Legal Analysis of the Measures Adopted by Mediterranean Coastal States to Minimize the Impact of Fishing Activities on Marine Ecosystems and Non-Target Species
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Project for the preparation of a Strategic Action Plan for the conservation of biological Diversity in the Mediterranean Region (SAP BIO) LEGALLEGAL ANALYSISANALYSIS OFOF THETHE MEASURESMEASURES ADOPTEDADOPTED BYBY MEDITERRANEANMEDITERRANEAN COASTALCOASTAL STATESSTATES TOTO MINIMIZEMINIMIZE THETHE IMPACTIMPACT OFOF FISHINGFISHING ACTIVITIESACTIVITIES ONON MARINEMARINE ECOSYSTEMSECOSYSTEMS ANDAND NONNON--TARGETTARGET SPECIESSPECIES Project for the Preparation of a Strategic Action Plan for the Conservation of Biological Diversity in the Mediterranean Region (SAP BIO) LEGAL ANALYSIS OF THE MEASURES ADOPTED BY MEDITERRANEAN COASTAL STATES TO MINIMIZE THE IMPACT OF FISHING ACTIVITIES ON MARINE ECOSYSTEMS AND NON-TARGET SPECIES RAC/SPA - Regional Activity Centre for Specially Protected Areas 2003 Note: The designation employed and the presentation of the material in this document do not imply the expression of any opinion whatsoever on the part of RAC/SPA and UNEP concerning the legal status of any State, territory, city or area, or of its authorities, or concerning the delimitation of their frontiers or boundaries. The views expressed in the document are those of the author and not necessarily represented the views of RAC/SPA and UNEP. This document was prepared within the framework of a Memorandum of Understanding (MoU) concluded between the Regional Activity Center for Specially Protected Areas (RAC/SPA), and the Fisheries department of the Food and Agriculture Organization of the United Nations (FAO) concerning the role to be played by FAO within the framework of SAP BIO project. prepared by Philippe Cacaud Legal Consultant FAO September 2000 Cover photos Guido Gerosa Fulvio Garibaldi Contents INTRODUCTION 1 PART ONE: REGIONAL COOPERATION IN THE FIELDS OF THE 3 ENVIRONMENT AND FISHERIES 1. General background: Regional cooperation for the protection of Mediterranean 4 biological diversity 1.1. Protocol concerning specially protected areas and biological diversity 4 in the Mediterranean (the 1995 Protocol) 1.2. The Monaco Agreement on the Conservation of Cetaceans 6 1.3. Marine mammals sanctuary 6 2. Regional cooperation for the conservation and management of Mediterranean 7 fisheries 2.1. General Fisheries Commission for the Mediterranean General Fisheries 7 Commission for the Mediterranean 2.2. In ternational Commission for the Conservation of Atlantic Tunas 8 PART TWO: REVIEW OF NATIONAL FISHERIES LEGISLATION 11 1. Albania 13 2. Algeria 22 3. Bosnia Herzegovina 29 4. Croatia 30 5. Cyprus 33 6. Egypt 37 7. European Union 41 8. France 51 9. Greece 63 10. Israel 68 11. Italia 73 12. Lebanon 81 13. Libya 83 14. Malta 84 15. Monaco 96 16. Morocco 98 17. Slovenia 106 18. Spain 108 19. Syria 117 20. Tunisia 119 21. Turkey 122 PART THREE: CONCLUSIONS AND RECOMMENDATIONS 131 1. Conclusions 132 2. Recommendations 134 Annex 1 135 INTRODUCTION INTRODUCTION In 1999, a Memorandum of Understanding (MoU) was concluded between FAO and the Regional Activity Center for Specially Protected Areas. This MoU consists of an agreement on the basis of which FAO is required to prepare studies that will serve as an input to the Mediterranean Sea Action Plan (MAP). In this context, the present study was undertaken to help formulate regional guidelines aimed at facilitating the national processes for the elaboration of national strategic action plans to face up to the impact of fishing activities on biological diversity. This study, which is principally based on the information available in the legal database kept by the FAO Legal Office (FAOLEX), analyzes the measures provided for by the Mediterranean coastal states’ national legislation to minimize the impact of fishing activities on marine ecosystems as well as on non-target species and threatened or endangered species. In particular, it examines national laws and regulations with regard to licensing of fishing operations, fishing gear, fishing capacity, marine protected areas, time and area restrictions, incidental catch, data collection and reporting requirements. The FAO Code of Conduct for Responsible Fisheries (hereinafter the Code)1, which is a voluntary instrument, is now widely recognized as the key instrument of reference for fisheries managers throughout the world. The Code provides principles and standards applicable to the conservation, management and development of the world’s fisheries. It calls on states to ensure that an effective legal and administrative framework at local and national level is established for fisheries resource conservation and fisheries management. It is therefore the duty of the states to adopt appropriate legal mechanisms to carry