Emelda’ s Notes

NATURAL RESOURCES LAW NOTES

Contents
Introduction......................................................................................................................................................................
What are Natural resources?.......................................................................................................................................
What is Natural Resource law?...................................................................................................................................
Natural Resources and the Environment........................................................................................................................
THE EXERCISE OF THE REGULATORY POWER.............................................................................................
Sovereignty and natural resources..................................................................................................................................
Permanent sovereignty over natural resources..............................................................................................................
Origin and Evolution of the Principle of Permanent Sovereignty over Natural Resources
(PSNR)...........................................................................................................................................................................
Legal Status of the Principle........................................................................................................................................
Content of the Principle...............................................................................................................................................
Sustainable Development.................................................................................................................................................
The Founex Report.......................................................................................................................................................
The United Nations World Commission on Environment and Development (The Brundtland
Commission).................................................................................................................................................................
The United Nations Conference on Sustainable Development (Rio Conference/ Rio +20).....................................
Legal status of sustainable development.....................................................................................................................
Uncertainties about the nature of sustainable development......................................................................................
Is it a legal principle; and if so, how is it to be interpreted, applied, and achieved by
governments or how to enforce it nationally and globally?...................................................................................
Is it a Principle of Customary International Law?................................................................................................
Fisheries............................................................................................................................................................................
The tragedy of commons..............................................................................................................................................
Zones of Fisheries entitled to Ghana...........................................................................................................................
Fisheries in Pre --1970s................................................................................................................................................
The legal framework of fisheries.....................................................................................................................................
The 1958 Convention on the Continental Shelf..........................................................................................................
The 1958 Convention on the Fishing and Conservation of the Living Resources of the High
Seas................................................................................................................................................................................
The 1982 United Nations Convention on the Law of the Sea....................................................................................
The legal status of the territorial sea, the air space above the territorial sea and its bed and
subsoil........................................................................................................................................................................
The maximum breadth of the territorial sea..........................................................................................................
What forms part of the internal waters of states?..................................................................................................

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The right of innocent passage through territorial sea............................................................................................

Preventing the infringement of the laws of the territorial states...........................................................................
Sovereign rights of the coastal state........................................................................................................................
The continental shelf of a coastal state....................................................................................................................
The high seas.............................................................................................................................................................
The right of hot pursuit............................................................................................................................................
Conservation and management of living resources in the high seas.....................................................................
Shared stocks in the United Nations Convention on the law of the Sea....................................................................
Same stock within the exclusive economic zones of two or more coastal states...................................................
Same stock within the exclusive zone and in areas beyond and adjacent the zone..............................................
Fishing highly migratory species in the UNCLOS.....................................................................................................
Types of such migratory species and their migratory patterns;...........................................................................
Diadromous fish....................................................................................................................................................
Catadromous fish..................................................................................................................................................
Anadromous fishes...............................................................................................................................................
Legal framework of the types of migratory fishes..................................................................................................
Land-locked and geographically disadvantaged states (Rights) -- UNCLOS......................................................
Penalties involved.....................................................................................................................................................
Disputes.....................................................................................................................................................................
Fisheries Act (2202) Act 625........................................................................................................................................
Objectives and Functions of the Fisheries Commission.............................................................................................
Licences under the Fisheries Act.............................................................................................................................
Canoe Fishing- licences........................................................................................................................................
Artisanal fishing – Fisheries Act..............................................................................................................................
Foreign fishing vessels..............................................................................................................................................
Inshore exclusive zone..............................................................................................................................................
Destruction in the inshore zone...........................................................................................................................
Closed seasons...........................................................................................................................................................
Driftnet fishing activities..........................................................................................................................................
Other prohibited fishing methods...........................................................................................................................

