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Traditional Fishing Rights: Analysis of State Practice

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Traditional Fishing Rights: Analysis of State Practice TRADITIONAL FISHING RIGHTS: ANALYSIS OF STATE PRACTICE Polite Dyspriani The United Nations-Nippon Foundation Fellowship Programme 2010 - 2011 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF LEGAL AFFAIRS, THE UNITED NATIONS NEW YORK, 2011 DISCLAIMER The views expressed herein are those of the author and do not necessarily reflect the views of the Government of Indonesia, the United Nations, The Nippon Foundation of Japan, or the University of Wollongong, Australia. ©2011. Polite Dyspriani. All rights reserved. Abstract The recognition of traditional fishing rights is a major resource and environmental policy issue at both national and international levels. The nature of the issue itself is also split at two levels. The first is at a purely domestic level relating to the recognition of indigenous rights. The second level arises from the implication of the United Nations Convention on the Law of the Sea of 1982 (LOSC). The LOSC has resulted in extended coastal jurisdiction over marine living resources. One consequence of this has been that areas previously fished by nationals of other States have now come under the sovereignty and sovereign rights of the adjacent or opposite coastal State; necessitating the need to make legal arrangements to ensure the continuation and management of such rights. The LOSC only makes provision for traditional fishing rights of nationals of other States in the context of archipelagic States and archipelagic waters, whilst other practices of traditional fishing rights outside the context of archipelagic States are regulated under bilateral agreements, arrangements or treaty not as part of the LOSC. This research focuses primarily on the second aspect of traditional fishing rights; the rights that are guaranteed by one State to the nationals of another State, either as part of the LOSC or outside the framework of the LOSC. Case studies will be undertaken of arrangements between Indonesia and Malaysia, Indonesia and Papua New Guinea, Papua New Guinea and Solomon Islands, Indonesia and Australia, as well as Papua New Guinea and Australia. Lessons learnt from the implementation of these arrangements will be drawn upon so as to make recommendations to ensure the continuation of good relations among States and the long term conservation and sustainable use of marine living resources and biodiversity. Keywords: traditional fishing rights, recognition, LOSC, archipelagic State ii SUPERVISORS: Prof. Dr. Martin Tsamenyi Dr. François Bailet iii Acronyms AFZ Australian Fishing Zone CCRF Code of Conduct for Responsible Fishing CBD Convention on Biodiversity CFB Capture Fishery Business CITES Convention on International Trade in Endangered Species Cwlth Commonwealth DWFN Distant Water Fishing Nation DOALOS Division for Ocean Affairs and the Law of the Sea EEZ Exclusive Economic Zone EEC European Economic Community EFZ Exclusive Fishing Zones FAO Food and Agriculture Organization GBRMPA Great Barrier Reef Marine Protection Authority GDS Geographically Disadvantaged States GPS Global Positioning System ICJ International Court of Justice ILO International Labour Organization IUU Illegal Unreported and Unregulated Fishing IUCN International Union for the Conservation of Nature ICCPR International Covenant on Civil and Political Rights LOSC Law of the Sea Convention LLS Land Locked States MMAF Ministry of Marine Affairs and Fisheries MOU Memorandum of Understanding NWIFC Northwest Indian Fisheries Commission nm nautical mile PNG Papua New Guinea PZJA Protected Zone Joint Authority PZCF Protected Zone Commercial Fisheries PIC Public Information Campaign Qld Queensland TAC Total Allowable Catches UN United Nations UNCLOS United Nations Conference on the Law of the Sea UK United Kingdom iv Acknowledgements I express my sincere gratitude to the Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs, United Nations and the Nippon Foundation of Japan, who have awarded me the United Nations-Nippon Foundation Fellowship 2010-2011. I would like to express my profound gratitude to Mr. Serguei Tarassenko (Director of DOALOS), Dr. Francois Bailet (Program Adviser and supervisor), and all DOALOS staff members for their kind support and assistance throughout the period of this fellowship. I also appreciate my all UN-Nippon 2010-2011 fellows for our warm friendship and mutual collaboration. I am also very grateful to Professor Martin Tsamenyi for his full support, and supervision, as well as to the Australian National Centre for Oceans Resources and Security (ANCORS), University of Wollongong, Australia for the opportunity to spend the academic part of my fellowship at ANCORS. I thank Myree Mitchell, and all colleagues from ANCORS for their assistance and hospitality during my first academic placement, specifically Lowell Bautista and I Made Andi Arsana, for the input and suggestions. My highest gratitude goes to Indonesian Government, especially the Ministry of Marine Affairs and Fisheries of Republic of Indonesia for its support and recommendation. I would like to deliver my special gratitude to Prof. Hasjim Djalal, Mr. Andriano Erwin and Sam Hydson for their valuable advice and assistance. I must also thank my parents, my husband, my dearest daughter and son, as well as my sisters for all their love, support and prayers. This paper is dedicated to them. Finally, I highly acknowledge everyone whose name cannot be mentioned individually for their assistance and contribution to this paper. v Table of Contents Abstract ..................................................................................................................... ii Acronyms ................................................................................................................. iv Acknowledgements ................................................................................................... v Table of Contents ..................................................................................................... vi List of Figures/Maps .............................................................................................. viii 1. Introduction .......................................................................................................... 1 1.1 Background and Context ............................................................................... 1 1.2 Scope and Objectives .................................................................................... 5 1.3 Approach ........................................................................................................ 6 1.4 Structure of Report ......................................................................................... 6 2. Theoretical Framework ........................................................................................ 8 2.1. An Overview of the Importance of “Traditional” ........................................... 8 2.2. Classification of Traditional Fishing Rights ............................................... 13 2.2.1. Indigenous Fishing Rights within the same State .................................. 13 2.2.2 Rights Exercised by Citizens of One State in another State Territory .. 24 2.3. Issues and Problems of Traditional Fishing Rights ...................................... 30 2.3.1 What is Traditional? ................................................................................ 31 2.3.2 Identification of the Group ..................................................................... 37 2.3.3 Exemptions from Conservation and Management Issues ...................... 38 3. Case Studies: Bilateral Agreements, Arrangements, Treaty ................................ 45 3.1. Bilateral Ocean Agreement under LOSC: Basic Rights and Obligations .... 45 3. 2. Traditional Fishing Rights Based on LOSC ................................................ 60 3.2.1 Indonesia and Malaysia .......................................................................... 60 3.2.2 Indonesia and Papua New Guinea ......................................................... 65 3.2.3 Papua New Guinea and Solomon Islands (Pacific Islands Treaty) ......... 66 3.3. Traditional Fishing Rights outside the Framework of the LOSC ................. 69 3.3.1 MOU Box between Indonesia and Australia .......................................... 69 3.3.2 Australia And Papua New Guinea in The Torres Strait ......................... 86 4. Analysis and Discussion ...................................................................................... 93 4.1. Status and Development of Traditional Fishing Rights ................................ 93 4.2 The State Practice of Traditional Fishing Rights ........................................... 96 vi 4.3. Challenge of the Traditional Fishing Practice ............................................ 103 4.4. Conservation and Management of Traditional Fishing .............................. 113 5. Conclusion ........................................................................................................ 122 5.1 Summary ..................................................................................................... 122 5.2 Evaluation/Recommendation ...................................................................... 125 5.3. Future Work ................................................................................................ 128 BIBILIOGRAPY .................................................................................................. 129 Appendix 1–List of Countries which have formally claimed
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