 121–22, 133, 180 “Bayan”, 203 Bay of Bengal, 29, 34, 42, 79, 125, 165 Bay of Bengal as a Large Marine Ecosystem (BOBLME), 7, 339 legislative regime, 42–43 see also LME

346

17 Fisheries Ex Index

346

10/28/09, 12:48 PM

347

Index Bay of Bengal Development Programme, 85, 311 Bay of Bengal Inter-Governmental Organization, members of, 311 Belize, 65 Berge, John, 233 “bichique”, 186 Bigeye Tuna, 2, 57, 212–13, 284–85, 288–89, 293 biodiversity, 4–5, 7, 9, 57 and climate change, 26–28 definition, 26 institutional aspects, 39–53 bioinvasion, 13, 228, 230–32 see also ship ballast “biological diversity”, 4–5 bioprospecting, 14–15, 242 Antarctica, in, 256 CCAMLR, relevance of, 250–52 CRAMRA, relevance of, 250–52 four phases of, 243 geopolitics, 242–47 policy regime, in Antarctic, 247–49 southern polar regions, in, 242–47 BioSearch Italia SPA, 244 biota, 14, 243, 246 biotechnology, 26, 242–43 Blue Mud Bay, 152 “Blue Revolution”, 304 “boat persons”, 87 Bombay High, oil spill, 28 Bonn Convention, 309 Brahmaputra, river, 34 Brazil, 27 Britain, 66 British Indian Ocean Territory (BIOT), 80, 116, 124, 130 Broome, 151, 153, 155 Broome Aquaculture Centre, 157 Brue Reef, 151 Brundtland Commission, 308 Brundtland Report, 23, 308

Buccaneer Archipelago, 149 Bumble Bee, seafood company, 226 Burma, see Myanmar by-catch, 57, 290, 299 C Caddy, J., 51 Cape Leveque, 155 Cape of Good Hope, 106 capture fisheries, 2 legislation for, 6 “Cash for Access”, 214, 216 CBD (Convention on Biological Diversity), 4, 15, 26, 41, 253–54, 258, 265, 271, 276, 299, 303, 309, 313 relevance for Antarctic, 255–57 CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources), 50, 91, 187, 189, 191–92, 248, 253, 311 bioprospecting, and relevance of, 250–52 CCLM (Committee on Constitutional and Legal Matters), 291 CCSA (Conservation Council of South Australia), 305–306 CCSBT (Commission for the Conservation of Southern Bluefin Tuna), 45, 47–48, 50, 52, 61, 66, 280, 311 CDD (Community-Driven Development), 328 CECAF (Committee for the Eastern Central Atlantic Fisheries), 49 CEP (Committee on Environmental Protection), 252–53 Certain Maritime Arrangements in the Timor Sea (CMATS), treaty, 126 Cerylid Biosciences, 246 Chagos Archipelago, 80, 106, 116, 123, 133 Mauritius claim on, 124, 194

347

17 Fisheries Ex Index

347

10/28/09, 12:48 PM

348

Index

Charter of Economic Rights and Duties of the State, 86–87 Chi Hing C. Cheng, 245 Chile, 3 China, 3, 10, 27, 61, 64 and Taiwan, 45 Chirac, President, 184 Chokyu Maru 38, 184 Christmas Island, 106, 130 CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), 65, 309– 10 CLCS (United Nations Commission on the Limits of the Continental Shelf), 117–18 climate change, 326, 338 and biodiversity, 26–28 Bangladesh, effect on, 336–37 Indian Ocean Region, in, 25, 332–35 climate justice, 332–35 CMS (Convention on Migratory Species of wild Animals), 309 coastal communities, 32–33 coastal fishing, 224 coastal management, 33, 84, 319–21 challenges, 312 Kenya, in, 313 of IOR, 306–08 South Africa policy, 312–13 see also ICZM coastal state claims, 117, 132 coastal zone, 303, 312 ecosystem in, 270 industrialization, 30–31 urbanization, 30–31 Coastal Zone Inquiry, 146–47 Coastal Zone Management Policy, 312 coastline Bangladesh, 112 developing states, of, 73

Kenya, 307 South Africa, 307 Cochrane, K., 51 “cod war”, 66 Code of Conduct for Responsible Fisheries, 41, 44, 50, 328 Cold War, 6, 21–25, 33, 35, 54 Colombia, 27 Colombo harbour, 168 COM (Collectivité d’outre-mer), 178, 190 Commission for the Conservation of Antarctic Marine Living Resources, see CCAMLR Commission for the Conservation of Southern Bluefin Tuna, see CCSBT Commission on the Conservation and Management of highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC), 280 Committee for the Eastern Central Atlantic Fisheries, see CECAF Committee on Environmental Protection, see CEP Committee on Constitutional and Legal Matters, see CCLM Common Fishing Policy (CFP), 214, 216 common heritage thesis, 24–25 Common Market of Eastern and Southern Africa (COMESA), 201 Common Zone of Exploitation, 79–80 Commonwealth Marine Areas, 313 Commonwealth Sugar Agreement, see CSA community-based fisheries conflict, 63 Community-Driven Development, see CDD Comoros, 78, 88, 91, 122, 191, 195

