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«Sampan Panjarat The United Nations-Nippon Foundation Fellowship Programme 2007 - 2008 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF ...»

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The draft bill for a new Fisheries Law includes nine main provisions: fisheries management, fisheries zoning, aquaculture, hygiene of catch after fishing and import-export fisheries production, fisheries outside Thai EEZ, fisheries development and extension trust fund, authorization of employee, and penalties. The new content of the bill is fisheries zoning that aims to divide the inshore (approximately three miles from the shore line) and offshore fishing zone within Thai waters. The fishers have to be authorized to fish in each zone. The Bill includes new provisions related to fisheries outside the Thai EEZ, and also with regard to the Office of Civil Service Commission, The Government Department in General Reform Act, B.E. 2545 (2002) (cited May 2007); available from http://www.ocsc.go.th/upload_files/lawcommand/PrbOverhaul2545_15Mar46.pdf.

- 94 regulation of joint venture fisheries. Furthermore, the bill introduces participatory and

consultative processes for stakeholders in fisheries management through two mechanisms:

firstly through the establishment of a national fisheries policy committee, and secondly through the establishment of the local fisheries committees.328 When the new fisheries law is issued, it is expected to be a more effective instrument for fisheries resources management.

See DOF, Fisheries Draft Bill, the Law under Fisheries Law Development Plan. (in Thai). 2006. 39 pp.

–  –  –

Thailand’s capture fisheries involves fishing in the EEZ of Thailand, fishing in the EEZs of other coastal States by joint venture fisheries or other types of cooperation, and fishing on the high seas, a recent development for the fisheries sector of Thailand.

Although the Thai fishing industry is one of the ten largest in the world, fisheries resources within the Thai EEZ are in a state of crisis and have been for some time.

Thailand is faced with a decline in fisheries resources, over capacity in fishing fleets and the use of destructive fishing gear, overexploitation, fuel crisis, severe violations of laws and regulations, conflicts among the fishers and so on.

Some of the production that maintains Thailand among the top ten largest States in fisheries comes from the EEZ of other coastal States. Fishing in EEZs of other coastal States is limited by those States and some Thai fishers fish without licenses, often creating disputes between Thailand and others coastal States.

In regard to the Andaman Sea coast of Thailand, it has become clear that it is in the same situation as the other coast of Thailand. The Andaman Sea coast has seen a substantial decline in fisheries resources. The tsunami event of December 2004, the fuel crisis, the violation of regulations and illegal fishing all have impacted fisheries negatively. This situation will create an increasing problem not only for the fishers but it will also lead to serious degradation of all marine resources, thus threatening the sustainable management and health of the Andaman Sea as a whole. As noted previously, the fisheries problems in the Andaman Sea involve the fisheries within the Thai EEZ and those beyond the Thai water. Thus, it is not enough to address only the problems of fishers and fisheries resources only in the Andaman Sea area. A comprehensive management regime at the national level needs to be further developed and implemented.

First, at the international level, Thailand has to clarify its position with respect to various international conventions. Second, Thailand should implement regional instruments for effective efforts in fisheries management. Third, a reform of national fisheries laws and regulations is needed so that Thailand can have a coordinated and integrated policy that will allow it to take a responsible role in protecting for marine resources and their environment for generations to come.

–  –  –

Thailand should ratify or accept and effectively implement international fishery instruments, including: the LOSC, the 1995 UN Fish Stocks Agreement, the FAO Compliance Agreements, and the 1995 CCRF.

1. The LOSC As enumerated above, the LOSC is one of the most comprehensive international treaties and often called the Constitution of the Ocean. It provides the legal framework and basis for the other international agreements. Even Thailand still inactive to the LOSC, but can not refuse its legislation power. It is difficult for Thailand to avoid ratification the LOSC.

As outline above, Thailand has always maintained that it is a LL/GDS State but this position was not accepted by the other States participating in the LL/GDS group during the third LOS conference. Since this time, Thailand has not expressed or clarified its position on the LOSC. Even if Thailand was accepted in the LL/GDS group, it did not benefit from its participation. Because, presently the LOSC is ratified by 155 States, the power of the LL/GDS may not be enough to force to secure rights to fish in the EEZs of other coastal States. Thus even if Thailand was accepted in the LL/GDS, access surplus stocks in the EEZs of other coastal States remains the decision of those coastal States.329 Given the above, access to surplus stocks is never base on “free access”, but takes the form of joint venture fisheries or licenses fisheries.

If Thailand ratifies the LOSC, under the LOSC, Thailand could have joint ventures or other co-operative fisheries with other coastal States to access the surplus of the allowable catch in their EEZs where those coastal States do not have capacity to harvest the entire allowable catch.330 As a State party, the power of Thailand to negotiate would increase, at the same time other coastal States would feel more security to negotiate with another State party. If Thailand aims to maintain access to the fisheries in the EEZs of other coastal State for the long term, then Thailand could benefit from these LOSC provisions.

LOSC, art 62, art 69 and 70.

LOSC, art 61 and 62.