out the objectives set out in fisheries policy or fisheries management plans. The contribution made by legal mechanisms on the topics mentioned above to the protection of biological diversity is best understood in the light of the general principles laid out in the Code. Licensing the fishing operations of national or foreign fishing vessels within waters under national jurisdiction enables coastal states to control access to the fisheries therein and regulate their level of exploitation. The Code puts special emphasis on flag states’ responsibility with regard to fishing operations undertaken by vessels flying their flag on the high seas. Flag states should not only authorize fishing vessels flying their flag to fish on the high seas but also exercise control over those vessels so as to ensure proper application of the Code. In particular, they should ensure that their activities do not undermine the effectiveness of conservation and management measures taken in accordance with international law and adopted at national, subregional, regional or global level (Article 6.11 of the Code). The Code encourages the development and application of selective and environmentally safe fishing gear and practices in order to maintain biological diversity and to conserve the population structure and aquatic ecosystems and protect fish quality. In addition, states and users of aquatic ecosystems are required to minimize waste, catch of non-target species and impacts on associated or dependent species (Article 6.6 of the Code). Consequently, coastal states must obligatorily adopt 1 The Code was unanimously adopted on 31 October 1995 by the FAO Conference. 1 INTRODUCTION appropriate measures regulating fishing gear characteristics and the conditions of their use as well as fishing methods. Recognizing the need to prevent overfishing, the Code urges states to take all necessary measures to eliminate excessive fishing capacity in order to ensure that the fishing effort is commensurate with the productive capacity of the fishery resources and their sustainable utilization (Article 6.4 of the Code). Therefore, states must exercise control over fishing capacity and, where appropriate, implement measures designed to reduce excess fishing capacity. States are required to provide adequate protection of critical fisheries habitats in both marine and fresh water ecosystems so as to ensure the health and viability of the fishery resources (Article 6.8 of the Code). This can be done by establishing marine protected areas or proclaiming temporary or permanent fishing prohibited areas. Since conservation and management measures should be based on the best scientific evidence available, states should assign priority to undertaking research and data collection in order to improve scientific and technical knowledge of fisheries (Article 6.4 of the Code). It is therefore crucial that they devise and implement mechanisms designed to collect information on the fishing activities undertaken by both foreign and national fishing vessels operating within waters under their jurisdiction and by national fishing vessels authorized to fish on the high seas. This study reviews the various arrangements and organizations that have been established to promote regional cooperation in the fields of the environment and fisheries in the Mediterranean (Part 1). It analyses the national fisheries legislation2 enacted by each of the twenty-two coastal states3 surrounding the Mediterranean Basin in order to determine whether the issues mentioned above, that aim at minimizing the impact of fishing on biological diversity, have been adequately addressed within the national legal frameworks (Part 2). Finally, it provides general recommendations designed to improve fisheries legislation with respect to the protection of biological diversity (Part 3). 2 For the purpose of this study, fisheries legislation should be construed as including laws (law, act) and regulations (decrees, orders etc.). 3 This study also includes a review of the European Union fisheries regulations. 2 PART ONE REGIONAL COOPERATION IN THE FIELDS OF THE ENVIRONMENT AND FISHERIES 3 Regional cooperation in the fields of the environment and fisheries 1. Regional cooperation for the protection of Mediterranean biological diversity In 1975, the Mediterranean states adopted the Mediterranean Action Plan (MAP) within the framework of the UNEP regional sea programme. One of the main objectives of this plan was to establish a framework convention for the protection of the Mediterranean environment. The Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, which was adopted on 16 February 1976, entered into force on 12 February 1978. This framework convention is supplemented by a series of 6 implementing protocols dealing with specific aspects of environmental protection4. Of interest for our study is