348

17 Fisheries Ex Index

348

10/28/09, 12:48 PM

349

Index archipelagic baselines, 116 independence, 121 Comoros Archipelago, 178, 180 conflict resolution procedures, 56, 65– 67 conflict scenarios, 58–59 Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, see CSFS Conservation Council of South Australia, see CCSA “constitutional rectangle”, 119 continental shelf boundary, 79–80, 91, 117–18 Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern African region, 48 Convention on Biological Diversity, see CBD Convention on Fishing Conservation of the Living Resources of the High Seas, 130 Convention on International Trade in Endangered Species of Wild Fauna and Flora, see CITES Convention on Migratory Species of wild Animals, see CMS Convention on the Continental Shelf, 130 Convention on the High Seas, 130 Convention on the Regulation of Antarctic Mineral Resources Activities, see CRAMRA Convention on the Territorial Sea and Contiguous Zone, 130 Convention, the 1982, 74–76, 81–82 see also UNCLOS COPEMAY, 181

Copenhagen Consensus Papers, 27 Coral Reef Degradation in the Indian Ocean (CORDIO), 310 coral reefs, 168, 172, 175, 307, 332–33 in Southeast Asia, 326–27 Cornell University, 231 Cotonou Agreement, 214, 221, 225 COVIPEMM, 181 CRAMRA (Convention on the Regulation of Antarctic Mineral Resources Activities), 248 bioprospecting, and relevance of, 250–52 Creoles, 195–96, 201–202, 219 “Creolization”, 196, 221 Croker Island, 148–49 CSA (Commonwealth Sugar Agreement), 198 CSFS (Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks), 41, 74, 95 Cunningham Point, 156 customary fishing, by indigenous people, 142–45 CZI (Coastal Zone Inquiry), 146–47 D Dampier Peninsula, 149, 151, 155 Database of the European Patent Office, 246 “dead zone”, 2 Declaration of the First International Forum of Indigenous Peoples on Climate Change, 336 “deliberately conflictual states”, 59 Deutsche Sammlung von Mikroorganismen und Zellkulturen GmbH, 244 developing states, coastlines of, 73 Diego Garcia, 123–24, 194

349

17 Fisheries Ex Index

349

10/28/09, 12:48 PM

350

Index

distant water fishing nations (DWFNs), 16, 105, 127, 129, 281, 284, 306 distant water fishing states (DWFS), 210 Djibouti straight baseline claim, 113 Doha Declaration, 221 DOM (Département d’outre-mer), 178, 190, 194 dynamite, fishing, 33–34 E EAM (École d’Apprentissage Maritime), 181 Earth Summit, 23, 84 East African Seas programme, 310 East Timor, 121, 125–26 East-West confrontation, 23 Eastern Atlantic Ocean, 16 Ecologically Sustainable Development (ESD), report, 146–47 “economism”, 55 ecosystem coastal zone, in, 270 fisheries, and, 31–32 management, 82 Ecuador, 27 EEZ (Exclusive Economic Zone), 12, 24–25, 29, 40–43, 57, 59, 61, 68, 74, 76, 78, 80, 86, 88, 99, 105, 108, 114, 116, 119, 122, 126–29, 177, 184–85, 211, 215–16, 220, 284, 292, 305–306, 308–309, 330 French Indian Ocean territories, 180, 182–83, 190 Egypt, 10 El Nino, 203 El Nuevo Constante, shipwreck, 237 Emperors, fish, 2 Environment Protocol to the Antarctic Treaty, 247

“environmental costs”, 56 environmental degradation, 23 Environmental Impact Assessment (EIA), 250, 253, 256 Environmental Management and Coordination Act (EMCA), 313 Environmental Protection Act, 312 Environmental Protection and Biodiversity Conservation Act (EPBC Act), 313 “environmental refugees”, 335 environmental security, 21–25, 28 Indian Ocean rim, 32–35 “environmentalism”, 55–56 environmentally sustainable development (ESD), 306 Eritrea, 10, 74 Ethiopian biogeographic province, 27 EU-ACP Agreement, 221, 225 Europa Island, 121–22, 133, 180 European colonizers, objectives of, 13 European Commission (EC), 222 European Common Market, 198 European Community, 48, 61, 91 European Economic Community (EEC), 213 European Union (EU), 3, 13, 306 ACP fisheries, and, 212–17 banning imports, 318 Mauritius sugar export to, 198, 221 seafood hub, and, 209–17, 220, 225 EU Sugar Regime, 222 Exclusive Economic Zone, see EEZ export and import values of fish product, 88, 102–103 Export Processing Zone (EPZ), 197 extremophiles, 241–45 F FAO Constitution, 49, 50 FAO (Food and Agriculture Organization), 2, 44–46, 50, 60–

350

17 Fisheries Ex Index

350

10/28/09, 12:48 PM

351

Index 61, 88, 91, 127, 204, 208, 210, 217– 18, 231, 279, 281, 285–86, 290–91, 299, 310, 318, 326, 331–32 FCMZ (Fishing Conservation and Management Zone), 80 Federation of Greek Aquaculture, 219 fish consumption, per capita, 3 decline of species, 327 source of protein, 2, 6, 31 fish-aggregating devices (FAD), 181– 82, 184–85, 204–205, 217, 220, 223 fish farming, 217–19, 328–29 fish harvest, 2 Fish Resources Management Act (FRMA), 158 fish stocks, 9 depleted, 33, 327 exploited, 4 Indian Ocean, 3–4 monitored, 2, 10 “ownership” of, 4–5 significance of, 2, 4 “fisher states”, 3, 59–61, 66, 329 fisheries as food security, 303–306 as resource, 2–5 certification of, 318 ecosystem, and, 31–32 exploitation in Indian Ocean, 9–14 French Indian Ocean territories, in, 177–90 governance, in ocean, 5–6, 16, 228 implications, 126–30 institutional aspects, 39–53 local community, 63–64 Mayotte, in, 180–82 policy directions, 14–17 policy frameworks, 5–9 production figures, 88 regional issues, 87–91 Réunion, in, 184–86