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Introduction
What are Natural resources?
Natural resources are naturally occurring materials that are useful to man or could be useful
under conceivable technological, economic or social circumstances; They are supplies drawn
from the earth. Natural resources are material endowments of nature including the geology
and ecology of a particular place where the resources are located. E.g., oil, gas, forestry
products and water.
Simply, natural resources are materials or substances occurring in nature which can be
exploited for economic gain.
What is Natural Resource law?
Natural resource law involves the laws, the regulations and principles that govern the
exploitation, use and management of natural resource politics of natural resource regulation.
The laws here refer to the pieces of legislation, regulation and principles that govern the
exploitation, use and management of natural resources.

Natural Resources and the Environment

Whilst environmental law deals largely with renewable natural resources, natural resources
law will focus on the non-renewable. Natural resources can be renewable or non-renewable.
Article 5 of the 2003 African Convention on Conservation of nature and Natural
Resources defines natural resources as renewable resources, tangible and non-tangible
including soil, water, flora and fauna and non-renewable resources.
Renewable resources are naturally regenerated to provide new supply units within at least
one human generation. They are those resources that are naturally occurring in a particular
boundary and can regenerate itself within a policy period. Non-renewable resources are
fixed resources. They are unable to regenerate themselves in a particular boundary.
Natural resources cannot be manufactured by people and are naturally occurring.
They are however, still subject to restrictions and regulations due to political boundaries-
[Political boundaries are frequently defined as borders constructed and imposed on or around a
geographic territory in order to distinguish between areas of governance. Simply put, a political
boundary is an imaginary line separating one political unit, such as a country or state, from another ].

Natural resource law concerns who have the power to allocate rights of property over such
resources. The regulations found in natural resource law, are means by which natural
resources are allocated among competing uses and users. The power to formulate and enforce
regulation also determines who can determine what natural resources consisted of, as well as
how the resources are distributed. This power to “formulate and enforce regulation” of
natural resources, is referred to as regulatory power.
The Exercise of The Regulatory Power
The exercise of regulatory power over natural resources is done because of a variety of
reasons which are:

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1. Efficiency determination: This involves the determination of the efficient use of a

particular resource.
2. Revenue attainment: To earn revenue out of a certain resource. This may be by way of
taxes or command and control mechanisms.
3. Maximization of revenue accrued
4. Intergenerational equity: This is by virtue of the fact that there are some resources that
are exhaustible. There is therefore, the need to ensure that the future generation
benefit from these re-occurring natural resources.
5. For conservational purposes: This is to ensure that the ecosystem is maintained to
support lives.
An example of the exercise of regulatory power under Ghanaian law can be found at Article
257 (6) of the 1992 Constitution of Ghana [where the exercise of regulatory power is
vested in the President of Ghana]:
(6) Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams,
water courses throughout Ghana, the exclusive economic zone and any area covered by the
territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested
in the President on behalf of, and in trust for the people of Ghana.

The exercise of regulatory power depends on what is called the natural resource matrix,
which is shown below:

Renewable Non-renewable
Boundary Forestry Minerals
Transboundary Fishery Water
NB: Boundary resources are those that occur within a political period/boundary whilst trans
boundary resources extends from one boundary to another. Transboundary resources occur
across political boundaries.
By virtues of the fact that every political boundary has some kind of a sovereign, this system
of regulatory power begins to break down such that, where a particular resource is trans-
boundary, this is likely to generate some kind of conflict in terms of sharing that particular
resource. The regulatory policies of trans-boundary resources are often tackled at the
international level and not the national level; this could be bilateral or multilateral [involving
only two countries or more].

Sovereignty and natural resources

Non- legally,
Sovereignty is the defining authority within an individual consciousness, social construct or
territory. Sovereignty entails hierarchy within the state, as well as external autonomy for
states. The right to sovereignty over natural resources and the right to development are
recognised and protected in an extensive framework of international, regional and domestic
instruments. They guarantee people's entitlement to fully and freely utilise their natural
resources as a means of subsistence and for economic, social and cultural development.

