«Sampan Panjarat The United Nations-Nippon Foundation Fellowship Programme 2007 - 2008 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF ...»
- 75 C. The Thai National Framework The fisheries framework of Thailand presented here is composed of law and policy. The laws which are addressed include: the EEZ proclamation, directed enforcement fisheries law, and legislation indirectly impacting fisheries. The policy is outlined and missions of the department of fisheries of Thailand are described in term of development of fisheries and relevance organizations, management of fisheries resources and environment, aquaculture development, overseas fisheries development, and fisheries industry development.
1. The Fisheries Law of Thailand (a) The EEZ Proclamation Thailand has sovereignty claims on the islands, cays, and reefs in the Gulf of Thailand and controls most of these features. It is also preparing on extended continental shelf delimitation in the Gulf of Thailand as established by the Royal Proclamation in 1959; it is a historic right claim. The extent of Thailand’s claims in the Gulf of Thailand has gradually been defined since the early 1970s. Thailand argues in terms of historic rights and the 1958 Geneva Convention on the Continental Shelf to support its claims.276 Even thought Thailand is not a party to the LOSC, this has not prevented Thailand from using the LOSC to support its claims in necessary cases.
Thailand proclaimed the establishment of its EEZ on 23 February 1981.277 The legislation provides for the use of straight baselines, 12 nautical mile territorial seas, a continuous zone out to 24 nm and 200 nm and an EEZ expanding to 200 mile from the baselines used to measure the territorial sea.278 In its EEZ, Thailand has sovereign right for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non living, of the seabed and United Nations, International Legislation and treaties: Thailand (27 April 2007 [cited 12 July 2007]); available from http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/THA.htm.
As at 29 December 2006, United Nations, Table of claim to maritime jurisdiction Document A/56/58 (2006 [cited 12 July 2007]); available from http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/claims_2005.pdf.
- 76 subsfuel and the superjacent water, and with regard to other activities for the economic exploration of energy from the water, current and wind.279 In its EEZ, Thailand has jurisdiction with regard to establishment and use of artificial islands, installations and structures, marine scientific research, the preservation of the marine environment and others right as may exist under the international law.280 In the EEZs of Thailand, freedom of navigation and overflight and of the laying of submarine cables and pipelines is to be governed by international law.281 Thailand Stated that in any case where the EEZ of Thailand is adjacent or opposite to the EEZ of another coastal State, the government of Thailand is prepared to enter into negotiations with the coastal State concerned with a view to delimiting their respective EEZs.282 Thailand has signed maritime boundary agreements with a number of other coastal States as shown in Table 16.
United Nations, International Legislation and Treaties: Thailand (27 April 2007 [cited 12 July 2007]); available from http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/THA_1981_Proclamation.pdf.
Ibid. 2 (a).
Source: United Nations, International Legislations and treaties: Thailand (27 April 2007 [cited 12 July 2007]); available from http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/THA.htm.
- 78 Thailand enacted the Act Governing the Right to Fish in Thai Fishery Waters B.E., 2482 (1939) to enforce the fishing operation in its EEZ. 283 The main provision is that foreign vessels cannot be used for fishing in the EEZ of Thailand without specific authorization.
In 1989, DOF adopted the Regulation of the Department of Fisheries on the Application for a License for Overseas Fisheries B.E. 2532 (1989) which came into force on 1st August 1989. It prescribes the procedures for the application for a license for overseas fisheries. Thai fishing vessels must apply for an authorization to be issued a license for overseas operations.284 However, presently, there is no national legislation that includes punishment for Thais fishing illegally in the EEZs of other coastal States.
(b) Directed Enforcement Fisheries Law In relation to fisheries within the EEZ of Thailand by Thai fishing vessels, there are four pieces
of legislation with respect to enforcement, they are:
(i) Fisheries Act B.E. 2490 (1947) The Fisheries Act, B.E. 2490 (1947)285 is the principle piece of legislation in national fisheries management. It has amended many times and is still in effect.
