INTRODUCTION

On the eve of independence in March 1990, Sam Nujoma, president-elect of a soon to be independent Namibia, asked all foreign fishing vessels to leave Namibian waters (the 200 nautical miles Exclusive Economic Zone). Those fishermen who did not heed the warning were arrested, prosecuted and, in some instances, their vessels were confiscated.1 This ended the plundering of Namibian fish resources by foreign, mainly European, distant-water fleets that had been going on since the 1960s. It was said at the time that the expulsions and installation of a strict management regime had come just in time. Scientists pointed out that another two years would have resulted in the Hake fishery (the most valuable) being fished down to stock levels that would have been irretrievably beyond recovery. In taking such action, Namibia was doing no more than exercising its sovereign rights over resources in its declared Exclusive Economic Zone (EEZ) under the 1982 United Nations Convention on Law of the Sea (UNCLOS III).

In this article, some issues of marine EEZs are addressed, as defined under UNCLOS III, in the context of four Southern African coastal states, namely Angola, Namibia, South Africa and Mozambique. The potential opportunities that can be derived by the individual countries for economic and social advancement from exploitation of resources in their EEZs are discussed, as well as the problems of asserting these rights in practice.

BACKGROUND

The 'freedom of the sea' has been a historic principle of customary international law from the time of Grotius's 'Mare liberum' in 1608. Grotius proclaimed that "the sea was limitless and could not become the possession of anyone but was, by nature, suitable to the use of all." This notion persisted until the signing of UNCLOS III in 1982. Under this Convention, which came into force in November 1994, coastal states can claim and establish jurisdiction in the form of 'sovereign rights' in the area 200 nautical miles (nm) out seaward from the baseline (the lowest line to which the water of the sea recedes during periods of ordinary spring tide) as an Exclusive Economic Zone. In this zone, the coastal state has 'sovereign rights' for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non living, of the water above to the seabed and of the seabed and its subsoil.

MARITIME ZONES

Under international law, four categories of maritime zones can be distinguished: internal waters, territorial sea, contiguous zone and the EEZ/continental shelf.

Internal waters

Internal waters are those which are landward of the baseline. These include estuaries, river mouths, points and bays, where these have been closed off. Internal waters are assimilated into national territory and are subject to the control of the coastal state.

Territorial waters

Under UNCLOS I of 1958, it became accepted that coastal states could claim a territorial zone of 12 nm. In this zone the coastal state can exercise complete sovereignty just as on its land area. The laws of the state in question are fully applicable in this zone. The only exception to the rule is that foreign vessels have a right of 'innocent passage' through the territorial sea.

Contiguous zone

International law provides for coastal countries to declare an additional 12 kilometres immediately seaward of the 12 nm territorial zone to a total of 24 nm. This is the zone called the contiguous zone. While a coastal state cannot make laws in this zone, it can enforce its customs, fiscal, immigration and health laws in the zone. But the contiguous zone does not constitute part of the coastal state's territory.

Exclusive Economic Zone and the continental shelf

Using the UNCLOS III Convention, coastal states can declare the area covering 200 nm from its baseline out seaward, as an EEZ. In this zone the coastal state exercises sovereign rights over all resources. It also has jurisdiction over the construction of offshore structures and scientific research, and has a right to protect and preserve the environment. Allied to the concept of the EEZ is the doctrine of the 'continental shelf', reaffirmed in UNCLOS I of 1958. The continental shelf is the shallow platform adjacent to the land mass to the 200 m isobath (depth line). The doctrine originated with the 1945 Truman declaration. Under this declaration, the United States proclaimed its continental shelf, which in the case of the eastern seaboard extended to as far as 250 nm, exclusive for its exploration and exploitation and subject to its jurisdiction and control. Apart from the depth line, the concept also includes the criterion of exploitability, leaving the extent of the legal continental shelf open-ended. The concept of the continental shelf grants coastal states sovereignty over natural resources in the shelf or as far out as they have the ability to exploit the resources. Because the physical shelf does not always coincide in size with the 200 nm boundary, this doctrine has resulted in an overlap in the two regimes. What is important to note is that the UNCLOS III EEZ regime does not supersede the continental shelf doctrine, but merely complements it. In practice, countries choose to ratify the regime that would best serve their interests. For example, South Africa has not declared an EEZ (although it declared a 200 nm exclusive fishing zone). Instead, it has ratified the Geneva Convention on The Continental Shelf (see Map elsewhere). In this sense, South Africa's Territorial Waters Act deems the continental shelf to be part of the Republic and provides that, in so far as exploitation of natural resources is concerned, South African law will apply in this area. For example, mining legislation that applies to the part of the country immediately adjacent to the continental shelf, will also apply to the continental shelf. It deems the continental shelf to be unalienated state land for this purpose.2