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Legally,
The meaning, scope and contours of sovereignty are extensively debated but have not been
subjected to a precise definition. ‘Traditionally, sovereignty has been identified as having
four main characteristics;’ 
First is the power of a state to exercise supreme authority over all persons and things within
its territory. This also includes the power to legislate on any issue that is within the state’s
jurisdiction. Secondly, sovereignty consists of the capability of a state to ‘regulate movement
across its borders.’ Inherent in sovereignty also is the recognition that the territorial integrity
of a state is inviolable and as such, the state has independence from interference from other
states.
Sovereignty therefore defines the boundaries that protect one state from the intervention of
others. It is generally also considered to be the legal identity of the state in international law,
an equality of status with all other states and the claim to be the sole official agent acting in
international relations on behalf of a society. Lastly, the state is ‘free to make its foreign
policy choices freely.’

Permanent sovereignty over natural resources

The permanent sovereignty over natural resources is denoted as the principle of international
law which was advanced by the international community during decolonization period and
years of independence to the newly independent states and former colonial masters especially
during 1950s, 1960s, and 1970s; it was a declaration adopted by the United Nations General
Assembly at its 17th session. Permanent sovereignty over natural resources has emerged as a
fundamental principle in international law, allowing postcolonial states to assert full
sovereignty or ‘sovereign rights’ over natural resources found within the limits of their
jurisdiction. It states that; The ultimate control over natural resources falls to and remains at all
times – hence permanent - with the state, and accordingly, activities related to their development,
exploitation and utilization are subjected to the state’s national laws.

Origin and Evolution of the Principle of Permanent Sovereignty over Natural Resources
(PSNR)
 One of the earliest references to the principle of permanent sovereignty over natural
resources was its introduction by Chile in the United Nations Commission on Human
Rights (UNCHR) in 1952. The principle would subsequently develop through numerous
resolutions and declarations. 
 One of the earliest formulations of the principle is found in the United Nations General
Assembly Resolution 626 (VII) of 21 December 1952. This Resolution recognised that
countries had a right to determine the use of their natural resources so as to ensure the
realisation of their economic development. 
 In 1958, through UN General Assembly Resolution 1314, the principle would be
recognised as a basic element of the right to self determination. Up until that point the
principle was only enshrined in resolutions concerned with private investment. This,
however, changed after 1958 when the principle became intertwined with issues of
human rights and self determination.

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 This period coincided with decolonisation when developing countries also began to assert
their right over their natural resources as means of generating internal revenue. The newly
independent states were convinced that their independence would only be complete and
effective when they had attained political self-determination as well as effective control
over their natural resources; This mindset was attained because, prior to decolonisation,
private corporations from the industrialised world undertook investments in colonised
countries under very favourable conditions and a significant portion of the proceeds of
those investments found their way back to their home countries. 
 As control over mining industries in developing countries was particularly of great
concern to the underdeveloped countries, the developing countries were quite taken by
this principle as they saw it as a means through which they would gain control over their
natural resources and, consequently, pushed for its promotion in the UN General
Assembly.
 The 1952 Resolution stressed the importance of promoting economic development to
achieve universal peace and that to achieve economic development, it was important that
countries have the right to freely use and exploit their natural resources. 
Following the 1952 Resolution, discussion of the concept took place in several fora
(plural for forum) such as the 9th session of the UN General Assembly Debates in 1954.
 In 1955, permanent sovereignty over natural resources was discussed in the Human
Rights Commission, the Third Committee of the UN General Assembly and the
Economic and Social Council of the United Nations (ECOSOC).
 Six years after the first resolution, the UN General Assembly recognised the right to
permanent sovereignty over natural resources as a basic element of the right to self-
determination through the adoption of Resolution 1314 (XIII) on 12 December 1958. 
 The adoption of this Resolution gave birth to the Commission on Permanent
Sovereignty over Natural Resources which had the task of determining the
nature of the right, the manner in which the right should be exercised and what
measures should be taken into account according to international law.
 The work of the Commission culminated in the adoption by the UN General Assembly in
1962 of Resolution 1803 (XVII) entitled ‘Permanent Sovereignty over Natural
Resources.’
 The Resolution constituted the broadest and most explicit declaration from the
United Nations on the subject. In addition, it was the last resolution dealing
with the concept that was supported by a large majority of states from all
groups concerned, as it embodied a balance between the interests of capital
importing and capital exporting countries.
 The Resolution as a whole was adopted with eighty-seven votes to two, with
twelve abstentions. Like its predecessors, it once again linked the concept to
economic independence and self determination.
 Resolution 1803, among other things, stated that permanent sovereignty over natural
resources must be exercised in the interest of ‘national development and well-being of the
people of the State concerned; that exploration, development, disposition of resources, as
well as capital imported shall be governed by national legislation; and that any

