Essay: Namibia’s legal obligations – Sustainable Fishing

Chapter 1
Orientation of Study
1.1 Introduction
Sustainable development is one of the prominent topics within the halls of International Environmental Law. The concept has become one of the principles of international law, influencing, guiding and architecting many State aspects that are close to social and economic development. Sustainable development is most commonly defined as development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. The concept of Sustainable development is also regarded as having the character of a customary norm of international law. It is the intersection of the need for economic and social development as well as the need to protect the environment. In the past fisheries resources were regarded as inexhaustible and hence sustainability of fisheries was not an issue taken serious. However in a contemporary world, bigger boats and advanced technology have made it easier to catch fish resulting into the depletion of many fishing stocks. Hence countries of the world whilst recognizing the need for fish as a source of nutrition and income especially for developing countries like Namibia saw the urging need to protect fisheries resources inserting the concept of sustainability or sustainable development into their fishing industries. This paper seeks to answer a very essential question; that is whether Namibia is complying with its obligations under international and national law to sustain its fisheries resources. To ensure this the author will look at Namibia’s obligations under the United Nations Law of the Sea Convention (UNCLOS), the South East Atlantic Fisheries Organization Convention on the Conservation and Management of Fishery Resources and the United Nations Fish Stock Agreement (UNFSA). Several domestic laws such as the Namibian Constitution , the Marine Resources Act , the Territorial Sea and Exclusive Economic Zone of Namibia Act , The Environmental Management Act as well as the Sea Fisheries Act. The author of this paper will also make a comparative analysis on how two other countries known for their admired good fish managements, Canada and the United States of America are fulfilling their obligations in ensuring sustainability in their fishing industry.
1.1 Problem Statement
The raison d’être of this paper is to analyze and evaluate Namibia’s fisheries Industry with the objective of tasting whether it is in compliance with its legal obligations that binds it to harvest fish resources sustainably. It is necessary to point out that Fisheries are an important source of food and income in Namibia. Secondly, it should also be remembered that prior to independence as a legacy of Namibia’s colonial past, the country inherited severely depleted fish resources at the time of independence. In addition, natural resources economists warningly state that it is indispensable to exploit fisheries resources as a renewable resources in such a way exploitation is sustainable (indefinitely). It has also been stated that, abiding to the obligations as per the Law of the Sea Convention, sustainability is not guaranteed, hence countries have to do more than the Convention asks. Hence a thorough analysis into Namibia’s fishing sector is essential, since it will answer the question whether the country is on track with its relevant obligations. The comparative analysis will seek to import superior fisheries management techniques for possible integration into our fish management system.
1.3 Research questions
This paper seeks to answer the following questions:
 What are Namibia’s legal obligations with regard to Sustainable Fishing?
 Is Namibia in acquiescence with those obligations?
 Did Namibia effectively domesticate international law with regard to sustainable fishing into its municipal law?
 Are there superior, high-flying fish management mechanisms and techniques which Namibia can borrow from other countries?
1.4 Research objectives
The purpose of this paper is to analyze and evaluate sustainability in Namibia’s fishing industry. More importantly, this paper seeks to establish Namibia’s status pertaining to its sustainable fishing legal obligations. A thorough analysis evaluation will be done to establish whether the present fish management techniques are effective and safeguarding sustainability in fisheries. A comparative analysis will be done for the purpose of possible recommendations for Namibia.
1.5 Research methodology
This research will be based on library research. Hence resources such as textbooks, journals, cases and legislation will be looked at in the quest to find answers to the problem at hand. International instruments such as treaties that Namibia will also be of aid.
