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Marine Pollution from Fisheries: International Law and the Fijian Legal Regime

Fiji has five specific oceans related legislation which are Fisheries Act (1942); Offshore Fisheries Management Decree (2012); International Seabed Mineral Management Decree (2013); Continental Shelf Act (1970) and Marine Space Act (1978). Other supporting legislation include the Environment Management Act (2005), Waste Management Regulations and the Maritime Safety Authority of Fiji Act (2009).

The international law on oceans is established by the United Nations Convention Law of the Sea (UNCLOS) which is largely seen to be a constitution for ocean governance. Part xii of the UNCLOS; protection and preservation of the marine environment contains provisions for marine protection. The international law contains provisions on marine pollution from fishing vessels, prevention of introduction of alien species in marine environment, monitoring and environmental assessments. The Convention of Biological Diversity (CBD), another important international law also promotes conservation and protection of marine environment however limited to areas within national jurisdiction. The UNCLOS splits the ocean areas into five marine zones with each having different legal status. These are internal waters, territorial Sea, contiguous zone, exclusive economic zone (EEZ) and the high seas. The coastal nations have jurisdiction over the natural resources of an Exclusive Economic Zone (EEZ) that extends up to 200 miles off their shores. Within the EEZs, each nation has jurisdiction to govern the use of its marine resources. They may issue licenses, set catch limits, or ban a given activity all together.[i]

So with clear guidance and international rules there is clarity on who owns the fish and who is responsible for management of these resources through domestic legislations. The Offshore Fisheries Management Decree contains provisions on licensing, compulsory registration of fishing vessels, reporting, monitoring and tracking of vessels. Pollution from fishing industry is a growing problem. A scientific report suggests that 46 percent of the plastic in the ‘Great Pacific garbage patch’[[1]] a floating gyre the size of France made up of plastic, comes from fishing nets and discarded fishing gear. World Animal Protection reports that 640,000 tons of gear are lost and pollute oceans each year.[ii]

The detrimental impacts of marine debris on the marine ecological environment have been significantly discussed and the international convention, MARPOL 73/78 regulates the discharge of garbage from ships; in particular, prohibiting all kinds of plastics. Although most fishing vessels are exempt from such regulations,[2] in the context of marine protection and in particular with reference to the provisions of UNCLOS; Article 194 “Measures to prevent, reduce and control pollution of the marine environment,” the obligations lie with the Sates.

With ever increasing fishing vessels in the ocean at one given time, both in EEZ and within the territorial and High Seas, it is certainly important for States to include pollution prevention clauses within their domestic legislation keeping in line with the UNCLOS provisions to ensure that vessels flying their flags are not polluting their oceans or at least making efforts to minimize marine pollution. Fishing vessels may also pollute the marine environment through leaking oils or dumping of waste oils accidentally or intentionally in areas that are not monitored by states. Heavy pesticides used in fishing may also runoff from the vessels into the ocean causing massive damage to the ocean health including toxicity to humans consuming fish.

The conflicting interest of Fiji is ensuring sustainable fishing and making sure that laws do not create difficulties for economic exploitation of resources where fishing contributes immensely to the GDP; 2.8 % of the GDP and 9.7 percent of the total export earnings in 2014.[iii]  As a result, the related legislation Offshore Fishing Decree falls silent on signalling out marine pollution related issues under the management and conservation section of the law. It would make sense that the latter is not included in the law should there be a standalone law or a policy on marine pollution caused as a result of fishing vessels. The existing laws such as the Environment Management Act, Marine Spaces Act and the Fisheries Act also sparsely address issue related to marine protection.

The balancing act therefore within the Offshore Fisheries Management Decree (2012 is seen to be the use of broad legal languages in the decree with a willful intention to apply marine protection related grievance selectively upon the discretion of the best judgement of responsible or authorized officials in government. One such example in the law is in Part (4) Section 22; Subsection (2) where the Permanent Secretary may make, amend or revoke allocations for any fishing activities for a long-term conservation and sustainable use of fisheries resources and the protection of fishing by Fiji citizens. The term ‘protection’ used here in the language is open to many interpretations which also includes protection of marine biodiversity. In the case if commercial fishing is seen to cause massive marine pollution in the jurisdictions of Fiji, the Permanent Secretary can interpret that as endangering the production of fish populations within the environment and thus revoke such licenses. The interpretation of the term ‘protection’ can also be linked to the use of another term in the law in Subsection 2(i) ‘fishing patterns and practices’ which essentially helps to clarify that activities that are causing pollution can be considered inappropriate for the well-being of fisheries.  However, this has been never the case so far, as there are no credible literature to support such an action has taken place.