CONCEPT OF EEZS

Larson3 points out that the primary impetus for the development of the concept of EEZs can be traced to President Truman's presidential proclamations (No 2667 and No 2668 of 1945). These asserted US jurisdiction over the continental shelf beyond the territorial seas for reasons of oil and gas explorations and exploitation (2667) and fisheries conservation (2668). Other countries followed these initiatives, and it led to the eventual codification of a 200 nm EEZ in the Informal Composite Negotiating Text (ICNT) of UNCLOS III. The actual UNCLOS III Convention of 1982 moved beyond mere codification, as was the case under the previous customary international law, and legislated new international law for seventy per cent of the earth's surface, the seabed and airspace in a single comprehensive convention. For fisheries economists at the time, establishment of EEZs was a very welcome development, as they felt that international fisheries were afflicted with a particularly virulent problem concerning common property, in which there were not just many fishermen, but also many states competing for the same resource.4 It was felt that enclosure of these global commons by individual coastal states would improve both the management and economic efficiency of fisheries exploitation.

INNOCENT PASSAGE

The historical maritime powers, such as the US, USSR and Britain, were determined during the negotiations of the Convention that freedom of navigation on the seas should be maintained. Larson5 points out that this insistence was partly for strategic and ideological reasons: the US and USSR had the biggest navies and therefore desired some flexibility of action in all the maritime zones apart from the high seas. Thus one of the obligations of the coastal state is that it should allow the 'innocent passage' of merchant ships, warships and submarines (if they navigate on the surface) through all these zones. Passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal state.



The Waters Surrounding South Africa and Oceanographic Information Related to the South African Marine Resource6

Furthermore, the coastal state may take the necessary steps in its territorial sea to prevent passage that is not 'innocent'. The problem with all these requirements for innocent passage is that the determination of what is 'innocent', is left to the coastal state. Such determinations may therefore become subjective, arbitrary and discriminatory.

RESOURCES IN THE ZONES OF SOUTHERN AFRICAN STATES

Fish is probably the most valuable resource currently being exploited from the seas by the Southern African coastal states. Estimates of the Food and Agriculture Organisation (FAO) of the UN of potential production (see Table elsewhere) show that not all the countries of the region are fully exploiting their marine fish resources. Apart from fish resources, EEZs of all the coastal countries in Southern Africa contain other forms of resources, such as oil, gas, and minerals. In the 1980s, the Cabinda oil fields accounted for ninety per cent of exports, fifty per cent of state revenue, and thirty per cent of the Gross Domestic Product of Angola. In Namibia, a major area of potential expansion, apart from fisheries, is the off-shore Kudu gas fields. In Mozambique, off-shore gas has been found in Pande, Temane and Buzi in the south and centre of the country. In Pande, confirmed reserves have been put at 40 billion m3.7 South Africa has gas, oil and minerals in its continental shelf. Of the countries in the region, only South Africa and Namibia are currently involved in offshore diamond mining on any large scale.8 Namibia has probably the richer and larger deposits although both have significant amounts.