The first fisheries law in Thailand was enacted in B.E. 2444 (1901). At that time, marine fisheries had not been developed; the people used only simple traditional fishing gear and caught mainly fresh water fish. Thus, the main purpose of the fisheries Act, B.E. 2444 (1901) was to collect taxes from fishermen and it includes some fisheries conservation measures, prohibiting fishing during the spawning season of fresh water fishes. This act was in effect for 46 years, before it was repealed and replaced by three pieces of legislation namely, the Fisheries Act, B.E. 2490 (1947), Act Governing the Right to Fish within Thai Waters B.E., 2482 of 1939 and Thai Vessel Act, B.E. 2481 (1938).286 Thailand: The Act Governing the Right to Fish in Thai Fishery Waters B.E. 2482.
Thailand: Regulation of the Fisheries Department on the application for a license for overseas fisheries B.E.
2532. August B. E. 2532.
Thailand: Fisheries Act B.E. 2490. Government Gazette Vol. 64 No. 3. 14 January 1947.
C. Karnjanakesorn, and Yen-Eng, S. 1998. Revision to Thai Fisheries Law and Opportunities for CommunitiesBased Management. In Nickerson DJ (ed.) 1998: Communities Based fishery management in the Phang –Nga Bay.
Thailand. Proceeding of the National Workshop on Communities Based management organized by the Department of Fisheries of Thailand. FAO and the Bay of Bengal Programme, Phuket, Thailand, 14-16 February 1996. FAO Bangkok. RAP Publication 1998/3(BOBP Report No. 78: 159-168 pp.
Chapter 1 divided fisheries areas into four categories:
Preservation fisheries areas for full protection as fish sanctuaries;
The Provincial Council with the approval of the Minister of Agriculture is empowered to determine which categories of areas lay within its Province. Areas which are not included in such notifications should be regarded as public fisheries areas.
The Fisheries Act, B.E. 2490 (1947) has been amended twice, in 1953 and 1984.289 And some provisions have been revised periodically instead of being rewritten, so as to avoid
Thailand: Fisheries Act B.E. 2490. op. cit.
- 80 rewriting the Act which would be a lengthy process involving drafting by a committee and parliament approval.290 The process would take many years to complete.
The Fisheries Act, B.E. 2490 (1947) empowers the Provincial Governor or Minister of Agriculture and Cooperatives291 to regulate and enforce the activities of individuals or companies involved in fisheries through administrative power, i.e. issuing regulations and
decrees.292 Regulations that apply to all coastal Provinces in Thailand include measures:
• Prohibiting any kind of turtle, tortoises and their eggs fisheries (14 April 1947);
• Prohibiting any kind of sea cow fisheries (9 August 1961);
• Prohibiting the use of trawl nets of various types (such as trawler, push net, shrimp push net) used with the motorized fishing boat within 3000 meters from the shoreline and within 400 meters from stationary gear licensed by DOF (20 July 1972);
• Prohibiting of clamp dredges used with motorized vessel with in 3000 meters from the shore line (18 February 1974);
• Prohibiting any kind of coral fisheries in any Provinces (10 January 1978);
• Control the number of the trawl and push net (26 March 1980);
• Prohibiting a use of a net mesh size smaller than 3.2 with light luring method (5 November 1981);
• Prohibiting any kind of porpoises fisheries (18 June 1990); and
• Prohibiting the crab fisheries in spawning season, during October-December yearly (11 July 1993). 293 In addition, for the six Provinces along the Andaman Sea coast, there are Ministerial Notifications for management and conservation of marine fisheries resources that have been
issued periodically providing for the:
Thailand: Constitution Law 2540 (1997). section 92.
Department of Fisheries of Thailand is the organization under Ministry of Agricultural and Cooperatives (MOAC). The MOAC has mission to administer the agriculture, forestry, water resources provision, irrigation, promotion and development of farmers and cooperatives system, including manufacturing process and agricultural products as well as other issues, as required by law to be under the responsibility of the MOAC or other governmental agencies in the MOAC.
Thailand: Fisheries act, B.E. 2490. op. cit. section 5.