Fisheries Act, 274–76 fisheries conflict community-based, 63 “fisheries management”, 6, 12, 338 policy framework for, 54–69 politicization of, 62 see also fishing conflict Fisheries Partnership Agreement (FPA), 216, 220 fisheries “refugia”, 273 fisheries regime, legal background, 39–41 fisheries resources exploitation, 9–14, 90 fishermen as prisoners of war, 173 livelihood of, 2, 144, 163 problems in Indo-Pakistani waters, 170–74 problems in Indo-Sri Lankan waters, 164–69 threats from Sea Tigers, 167 welfare schemes, 167 fishery “producers”, 10 fishing indigenous people, 142–45 lagoons, 202–205 livelihood, 2, 144 see also fishermen; overfishing fishing conflict, 7–8 basic typology of, 55–56 conceptualization of, 55 see also fisheries conflict Fishing Conservation and Management Zone, see FCMZ fishing countries group, 10 “fishing crisis”, 3 Fishing Entity of Taiwan, 45, 47 fishing industry, 8, 57, 88–89 Malaysia, in, 90 fishing quotas, 187 fishing sector, two categories, 2

351

17 Fisheries Ex Index

351

10/28/09, 12:48 PM

352

Index

fishing strategy, aboriginal, 147, 152– 53 fishing technology, 33 Five-Year Fishery Development Plan, 223–24 “floating” basepoints, 112, 131 flags of convenience (FOC), 64, 68, 212–13, 225, 287 FOC states, 65 Food and Agriculture Organization, see FAO food security, and fisheries, 303–06 foreign direct investment (FDI), 198 Forum Fisheries Agency (FFA), 47 France, 10, 16, 78, 80, 91, 122 claim on Tromelin Island, 123 possessions, 130, 177–78 relations with Mayotte, 123 treaty with Australia, 188 France Overseas Department, see DOM Freddy, Numberi, 65 French Indian Ocean territories, 12, 179 EEZ, 180, 182–83, 190 fish catch, 180 fisheries in, 177–90 list of, 178 French National Museum of Natural History, 187 French Southern and Antarctic Lands (FSAL), 178, 183, 190–91 freshwater fish population, 4 Fukuseki Maru 7, 183 G Gaia Theory, 27 Gandhi, Indira, 165 Ganges, river, 34, 75, 113 GATT, 257 “Gene Revolution”, 304 Genencor International, 244, 246

General Fisheries Commission for the Mediterranean (GFCM), 49–50 geopolitics bioprospecting in southern polar regions, 242–47 giant water ferns, 231, 237 Global Ballast Water Management Programme (GloBallast), 14, 234–36 award, 235 global commons, 14 Global Environment Facility (GEF), 234 Global Programme for the Protection of the Marine Environment, 309 Global Risks 2007, 25–26 global temperatures, 25, 30 global warming, 3, 333 globalization, 13, 198, 216, 220, 236, 338 Globallast Partnership Project, 229, 235 Glorioso Islands, 121–22, 133, 180 glycoprotein, 245 government, role of, 61–63 Great Australian Bight Marine Park (GABMP), 316–17 Great Barrier Reef, 315–16 Great Barrier Reef Marine Park Authority, 90 Greenpeace, 211, 225 “Green Revolution”, 304 Gulf Cooperation Council, 85 Gulf of Aqaba, 79 Gulf of Kutch, 172 Gulf of Mannar, 165, 168 Gulf of Martaban, 111 Gulf of Myanmar, 79 Gulf of Oman, 79, 111 Gulf of Thailand, 3, 86, 88, 327 “gunboat diplomacy”, 56, 65 Gwatar Bay, 112 H “hard law instruments”, 7, 44 Harmful Algal Blooms (HAB), 232

352

17 Fisheries Ex Index

352

10/28/09, 12:48 PM

353

Index Hazard Analysis Critical Control Point (HACCP), 318 Hazra, Sugata, 335 Heard and McDonald Islands, 106, 129 “Heart of the Third World”, 300, 334 Hellenic Aid Programme, 219 Hellenic Centre for Marine Research, 219 Hill, Robert, 317 Himalayas, 34 holistic ecosystem approach, 7 Homer-Dixon, Thomas, 23 Honduras, 65 horizontal conflicts, 7 Horn of Africa, boundaries, 8, 79 Howard, John, 147, 317 Human Development Index, 222 Human Development Report, 335 human-ecological security, 334–35 I IATTC (Inter-American Tropical Tuna Commission), 45, 50, 280 ICCAT (International Commission for the Conservation of Atlantic Tunas), 45, 47, 50, 280 Iceland, 66 ICZM (integrated coastal zone management), 307–308 see also coastal management Îles Éparses, see Scattered Islands illegal, unreported and unregulated (IUU) fishing, 16, 52, 84, 90–91, 105, 128, 211, 287–88, 290, 332 Ilois, legal case, 133 IMO Ballast Water Convention, 235 IMO (International Maritime Organization), 14, 229, 309 response to impact of ship ballast, 232–35 import and export values of fish product, 88, 102–103