BENEFITS AND BURDENS OF EEZS FOR DEVELOPING COUNTRIES

On the economic front, the coastal state enclosure revolution of the 1970s and 1980s was viewed as being in line with the New International Economic Order that developing countries were demanding. More so in the sense that UNCLOS III put heavy emphasis on 'permanent sovereignty' over natural resources.9 The convention had given developing coastal states a powerful legal weapon with which to resist what they regarded as manifestations of neo-colonialism by developed countries through their 'distant-water' activities (such as fishing, navigation and scientific research off the coasts of other states). Under UNCLOS III such activities would now be subordinated to the coastal state's jurisdiction. In practical terms the new order on the seas presented developing countries with an opportunity to conserve fish stocks off their coasts which were increasingly threatened with over-exploitation through the activities of distant-water fishing fleets, mostly belonging to developed nations. Possibilities to explore and exploit other resources which could be found in the zones, had also suddenly become a reality.

Despite the expected benefits from claiming jurisdiction over the various maritime zones up to a 200 nm EEZ, such jurisdiction usually places an extreme burden on the capabilities of developing nations to enforce it. Niekerk11 points out that the maintenance of such an Exclusive Economic Zone – as defined in international law – through policing, law enforcement and conservation measures, can impose a financial burden that the claimants might consider not to be commensurate with the benefits to be derived. Niekerk further points out that, while few nations would ignore their rights, developing nations are unlikely to attach high priority to maritime policing, unless the resources endowed to them under the terms of UNCLOS III, are being plundered to the detriment of domestic income. Even then it would not be worthwhile to attempt to protect those resources from exploitation by foreigners if the cost of doing so exceeds the perceived benefits. Mills12 points out that in a maritime sense, the importance of resources and their exploitation is linked to the safeguarding of the EEZ created under UNCLOS III. Problems in fisheries clearly manifest this point.

FISHERIES AND THE CONVENTION

The coming into force of UNCLOS III in November 1994 reaffirmed the benefits of the Convention, while at the same time raising the profile of the obligations of coastal states. While Article 56 of the Convention establishes the foundation of the rights of the coastal state, Articles 61 to 68 provide the framework for the management of fisheries in the zone. The rights of the coastal state are balanced with two obligations: conservation of the resource, including its habitat, and ensuring the optimal utilisation of the resource by allocating the surplus to national needs to third parties. At the same time, Article 73 gives the coastal state wide-ranging powers, stating that "in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resource in the zone, the coastal state may take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this convention."

Although the Convention was careful not to give coastal nations sovereignty over these EEZs in order to guard against short term national interests or advantages as opposed to long term international interests in resource conservation, the trend among coastal nations has been to assert jurisdiction and proprietary rights over the EEZ in their legislations.13 Such practice has implied that in these countries' view, the content of the concept of 'sovereign rights' includes full or absolute authority. Thus in the zone, coastal states usually exercise virtual sovereignty because they have primary jurisdiction over the resources to be found there, albeit oil, gas, minerals, or fish. This is done under the aegis of protecting and conserving their resources in their national economic interests. Furthermore, Article 62 of the Convention endows the coastal state with broad powers in imposing terms and conditions. It is up to the coastal state to determine the Total Allowable Catch (TAC) and to determine its own capacity to harvest. There are no compulsory dispute settlement provisions in relation to the coastal state's powers and abilities to determine the TAC or its ability to harvest. Where the coastal state has 'created' a surplus, it is not obliged to provide access to it free of charge. Indeed, the normal practice of coastal states has been to sell fishing rights to foreign vessels. For example, Namibia charges quota fees that are graduated according to the size of share ownership between foreigners and Namibians, and based on whether the fish is landed fresh or frozen.14 The higher the Namibian share ownership in a vessel or company, the lower the quota fees (100 per cent of the quota levy if you are 100 per cent foreign, 50 per cent if the company or vessel is half Namibian owned, and only up to 25 per cent if the company is purely Namibian owned). Fresh fish quotas attract lower fees than frozen fish quotas, as this helps to create employment opportunities on land in the processing sector.