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appropriation of property would be compensated in a manner provided for in national

legislation.’
 From the 1960s, developing countries actively pursued the implementation of the
principle of permanent sovereignty because they perceived this as the mainstay for their
economic development and for redistribution of wealth. 
 After 1962, the debate on permanent sovereignty over natural resources evolved in
various directions, such as; the call by developing countries for the establishment of a
new economic order.
 Following the recommendations of the Second Committee that had discussed the matter
in October 1966, the UN General Assembly adopted Resolution 2158 on 28 November
1966.
 The Resolution emphasized the achievement of maximum development of
natural resources of developing countries and the means to ensuring that the
countries were able to carry on the development of the natural resources
themselves.
 In December of 1966, two other instruments were also adopted and opened for
ratification. These were the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political Rights
(ICCPR).
 Though these two instruments did not directly mention the principle of
permanent sovereignty over natural resources, they stated that ‘all peoples
may for their own ends freely dispose of their natural wealth and resources
without any prejudice to any obligations arising out of international economic
cooperation.’
 In the years following, the concept would be emphasized in Resolution 2626 of 1970 and
Resolution 3171 of 1973.
 In December 1974, the UN General Assembly adopted the Charter of Economic Rights
and Duties of States (CERDS) which was aimed at establishing and improving the
norms of universal application for the development of international economic relations on
a just and equitable basis.
 Among the fifteen principles listed in the Charter, Article 2 recognises and
enunciates the principle of permanent sovereignty over natural resources.
 Again, in 1974, the principle was included in the Declaration on the Establishment of a
New International Economic Order (NIEO) and the Programme of Action on the
Establishment of a New International Economic Order. As Schrijver points out, unlike the
resolutions of the 1960s on permanent sovereignty over natural resources, the NIEO
resolutions were adopted in an atmosphere of confrontation which resulted in them being
adopted with lower votes.
 Outside the UN General Assembly Resolutions and UN based multi-lateral treaties, the
principle of permanent sovereignty also found its way into other instruments.
 The African Charter on Human and Peoples’ Rights (African Charter),
although it does not use the phrase ‘permanent sovereignty over natural
resources’, seemed to recognise the central element of the principle in Article

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21; that is, ‘the right of ‘all peoples’ to ‘freely dispose of their wealth and
natural resources.’
 The 1992 Rio Declaration on Environment and Development, in Article 2, also
recognised the sovereignty of a state to exploit their natural resources ‘pursuant to their
own environmental and developmental policies.’ It places emphasis on the connection of
the principle with its original aim of development. 
The principle of permanent sovereignty over natural resources thus gained widespread
international recognition, allowing it to become an important part of international law on the
utilisation of domestic natural resources. However, the countries who did not want to get
involved became the non-aligned movement.
NB: The permanent sovereignty over natural resources debate was underscored by the
following;
1. Inferior terms of trade and sharp fluctuations in the prices of raw materials which
affected developing economies
2. Promotion and protection of foreign investment
3. Post colonial states had the question whether to start on a clean slate or not
4. Cold war rivalry made for opposing views on permanent sovereignty over natural
resources
Legal Status of the Principle
The trite/ unoriginal sources of international law are treaties, custom and general principles of
international law. The majority of the pronouncements on permanent sovereignty over natural
resources, with the exception of its inclusion in the Human Rights Conventions, are however,
contained not in universal conventions but in UN General Assembly resolutions. This has
resulted in controversy over the legal status of the principle; that is to say, whether it is a
binding principle of international law.
Generally, resolutions of the UN General Assembly are not legally binding
instruments although it has been argued that on occasion, they have created law. While the
UN General Assembly has no legislative powers, it is accepted that international
organisations are a significant forum in which to search for sources of law and the
acknowledgement of the contribution of the political organs to the development of
international law has been even longer in coming. The argument is that, in practice, many of
its resolutions have had effects in and on international law and as a result this broad
construction of the UN General Assembly’s powers is now established and accepted. In other
words, the UN General Assembly resolutions are a reliable source of state practice as a
measure of the acceptance of any principle into international law. According to Onejeme, the
UN General Assembly is ‘today the most universal political organisation and is therefore the
most important forum for measuring the degree of agreement among states in matters of
international relations.’
Outside the UN General Assembly resolutions, the main elements of permanent
sovereignty over natural resources, particularly the sovereign right to make use of natural
resources have found their way into conventions such as the 1966 Human Rights

