University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2011 International legal and normative framework for responsible fisheries, with reference to Malaysia's offshore EEZ fisheries management Mohammad Zaki Ahmad University of Wollongong Recommended Citation Ahmad, Mohammad Zaki, International legal and normative framework for responsible fisheries, with reference to Malaysia's offshore EEZ fisheries management, Doctor of Philosophy thesis, University of Wollongong. Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3408 Research Online is the open access institutional repository for the University of Wollongong. For further information contact Manager Repository Services: [email protected]. AUSTRALIAN NATIONAL CENTRE FOR OCEAN RESOURCES AND SECURITY INTERNATIONAL LEGAL AND NORMATIVE FRAMEWORK FOR RESPONSIBLE FISHERIES, WITH REFERENCE TO MALAYSIA’S OFFSHORE EEZ FISHERIES MANAGEMENT A thesis submitted in fulfilment of the requirements for the award of the degree DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG by MOHAMMAD ZAKI AHMAD BA (Memphis), MA (Wollongong) October 2011 DECLARATION I, Mohammad Zaki Ahmad, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor in Philosophy in the Australian National Centre for Ocean Resources and Security, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualification at any other academic institution. Mohammad Zaki Ahmad 20 August 2011 i ABSTRACT The progressive development of international legal and normative framework for responsible fisheries in the aftermath of the 1982 United Nations Convention on the Law of the Sea (LOSC) has been epitomized through the introduction of a series of binding and non-binding global fisheries instruments. These post-LOSC instruments include the UN Fish Stocks Agreement, FAO Code of Conduct for Responsible Fisheries, and the four non-binding International Plans of Actions (IPOAs). They provide the principles, measures, and standards for responsible fisheries in the exclusive economic zone (EEZ). The adoption and elaboration of these instruments attest to the urgency and strong political commitment of the global community to improve and strengthen the international management and conservation framework for marine capture fisheries. This progress was motivated to address the issues and problems affecting marine fisheries worldwide, as well as the inadequacies of the LOSC. Some of the principles incorporated in the post-LOSC instruments, such as precautionary approach to fisheries and ecosystem approach to fisheries, signify a departure from the traditional species- centric management approach espoused by the LOSC. In the context of Malaysian fisheries management, international fisheries instruments have provided useful guidelines for the country in establishing or improving its domestic legal, policy, and institutional framework to promote responsible fishing in its EEZ. Guided by its rights and obligations granted by the LOSC and other global fisheries instruments, Malaysia has adopted stringent conservation and management measures for offshore fisheries. However, despite of having this framework in place, Malaysia continues to confront various challenges that undermine its efforts to ensure sustainable fisheries in the offshore areas. Serious depletion of fish stocks and degradation of marine environment, compounded by a high incidence of illegal, unreported and unregulated fishing (IUU), are major concern to Malaysia. A key factor to these problems lies on Malaysia’s failure to fully implement internationally agreed obligations and standards for responsible offshore fisheries. Therefore, to ensure that fishing practices are conducted in responsible manner in the Malaysian EEZ, it is imperative for the country to fully adopt and apply the principles and measures espoused under international fisheries instruments. This thesis presents an analysis of Malaysian laws, policies, and measures implement the international legal and normative framework for responsible fisheries. The objectives of this thesis are threefold. Firstly, this thesis identifies and analyzes principles and their measures established in binding and non-binding global instruments for responsible fisheries in the EEZ. Secondly, the thesis examines the extent to which Malaysia has adopted these principles and measures in its domestic legal system. It further highlights gaps in the national legal and policy framework for responsible offshore fisheries. Finally, the thesis provides recommendations of policy and legal reforms necessary to address the identified gaps in the national framework. ii ACKNOWLEDGEMENTS I thank God for His blessings and mercy. The