South Africa's draft National Marine Fisheries Policy expresses a commitment that research and management of marine resources shall be in accordance with the specifications of the Convention on Law of the Sea (A1.10.1), and also includes provisions for the allocation of access rights to foreign vessels (2.10):

Unauthorised fishing by foreign vessels within South Africa's EEZ will be prohibited (2.10.1).



No marine resources or part thereof will be made available for utilisation by any foreign interest (2.10.2).



Notwithstanding the above, and in cases where inadequate local capacity exists, joint ventures with foreign companies, where the majority beneficial interest is SA, will be allowed providing that the fish are landed and processed (unless specific exemption is granted) in South Africa and that not less than 80% of employees are South African nationals (2.10.3).

Straddling and highly migratory fish stocks

Under the 1995 draft agreement on straddling and highly migratory fish stock, states will be legally bound to conserve and sustainably manage high seas fisheries.15 The agreement includes provisions to ensure compatible conservation and management measures between high seas areas and coastal zones under national jurisdiction. Other provisions of the agreement establish detailed international standards for conservation and management of fish stocks. It also includes effective measures for compliance to these provisions and their enforcement on the high seas.

SOUTHERN AFRICAN STATES AND MARINE FISHERIES

Unlike other resources, such as oil and minerals, fish is a fugitive resource. Articles 63 (transboundary stocks) and 64 (highly migratory stocks) specify that, as long as fish are within the 200 nm zone, the coastal state has full authority over their capture and disposition. Once they leave the zone, either of their own volition or having been captured, the rights of the coastal state would come to an end. The Convention requires therefore, that an offender is caught in the act or with fish within the zone for the coastal state to take legal action. The 1995 agreement gives coastal states a legal flexibility to make arrests on the high seas if someone commits an offence, whether it is inside the zone or on the high seas. Canada's unilateral action in arresting Spanish trawlers outside its 200 nm EEZ in 1994,16 might have set a precedent for future action by states under this Convention. The necessity for a coastal state's heavy and continued presence within the zone, both as a deterrent and also to effect arrests that could be sustained in a court of law, will not be diminished by this latest agreement. In general, the efficient maintenance of an EEZ entails a sound monitoring, control and surveillance (MCS) system.

A SURVEY OF THE PROBLEMS IN SOUTHERN AFRICA

Since the 1980s, Angola has had licensing and joint venture agreements of varying complexities with foreign fishing vessels from Russia, Cuba, Spain, Portugal, Italy and Nigeria operating in its waters.17 These foreign vessels take an estimated eighty per cent of the catch. Under some of the agreements, foreign vessels are supposed to land thirty per cent of their catch in Angola. But only a very small portion of this agreed percentage is actually landed, as Angola has been unable to regulate the activities of fishing vessels in its waters, especially during the years of civil conflict.

Namibia had similar problems prior to its independence. In the 1970s, the International Commission for the South Atlantic Fisheries (ICSEAF) attempted to regulate the exploitation of hake and other species off the Namibian coast. The Commission was only partially successful, mainly because of insufficient surveillance.18 Another part of the problem was that South Africa was ruling Namibia (then South-West Africa) against the UN mandate. Although South Africa attempted to restrict fishing off the Namibian coast by declaring a 200 nm exclusive fishing zone on 1 April 1981, it could not enforce its jurisdiction, because the nations whose vessels were operating in Namibian waters refused to recognise the South African backed administration in Windhoek. This poker game continued until Namibia's independence. It was only after independence on 10 July 1990, that Namibia was able to impose a 200 nm EEZ and assert its authority over exploitation of fish resources in its waters.