The UNCLOS has the provisions on the marine protection in Part XII; protection and preservation of the marine environment. The international law has specific provisions for measures to prevent, reduce and control pollution of the marine environment in Article 194 listing down State responsibilities such as “…measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source…”

Article 211 of the UNCLOS relates to pollution from the vessels. The UNCLOS does not provide definition for vessels and therefore it can be interpreted as referring to any type of vessel at sea which are to abide by the provisions on marine protection unless stated otherwise relating to specific activity. Article 1 defines ‘Dumping’ as “deliberate disposal of wastes or other matter from vessels” but does not include “disposal of wastes or other matter incidental to or derived from the normal operations of vessels”. This is interesting because chemicals used in washing catches in the ocean which includes heavy pesticides and damaged lines and plastic apparatus which are no longer usable are classified as wastes that can be largely categorized as wastes generated from normal operations and usually end up in the ocean. 

Section 5 of the Law of the Sea under ‘international rules and national legislation to prevent, reduce and control pollution of the marine environment’ has the provisions relating to vessels; Article 211 (2), that “states shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”

Part 5 of Article 211 requires “coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”

The rules for marine protection under the decree are not direct and neither has it addressed the goals of the Part XII of the UNCLOS. The law is focused on sustainable fisheries and adopting laws that are ensuring protection of marine life but more importantly exploitation of these resources within the economic interest of the country.

Part 4, Section 16; subsection (a-b) gives powers to the Minister to declare designated fisheries based on scientific, social, economic, environmental and other relevant considerations with  important to the national interest and requires management measures for ensuring sustainable use. The exploitation of fisheries is subject to a fisheries management plan under Section 17 of the decree. The fisheries management plan besides other things shall (f) “protect the fishing interests of artisanal, subsistence and small scale fishers” and (i) “make provision in relation to any other matter necessary for sustainable use of fisheries resources.”

The rules pertinent to ensuring fishing behavior which also includes management of fishing wastes is vaguely discussed through a broad statement in Section 22 (2) “…past and present fishing patterns and practices…” Whether the term ‘fishing pattern and practices’ does account for waste management behavior of fishing vessels is subject to interpretation under ordinary terms of everyday use of language since there are definitions provided within the law itself.

In Section 30 of the law license conditions are stipulated with Section 30(3) authorization of special conditions as may be required for the proper management of fisheries, including conditions. Part (f) states that restrictions relating to the numbers, types, sizes, specifications or operation of fishing related equipment or vessels can be special requirements that may be requested as per of the license issuance. In this part of the law the use of the term ‘operation’ can be seen as contextual to overall operations of fishing activities thus also may include marine protection intentions such as waste management deployed by vessels.

The observer programme under Section 68 also broadly addresses surveillance of fishing activities such as the part (d) ‘all aspects of the operation of any vessel’ and part (e) processing, transportation, transshipment, storage, or disposal of any fish.  Any activities that are causing adverse impacts on the ocean such as pollution can be policed through the observer programme with broad range of powers given to the observers under the decree. The only section on the issue of marine protection is stated in Part II of the decree on the powers given to the minister to make necessary regulations for the purpose of marine pollution in Part II Section 104 (p).

REFERENCES

  1. Global Fish Watch, ‘Who owns the fish in the High Seas and the EEZ’ https://globalfishingwatch.org/fisheries/who-owns-the-fish-high-seas-and-the-eezs/ (accessed 23/04/19)
  2. Joe Loria, ‘Straws Aren’t the Real Problem. Fishing Nets Account for 46 Percent of All Ocean Plastic’ (2018) https://mercyforanimals.org/straws-arent-the-real-problem-fishing-nets (Accessed 12 April 2019).
  3. Peter Fuata, ‘The Fijian Fishing Industry’ The Fiji Sun (Suva, Fiji) 26 September 2015.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]] The Great Pacific Garbage Patch is the largest accumulation of ocean plastic in the world and is located between Hawaii and California for further reading https://www.theoceancleanup.com/great-pacific-garbage-patch/ .

[2]] Annex V, MARPOL 73/78: Most fishing vessels are exempt from Annex V due to their tonnage below 400 GT.

[i]             Global Fish Watch, ‘Who owns the fish in the High Seas and the EEZ’ https://globalfishingwatch.org/fisheries/who-owns-the-fish-high-seas-and-the-eezs/ (accessed 23/04/19)

 

[ii]             Joe Loria, ‘Straws Aren’t the Real Problem. Fishing Nets Account for 46 Percent of All Ocean Plastic’ (2018) https://mercyforanimals.org/straws-arent-the-real-problem-fishing-nets (Accessed 12 April 2019).

