Fisheries Exploitation in the Indian Ocean: Threats and Opportunities 9789814279406

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

Fisheries Exploitation in the Indian Ocean Threats and Opportunities Edited by

Dennis Rumley, Sanjay Chaturvedi and Vijay Sakhuja

IeRG INDIAN OCEAN RESEARCH CROUP

I5ER5 IN5nTUTE OF SOUTHEAST ASIAN STUDIES

Singapore

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 Arr angements

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 Arr angements

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 Arr angements 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 Arr angements

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 Arr angements

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 Arr angements

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 Arr angements

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 Arr angements

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 Fisher y

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 Fisher y

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 Roc k (Horsburgh Lighthouse, an aid to na vigation is sited on this roc k)

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 Fisher y Table 5.2 States with Enabling Legislation

National legislation provide for use of straight baselines Yes

Australia, Bangladesh, Djibouti, Egypt, F rance, Iran, Kenya, Madagascar, Mauritius, Mozambique, Myanmar, Oman, Pakistan, Saudi Arabia, Somalia, South Afr ica, 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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y

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 Fisher y 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 Fisher y 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 Fisher y 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 Fisher y 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 Fisher y

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 Mar itime 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 Mar itime 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:

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 Br itish 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 (DO ALOS) (2007) “Status of the United Nations Con vention on the La w of the Sea, of the Ag reement 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 conser vation and management of straddling fish stocks and highly mig ratory fish stoc ks”, updated 10 J uly 2009. Available at: . 1

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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Mar itime 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 Kimber ley 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 Kimber ley 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 Kimber ley 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 Kimber ley 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 Kimber ley 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 Kimber ley 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

Bardi Jawi Determination Area

- --

so

25

......

75

NAT IONAL N ATIVE

TinE T RIBUNAL

I.Merrn na11on area ()ala souroe