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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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- 43 crab traps then set shrimp gill nets and then return to haul the traps. Some fishers row their boats when setting gear or if there is supported wind so as to save fuel.102 Recently, DOF succeed in designing a sail that can be used with long-tail boats and is accepted enthusiastically by fishers and boat owner.

Due to the fuel crisis, there are fishers who intend to resign from the fisheries. Some small scale fishers turned to tourism because it provides more certainty income than fisheries. It might be a good opportunity for DOF to established a capacity reduction program, such as fishing boat buy back program, soft loan or pawn for changing occupation (i.e. fisheries aquaculture, planting, tourism). In addition to this DOF must consider the most effective measures to prevent them from returning to fisheries at latest stages. The boats which have been bought backed might be destroyed or used in other sectors. Although the fishing boat buy back programs would come at a very high cost for the Government, they are a very direct and effective method of decreasing fishing capacity.

(c) Violation of regulations and illegal fishing The violation of regulations by fishers involves both entering in prohibited areas and using illegal gear in Thai waters and the EEZs of other coastal States. As note previously (Table 6), fishers from Ranong Province encroach into waters of Myanmar to fish without licenses.

From January 2004 to April 2007, 36 boats arrested by Myanmar.

In coastal waters, there are widespread violations of regulations, including fishing during closed periods, the use of illegal mesh sizes and the destruction of fish habitats such as mangroves, seagrass beds and coral reefs. The most common illegal fishing gear are push netters which push a scoop net in front of a vessel driven by a high-powered long-tail motor. The second common infringement is the encroachment of fishing by commercial trawler within reserve zones, three kilometers from the shoreline, by commercial trawlers. The third is by liftnet boats, or purse seiners, which mostly fish at night using light attraction.103 More over the FADs of purse seiners have been set illegally in some areas thus causing obstacles in maritime transportation passages.

Ibid.

David B. Thomson, Post-Tsunami Rehabilitation of Small-Scale Fisheries, Experiences from Thailand: 19 p.

- 44 Direct losses occurred to the small scale fishers when their fishing gears were damaged or towed away by the encroachment of commercial boats within three km. Indirect losses result from the action of commercial boats taking fish out of these waters. Fish catches from one night’s operation can amount to over a ton for a purse seiner, to half a ton or more for a trawler, down to 50 to 200 kg for a push netter. At present, there are no comprehensive records of illegal fishing incidents. Official records focus on vessels actually arrested and charged with offences.

The patrols focus activities in close areas and during closed seasons because of limited budgets.

The numerous incidents, in which illegal operations are not confronted by the authorities, go largely unrecorded: fishing gear losses, varied from USD 50-75 per incident. Losses from fish catches taken by the illegal operations could be 2,000 tons, worth over USD 1.2 million per year, based on a low estimate of 150 kg per illegal fishing encroachment (Table 15).

Table 15: Estimated losses value cause by illegal fishing in the Andaman Sea coast of Thailand

–  –  –

Source: David B. Thomson, Post-Tsunami Rehabilitation of Small-Scale Fisheries, Experiences from Thailand: 19 p.

As explained above, there are several factors which have contributed to the decline of fishery resources. These include overfishing by an excessive number of boats, the use of destructive gear such as trawls and push nets, destructive fishing methods such as large-scale trawling in near-shore areas and the use of push nets near coral reefs. Furthermore, there are widespread violations of regulations, such as fishing during ban periods, the use of illegal mesh

- 45 sizes and the destruction of fish habitats such as mangroves, seagrass beds and coral reefs. The inappropriate or uncoordinated policies such as protecting the fishmeal industry at the expense of losing juvenile economic fish in the process of trash fish capture,104 fuel price subsidies or the after tsunami rehabilitation without clear co-ordination and following a coherent strategy, all contribute to the failure of fisheries management.

It is clear that fisheries problems will continue, and even worsen, with significant impact to the economy of the country and the lives of the fishers along the Andaman Sea coast especially the small scale fishers if adequate counter measures for both marine resource conservation and their utilization are not developed and implemented.

Thailand Development Research Institute (TDRI). Background Report for the Thai Marine Rehabilitation Plan 1997–200. Bangkok, 1998. 27 p.

–  –  –

A. The Global Framework

1. The 1982 United Nations Convention on the Law of the Sea The 1982 United Nations Convention on the Law of the Sea (LOSC) was adopted by the Third United Nations Conference on the Law of the Sea (UNCLOS III) in New York on 30 April 1982. The Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica and came in to force on 16 November 1994,105 currently a 155 States have ratified the LOSC.106 LOSC lays down a comprehensive regime of law and order in the world's oceans and seas by establishing rules governing all uses of the oceans and their resources.107 The LOSC embodied in one instrument traditional rules for the uses of the oceans and at the same time introduced new legal concepts and regimes, addressing new concerns, and also provided the framework for further development of specific areas of the law of the sea. 108 The LOSC contains 320 Articles and 9 Annexes.109 The key provisions include the evolutionary features of EEZ, High Sea, Dispute Resolution, and International Tribunal for the Law of the Sea. Coastal States were granted sovereign rights over living and non living resources in their EEZs. With coastal State establishment of EEZs, the most important part of the ocean common was removed from the regime of the high sea and placed under the jurisdiction of the coastal State.110 It is very important matter because more than 95 % of all United Nations, LOSC, Agreement Relating to the Implementation of Part XI of the LOSC, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs. 2001. 1-6 pp.





As at 7 August 2007 United Nations, Table recapitulating the status of the Convention and of the related Agreements (2007 [cited 7 August 2007]); available from http://www.un.org/Depts/los/reference_files/status2007.pdf.

LOSC-preamble.

Ibid.