 

[iii]          Peter Fuata, ‘The Fijian Fishing Industry’ The Fiji Sun (Suva, Fiji) 26 September 2015.

 

 

Fiji has five specific oceans related legislations which are Fisheries Act (1942); Offshore Fisheries Management Decree (2012); International Seabed Mineral Management Decree (2013); Continental Shelf Act (1970) and Marine Space Act (1978). Other supporting legislations include the Environment Management Act (2005), Waste Management Regulations and the Maritime Safety Authority of Fiji Act (2009).

 

The international law on oceans is established by the United Nations Convention Law of the Sea (UNCLOS) which is largely seen to be a constitution for ocean governance. Part xii of the UNCLOS; protection and preservation of the marine environment contains provisions for marine protection. The international law contains provisions on marine pollution from fishing vessels, prevention of introduction of alien species in marine environment, monitoring and environmental assessments. The Convention of Biological Diversity (CBD), another important international law also promotes conservation and protection of marine environment however limited to areas within national jurisdiction.

 

The UNCLOS splits the ocean areas into five marine zones with each having different legal status. These are internal waters, territorial Sea, contiguous zone, exclusive economic zone (EEZ) and the high seas. The coastal nations have jurisdiction over the natural resources of an Exclusive Economic Zone (EEZ) that extends up to 200 miles off their shores. Within the EEZs, each nation has jurisdiction to govern the use of its marine resources. They may issue licenses, set catch limits, or ban a given activity all together.[i]

So with clear guidance and international rules there is clarity on who owns the fish and who is responsible for management of these resources through domestic legislations. The Offshore Fisheries Management Decree contains provisions on licensing, compulsory registration of fishing vessels, reporting, monitoring and tracking of vessels.

Pollution from fishing industry is a growing problem. A scientific report suggests that 46 percent of the plastic in the ‘Great Pacific garbage patch’[[1]] a floating gyre the size of France made up of plastic, comes from fishing nets and discarded fishing gear. World Animal Protection reports that 640,000 tons of gear are lost and pollute oceans each year.[ii]

The detrimental impacts of marine debris on the marine ecological environment have been significantly discussed and the international convention, MARPOL 73/78 regulates the discharge of garbage from ships; in particular, prohibiting all kinds of plastics. Although most fishing vessels are exempt from such regulations,[2] in the context of marine protection and in particular with reference to the provisions of UNCLOS; Article 194 “Measures to prevent, reduce and control pollution of the marine environment,” the obligations lie with the Sates.

With ever increasing fishing vessels in the ocean at one given time, both in EEZ and within the territorial and High Seas, it is certainly important for States to include pollution prevention clauses within their domestic legislation keeping in line with the UNCLOS provisions to ensure that vessels flying their flags are not polluting their oceans or at least making efforts to minimise marine pollution. Fishing vessels may also pollute the marine environment through leaking oils or dumping of waste oils accidentally or intentionally in areas that are not monitored by states. Heavy pesticides used in fishing may also runoff from the vessels into the ocean causing massive damage to the ocean health including toxicity to humans consuming fish.

The conflicting interest of Fiji is ensuring sustainable fishing and making sure that laws do not create difficulties for economic exploitation of resources where fishing contributes immensely to the GDP; 2.8 % of the GDP and 9.7 percent of the total export earnings in 2014.[iii]  As a result, the related legislation Offshore Fishing Decree falls silent on signalling out marine pollution related issues under the management and conservation section of the law. It would make sense that the latter is not included in the law should there be a standalone law or a policy on marine pollution caused as a result of fishing vessels. The existing laws such as the Environment Management Act, Marine Spaces Act and the Fisheries Act also sparsely address issue related to marine protection.

The balancing act therefore within the Offshore Fisheries Management Decree (2012 is seen to be the use of broad legal languages in the decree with a wilful intention to apply marine protection related grievance selectively upon the discretion of the best judgement of responsible or authorised officials in government. One such example in the law is in Part (4) Section 22; Subsection (2) where the Permanent Secretary may make, amend or revoke allocations for any fishing activities for a long-term conservation and sustainable use of fisheries resources and the protection of fishing by Fiji citizens. The term ‘protection’ used here in the language is open to many interpretations which also includes protection of marine biodiversity. In the case if commercial fishing is seen to cause massive marine pollution in the jurisdictions of Fiji, the Permanent Secretary can interpret that as endangering the production of fish populations within the environment and thus revoke such licenses. The interpretation of the term ‘protection’ can also be linked to the use of another term in the law in Subsection 2(i) ‘fishing patterns and practices’ which essentially helps to clarify that activities that are causing pollution can be considered inappropriate for the well-being of fisheries.  However, this has been never the case so far, as there are no credible literature to support such an action has taken place.