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Conventions and the 1981 African Charter on Human and Peoples’ Rights. Unlike the
resolutions of the UN General Assembly, these treaties are legally binding on the parties to
the treaties. In addition, the principle has also been recognised in a series of arbitral awards.
Thus, from the above it is clear that the principle has achieved a ‘firm status in
international law and is now widely accepted and recognised as a principle of international
law.’
Content of the Principle
Central to the principle of permanent sovereignty is the right of all peoples and states to
freely dispose of their natural resources within the limits of their national jurisdiction. This
right is contained in every instrument on permanent sovereignty. In the exercise of this right,
states are among other things entitled to regulate the admission of foreign investors, the
methods of exploitation, conduct of the entities engaged in the exploitation and the
distribution of profits. Regarding the meaning of sovereignty in relation to the principle of
permanent sovereignty over natural resources, the term can be generally stated as ‘legal,
governmental control and management authority over natural resources.’ Most of the
resolutions on the right of permanent sovereignty over natural resources state that the use of
natural resources must be undertaken for the well-being of the people.

Sustainable Development
Development broadly refers to desirable social and economic progress. Sustainable
development is broadly defined as: ‘development which meets the needs of the present
without compromising the ability of future generations to meet their own needs’.

The Founex Report

During negotiations for United Nations Conference on the Human Environment, developing
countries viewed the call to convene a conference on the environment as an attempt by the
developed countries to hamper their development. And part of the preparatory process for the
United Nations Conference in the Human Environment was the Founex report.
The 1971 seminar held in Founex, Switzerland and subsequent Founex report played a
critical role in laying the ground work for the 1972 Stockholm conference. Founex report was
the first paper to identify key environment-development objectives and relationships, and
contributed to locating and bridging the policy and conceptual differences that separated
developed and developing countries.
The Founex report attempted to draw a symbiotic/ interdependent relationship between
development and environment and concluded that economic development was the answer to
environmental problems of developing countries. It recommended that in order to address the
environmental problems in these countries, it was necessary to address the underlying causes
of underdevelopment and poverty integrating/ combining environmental policies with
development planning within the overall framework of economic and social planning.

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The United Nations World Commission on Environment and Development (The

