The recent announcement by the Minister for Fisheries and Aquaculture to ban fishing from May to July has caused consternation among of fishermen and women who depend on the Fishing Industry for their livelihood.
Whenever the Ministry for Fisheries and Aquaculture comes up with a directive to temporally ban fishing to safeguard fishing industry which would aid the recovery of fishing stocks, there would be a public outcry mostly coming from the fishing communities.
Thus the paradox of fishing ban argument is creating a platform for our brothers and sisters in the fishing business to be incandescent with rage with the Fisheries Ministry.
With my expert knowledge about the subject-matter (consultant of the Law of The Sea), I am going to outline the legal issues pertaining the banning (moratorium) of fishing, their effects on the indigenes, benefits and the best way forward from the legal point of view.
To begin with, it would be imperative to delve into the legal issues that emanate from International Treaties which Ghana as a country has signed with the international communities and are being implemented. For the purposes of clarity, in this paper I restrict my references to these few relevant Treaties, thus: (i) United Nation Convention on the Law of the SEA (UNCLOS), (ii) Agenda 21 Chapter 17 and (iii) Convention on Biodiversity (COB). And also
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1.0. The United Nation Convention on the Law of the Sea (UNCLOS) came into effect in November 1994, and Ghana is a member (signatory) of UNCLOS. The United Nations Convention on the Law of the Sea is a landmark instrument described as a “Constitution for the Oceans”. It provides the international legal basis for the protection and use of living and non-living resources of the world’s oceans. The Convention is the point of departure with respect to the conservation of living marine resources, for binding and voluntary international fisheries instruments such as those adopted by the Food and Agriculture Organization of the United Nations (FAO), as well as non-binding but politically significant fisheries resolutions, such as those adopted by the United Nations General Assembly (UNGA).
1.1. Article 2 (1) of the UNCLOS stipulates that: the sovereignty of a Coastal State extends, beyond its land territory and internal waters and, in case of archipelagic State, its archipelagic waters, to an adjacent belt of sea; described as territorial sea.
1.2. Article 21(1) (d, e, f, g and h) outlines some of the duties of the Coastal State, thus: the Coastal State may adopt laws and regulations , in conformity with the provisions of this Convention (UNCLOS) and other rules of international law in respect of all or the following: the conservation of the living resources of the sea; the prevention of infringement of the fisheries laws and regulations of the Coastal State; the preservation of environment of the Coastal State and prevention, reduction and control of pollution; marine scientific research and hydrographical survey; the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the Coastal State.
1.3. It is instructive to note that, the ocean is divided into various parts and as a result of these divisions; different international and local laws are applicable to them. The extent of Coastal State sovereignty and jurisdiction over the territorial sea is vast and relatively unfettered [….] with respect to core areas of state interest. Coastal States also possess an absolute capacity to regulate all resource activity within the territorial sea. This recognises the capacity of the coastal state.
1.4. This part discusses the responsibilities that the Coastal States have in Exclusive Economic Zone (EEZ). As noted above, the Coastal State have sovereignty over the territorial waters and the internal waters.
1.5. However, that is not the case when it comes to the EEZ, thus Article 55 describes EEZ as the area beyond and adjacent to the territorial sea [….] under which the rights and jurisdiction of the Coastal State and the rights and freedom of other States are governed by the relevant provision of this convention. This does not give a plenary control of the EEZ to the Coastal State. Article 56 states that: the Coastal State has sovereign right for the purpose of exploring, conserving managing the natural resources, whether living or non-living (fishes or hydrocarbons) [….] in exercising the rights and duties the Coastal State shall have a due regard to the rights of other State [….].
1.6. Articles 117 and 119 of UNCLOS provides that it is the duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas. And States shall take measures, which are designed, on the best scientific evidence available to the States concerned, to maintain or restore population of harvested species at levels which can produce the maximum sustainable yield.
1.7. Article 192 imposes general obligation on States to protect and preserve the marine environment.
2.0. Agenda 21 Chapter 17 Protection Of The Oceans, All Kinds Of Seas, Including Enclosed And Semi-Enclosed Seas, And Coastal Areas And The Protection, Rational Use And Development Of Their Living Resources.