In Mozambique, internal conflict had hampered the country's ability to control the activities of fishing vessels in its waters. Enforcement of regulations and control over the activities of foreign vessels have mainly been through sea-going observers on board these vessels and land-based observers. This kind of monitoring system is usually not very effective, as the observers onboard these vessels can be bribed. Foreign vessels may also transfer their catch to sister vessels at sea to carry it back to their home country ports without first landing the catch in Mozambique. This system seemed to have been determined largely by what Mozambique could afford at the time in terms of financial, technical and human resources.

While South Africa has generally been successful in imposing its jurisdiction over its waters since it declared a 200 nm Exclusive Fishing Zone on 1 November 1977, there are still reports of infringements from time to time. Walker19 reported that fishing by foreign trawlers in South African waters, particularly Taiwanese and Korean vessels, was reaching crisis proportions and that fishermen were becoming disillusioned with the inability of the authorities to police South African territorial waters. In August 1992, Walker reported again about Taiwanese boats caught with gill nets onboard during a routine inspection while they were berthed in Cape Town harbour. The most recent case is that of a potential fishery for Patagonian tooth fish said to be found around Prince Edward and Marion Islands, eight days steaming away from Cape Town. Fishing companies have been pressuring fisheries administrators for licenses to start exploiting the fishery, arguing that foreign vessels are already illegally exploiting the resource, since South Africa has no air or sea patrols in the 200 nm fishing zone surrounding the island.20 While these reports might, to an extent, be driven by commercial self-interest, they at least point to the fact that even South Africa is still not completely rid of problems concerning illegal exploitation of resources in its waters.

MONITORING, CONTROL AND SURVEILLANCE SYSTEMS

Where fisheries are concerned, the whole area of an EEZ will not be productive. It is usually the continental shelf or small pockets of areas, where there is a high nutrient circulation, that will have high fish productivity. For example, of the 560 000 km2 area of Namibia's EEZ, only 230 000 km2 is the productive shelf. For Mozambique, only ten per cent (100 000 km2) of the total 1 000 000 km2 of its EEZ is productive. Due to the ocean current systems, the west coast of South Africa is much more productive than the east coast. Thus, when setting up MCS systems, the individual countries have to mark out the geographical priority areas.

The main guiding principle in setting up an MCS system is that the cost of the system should be lower than the value of the resource.21 Fisheries administrators therefore have to be aware of this principle when selecting a regulatory measure or set of measures for a fishery.

Namibia

The case of Namibia is a good example of this principle. When the country had to set up a new MCS soon after independence in 1990, the cost and benefits had to be considered.22 The country has a large and valuable fishery resource, because the sea off Namibia has exceptional biological productivity due to the upwelling of nutrients resulting from the Benguela current. The state could therefore derive a sizeable amount of revenue from the fishery. This justified the establishment of a sound MCS system. In the financial year 1993/94, revenue from the fishery was in the order of N$90 million. At the same time, expenditure for the fisheries administration was approximately N$35 million, giving a comfortable margin.23 A large amount of the expenditure is for surveillance activities (sea and air patrols). Hersoug and Paulsen caution that the rosy picture of Namibia's MCS system is partly due to the fact that grant and development aid money is not taken into consideration in the present equation and that the system is still in its development stage with more staff needed to make it fully functional. If all these factors are taken into consideration, the positive expenditure margin would be greatly reduced, pointing to the fact that MCS systems are expensive to establish and run.

Angola

The civil war has been the most destabilising factor in the economy of Angola. Fisheries development has been similarly affected by the years of conflict. The FAO24 estimated the potential unrealised production from Angolan waters to be in the order of 650 000 tons. Of this, eighty per cent is pelagics, while shrimp resources are estimated at 15 000 tons. It has been cautioned that the pelagic resource might not be that valuable and its exploitation would require a sizeable investment in infrastructure. As the fisheries administrators try to get things in order so that the country can start to derive benefits from its fisheries resources, setting up an MCS system will be one of the priorities. Lessons learned from Namibia and a precautionary approach will be essential in this regard.