Chapter 2
2.1 Historical Background
Centuries ago, fish regulations and laws were unknown to the fishing world. The seas suffered unregulated fishing which was mostly motivated by self-interest. Every man was allowed to catch whatever amount of fish they desire. Overfishing (an anachronistic term) drove Europeans off their own shores to the western Atlantic grounds. However as original stocks continued to decline first in the rivers where anadromous fish like salmon, shad, and sturgeon spawned, the response was not helpless drift to disaster . Rather river towns abandoned quickly the view that “every man may catch what he will”. It is believed that the town of Newbury, Mass was one of the first to abandon the belief that every man must be allowed to catch what he wills. Hence the exhaustibility of sea resources has only developed later. In his 1883 inaugural address to the International Fisheries Exhibition in London, Thomas Huxley asserted that overfishing or “permanent exhaustion” was scientifically impossible, and stated that probably “all the great sea fisheries are inexhaustible. He stated that
I believe that it maybe affirmed with confidence that, in relation to our present modes of fishing, a number of the most important sea fisheries, such as the cold fishery, the herring fishery and the mackerel fishery, are inexhaustible. And I base this conviction on two grounds, first that the multitude of these fishes is so inconceivably great that the number we catch is relatively insignificant; and secondly that the magnitude of the destructive agencies at work upon them is so prodigious that the destruction effected by the fishermen cannot sensibly increase the death rate.
After having documented his argument with figures, based on the Norwegian cod, and herring fisheries, Huxley concluded:
I believe then, that the cod fishery, the herring fishery, the pilchard fishery, the mackerel fishery and probably all the great sea fisheries, are inexhaustible: that is to say, that nothing we do seriously affects the number of the fish. And any attempt to regulate these fisheries seems consequently from the nature of the case to be useless.
The Tragedy of the Commons thesis places blame for the overexploitation of common pool resources on innate human greed and self-interest, while ignoring the politics of the enclosure movement which required state intervention to destroy embedded forms of commons regulation based on cooperative peasant social relations and largely egalitarian traditions within the peasant class.
However at this time fishery resources were already collapsing. I am going to look at the development of the Law of the Sea below after the era of unregulated fishing.
2.2 The origins of the Law of the Sea
Despite, the reluctance of the world of the many centuries ago to conserve and protect the marine environment, the discipline of the law of the sea is nothing new. Its distinct and independent existence could be set at the first half of the XXth (20th) century, as the result of the different international efforts to codify it and to reach consensus on the basic rules that had emerged throughout the practice of states in the precedent five centuries, and rooted in the very beginning of human civilization. Avoiding the long journey of tracing back the very first expressions of regulatory norms for the conduct of human activities at sea, it is enough to state that the more important that the interaction with the sea became for an empire or human agglomeration, the more common the attempts to regulate the latter became, and those regulations went from simple assignment of competences to officers, to claim large areas of the sea under the exclusive control of that reign. However, it is indispensable to state some of these events as they all contribute to some extent to the development of the law of the sea.
2.2.1 From the Romans to the Colonial Empires
Although there are earlier examples of sea-related regulations made by various human groups predating the Roman Empire , most of them regulated the relationships of cargo owners with ship owners, offences that are perpetrated onboard, compensation and liability. Some others related to judicial decision and precedents that through the usages and customs of merchants rose as a branch of the
Lex Mercatoria: the Lex Maritima. Leaving such expressions behind, scholars have discussed the value of the many references in the roman texts about the regime of the Mare Nostrum however it must be reminded that such a semi-enclosed basin, was under the exclusive control of the Roman Empire, which meant that it was the sole user of the waters and resources, leaving aside any consideration of an international regime.
The real first instances when the regime of the sea came into operation was during the time of the claims made by Kingdoms like the Venice over the Adriatic Sea. This spread around the Medieval Europe, as the situation in the Baltic Sea, Northern Sea, Irish Seas and other spaces which were claimed by the Swedish, Danish and the English. These claims were continued or maintained through the ruler’s commercial or military power and they were demanded from the third parties’ tolls and taxes by merely travelling through those waters. But once the small City-States declined in power and the larger empires arose, claims also grew in extension and complexity.
The most famous example of the aforementioned is the Treaty of Tordesillas 9 (1494), concluded between the sovereigns of Spain and Portugal, to modify the Pope’s Bull Inter Cætera II (1493) 10, which itself modified a previous treaty concluded by the former under the name of Alcáçovas-Toledo in 1479. In accordance to this Treaty the world was divided into two parts, which included the oceans and navigation routes. From that division, monopoly over the commerce and navigation to and from their subsequent colonies sprung, as well as the fierce reply from other nations by means of supporting buccaneers and pirates, or issuing letters of marque as well as making a wide use of the institution of the privateer and the maritime prize.