2.1. Objectives: States commit themselves to the conservation and sustainable use of marine living resources on the high seas. To this end, it is necessary to:
a. Develop and increase the potential of marine living resources to meet human nutritional needs, as well as social, economic and development goals;
b. Maintain or restore populations of marine species at levels that can produce the maximum sustainable yield as qualified by relevant environmental and economic factors, taking into consideration relationships among species;
c. Promote the development and use of selective fishing gear and practices that minimize waste in the catch of target species and minimize by-catch of non-target species;
d. Ensure effective monitoring and enforcement with respect to fishing activities;
e. Protect and restore endangered marine species;
f. Preserve habitats and other ecologically sensitive areas;
3.0. The Convention on Biological Diversity (CBD) is an international legally-binding treaty with three main goals: conservation of biodiversity; sustainable use of biodiversity; fair and equitable sharing of the benefits arising from the use of genetic resources. Its overall objective is to encourage actions, which will lead to a sustainable future.
3.1 .The conservation of biodiversity is a common concern of humankind. The Convention on Biological Diversity covers biodiversity at all levels: ecosystems, species and genetic resources.
3.2. Article 6 of CBD, stipulates that: Each Contracting Party shall, in accordance with its particular conditions and capabilities:
(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and
(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.
The Temporally Banning of Fishing which is being propounded by the minister for Fisheries and Aquaculture has its legal backing pursuant to Fisheries Act 2002 (Act 625). Section 42 stipulates thus: ((1) A fishery plan prepared by the Commission for the management and development of fisheries shall
(a) be based on the best scientific information available;
(b) ensure the optimum utilization of the fishery resources but avoid over exploitation; and
(c) be consistent with good management principles.
(2) A fishery plan may relate to a specific water area or specified species of fish.
Per the rules of international law, to be specific, UNCLOS, Ghana as a Coastal State can regulate and manage fishing activities within the territorial waters where there is absolute plenary jurisdiction thus, absolute sovereignty.
Also from the above, it could be said that, the Fisheries and Aquaculture ministry have the backing of the local laws to manage the fishing stock within the territorial waters, internal waters and the stock appearing in the EEZ.
Pursuant to Article 56 of UNCLOS, the Coastal State has sovereign rights for the purpose of exploring, conserving managing the natural resources, whether living or non-living (fishes or hydrocarbons). Ghana as a member State and a signatory to UNCLOS have the obligation to manage the living and non-living things even the ones within EEZ where there is only sovereign rights. It is the responsibility of the Coastal state to regulate the ‘quota’ that is issued to local fishermen and those with big fishing boats and trawlers from foreign countries.
The Agenda 21, Chapter 17 eschews States to move away from bad fishing methods which could be inimical to sustainable fish production. The Agenda 21, Chapter 17, looks beyond the present to the future unborn baby. This is exactly what the Fisheries and Aquaculture ministry also want to achieve, if good measures are not put in place to check the wanton primitive ways of fishing then we as generation will not be forgiven by posterity. Sustainable development programmes most especially the Chapter 17 deals with the best practice and methods that the individual states can put in place to safeguard the fishes and other living organism from being over exploited.
Clearly, based on the explanation given above, one could not fault the minister of Fisheries and Aquaculture for coming up with the plan to stop temporarily fishing activities, because, the benefits that would be derived from the ban is much higher than individual parochial interest. This is because, if the ban is effected and the fishes multiply, it inure to the benefit of the fishermen advantage as there would be a bumper catch.
However, the multi dollar question is whether the fishermen who could be affected have been well informed? From what I have deduced so far, it shows that vast majority of the fishing communities are unhappy about the announcement by the minister and that some have even threatened to disregard the ban.
Also there is no proper coordination between the fishing communities and the Fisheries and Aquaculture ministry and there is no proper consultation with stakeholders and experts.
RECOMMENDATION: Going forward there should be a proper defined national policy to guide the Fishery ministry as to how they should engage stakeholders in a proper consultation to overcome the annual disenchantment that follows the announcement of fishing ban.
The Ministry of Fisheries and Aquaculture can create Marine Protected Areas (MPA) for conservation purposes only, where the fishes can use as spawning zones. Thus, these MPAs, when created would serve as safe havens for the fishes. That is, the designated areas would be free from fishing activities at all times. These areas would be protected by the law enforcement agencies. With the MPAs being created, the ministry may only ban fishing activities for a shortest possible time. This is one of the best form of conservation of living organisms including the fishing stock. Section 91 0f Act 625 stipulated that: The Minister may on the advice of the Commission and, after consultation with the Minister for the Environment, owners of the adjoining land and the relevant District Assembly declare any area of the fishery waters and the seabed underlying the waters to be a marine reserve.
Lastly, the ministry should sensitize the fishing communities through seminars, durbars, orientation courses to the fishing communities’ leaders and public symposia.
The writer is a consultant, Law of the Sea