Mozambique

Fisheries is an important component of the economy of Mozambique. Crustacean catches mainly exported to Spain, Japan and South Africa, contribute 55 per cent (US $70 million) to the country's export value. These are mainly caught by foreign industrial vessels. Very little data exist on the amount and value of the catches from the artisanal fishery, which is spread along the coast covering 2 500 km. The contribution of the artisanal sector to the economy is therefore not well appreciated. The fish potential of its known productive areas – Sofala and Boa-Paz banks, the small continental shelf and the narrow coastal zone – is estimated to be in the region of 200 000 tons. As the country tries to restructure its economy after twenty years of civil strife under the auspices of the International Monetary Fund and the World Bank (since 1995), it has opted for a minimum fisheries administration strategy.25 Under this strategy, Mozambique concentrates its MCS activities on the industrial and semi-industrial sectors which, in economic terms, are seen to be the most important. The artisanal fisheries have been left largely unattended.

South Africa

South Africa has an MCS system that combines sea and air patrols and onshore monitoring. It has been quite successful after South Africa's declaration of a 200 nm Exclusive Fishing Zone in 1977. It resulted, among others, in the recovery of the Hake fishery which had been decimated by foreign vessels in the 1960s and 1970s. Fuggie and Rabie26 point out that the emotional and irrational public outcry against 'foreigners' pillaging the country's resources has no basis apart from the occasional incursions.

Successful MCS systems

One of the reasons for the success so far of the MCS systems in Namibia and South Africa, is that their fishing industries are mainly industrial, dominated by few fishing units, and operating mainly offshore. It has thus been relatively easy to control these activities. What is common in both countries is the conspicuous absence of an artisanal fishing sector. In the case of Namibia, there has been no communities that historically lived along the sea coast. Namibians do not seem to be seafarers. In South Africa, local coastal communities were systematically kept out of the industry through apartheid policies. While the situation is not expected to change in Namibia, the increasing pressure on the South African Government to award greater interest in the fishery to formerly deprived coastal communities under the Reconstruction and Development Programme (RDP), will result in the creation of a small scale fishing sector. Depending on its form and the way in which the sector comes into being, its emergence might result in increasing the workload and the cost of the MCS system. Hersoug27 warns that, if the resistance to re-distribution from big fishing companies and their organised labour is allowed to prevail, 'illegal' fishing will flourish. In other words, if the unorganised fishermen and the coastal communities in general feel that nothing has been done to redress the former injustices regarding the contentious issues of access rights and re-distribution, they will consider the whole process of developing a new fisheries policy to be illegitimate. The dashing of the high expectations they had for change and redress will result in increased 'poaching'. This would drastically increase the cost of MCS activities.

Angola and Mozambique have artisanal sectors. As pointed out in the previous paragraph, the increasing calls from formerly disadvantaged racial groups in coastal regions for broader participation in the fishery is likely to result in a flourishing artisanal sector in South Africa. Because of the main characteristics of artisanal fisheries (among others, multiple units which are geographically spread out), they are usually very difficult to regulate by direct administration from fisheries authorities. These difficulties are multiplied if the fisheries administration loses its legitimacy in the eyes of the fishermen. As a result, community-based approaches are advocated as offering more hope. This is increasingly becoming a common phenomenon around the world. Thus in Angola, Mozambique and also in South Africa in the future, two approaches are likely to be appropriate in regulating marine fisheries: community-based approaches for the inshore artisanal fishery, and MCS systems based on sea and air patrols for the offshore industrial fishery.