2.2.2 Mare Liberum, Mare Clausum and the Territorial Sea
The vessel Santa Catarina, was captured and brought back as prize by the Captain Jakob van Heemskerck to Dutch port following an incident relating to the monopoly over the commerce around Johor exercised by the Portuguese. Before it was cleared as prize by court, a young lawyer by the name of Hugo Grotius was asked to deliver his opinion over the morality of the prize. This gave what Hugo’s views were pertaining to the freedom of the sea. As a result of this request, Grotius wrote a book titled, De Rebus Indicis, which he never published. However, chapter XII of such book was published under the title Mare Libervm Sive De Iure Qvod Batavis Competit Ad Indicana Commercia Dissertatio in 1608. Today that chapter is regarded as the beginning of the Law of the Sea.
In this chapter, Grotius argued in favor of the freedom of the seas and oceans basing his arguments on the principles propounded by famous authors, starting from biblical texts and various founders of international law. That freedom covered the whole of the oceans, with a few very narrow exceptions: inlets, gulfs, inner seas, straits and what he defined as “…all the expanse of sea which is visible from the shore. This was met by many criticisms all over Europe being the best crafted the one of the Portuguese Fray Serafín de Freitas De Justo Imperio Lusitanorum Asiatico, which earned the following description: “L’ouvrage est remarquable; l’auteur défend avec un rare talent une mauvaise cause.”
The controversy that captured the mind of scholars centers in the opposing doctrines of Grotius and Selden and it is until now the most celebrated and quoted as giving birth to the adversarial forces that shaped modern Law of the Sea into a balance between the freedom of the seas and the power of coastal states. An Italian law professor, Bartolus de Saxoferrato referred to an original dimension which was two days of navigation, distance that amounts to a hundred miles (1478 meters). Grotius on the other hand, expounded in his Mare Liberum, a choice for the reach of the human eye, capacity that according to what the practice evidences, was different from nation to nation, as it was calculated and claimed 21, 14 or 15 miles (England and France, Scotland, and The Netherlands correspondingly).
The criterion that emerged victorious was expressed by Grotius in his most celebrated work De Iure Belli Ac Pacis where he propounds that the width of that strip of sea should be restricted to the capacity of the coastal state to exercise an effective control over it. The rule by Grotius was put into applied terms by Cornelius van Bynkershoek who, in his book De Dominio Maris Dissertatio. Van Bynkershoek stated that such control unescapably rests on the effective range of the weapons of the kingdom or in other words to what he refers to as the Terræ potestas finitur ubi finitur armorum vis. States quickly established a practice on their maritime claims based on the “cannon shot rule” or similar. Treaties were entered into between countries paying regard to these rules. However it only survived until the 20th century. Inevitably, claims were not uniform and sooner rather than later States found different reasons to justify different widths to claim as i.e. protection zones, neutrality zones, customs zones, fishing zones, and the list goes on.
2.2.3 The Hague Conference
By the 1920’s the League of Nations acknowledged that the lack of uniformity and the growing claims related to maritime territories posed a huge risks to peace and stability in the international arena. Based on a premise that codification of international law will help solve this problem, preparatory work to codify international law started around 1924 and called for a conference for the progressive codification of international law in 1930, in The Hague. Together with subjects like problems of nationality and State responsibility, the issue of territorial waters was taken into account and finally dealt by the second commission of the conference. Due to the strong division of the 48 participating States’ position, no agreement was reached concerning the width of the territorial sea. Nevertheless, the above evidenced that the so-called “three mile rule” was not a uniform rule at all. These are the conditions that led to the II World War.
2.2.4 The United Nations Conference on the Law of the Sea
Today’s Law of the Sea was greatly influenced by the law of the sea which came into place with draconian measures to prevent the ever depleting fishing stock by ensuring the management and conservation of all marine resource. The Convention founded by the United Nations Conference on the Law of the Sea will be looked at as a separate chapter on its own.