- 97 Being a non-party works to the disadvantage of Thailand, not only in issues of marine fisheries, but also with respect to navigational rights, freedom of navigation is ensured to all States, even non-parties, such as freedom of passage in the EEZs of States party and make it more difficult to negotiate. For example, Thai fishing vessels that fish outside Malaysia’s EEZ but pass through Malaysia’s EEZ were suspected by Malaysia to be fishing. Although these vessels had simply been exercising their right of innocent passage, they were arrested as they had fish on board.331 In this case, Thailand cannot submit disputes with Malaysia regarding the freedom of navigation for Thai fishing vessels in Malaysia’s EEZ to ITLOS because ITLOS only available to State parties.332 This has seriously disadvantaged Thailand in its negotiations with Malaysia.333 As a consequence, the urgent challenge to Thailand is the ratification LOSC without delay, and the use of negotiation channels provided by LOSC to solve these problems.

2. The 1995 the United Nations Convention Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks The LOSC established the general framework for high sea fishing rights, but did not codify specific operational provisions.334 A more detailed management regime for straddling fish stocks and highly migratory fish stocks was thus developed to through the UNSFA.335 The UNSFA encourages States to cooperate to ensure: conservation, promote optimum utilization of straddling and highly migratory fish stocks both within and beyond the EEZ and emphasize the importance of regional fishery management bodies. Thailand should ratify the Agreement and become fully involved in regional fishery organizations.

See J. Saisoontorn. The effect of EEZ proclamation of other coastal States on Thai fisheries. 13 pp.; Act 311 of 184 on the Malaysian Exclusive Economic Zone, section 16. Malaysia Government Gazette, 31 December 1984. The Act specified fishing boat pass through Malaysian EEZ with only right of innocent passage, although the LOSC art 58 and art 87 state that all kinds of boats have right of freedom navigation.

LOSC, art. 291, 1; Statue of the Tribunal, art 20, 1.

P. Kemakorn. op. cit.

L. Juda. Rio Plus Ten. 2002. op. cit. 109-144 pp.


- 98 The FAO Compliance Agreement Thailand has not become a party to the Compliance Agreement because in the past it did not have any fishing vessels operating on the high seas. Presently, Thailand has developed a high seas fisheries and therefore should consider becoming a party to the Compliance Agreement. The FAO Compliance Agreement has both the principle of practices and punishments for States which violate applicable rules, most importantly of all, a State is not allowed to use its flag unless it can effectively control the fishing activities of their vessels. Thus, the FAO Compliance Agreement is classified as one of hard law.336 If Thailand became a State party and implemented the agreement’s provisions, it would be in a stronger position to develop sustainable and profitable a high seas fisheries.

4. The 1995 Code of Conduct for responsible fisheries

The present fisheries problems addresses by the CCRF are all present in the Thai fisheries. The CCRF provides guidelines for fisheries management that will maintain the sustainability of the resources within a comprehensive and balance system under the concept of responsible fishing which is applicable globally. The implementation of the CCRF with other States in the area of technical assistance, technology transfer, training and scientific research, and data exchange337 will fulfill and enhance Thailand’s ability to implement effectively instruments for fisheries management in Thailand.

The code of conduct is voluntary which mean it will be effective in long term when accepted and practiced by stakeholders. However the code is a global standard applicable, it should be adapted to implement in Thailand for the most effective.

L. Juda. Rio Plus Ten. op. cit. 121-121 pp.

FAO, Code of Conduct- art 5: Special Requirement for Developing Countries.

–  –  –

Thailand can cooperate directly with the States of the regions as well as through appropriate regional organizations. The nature of cooperation may be scientific research and training, sampling programs and so on. There are lessons to learn from the experience of outside States in the region that have similar problems. Some of the measures taken by other States might be useful to improve and adapt for implementation in Thailand.

The BOBLME program, the APFIC, the COBSEA and the SEAFDEC are all regional organizations that play an important role in the implementation of effective guidelines for responsible fisheries by considering regional specificities of fisheries structure, ecosystem, cultural, social, economic factors, as well as other issues of importance in the region. The IOTC is an organization that plays an important role in tuna resources management in the Indian Ocean, and Thailand is membership as allow it to be fully involved in tuna resources management. Thailand can be assisted in term of research and development activities in respect of the tuna stocks and fisheries, and such other activities, including the transfer of technology, training and enhancement.338 In addition, closer international cooperation fasters closer relationships and reduces disputes between Thailand and other coastal States.

C. National Fisheries Law and regulation reform

The national fisheries law is the most important instrument for the achievement of sustainable management. It should be the immediate objectives of the Government to increase support for the sustainable management and to bring Thailand up to date with respect to international principles for responsible fisheries and marine resources management.

New law and regulations should be compatible with international law and agreements and address many of the current fisheries concerns. Furthermore, it should introduce participatory and consultative processes for stakeholders into fisheries management. The challenge for the Government will then be implementating and supporting full enforcement of the new law.

IOTC, Agreement for the Establishment of the Indian Ocean Tuna Commission: art V. 2-2 pp.

–  –  –

Due to the diversity of fisheries in terms of resources, local conditions and the capacity of the local Government and stakeholders, it is difficult to successfully promote a single approach to fisheries management. The priority for Thai fisheries management reform is thus to strengthen and develop legally enforceable decentralized management coupled with appropriate rights-based incentives to the fishing community. This should be accompanied by the strengthening of collection of data on gear and boats so as to have a clear understanding of the fisheries sector and its capacity. Thailand should promote the participation of local communities and the public in the development of the fisheries.

Recommended potential approaches for sustainable management are described below.

1. Centralized to Decentralized Management

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