Independent Commission Against Corruption (INCAC), 201 India, 3, 60–62, 74–75, 79, 85, 113, 318 agreement with Sri Lanka, 11, 119– 20, 165, 175 boundary dispute, 120–21, 170–72 boundary negotiations with Bangladesh, 124 Environmental Protection Act, 312 National Coastal Zone Management Authority, 312 tri-junction location, 27 Indian fishermen, problems of, 166– 67, 172–74 in Indo-Pakistani waters, 170–74 Indian Ocean, 2–4 claims, 105, 107 definition, 106 fish stocks, 3–4 fisheries exploitation, 9–14 fisheries policy directions, 14–17 maritime boundary delimitation, 125–26 policy framework in, 5–10 sea lanes, 28 Indian Ocean basin, 73, 87–88, 92 territory disputes, 75–76 Indian Ocean Commission (IOC), 184, 189, 192, 208, 213 Indian Ocean fisheries, 338, 340 challenges, 326–32 data collection, 331 future for, 325–41 resources and exploitation, 72–93 Indian Ocean Fisheries Commission (IOFC), 285 Indian Ocean island disputes, 121–24 Indian Ocean littoral states, 28, 29, 35, 105, 108, 116, 128, 302 Indian Ocean Marine Affairs Cooperation (IOMAC), 44, 48 Indian Ocean Region, see IOR

353

17 Fisheries Ex Index

353

10/28/09, 12:48 PM

354

Index

Indian Ocean Region Group, see IORG Indian Ocean Rim Association for Regional Cooperation, see IORARC Indian Ocean rim, 6, 27, 31, 34, 36 environmental security, 32–35 Indian Ocean states, 10, 15, 27, 59, 68, 74 Law of the Sea, and, 108–109 Indian Ocean Tuna Commission, see IOTC Indians in Mauritius, 195–97, 219 Indigenous Fisheries Ranger Programme, 158 Indigenous Fisheries Strategy, 147 Indigenous Fishing Fund, 158 indigenous knowledge systems, and strategies, 335–37 Indigenous Land Corporation, 151 indigenous people definition, 159–60 fishing, and, 142–45 related terms, 160 Western Australia, 143–47 see also Australian Aborigines Indira Gandhi Institute of Development Research, 30 Indo-Pakistan waters, 11 problems of fishermen in, 170–74 Indo-Sri Lankan waters, 11 Indonesia, 3, 27, 34, 48, 57, 61, 90, 121, 215, 225 archipelagic baselines, 115 coastal management challenges, 312 marine resources, 329 treaty with Australia, 126, 134 Indonesian archipelago, 8, 79 industrial fishing, 202, 209–12, 282 industrialization, in coastal zones, 30– 31

integrated coastal zone management, see ICZM Integrated Resort Scheme (IRS), 206 intellectual property, 256–58 Inter-American Tropical Tuna Commission, see IATTC Intergovernmental Panel on Climate Change, see IPCC Intergovernmental Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, see IPOAIUU International Commission for the Conservation of Atlantic Tunas, see ICCAT International Convention for the Control and Management of Ships Ballast Water and Sediments, 235–36 International Convention for the Prevention of Pollution from Ships, 309 International Convention on Offshore Dumping, 309 International Court of Justice, 66, 80 international instruments, 308 International Labour Organization, 159 International Maritime Organization, see IMO International Organization for Standardization, 299 International Polar Year (IPY), 254 International Seabed Authority (ISA), 259 International Security, 23 International Tribunal for the Law of the Seas, see ITLOS Inter-Service Intelligence (ISI), 172 IOR-ARC (Indian Ocean Rim Association for Regional

354

17 Fisheries Ex Index

354

10/28/09, 12:48 PM

355

Index Cooperation), 10, 60–61, 69, 340– 41 IOR (Indian Ocean Region), 4, 6, 10, 22, 27, 33, 55, 68, 73, 75, 105, 298– 99, 318, 341 climate change, 25, 332–35 coastal management, 306–308 fish management policy, 4 institutions of, 44–49 marine biodiversity, 332–35 marine environment, 306–308 national initiatives, 311–14 regional initiatives, 310–11 security and sovereignty, 300–303 IORG (Indian Ocean Region Group), 300–301, 321, 341 IOTC (Indian Ocean Tuna Commission), 16, 44–46, 49–50, 52, 60, 129, 184, 189, 210, 212–13, 279, 280, 284, 292, 311, 330 background, 285–87 challenges, 288–91 compliance measures, 287–88 convention area, 281 membership, 286–87 non-members, 289, 294 objectives, 192 structure of, 286–87, 294 IPCC (Intergovernmental Panel on Climate Change), 25, 332–33, 334 IPOA-IUU (Intergovernmental Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing), 44, 50–51 Iran, 60–61, 74, 79 straight baseline claim, 111–12 Ireland Blyth Ltd (IBL), 226 Israel, 74, 79 ITLOS (International Tribunal for the Law of the Seas), 66–67

J Jadavpur University, 335 Jakarta Mandate on Marine and Coastal Biodiversity Resources, 42, 58, 309, 313 Japan, 3–4, 16, 29, 47, 61–62, 64, 186 Japanese Diet, 62 Jayewardene, Hiran, 48 Jeddah Convention, 49 Joint Development Area, 80, 83 Joint Petroleum Development Area (JPDA), 80, 126 Jordan, 79 Juan de Nova Island, 121–22, 133, 180 jurisdictional limits, established, 78– 81 jurisdictional problems, in regional seas, 73 K Kachchativu Island, 11, 164–66 agreement between India and Sri Lanka, 165, 175 Kaplan, Robert, 23 Kashmir, 74 Keating, Paul, 146 Kenya, 29, 60–61, 78, 91, 284, 312 coastal management, 313 coastline, 307 EEZ concept, 127 unilateral claims, 118–19 Kerguelan Islands, 106 Kimberly Aboriginal Aquaculture Corporation, 154 Kimberly Aquaculture Development Plan, 154 Kimberly College of Technical and Further Education, 157 Kimberly region, West, fishing practices, 11 indigenous fishing, 141–60