Chapter 3
3.1 The United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea of 1982 was adopted on the 30th of April 1982 by the [Third] United Nations Conference on the Law of the Sea and opened for signature, together with the Final Act of the Conference, at Montego Bay, Jamaica, on 10 December 1982. To date 166 countries and the European Union joined the Convention. On the 10th of December 1982, Namibia signed the Convention and on the 18th of April 1983 Namibia ratified the Convention. By signing the Convention and subsequently ratifying it Namibia binds itself to a commitment to abide by the obligations or requirements under the Convention. This law is part of the Namibian law by virtue of Article 144 of the Namibian Constitution which states that unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia In order to internalize the Law of the Sea Convention in Namibia, and to implement Namibia’s obligations under the Law of the Sea Convention, the Territorial Sea and Exclusive Economic Zone of Namibia Act was passed. This Act seeks to determine and define the territorial sea, internal waters, exclusive economic zone and continental shelf of Namibia; and to provide for matters incidental thereto. These reflects one of the requirements that the member states should meet under the Law of the Sea Convention of 1982.
Sustainable fisheries has been well entertained in the Law of the Sea Convention. Firstly, the Convention deals with the legal framework for sustainable fishing in the Exclusive Economic Zone (EEZ) in its Chapter V. Article 55 of this Convention defines the Exclusive Economic Zone as an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. The Exclusive Economic Zone has been widely accepted by states. In the Case Concerning the Continental Shelf (Libya v Malta) the International Court of Justice declared that ‘the institution of the exclusive economic zone…is shown by the practice of states to have become a part of customary law.
Article 56 of the Law of the Sea Convention deals with the rights, jurisdiction, and duties of the coastal states in the exclusive economic zone. In the exclusive economic zone, states have a sovereign right in exploring and exploiting, conserving and managing the natural resources and with regard to other activities for the economic exploitation and exploration of the zone. Such states also have the jurisdiction to protect and conserve the marine environment in their exclusive economic zone. Article 56(2) of the Law of the Sea Convention sates that In exercising its rights and performing its duties under the Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
Very important to the topic of sustainable fishing in the exclusive economic zone is also Article 60(1) of the Convention which gives the coastal states the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the purposes provided for in article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. This may include installations done by coastal states such as Namibia for the purpose of mining or by countries that mine oil in their Oceans or Seas. Article 60(2) gives such a coastal state the exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. Article 60(3) states that when removing or disusing these artificial islands, installation and structures due regard must be given to the protection of the marine environment. This guards against the danger that these removals might pose to the marine resources such as fish.
Very close to sustainable fishing is Article 61 of the Convention which deals with the Conservation of the marine living resources. According to this article the coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. This provision is a direct response of the international community to limitless fishing that threatens various fish stocks. The coastal State, taking into account the best scientific evidence available to it, has the responsibility to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall cooperate to this end. Article 61(3) of the Convention states that Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub-regional, regional or global. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether sub-regional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone. The issues of whether Namibia complies with these provisions will be scrupulously looked at well along in this paper.
Article 62 of the Convention provides for the Utilization of living resources (marine resources. The convention takes into consideration the essential need to utilize marine resources especially fish which are a vital source of nutrition and income by stating that the coastal state shall promote the objective of optimum utilization of the living resources in the exclusive economic zone. However this must not trespass the boundaries set by Article 61 of the Convention, which is the obligation of the coastal state to conserve the living marine resources.
Some stock can occur within the exclusive economic zones of two or more coastal states or both within the exclusive economic zone and in an area beyond and adjacent to it. In accordance to Article 63. These coastal states have the obligation either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of the Convention. Sub-article 2 of this Article states that Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
Article 64 safeguards the conservation of stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it.
Article 65 provides that nothing in this restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in Part V of the Convention. It further provides that states shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.
3.2 The Food and Agriculture Organization (FAO) Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.
The Food and Agriculture Organization as an agent of the United Nations that seeks to alleviate hunger. FAO was established on 16 October 1945, in Quebec, Canada. The Compliance Agreement was formed in terms of the FAO and it seeks to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. Member states of the United Nations felt that the Law of the Sea Convention of 1982 dealt more with issues of the exclusive economic zone and overlooked issues arising out of the high seas. This eventually led to the development of 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. A parallel development took place regarding attempts to prevent the practice of reflagging of vessels in order to avoid the application of high seas conservation and management measures determined by regional fisheries organizations. Because of this the FAO was requested to formulate an agreement which was then negotiated between the year 1991 and 1993 under Article XIV of the FAO Constitution. The Agreement was adopted by the FAO Conference on 24 November 1993 by virtue of resolution 15/93, and opened for acceptance. The agreement entered into force on 24 April 2003. Namibia signed this agreement in 1998.