REGIONAL CO-OPERATION

In the 1950s and 1960s, attempts were made at international management of fisheries through the establishment of international commissions. In Southern Africa, such a commission was the International Commission for the South East Atlantic Fisheries (ICSEAF). Its area of jurisdiction was the sea off South Africa, Namibia and Angola. But the work of such organisations was generally deemed to be unsatisfactory by most coastal states, because they failed to regulate the activities of distant-water fleets. For example, management responsibility for the resources and the regulation of fisheries in Namibia, until independence, was divided between the South African administration for inshore fisheries and ICSEAF for offshore fisheries. Since the functioning of the ICSEAF regime was based on voluntary co-operation, the reality of the situation was that fishing was unregulated for distant-water fleets.28 The result was that by the time of Namibia's independence in 1990, the resources were effectively fished down. Comparable stock depletions under the management regimes of similar international commissions for other regions had also occurred in the 1960s and 1970s. It is said29 that this was one of the major factors that precipitated coastal states to extend their fisheries jurisdictions to 200 nm years before the 1982 UNCLOS III Convention. With Namibia finally declaring sovereignty over resources in its 200 nm zone (Angola and South Africa had declared theirs in 1975 and 1977, respectively), the work of ICSEAF became redundant.

Article 197 of UNCLOS III stipulates that there shall be co-operation, global or regional, for the protection and preservation of the marine environment, taking into account the characteristics and regional features. In the context of Southern Africa, such co-operation is envisaged in two areas: research and MCS activities.

Research and scientific collaboration

On the west coast, South Africa and Namibia have similar kinds of fish stock, due to the influence of the Benguela current, while on the east coast, the stocks in Mozambican and South African waters tend to be similar, due to the influence of the Agulhas current. Namibia and Angola will also have similar stock in the waters along their boundaries. In the maritime boundaries (the 'grey areas') of neighbouring states, stocks will usually be common to the neighbours, as fish do not know or respect political borders. A typical example, with enormous economic implications, was the 1994 Pilchard stock migration from Namibian waters north into Angolan waters. This followed adverse environmental conditions in Namibia's waters (low oxygen, upwellings of sulphur from the seabed and unusually warm water), that led to huge shoals of Pilchard migrating north. Namibia had to reduce the Pilchard Total Allowable Catch (TAC) from 125 000 tons to 35 000 tons for 1995.30

Logic would thus call for joint research programmes and management strategies, information exchanges, and general scientific collaboration. In cases such as the Pilchard migration, agreements on joint exploitation could be appropriate.

MCS activities

Another area of possible collaboration is in the area of MCS activities. This might be in pooling information, or might extend further to the policing of the EEZs. Namibia and South Africa have an agreement, concluded on 22 March 1991, for mutual assistance in enforcement activities against violators of the fishing laws of either country.31 The thrust of the agreement is that the government of one country could be called upon to assist in apprehending or escorting offending vessels in the fishing waters of the other, or in its own fishing waters for that matter. The agreement further states that neither government will render any assistance whatsoever to any vessels that are or have been involved in catching fish illegally in the waters of either state, and that each government, upon notification through the normal diplomatic channels, will grant to the other the right to pursue and apprehend these vessels if and when they escape into its fishing waters. The agreement arose from the need for co-operation following the arrest of three Spanish vessels allegedly found illegally fishing in Namibian waters in March 1991. South Africa helped in effecting the arrest of the offenders. Clearly, there is scope for collaboration between other neighbouring countries: Angola /Namibia and South Africa/Mozambique could sign similar agreements. Such bilateral agreements seem more plausible at this juncture, than a regional MCS system, as has been suggested by an official of the South African Ministry of Foreign Affairs after the signing of the agreement with Namibia.

Regional MCS system

The decision to establish regional MCS systems beyond a country's national system would depend on several factors. Flewwelling32 suggests that these factors could include:

the political will of the states involved;



common interests which mean that the individual countries would benefit from such a liaison;



common language and cultural ties;



differences in economic situations of the different countries; and



cost-sharing arrangements.

Based on these factors, each country has to balance its own advantages and disadvantages prior to making a commitment to regional co-operation. Each country will have to be aware that such international co-operation will not abrogate it from its responsibility to establish appropriate internal structures to address its own fisheries MCS needs. In the context of Southern Africa, one can envisage problems stemming from differences in economic status, differences in the value countries attach to fisheries, unequal interests and different priorities of the individual states in a possible proposal to establish a regional MCS system. Angola and Mozambique are just emerging from years of bitter and economically destructive civil wars. Their priorities are to get their houses in order. This might hamper their ability and willingness to participate in such larger schemes.