355

17 Fisheries Ex Index

355

10/28/09, 12:48 PM

356

Index

recreational fishing, 153–54 see also Western Australia Kooljaman Resort, awards, 157 Korea, 16, 47 Koryu Maru 38, 184 Kuwait, 111 Kuwait Convention, 49 L Laccadive Sea, 79 lagoon fisheries, and tourism, 206– 207 lagoons fishing in, 202–205 pollution, 204 Lahore Declaration of 1998, 171 Lakhshwadeep Islands, 231 Land-based Oceanic Industry, 200 land boundary on the coast, problems, 120–21 land-locked states, rights of, 40 Large Marine Ecosystem, see LME Law of the Sea Convention, see UNCLOS least developed countries (LDC), 199 Liangbiao Cheng, 245 Liberation Tigers of Tamil Elam (LTTE), 166 threats from Sea Tigers, 167 Limits in the Seas series, 109, 130 Lischewski, Christopher, 226 LME (Large Marine Ecosystem), 7, 44 approach, 42 see also BOBLME London Dumping Convention, 309 long-distance water fleets (LDWF), 210 LOSC (United Nations Law of the Sea Convention), 105–106, 109– 17, 122, 126–27, 130–31, 305 framework, 308–309

signatories, 108, 130 tuna categorization, 280 Lovelock, James, 27 low-water line, 113 definition, 131 M Mabo case, 147 Mackerels, Indian, 2 Madagascar, 27, 61, 78, 122, 185, 195, 284, 306 claim on Tromelin Island, 123 independence, 121, 182 straight baseline claim, 110 territorial claim, 182 Madagascar Channel, 121 Madrid Protocol, 248–50, 252, 256, 258, 263 Maersk-Sealand, 200 Malaysia, 27, 61, 80, 89 fishing industry in, 90 marine conservation policy, and law, 15, 268–77, 330 national marine parks, document, 272–73 straight baseline claim, 114 unilateral claims, 119 Malaysian Directorate of National Mapping, 114 Malaysia Plans, 273–74 Maldives, 10, 25, 80, 106, 195, 306–307 archipelagic baselines, 115 EEZ, 307 unilateral claims, 119 mangroves, 82 mare nullius, 145 Marine Areas Act, 111, 116 marine biodiversity, 5, 7, 13, 15, 17, 32, 41, 51, 54, 67, 105 conservation policy and law, 268– 77

356

17 Fisheries Ex Index

356

10/28/09, 12:48 PM

357

Index impact of illegal fishing, 64–65 implications, 126–30 Indian Ocean Region, in, 332–35 lack of political will, 58, 67 maximization of, 58, 60–61, 68, 73 threats to, 271 see also biodiversity marine bioinvasion, see bioinvasion marine biotic resources managing, 82–83 sharing, 86–87 Marine Conservation Centre, 213 marine conservation policy, of Malaysia, 15, 268–77, 330 marine degradation, 15 marine ecosystems, 57 marine environment, 82, 87 defining community, as a resource for, 63 exploitation of, 57–58 of IOR 306–308 security and sovereignty in, 300– 303 marine management and governance, models of, 315–20 Marine Parks, 275 Marine Protected Areas, see MPAs marine resources management regimes, 58–61 Marine Stewardship Council, see MSC Marine Zones of the Maldives Act, 119 maritime boundary, 11, 25, 75, 78, 80– 81 agreements, 100–101 disputes, 9 Indian Ocean, 125–26 negotiations, 85 straight baselines, 76, 77, 79, 108, 110–11, 126, 128 see also baselines

maritime conservation, 54 maritime jurisdiction, 75–78, 97 claims to, 107–21 historic claims, 119–20 unilateral claims, 118–19 Maritime Risk Reduction Centres (MRRCs), 174 maritime space, managing, 81–82, 89 Maritime Zone of India (MZI) Act, 169, 175 MARPOL Convention, 59, 309 Mascarene Basin, 80 Mascarene Plateau, 202, 224 semi-industrial fishing on the, 207– 208 Matang Forest Reserve, 270 Mauritius, 12–13, 45, 60–61, 78, 80, 88, 106, 116, 195, 306 claim on Chagos Archipelago, 124, 194 claim on Tromelin Island, 123, 182, 194 coastline, 206, 223 diversification and dependence, 197–200 fresh water in, 223–24 historical introduction, 194–97 historic bay closing line, 120, 133 Indians in, 195–97, 219 industrial fishing, 202, 209–12 lagoons, fishing in, 202–205 maritime zones, measured, 131 Port Louis, 200–201 semi-industrial fishery, 207–208 sugar exports to European Union, 198, 221 sugar industry in, 197–99, 220 textile industry in, 197–99, 222 Mayotte Island, 12, 122–23 Departmental Collectivity of Mayotte, 190

357

17 Fisheries Ex Index

357

10/28/09, 12:48 PM

358

Index

fisheries in, 180–82 relations with France, 123 McPherson, Kenneth, 341 Mediterranean Shipping Company (MSC), 200 “mega-diversity” states, 27 Mehta, Sureesh, 173 Merck Sharp & Dohme, 244 Meteorological Organization Congress, 123 Mexico, 27 MICROMAT, 244 Millennium Ecosystems Assessment, 269 minerals exploitation, ocean, 10 “modern sovereignty”, 58, 68 see also traditional sovereignty monitoring, control, and surveillance (MCS), 330 monsoons, 34 Mozambique, 61, 78, 91, 125, 284, 306, 312 straight baseline claim, 110 Mozambique Channel, 12, 106, 110, 125, 133, 180, 182–83, 185 Scattered Islands, 121–22 MPAs (Marine Protected Areas), 68, 298, 316–17, 339 MSC (Marine Stewardship Council), 299, 317–18 Multi-Fibre Agreement (MFA), 198–99 Musandam Peninsula, 113 Myanmar, 10, 34, 113 straight baseline claim, 111 N Nairobi Convention, 48 members, 310 National Biodiversity Policy, 269 National Coastal Zone Management Authority, 312 National Coastal Zone Policy, 274