Brundtland Commission)
The Brundtland Commission was established in 1983 by the United Nations General
Assembly. It was originally knowns as the World Commission on Environment and
Development. Its main aim was to unite countries in pursuit of sustainable development. The
commission was established to ‘recommend ways to encourage cooperation among countries
especially those at different stages of economic and social development leading to the
achievement of common and mutually supportive objectives that take account of people,
resources, environment, and development’.
Following the United Nations Conference on the Human Environment, the World
Commission on Environment and Development (that is, the Brundtland commission) in 1987
adopted ‘Our Common Future’. Our common future was the report adopted from the
Brundtland Commission and was published in 1987. This report is widely regarded as the
formal beginnings of sustainable development. It developed guiding principles for sustainable
development as it is generally understood today. The report stated that the critical global
environmental problems were primarily the result of the enormous poverty of the South and
the non-sustainable patterns of consumption and production in the North. The Brundtland
Report recognises that meeting essential needs depends in part on economic growth. But
growth is not enough because economic growth could exist side-by-side with poverty where
there is uneven access to benefits. Hence, it was concluded that sustainable development is
about “meeting human needs by increasing productive potentials and also ensuring
equitable access to all”.
The report stated that the pursuit of sustainable development requires:
1. A political system that secures effective participation in decision making; an
economic system that provides the solutions to the tensions arising from
disharmonious development;
2. A production system that respects the obligations to preserve the ecological base of
development; an international system that fosters sustainable patterns of trade and
finance;
3. And an administrative system that is flexible and has the capacity for self-correction.

The United Nations Conference on Sustainable Development (Rio Conference/

Rio +20)
Rio +20 took place in Rio De Janeiro, Brazil, in June 2012. It resulted in a focused political
outcome document which contains clear and practical measures for implementing sustainable
development. The Conference provides benchmarks for defining sustainable development;
they include:
1. The right to development: the right of States to exploit their resources pursuant of the
environmental and developmental policies needs of present and future generations-
Principle 3

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2. The integration of environmental protection into economic development: The need to

ensure that environmental considerations are integral part of economic and other
developmental plans- Principle 4
3. Intergenerational and intra-generational equity: The pursuit of equity in the allocation
of resources in the present generation and between the present and future generations-
Principle 4
4. Cooperation to eradicate poverty: This is linked to the principle of intra-generational
equity which is about fair access by all members of a generation to resources in order
to eradicate poverty. “All States shall cooperate in the task of eradicating poverty
because this is as an indispensable requirement for sustainable development”-
Principle 5
5. Sustainable utilization of natural resources: States should manage and exploit their
natural resources in a manner which is sustainable, prudent, rational, or wise. It
involves regulating production and the consumption of natural resources as well as
promoting appropriate demographic policies- Principle 8
6. Access to information and public participation in decision-making: It requires
effective protection of the human right of expression; the right of access to
information as well as access to effective judicial and administrative procedures-
Principle 10

Legal status of sustainable development

 Sustainable development has been restated in many Conventions and Agreements. And
has been adopted by international institutions like the World Bank and the International
Monetary Fund. It has been invoked by international courts and tribunals. More than sixty
countries across the world have constitutional provisions guaranteeing the right to a
healthy environment or sustainable development.
 Article 24 of the African Charter on Human and Peoples Rights provides that; “all
peoples shall have the right to a general satisfactory environment favourable to their
development”.
o It requires states to take reasonable and other measures to prevent pollution
and ecological degradation to promote conservation and to secure an
ecologically sustainable development and use of natural resources.
o The article obligates governments to desist from directly threatening the health
and environment of their citizens. This largely entails non-interventionist
conduct from the state. The non-interventionist principle is the mirror image of
the sovereignty of States. Simply, it is the prohibition of intervention. For
example; not from carrying out, sponsoring or tolerating any practice, policy
or legal measures violating the integrity of the individual.

Uncertainties about the nature of sustainable development

Is it a legal principle; and if so, how is it to be interpreted, applied, and achieved by
governments or how to enforce it nationally and globally?
 Sustainable development is a legal principle. Sustainable development’s legal nature
is dependent upon two preconditions: its legal scope and its penetration into one of the