The UNCLOS has the provisions on the marine protection in Part XII; protection and preservation of the marine environment. The international law has specific provisions for measures to prevent, reduce and control pollution of the marine environment in Article 194 listing down State responsibilities such as “…measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source…”

Article 211 of the UNCLOS relates to pollution from the vessels. The UNCLOS does not provide definition for vessels and therefore it can be interpreted as referring to any type of vessel at sea which are to abide by the provisions on marine protection unless stated otherwise relating to specific activity. Article 1 defines ‘Dumping’ as “deliberate disposal of wastes or other matter from vessels” but does not include “disposal of wastes or other matter incidental to or derived from the normal operations of vessels”. This is interesting because chemicals used in washing catches in the ocean which includes heavy pesticides and damaged lines and plastic apparatus which are no longer useable are classified as wastes that can be largely categorised as wastes generated from normal operations and usually end up in the ocean.

Section 5 of the Law of the Sea under ‘international rules and national legislation to prevent, reduce and control pollution of the marine environment’ has the provisions relating to vessels; Article 211 (2), that “states shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”

Part 5 of Article 211 requires “coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”

The rules for marine protection under the decree are not direct and neither has it addressed the goals of the Part XII of the UNCLOS. The law is focussed on sustainable fisheries and adopting laws that are ensuring protection of marine life but more importantly exploitation of these resources within the economic interest of the country.

Part 4, Section 16; subsection (a-b) gives powers to the Minister to declare designated fisheries based on scientific, social, economic, environmental and other relevant considerations with  important to the national interest and requires management measures for ensuring sustainable use. The exploitation of fisheries is subject to a fisheries management plan under Section 17 of the decree. The fisheries management plan besides other things shall (f) “protect the fishing interests of artisanal, subsistence and small scale fishers” and (i) “make provision in relation to any other matter necessary for sustainable use of fisheries resources.”

The rules pertinent to ensuring fishing behaviour which also includes management of fishing wastes is vaguely discussed through a broad statement in Section 22 (2) “…past and present fishing patterns and practices…” Whether the term ‘fishing pattern and practices’ does account for waste management behaviour of fishing vessels is subject to interpretation under ordinary terms of everyday use of language since there are definitions provided within the law itself.

In Section 30 of the law license conditions are stipulated with Section 30(3) authorisation of special conditions as may be required for the proper management of fisheries, including conditions. Part (f) states that restrictions relating to the numbers, types, sizes, specifications or operation of fishing related equipment or vessels can be special requirements that may be requested as per of the license issuance. In this part of the law the use of the term ‘operation’ can be seen as contextual to overall operations of fishing activities thus also may include marine protection intentions such as waste management deployed by vessels.

The observer programme under Section 68 also broadly addresses surveillance of fishing activities such as the part (d) ‘all aspects of the operation of any vessel’ and part (e) processing, transportation, transhipment, storage, or disposal of any fish.  Any activities that are causing adverse impacts on the ocean such as pollution can be policed through the observer programme with broad range of powers given to the observers under the decree.

The only section on the issue of marine protection is stated in Part II of the decree on the powers given to the minister to make necessary regulations for the purpose of marine pollution in Part II Section 104 (p).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]] The Great Pacific Garbage Patch is the largest accumulation of ocean plastic in the world and is located between Hawaii and California for further reading https://www.theoceancleanup.com/great-pacific-garbage-patch/ .

[2]] Annex V, MARPOL 73/78: Most fishing vessels are exempt from Annex V due to their tonnage below 400 GT.

[i]             Global Fish Watch, ‘Who owns the fish in the High Seas and the EEZ’ https://globalfishingwatch.org/fisheries/who-owns-the-fish-high-seas-and-the-eezs/ (accessed 23/04/19)

 

[ii]             Joe Loria, ‘Straws Aren’t the Real Problem. Fishing Nets Account for 46 Percent of All Ocean Plastic’ (2018) https://mercyforanimals.org/straws-arent-the-real-problem-fishing-nets (Accessed 12 April 2019).

 

[iii]          Peter Fuata, ‘The Fijian Fishing Industry’ The Fiji Sun (Suva, Fiji) 26 September 2015.

 

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