National Environmental Engineering Institute (NEERI), 168 National Environmental Management Act (NEMA), 313 National Institute of Oceanography, see NIO National Integrated Coastal Zone Management Policy, 274 National Islands Development Board, 274 National Marine Biodiversity Plan (NAMBIP), 15 national marine parks Malaysia, document, 272–73 National Native Title Tribunal, 147– 48 National Oceanic and Atmospheric Administration, 42 National Policy on Biological Diversity, see NPB National Science Foundation, 245 NATO, 22 Native Title Act (NTA), 147–48 native title claim Bardi Jawi, 149–51 Rubibi, 151–52 native title in Australia, 147–52 Native Title process, 145 Nehru, Jawahar Lal, 164 Nelson, Brendan, 66 Neolithic Revolution, 217 New Fortune, 183 New Moore Island, 124 New Partnership for Africa’s Development, 85 New Zealand, 47, 62, 91 newly industrialized countries (NIC), 198 NIO (National Institute of Oceanography), 235 NNTT (National Native Title Tribunal), 147–48

358

17 Fisheries Ex Index

358

10/28/09, 12:48 PM

359

Index NOAA (National Oceanic and Atmospheric Administration), 42 non-governmental organizations (NGOs), role, 169, 302, 319–20, 328 non-state actors, 56, 58 impact of, 64–65 Noordwijk Guidelines for Integrated Coastal Zone Management, 308 North East Atlantic Fisheries Commission (NEAFC), 50 Northern Territory, 148, 152 Northwest Atlantic Fisheries Organization (NAFO), 50 NPB (National Policy on Biological Diversity), 15, 271–72, 274, 276– 77 NSF (National Science Foundation), 245 O ocean minerals exploitation, 10 sea lanes, 10 waste disposal, 10, 30 Ocean Conveyor, 24 ocean “mining”, 10 “Ocean of the South”, 300, 325, 335 ocean policy, 84–85 Ocean Press, 225 oil spill, 28–30 see also pollution Oman, 61 straight baseline claim, 113–14 “operational assertions”, 109 One Arm Point, 151 trochus hatchery, 155–57 open sea fishery, 184–85 orange roughy, 46 Organization of African Unity, 122 Oriental biogeographic province, 27 overfishing, 5, 11, 24

definition, 57 evidence of, 327 see also fishermen; fishing Overseas Collectivity of the French Republic, see COM Overseas Region, see ROM “ownership” of fish stocks, 4–5 “ownership” of the sea, 4–5, 11, 56, 142, 145, 158 P P and O Nedloyd, 200 Pacific Merchant Shipping Association, 233 Pakistan, 10, 74–75, 79 boundary dispute, 120–21, 170–72 fishermen problems in IndoPakistani waters, 170–74 straight baseline claim, 111–12 Pakistan Fisher Folk for United Nations, 173 Pakistan Institute of Labour Education and Research (PILER), 172 Pakistani fishermen, problems of, 172–74 Palaearctic biogeographic province, 27 Palk Bay region, 63, 79, 120, 168 Palk Strait, 62, 120, 165 Pamban channel, 168 Panama, 65 Papua New Guinea, 85 Pardo, Arvid, 24 Parties to the Convention on Biological Diversity, 58 pas géométriques, 206–07 Patagonian Toothfish, 81, 90–91, 186– 87, 211–12 stocks, 189 patent, 258 companies applying for, 247

359

17 Fisheries Ex Index

359

10/28/09, 12:48 PM

360

Index

Pedra Branca, 80, 103 Persian Gulf, 8, 28–29, 63, 79, 82, 106, 111 perspectives on sea, 145–46 Peru, 3, 27 Pew Oceans Commission, 68 Philippines, the, 48, 61, 215, 225 phytoplankton, 217–18 Pimentel, David, 231 Pinchet, Gifford, 315 pirate vessels, 187–88 plankton, 209 “plantocracy”, 197 “ploughing” effect, 32 political boundary issues, 73 policy framework fisheries conflict, for, 54–69 Indian Ocean, in, 5–10 pollution, 24, 33, 48–49, 89 lagoons, 204 oil spill, 28–30 ship-sourced, 309 water-borne, 59 pollution control, 35 Port Louis, 200–01 Prince Edward Islands, 106 Princess Tuna, company, 213–14 Protocol on Environmental Protection, 248 Pulau Batu Puteh, 80, 103 Purbasha Island, 124 purse seine, 16, 32, 183 see also “superseiners” R Ramgoolam, Navin, 222 Rann of Kutch, 74, 121, 170–71 Red Sea, 42, 49, 79, 82, 106, 113 Red Tides, 232 Regional Commission for Fisheries (RECOFI), 47, 49