United Nations, LOSC, Agreement Relating to the Implementation of Part XI of the LOSC, op. cit. 2001. 294 p.

L. Juda. Rio Plus Ten: The Evolution of International Marine Fisheries Governance. Ocean Development & International Law, 2002. 33:109-144 pp.

- 47 commercial stocks are caught within waters under the jurisdiction of coastal State.111 These areas are now controlled by coastal States and fishers from other States desiring to fish in those waters now require coastal State consent.112 The EEZ is an area beyond and adjacent to the territorial sea113 that is not to extend beyond 200 nm from the baseline from which the breadth of the territorial sea is measured.114 The coastal State has sovereign rights in its EEZ for exploring and exploiting, conserving and managing the natural resources whether living or non living.115 The coastal State has jurisdiction to establish and use artificial islands, installations and structures116 and over marine science research and the protection and preservation of the marine environment.117 The LOSC calls on the coastal States and other States in the region, were there are transboundary or straddling stocks and highly migratory species both within the EEZ and in an area beyond and adjacent to it, to take appropriate measures necessary for the conservation of these stocks.118 Transboundary and straddling fish stocks are stocks of fish which migrate between, or occur in both, EEZ of one or more States and the high seas.119 Highly migratory fish stocks are those that generally roam over large distances and maybe found in numerous EEZ jurisdictions and the high seas. Highly migratory species are defined by a listing in Annex 1 of the LOSC.120 The LOSC authorizes coastal States to determine total allowable catch (TACs) of the living resources in its EEZ121 and examine its harvesting capacity and give other States access to the surplus of the allowable catch where the coastal State lack the capacity to harvest.122 The coastal State is to regulate fishing access through proper conservation and management Agenda 21, 17.69.

United Nations, 1993. Some High Sea Fisheries Fishing Aspects Relating to Straddling fish Stock and Highly Migratory Fish Stock. United Nations Conference on Straddling fish Stock and Highly Migratory Fish Stock, New York, 12-13 July, 1993. 2-3 pp.

LOSC, art 55.

LOSC, art 57.

LOSC, art 56, 1.(a).

Ibid. (b)(i).

Ibid. (ii) and (iii).

LOSC, art 63. and art 64.

UNEP, UN Atlas of the Ocean. Straddling Stock. 1-1 pp.

LOSC, annex 1.

LOSC, art 61, 1.

LOSC, art 62, 2.

- 48 measures to maintain living resources and to ensure that they are not endangered by overexploitation.123 It is also to maintain or restore populations of living resources at levels which can produce the MSY.124 The effects on species associated with, or dependent upon, harvesting should be considered by the coastal State, with a view to maintaining or restoring population of such associated or dependent species above levels at which their reproduction may become seriously threatened.125 Management measures shall also be qualified by relevant environment and economic factors that include needs of coastal fishing communities and the particular need of the developing States,126 such as making financial contributions, demonstrating value of better management of fish stocks, structured assistance programmes that included enhancing the ability of developing States to participate in catch documentation schemes and port States regimes, and to comply with obligations to supply statistical information.

Fishers from other States, should comply with the conservation measures and conditions established in the law and regulations of the coastal State which are consistent with the LOSC and may include

–  –  –

For the provision of cooperation, the LOSC states that the coastal State and competent international organizations whether regional, sub regional or global shall exchange scientific information, catch and fishing effort statistics, and other data relevant to fishing patterns and conservation of fish stocks. All States concerned, including States where nationals are allowed to fish in the EEZ comply with the established regime.128 LOSC, art 61, 2.

LOSC, art 61, 3.

LOSC, art 61, 4.

LOSC, art 61, 3.

LOSC, art 62, 4.

LOSC, art 61, 2.3.5.

- 49 The LOSC establishes alternative dispute resolution instruments for settlement of disputes that might occur among the coastal States.129 These include the International Tribunal for the Law of the Sea (ITLOS), an arbitral tribunal,130 and a special arbitral tribunal.131 ITLOS is open to States party, and non States party as long as all parties accept the competence of Tribunal.132 Thailand has signed but not ratified the LOSC, thus is not a State party.133 Thailand claimed geographic disadvantage due to extended jurisdiction of EEZ because Thailand is both a shelf-locked and zone locked State.134 As a consequence of the establishment of EEZs, the Thai distant-water fishing grounds have come under Malaysian, Cambodian, Vietnamese, and Indonesian jurisdiction.135 Thailand claimed the right to fish in the areas in which it had traditionally engaged in fishing: areas now within the EEZs of other States. However, Thailand was not accepted by the other land locked or geographical disadvantage States (LL/GDS) to participate in the LL/GDS group.136 Given the above Thailand has not clarified its concerns regarding the LOSC.

2. Agenda 21 of the 1992 United Nations Conference on Environment and Development

The 1992 United Nations Conference on Environment and Development (1992 UNCED), also known as the Earth Summit, was held in Rio de Janeiro.137 The consensus of principles addressing the concept of sustainable development is form in provisions of the comprehensive Agenda 21. This document is a wide-ranging assessment of social and economic sectors with LOSC, art 287, 1.

LOSC, annex VII Arbitration.

LOSC, annex VIII Special arbitration.

LOSC, annex VI, art 20.

LOSC, art 287, 1 state that “When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention” United Nations, UNCLOS III, Official Records, Vol. 1, July 10, 1974. 147 p. And Vol. 2, August 1, 1974.

J., Mark Valencia. International conflict over marine resources in south-east Asia: trends in politicization and Militarization. 1981. 302-355 pp.

Ibid.

United Nations, Report of the United Nations Conference on Environment and Development. Rio de Janeiro, 3June 1992. A/CONF.151/26 (Vol. I). 1-6 pp.



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