DOF, Thailand. Book of Fisheries Law (in Thai). 2004. 111 p.
Most marine fisheries capture regulations and measures were established from time to time by the procedure described above. However the provisions of the Fisheries Act, B.E. 2490 (1947) are believed inadequate to cope with the present capture fisheries situation in Thailand.
DOF and many concerned organizations accept that the Fisheries Act is dated and that there are many loopholes.295 Notably, FAO has suggested that rewriting the law would be preferable to the current piecemeal amendment approach.296 Certain loopholes exploited by the Fisheries Act, B.E. 2490 that are believed to reduce the effectiveness of fisheries management in Thailand are described below.
First, the law is not in harmony with the constitution of Thailand, with international conventions such as the LOSC, the FAO Compliance Agreement and the CCRF, and with present Thailand national fisheries policy.
There are four sections of the constitution, B.E. 2540 (1997) that apply to the natural
resources and stakeholder:
• Section 46 and 56 State that a person or community has the right to participate with State or community management, conservation and sustainable utilization of natural resources, biodiversity and the environment;
• Section 59 states that a person has the right to access information and reasons explanation before any projects or activities would be established by any organizations that may impact the environment, health, life quality of individual or Ibid.
C. Karnjanakesorn, and Yen-Eng, S. 1998. op. cit. 159-168 pp.
Asian Development Bank, 1985. Thailand fisheries sector study. Asian Development Bank Report. Manila, April 1985: 232 p.
The Fisheries Act, B.E. 2490 is not harmonized with the new concepts of fisheries management that propose to integrate management and sustainable development so as to sustain utilization of fisheries resources in harmony with ecosystems.298 The management mechanisms should be carried out at both local and national levels and in cooperation with local fisheries officers and stakeholders which include consultations with the academic and private sectors, non-governmental organizations, local communities, resource user groups, and indigenous people.299 The CCRF calls on States to develop clear and well-organized fishing policies in order to manage their fisheries. These policies should be developed with the cooperation of all groups that have an interest in fisheries, including the fishing industry, fish workers, environmental groups and other interested organizations.300 The fisheries policy of aims to have fishers and relevant organizations participate in fisheries administration, management, and development.301 One of the current problems facing the sustainable management of marine resources in Thailand is believed to be an open access.
Thailand: Constitution Law 2540 (1997).
See FAO, Code of Conduct for Responsible Fisheries, annex 1. Background to the Origin and Elaboration of the Code.
Agenda 21, Chapter 17.6.
FAO, Code of Conduct for Responsible Fisheries: Fisheries Management (cited at 6 September 2007]);
available from (http://www.fao.org/docrep/003/x9066e/x9066e01.htm).
S. Piumsombun, Marine Fisheries Resource Management for Sustainable Development in Thailand. National Policy and Planning for Management of Fishing Capacity in Thailand. The presentation at the Stock Assessment Workshop, Kasetsart University, Bangkok, Thailand. 1-11 August 2006.
- 83 Thus, to solve the problem, a rights system has to be implemented (instead open access) by DOF.302 But the Fisheries Act does not support a system of fishing rights.
It’s become clear that the Fisheries Act does not have any provisions that empower the local government and support the people to participate in fisheries resources management, thus it does not support Thai fisheries policy implementation. The fisheries legislation does not define fisheries management and the enforcement of Fisheries Act remains with the central authority as it has not yet been delegated to the regional or local levels. Furthermore, stakeholders and communities are not yet formally mandated to be involved in the decisionmaking processes. The fisheries management strategies are to considered sound scientific information provided by the department as a first step. The decision-making process at the DOF will be the second step, followed by the drafting of regulatory measures, publication of management strategies and new regulatory measures for discussions with stakeholders, and implementation and enforcement.
However, presently, DOF has increased the scope of its consultation processes to the stakeholders or fishers, this in accordance with the provisions of the Thai Constitution B.E. 2540 (1997) whereby, although centralized in authority, all fisheries management decisions are publicized prior to implementation.