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recognized sources of international law. A proposition will have legal scope when it is
formulated ‘with the intention to modify . . . elements of the existing legal order,
or . . . that its implementation effectively achieves this result’. From this standpoint,
sustainable development as a proposition is clearly legal in scope. The Rio
Declaration (the structuring reference for sustainable development), is formulated in
terms of rights and obligations and uses prescriptive language throughout. This also
applies to a large proportion of binding and non-binding documents which include a
proposition relating to sustainable development. Such propositions are mostly
formulated with the intention of producing legal effects within the international legal
order.
Its central pillar is international environmental law. Sustainable development has
elements of a process, an objective and a principle. Judge Weeramantry said in
Gabcikovo Nagymaros Dam’s case that; Sustainable development serves as a
mediating principle which is fundamental in reconciling potentially conflicting
principles of the right to development and right to environmental protection. It also
aids judicial decision and provides the scope for progressive legal development. The
law necessarily contains the principle of reconciliation. That principle (of
reconciliation), is the principle of sustainable development.
Is it a Principle of Customary International Law?
Sustainable development, as an objective, already constitutes a principle of customary
law, even if this principle is a very general one, with a high degree of abstraction and
which requires case by case substantiation.
a. Due to its widespread adoption in legal documents, has sustainable
development attained the status of a principle of customary international law
as recognised in Article 38 of the International Court of Justice treaty1?
 Article 38 of the International Court of Justice treaty ‘describes the law to be
applied by the International Court of Justice when deciding cases within its
jurisdiction’. It is generally considered to be the most authoritative enumeration of the
sources of International Law. Judge Weeramantry said in Gabcikovo Nagymaros
Dam’s case that; Sustainable development serves as a mediating principle which is
fundamental in reconciling potentially conflicting principles of the right to
development and right to environmental protection. It also aids judicial decision and
provides the scope for progressive legal development. The law necessarily contains
the principle of reconciliation. That principle (of reconciliation), is the principle of
sustainable development. And according to Article 38 (1)(d) of the International
Court of Justice treaty, ‘the general principles of law recognized by civilized
1
"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted
to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, [ i.e, that only the parties bound by the decision in any particular case,]
judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law

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nations’ can be sources of law. Since the principle of sustainable development is seen
as a principle of reconciliation which is recognized by law, then it can be said that S.D
has attained the status of a principle of customary international law. He (the judge),
argued that current international practice supports the concept. He cited several
multilateral treaties; declarations from international conferences; the foundation
documents of international organizations; regional declarations and planning
documents, and argued that there is a wide and general acceptance of the concept of
sustainable development by the global community. He concluded that, “the principle
of sustainable development is a part of modern international law not only by reason of
its inescapable logical necessity but also of its wide and general acceptance by the
global community”.
b. Sustainable development is and cannot be a principle of customary
international law because it lacks by nature a certain degree of the normative
which prevents it from merging into a binding international law:
 Lowe: sustainable development lacks a 'fundamental norm-creating character,' and as
such, it cannot constrain action. Since it lacks normativity, it is incapable of evolving
into a customary rule that is binding on States and other actors. Lowe reaches this
conclusion because treaty and other provisions relating to sustainable development
lack fundamentally norm-creating character and cannot, as such, form the basis of a
general rule of international law. In his view only a formula such as ‘states must
develop sustainably’ would have this character.
c. Birnie and Boyle: normative uncertainty coupled with the absence of
justiciable standards for review suggest that there is no international legal
obligation that development must be sustainable and decisions on what is
sustainable depends on individual governments?
 Is there a general obligation to develop sustainably? The answer is no. The flexible
formulations relating to sustainable development mean that evidence of opinio juris
and state practice of an obligation to develop sustainably is impossible to ascertain .
Sustainable development is a convenient if imprecise label for a general policy goal
which may be unilaterally or multilaterally adopted by States. That general policy
goal is a body of international legal principles, new and existing, that are adapted to
new political values and principles that emerge specifically in the context of
sustainable development. However, sustainable development principles and practices
can provide guidance to both domestic and international law, helping to shape future
directions for societies. It can also provide much needed balance in economic
globalization, strengthening the social and environmental aspects of these processes.

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Fisheries
Oceans cover 70% of the earth’s surface. Dangers to the oceans range from land-based
sources and from the oceans and seas themselves. Land-based sources like:
1. Temperature rises and climate change which degrade marine ecosystems
2. The depletion of the biodiversity of marine species through fishing. Some depleting
marine species not even directly exploited but caught as incidental catches.
3. Inadequate management of marine species particularly fish supplies
4. The rise in fish catches which is a major threat to sustainable use of fisheries.
5. Destructive fishing methods like, bottom trawling; which can damage coastal reefs
and the use of nylon drift nets which float when lost at sea and end up trapping a
variety of species. Long line fishing attracts and snares sea birds in large numbers.