Regional Convention On Fisheries Cooperation Among African States Bordering The Atlantic Ocean, 40–41 Regional Fisheries Management Organizations (RFMOs), 60, 280 regional seas programme, 48–49, 310 “regulatory failures”, 16 Research and Analysis Wing (RAW), 172 Réunion, 12, 80, 106, 189, 195 fisheries in, 184–86 Reykjavik Declaration on Fisheries in the Marine Ecosystem, 41, 44, 51 Rio Declaration, 74, 299 Rio Earth Summit, 255 Rodrigues Island, 120 ROM (Région d’outre-mer), 178, 190 ROPME Area, 49 Rubibi native title claim, 149–51 Rules of Origin (ROO), 215–16, 220, 225 S “saltwater people”, 142 satellite surveillance system, 188 Saudi Arabia, 10, 34, 79, 111 Saving Fish and Fisheries: Towards Sustainable and Equitable Governance of the Global Fishing Sector, 326–28 Scattered Islands, 121–22, 180, 189, 191 fisheries in, 182–84 Mozambique Channel, and, 121–22 sovereignty of, 12 Schofield, Clive, 9 Scientific Committee on Antarctic Research (SCAR), 253 seafood consumption, world’s highest, 143

360

17 Fisheries Ex Index

360

10/28/09, 12:48 PM

361

Index “seafood hub”, 13, 200 European Union, and, 209–17 Seychelles, 210 sea lanes of communication (SLOCS), 23 “sea lords”, 31 Seas and Submerged Land Act, 148 Sea Tigers, threats from, 167 security issues, oceans, 6, 9 semi-industrial fishery, in Mauritius, 207–208 semi-industrial fishing, 202, 282 Mascarene Plateau, on the, 207– 208 Sethusamudram Ship Canal Project, 12, 168, 175 “settler colonies”, 195 Seychelles, 4, 10, 78, 80, 91, 106, 124, 183, 195, 284, 306 archipelagic baselines, 115 seafood hub, 210 Shah, Muhammad Ali, 173 ship ballast, 229–30 bioinvasion, 230–32 impact of, 13–14, 227–29 response by IMO, 232–33 technical solutions, 233–34 vessel types, 230 see also bioinvasion shrimp farming, 328–29 Silori, C.S., 337 Singapore, 80, 89 Singh, Swaran, 6 Sir Creek, 120, 121 boundary dispute, 170–71 Sittang River, 111 Skipjack Tuna, 212, 284–85, 293 small island developing states (SIDS), 284, 333 soft law instrument, 7, 43–44, 50–51 Somalia, 29, 34, 125, 284

claims to territorial sea, 116, 128, 131–32 Somalian Coastal Current, 42 South Africa, 29, 48, 60 coastal management policy, 312–13 coastline, 307 South Asia boundaries, 8 fishermen, insecurity of, 163–74 South Asian Labour Forum (SALF), 173 South Asian Seas programme, 310 South-East Atlantic Fisheries Organization (SEAFO), 45 South Korea, 61, 186 South Talpatty Island, 124 South West Indian Ocean Commission, 311 South West Indian Ocean Fisheries Commission, see SWIOFC South West Indian Ocean Fisheries Project, see SWIOFP Southeast Asia, 3 coral reefs in, 326–27 Southern Africa Development Community (SADC), 201 Southern Africa Far East (SAFE), optical fibre cable, 201 Southern Bluefin Tuna (SBT), 2, 57, 65, 183, 212 Southern Exclusive Economic Zone, fisheries in, 186–88 Southern Indian Ocean Fisheries Agreement (SIOFA), 45–46, 61, 91–92 Southern Ocean, as nursery, 15 Southern Ocean Maritime Patrol and Response (SOMPR), 129 southern polar regions, bioprospecting in, 242–47, 260 sovereignty claims, 76

361

17 Fisheries Ex Index

361

10/28/09, 12:48 PM

362

Index

Soviet Union, collapse of, 21 Spain, 10, 16, 183 Spanish Patent Office, 246 species composition, 4 spiny lobster, 186–87 sport fishing, 202 swordfish fishery, and, 208–209 Sri Lanka, 29, 48, 60–63 agreement with India, 11, 119–20, 165, 175 Coastal Zone Management Policy, 312 internal conflict, 12 Sri Lanka fishermen, problems of, 168–69 “stakeholders”, 315, 319, 321 State Marine Administrations, 233 Statistical area 51, 282–83 Stern, Nicholas, 27 straight baselines, 76–77, 79, 108, 110– 11, 126, 128 Bangladesh, 113, 119 Djibouti, 113 Madagascar, 110 Malaysia, 114 maritime boundary, 76–77, 79, 108, 110–11, 126, 128 see also baselines Mozambique, 110 Myanmar, 111 Oman, 113–14 Pakistan, claim, 111–12 Strait of Hormuz, 79, 106, 113 Strait of Malacca, 28–29, 88, 106 Strait of Mozambique, 29 Straits of Singapore, 80, 103 St. Vincent, 65 subsistence fishing, 88 Sudan, 79 sugar industry in Mauritius, 197–99, 220 Sundarbans delta, 25, 335

“superseiners”, 306 see also purse seine sustainability, 57 concepts, 10 Swaminathan, M.S., 339 SWIOFC (South West Indian Ocean Fisheries Commission), 46–47, 49, 61, 184, 189 objective, 192 SWIOFP (South West Indian Ocean Fisheries Project), 12, 184, 189, 192 swordfish, 13, 183, 289, 293 sport fishing, and, 208–209 T Taiwan, 10, 16, 44, 52, 57, 64–65, 290– 91 and China, 45 problem of, 59 Tamil Nadu State government, 12, 63 tanker disasters, 29 Tanzania, 29, 78, 85, 284, 312 technology transfer, 35 Teekay Shipping Corporation, 233 terra firma, 145 terra nullius, 145, 147 terrestrial biodiversity, 15 textile industry in Mauritius, 197–99, 222 Thailand, 61, 74, 80, 215, 225 straight baseline claim, 114–15 “Third World Ocean”, 261 Thon des Mascareignes, 215, 226 “Tiger of the Indian Ocean”, 198–99 Timor Gap Treaty, 83, 126 Timor Sea Treaty, 83, 126 total allowable catches (TAC), 187, 208 Torres Strait, people, 142–43, 147 Torres Strait Treaty, 83, 85 tourism, and lagoon fisheries, 206– 207