completion of this thesis would not have been possible without the assistance, guidance and support from a number of individuals and institutions. Foremost, I wish to convey my sincere gratitude to my supervisors. To Professor Martin Tsamenyi, for his invaluable assistance and intellectual guidance throughout my graduate studies. Under his supervision, I have learned so much on the concept of responsible fisheries and the law of the sea. My heartfelt appreciations extended to Dr. Mary Ann Palma for her unwavering support, encouragement and patience in supervising my thesis. Her helpful advice and insightful comment on my chapters and for helping me to understand the complexity of IUU fishing have made my PhD studies a worthwhile journey. Terima kasih. I wish to thank the Malaysian government, especially the Ministry of Higher Education (MoHE), for awarding me scholarships to pursue my Master and PhD studies at the University of Wollongong. To my employer, Universiti Utara Malaysia (UUM), Kedah, for granting me study leave and generous stipend for my family. Many thanks to Professor Dr. Mustafa Ishak, former Dean of Faculty of International Studies (now the Vice Chancellor of UUM) who has supported me throughout my academic career in numerous ways. I would also like to thank the staffs at the Registrar Office, notably the Department of Human Resource. Throughout the three years and a half of my PhD studies, the Australian National Centre for Ocean Resources and Security (ANCORS) has been my “second home.” Its excellent facilities and helpful staffs provided an environment conducive for me to complete my thesis. Special thanks go to Dr. Chris Rahman, with whom I had the pleasure of exchanging ideas and conversations on every imaginable topic during our walk home together. To Ms. Myree Mitchell- administrator extraordinaire, I thank her for her assistance, generosity and delicious cakes. I would like to thank Professor Bill Edeson, Dr. Transform Aqorau, Dr. Warwick Gullet, and Mr. Glenn Sant for their insightful explanation on fisheries-related policy and issue. At ANCORS, I have the privilege to meet my fellow colleagues of various nationalities, particularly Adham, Wayne, Pakjuta (Nang), Ben, Dr. Débora, Kamal-Deen, Dr. Kresno, Philimon, Joytishna, Dr. Daisuki, Lorelei, Josie, Quentin, Arief, Filimon and my compatriot, Hazmi Rusli. I am most grateful to my officemates – Dr. Lowell Bautista and Dr. Jane “she works hard for the money” Mbendo- for their unconditional friendship, constant encouragement and for the lift home. My appreciation also goes to I Made Andi Ansana for assisting me in preparing the maps in the thesis. To my fellow students and friends at ANCORS, thank you for the “substantial” time we spent together (e.g. dinner, picnic, BBQ to swimming at the beach). Outside of ANCORS, my sincere appreciation goes to several individuals for assisting me towards the completion of the thesis. Dato Junaidi Che Ayub, Mr. Abdul Rahman, and Mr. Ganesan from the Fisheries Department of Malaysia. Ms. Maryam Mohd Isa, Mr. Abu Talib Ahmad and the staffs at MFRDMD-SEAFDEC. At the office of Fisheries Research Institute, Sarawak Branch, many thanks to Mr. Albert Chua Gambang, Mr. Hadil Rajali, Ms. Annie Lim, and Mr. Richard Rumpet. To Mrs. Noraisyah Abu Bakar from Tuna Development and Business Centre, for providing me with the latest tuna iii statistical data. To Mr. Rayner Datuk Stuel Galid and Mr. Mohd. Yusoff Abdullah from the Sabah Fisheries Department, for supplying me with the relevant information on Sabah fisheries. To Mr. Leo Pedavoli, for his patience and time in proof reading my thesis. I wish to thank Lt. Col. (rtd) Ahmad Ghazali Abu Hassan for setting aside his hectic schedule to read and comment my draft thesis. My friends in Malaysia who assisted me with my research, particularly Zulkifli Razak, and Kamarulzamri. In Wollongong, my heartfelt gratitude to Andrew Kanagaratnam and Christine for their friendship and sincerity, as well as constant supply of Malaysian food and invitation to BBQ parties at their home. My Singaporean friends, Hairuddin, Rudi and Adawiyah, Auntie Nadimah and Uncle Rahman, for their generosity. I am also indebted to all Malaysian students and their family living in the “Gong,” especially Muaz Kamel, Abang Arif, Fathi, Mohamed, Abang Zainal, Mat Ithnin and Abang Azizul. I also would like to express my appreciation to the Malaysian military officers whom I met in Wollongong, namely, Cdr Samsuri, Shahriman, Yusne, Badarudin, Saiful, Rosli, Azian, Jamsari, Abdullah, Michael Stevenson, Arjun, and Anuar. Their friendship and assistance in times of need are greatly appreciated. To all Anis “clan,”