CHAPTER TWO
INTERNATIONAL AND REGIONAL INSTRUMENTS RELEVANT TO FISHERIES/ABALONE POACHING AND IMPORTANT SOUTH AFRICAN ENACTMENTS RELATING TO FISHERIES /ABALONE POACHING
The study focuses on abalone, which is one of the many marine resources, the exploitation of which is governed by both international instruments and national laws in this regard.
2.1 International instruments and protocols governing protection of marine life.
2.1.1 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
In 1973, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was implemented at a members’ meeting of the International Union for Conservation of Nature (IUCN). CITES lists 30 000 species, 5 000 Fauna and 25 000 Flora from across the world. South Africa is a member country of CITES and signatory since 31 March 1975. CITES is not International law, and the CITES secretariat can only advise, make requests to, or influence countries.12 Each country creates its own law to give effect to CITES. At present 176 countries are signatories to CITES.
Although the extent of compliance varies, in terms of the Convention, States that refrain from taking measures to protect endangered species are subject to growing international pressure, which can ultimately lead to trade sanctions being imposed on these States.13
CITES lists species in danger of extinction in three Appendices. Appendix 1 deals with species threatened with extinction and are offered full protection under the Convention. Appendix 1 species are prohibited for commercial trade. Species in Appendix II are not necessarily endangered with extinction, but could be threatened by unlimited Trade. Commercial trade in Appendix II species is thus permissible, but closely controlled.14
TRAFFIC has recommended that South Africa consider listing perlemoen under Appendix III, which includes species that are protected in at least one country, which has requested other CITES participants to contribute in trade control. By listing perlemoen under Appendix III, South Africa could ask its neighbouring countries to forbid the export of perlemoen that do not have a CITES export permit. Consumer nations, in turn, would be entreated to inhibit the import of abalone consignments without a CITES export permit.15
South Africa categorises its endemic abalone species, Haliotis midae, under Appendix III of CITES. The country thus has taken a conclusive step towards stemming the illegal harvesting of and trading in abalone. The listing, with effect from 3 May 2007, stipulates that all consignments of Haliotis midae, have to be supported by CITES documentation in international trade.16
At present Haliotis midae is being illegally poached to a great extent, causing its population to decrease at an alarmingly rapid rate. Fishing abalone has proven to be a profitable trade, and it is not likely that even a complete ban on fishing would end the illegal poaching. South Africa would benefit from listing the abalone with CITES because it would thereby require the assistance of other countries in ensuring the legality of shipments.17
As stated above, species can be listed in three Appendices. Commercial trade is prohibited for species listed in Appendix I. Limited commercial trade is allowed for species in Appendix II, and both an export permit and an import permit are required. In the case of species in Appendix III, only an export permit and a certificate of origin are required. CITES permits are issued in South Africa, either by the provincial conservation authorities or by the Department of Environmental Affair and Tourism (DEAT).
Whereas listing a species in Appendices I and II requires a decision by the member countries, a species can be unilaterally placed on Appendix III provided certain requirements are met. Haliotis midae was listed in CITES Appendix III by South Africa on 3 May 2007, but then deleted on 24 June 2010.18
TRAFFIC reported that the de-listing of the species from CITES in 2010 was because of South Africa’s failure to implement the listing effectively as well as the lack of vigilance and awareness both among the neighbouring countries through which the poached abalone is laundered and in various other significant importing countries.19.20 Until very recently, South Africa incorporated the CITES in provincial laws. The reason for this is that in the past, generally speaking, fauna and flora were protected only under provincial and not national laws. An example is the Western Cape Nature Conservation Ordinance 19 of 1974 (as amended in 2000) which incorporates Appendices I and II (but not Appendix III) into certain provisions.
2.1.2 the 1982 Convention on the Law of the Sea
The First United Nations Convention on the Law of the Sea in 195821 resulted in vague conservation measures for high-sea living resources. It was ultimately deemed a failure since none of the nations which fished the high seas became parties to the Convention.22 A Second Convention took place in 1960, but did not make any significant advances on the First Convention.23 In 1982, the United Nations held its Third Convention on the Law of the Sea in Mont