362

17 Fisheries Ex Index

362

10/28/09, 12:48 PM

363

Index Trade-Related Aspects of Intellectual Property Rights (TRIPs), 256, 265 traditional fishing, 202 by indigenous people, 142–45 “traditional sovereignty”, 58, 62 see also modern sovereignty transnational corporations (TNCs), 304 trawling, 32, 84 TRIPS Agreement, 248, 257–58 trochus hatchery, 155–57 trochus shells, 145, 154 Tromelin Island, 80, 133, 180, 185, 189 background, 123 claim by France, 123 claim by Madagascar, 123 claim by Mauritius, 123, 182, 194 Tsamenyi, Martin, 15 Tsukiji fish market, 4 tsunami, 27–28, 203, 302 tuna, 9, 13, 45–46, 183, 210, 212 Bigeye, 2, 57, 212–13, 284–85, 288– 89, 293 canned, 284 conservation, 16 exploitation, 3, 10 illegal catch, 304 industry, 3, 284, 306 LOSC categorization, 280 market, 4, 213, 280 Skipjack, 212, 284–85, 293 Southern Bluefin (SBT), 2, 57, 65, 183, 212 Yellowfin, 57, 212, 284–85, 289, 293 tuna canning, 4, 280 tuna fisheries management, 15 tuna-like stocks, 286, 291, 293 Tuna Management Act, 62 Tuticorin port, 168–69, 175 Tyndall Centre for Climate Change Research, 27

U Ukraine, 186 U.N. Agreement on Straddling Fish Stocks and Highly Migratory Fishing Stocks (UNASFSHMFS), 60, 61 UNCLOS (U.N. Convention on the Law of the Sea), 7–9, 15, 25, 39– 44, 59, 65, 68, 73–75, 84, 90, 93, 166, 169, 210, 215, 249, 265, 285, 293 Antarctic, and, 258–60 Indian Ocean states, and, 108–109 U.N. Conference on Environment and Development (UNCED), 44, 50, 232, 299, 308 U.N. Conference on the Human Environment, 23 U.N. Convention 1982, see UNCLOS UNESCO World Heritage, 184 U.N. Fish Stocks Agreement (UNFSA), 7, 44, 288–89, 290–91 U.N. Food and Agriculture Organization, see FAO U.N. General Assembly, 122 Unilever, 317 United Nations Commission on the Limits of the Continental Shelf, see CLCS United Nations Development Programme (UNDP), 234 United Nations Environmental Programme (UNEP), 26, 44, 85, 254, 309–10, 313 United Nations Food and Agriculture Organization, see FAO United Nations Law of the Sea Convention, see LOSC United States, 3, 22, 75, 113–16 United States Freedom of Navigation Program, 108–109 University of Bordeaux, 244

363

17 Fisheries Ex Index

363

10/28/09, 12:48 PM

364

Index

University of Ghent, 244 University of Illinois, 245 University of Liège, 244 University of Nottingham, 244 University of Tasmania, 246 University of Tuscia, 245 urbanization in coastal zones, 30–31 U.S. National Science Foundation, 26 U.S. Patent Office Database, 246 USSR, 186 V Vessel Monitoring System (VMS), 211, 288, 290, 330 vessel types, and ballast needs 230 vertical jurisdictional conflict, 7 Vienna Convention on the Law of Treaties, 52–53 Voluntary Redundancy Scheme (VRS), 198 W Washington Declaration on Protection of Marine Environment from Land-based Activities, 44 waste disposal, ocean, 10, 30 water ferns, giant, 231, 237 wave power, 222 welfare schemes, for fishermen, 167 Western and Central Pacific Fisheries Commission (WCPFC), 45, 50 Western Australia fishing license, 68 indigenous fishing, 11, 141–42 indigenous people, 141, 143–47 recent developments in, 157–58 West Kimberly region, 11, 141, 149, 151 Western Central Pacific Ocean Fisheries Commission, 329 Western Central Atlantic Fishery Commission (WECAFC), 49

Western Hemisphere, 29 Western Indian Ocean (WIO), 15, 279, 280–85, 288, 291 countries in, 292 exclusive economic zones of, 282 tuna industry, 284 Western Indian Ocean Marine Science Association (WIOMSA), 242, 311 Western Indian Ocean Tuna Organization (WIOTO), 47, 311 Whaling Commission, 59 wild fisheries, 217 World Atlas of Biodiversity, 242 World Bank, 3, 27, 159, 308, 310, 325 World Bank Report, 326–28 World Coast Conference, 308 World Commission on Environment and Development (WCED), 87, 308 World Economic Forum (WEF), 25 World Food Programme, 304 World Food Summit, 303 World Intellectual Property Organization (WIPO), 262 world population, 83 World Summit on Sustainable Development (WSSD), 44, 50, 299 World Trade Organization (WTO), 41, 45, 198, 215, 221–22, 256–57, 265, 299, 304 World Wildlife Fund for Nature (WWF), 317 Y Yawuru, indigenous people, 151 Yellowfin Tuna, 57, 212, 284–85, 289, 293 Yemen, 125 Z Zakri, Hamid, 245 Zone of Cooperation, 83 zooplankton, 209, 217–18

364

17 Fisheries Ex Index

364

10/28/09, 12:48 PM