The 200 nm Convention brought tremendous optimism in many countries that acquired large fishing zones. Along with the potential for enhanced economic benefits, the Convention also brought with it responsibilities for coastal states in the utilisation of resources in the EEZs. Experience in many developed countries shows that the optimism has been misplaced, as fisheries management systems have not utilised the opportunities created by the new 200 nm regimes. As tension subsides and attention turns to issues of economic development, the coastal states of Southern Africa would do well to take the lessons learned by other countries and regional groupings in this regard, seriously.

ENDNOTES

Fishing News International, May 1991.



R F Fuggie and M A Rabie, Environmental Management in South Africa, Juta, Cape Town, 1992.



D L Larson, Security, Disarmament and the Law of the Sea, Marine Policy, 3(1), Butterworth, Oxford, 1979.



D McRae and G Munro, Coastal State 'Rights' within the 200-mile Exclusive Economic Zone, in P A Neher, R Arnason and N Mollett (eds), Rights Based Fishing, Kluwer Academic Publishers, Dordrecht, 1989.



Larson, op. cit.



SA Commercial Marine Magazine, August 1996.



African Development Bank, Economic Integration in Southern Africa, 3, Biddles, Oxford, 1993.



G Mills, Insecurity and the Developing World: The Maritime Dimension, in G Mills (ed.), Marine Policy for Developing Nations, SAIIA, Braamfontein, 1995.



C Ogley, The Law of the Sea Draft Convention and the New International Economic Order, Marine Policy, 5(3), Butterworth, Oxford, 1981.



Note that Mozambique and South Africa declared 200 nm exclusive fishing zone rather than an EEZ; to cover the other resources offshore they use the Geneva Convention on The Continental Shelf. Estimates of potential production are from J P van den Bossche and G M Bernacsek, Source Book for Inland Fishery Resources of Africa, 1, Rome, FAO, 1990.



H Niekerk, The Implications of the UN Conference on the Law of the Sea 1982, in Mills op. cit.



Mills, op. cit.



McRae and Munro, op. cit.



T Minney, Fishing for Namibia, Namibia Foundation: Namibia Brief, 18, 1994.



M Gill, UN Straddling Fish Stocks as in Agreement, World Fishing, September 1995.



FNI, Legal Arrest on the High Seas, Fishing News International, 33(6), June 1994.



W A Wilkinson, Country Profile: Angola, World Fishing, 38(13), February 1989.



M Stuttaford, Recovering from the Near Collapse of a Rich Resource, Namibia Foundation: Namibia Brief, 18, 1994.



T Walker, SA Commercial Marine, 2(3), 1990.



T Walker, SA Commercial Marine, 5(2), 1996.



B Hersoug and O Paulsen, Monitoring, Control and Surveillance in Fisheries Management, University of Namibia, Windhoek, 1996; P Flewwelling, An Introduction to Monitoring, Control and Surveillance Systems for Capture Fisheries, FAO Technical Paper, 338, FAO, Rome, 1994.



Hersoug and Paulsen, op. cit.



Ibid.



Van den Bossche and Bernacsek, op. cit.



Hersoug and Paulsen, op. cit.



Fuggie and Rabie, op. cit.



B Hersoug, Fishing in a Sea of Sharks – Affirmative Action in the South African Fishing Industry, unpublished manuscript, Centre For Southern African Studies, Cape Town, 1996.



Hersoug and Paulsen, op. cit.



G Munro and G Pontecorvo, The Taking of Living Things: Expectations and Reality, in The 1982 Convention on the Law of the Sea, Law of the Sea Institute, Honolulu, 1984.



Fishing News International, op. cit.



T Walker, Halt Illegal Fishing in 'Grey' Areas – Call, SA Commercial Marine, 2(2), June-August 1993.



Flewwelling, op. cit.