The tragedy of commons

Fisheries are a good example of Garrett Hardin’s tragedy of the commons, first posited in
1968, which states that, “free access to a free resource which no one controls and everyone
can exploit leads inexorably to over-consumption, unrestrained competition and ultimate
ruin for all”. Simply put, the Tragedy of the Commons describes a situation where shared
environmental resources are overused and exploited, and eventually depleted, posing risks to
everyone involved.
Hardin argues that to prevent this, there should be some restrictions to the amount of usage,
for example, property rights must be affixed. Arguably the best examples of Tragedy of the
Commons occur in situations that lead to environmental degradation. Among many things,
pollution is caused by wastewater. As the number of households and companies increase and
dump their waste into the water, the water loses its ability to clean itself. This results in water
that is toxic to wildlife and the people that live around and rely on it. Another example of the
tragedy of commons lies in overfishing.
Who is meant to fix the tragedy of commons?
Ideally, governments at the local state, national and international levels would define and
manage shared resources. However, there are problems with this which include; difficulty in
sharing resources across jurisdictions. For example, at the international level, states are not
bound by a common authority and may view restrictions on resource extraction as a threat to
their sovereignty. Additionally, more difficulties arise when resources cannot be divided,
such as in whale treaties when the fishing of the whale’s food source is separately regulated.
International law “has no teeth, so treaties are essentially voluntary. Even when countries
decide to take part in collective conservation efforts, they can simply pull out again when
they want to”, as Canada did in 2011 when it pulled out of the Kyoto protocol.
As fisheries are a largely common natural resource property, there is a tendency for fish
stocks to be utilised above biologically ideal levels. The has been increases in fishing and
attendant competitions amongst fishermen as well as conflicts because fishes are migratory.
As a result of this, there is a need for international regulation for the natural resource.

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Emelda’ s Notes

For many developing countries, they are hampered by inability to effectively monitor their
jurisdiction and the lack of scientific research vessels leads to the difficulty of arresting
offenders at sea, as this requires naval vehicles with up-to-date satellite equipment etc.

Zones of Fisheries entitled to Ghana

Ghana has a coastline of about 550 km and has, in accordance with the United Nations
Convention on the Law of the Sea (UNCLOS), claimed a 12 nautical mile (nm) territorial
sea, a 24 nm contiguous zone, and a 200 nm Exclusive Economic Zone -- A nautical mile is a
unit of length used in air, marine, and space navigation, and for the definition of territorial
waters – An Exclusive Economic Zone is an area of coastal water and seabed within a certain
distance of a country's coastline, to which the country claims exclusive rights for fishing,
drilling, and other economic activities The coastal area of Ghana is approximately 203,720
sq. km, which is equivalent to 85% of the total land area of Ghana.

Fisheries in Pre --1970s

States enjoyed exclusive access to the fish stocks in its internal waters and territorial sea
unless another state was accorded access by agreement. The Exclusive Fishing Zone was
recognised as 12 miles and was recognized by the International Court of Justice as customary
in the 1974 Fisheries Jurisdiction cases; within this zone (the exclusive fishing zone), coastal
states had exclusive or priority access to the resources and states who may have traditionally
fished those waters were also given grace to continue fishing for a period of time or with
limited access.

The legal framework of fisheries

The 1958 Convention on the Continental Shelf
The Convention on the continental shelf was an international treaty created to codify the rules
of international law relating to continental shelves. The treaty, after entering into force on the
1oth June 1964, established the rights to a sovereign state over the continental shelf
surrounding it, if there be any. The Convention was also a customary international law.
Article 2(3) of the Convention on the Continental Shelf gave coastal states exclusive access to
the natural resources of the continental shelf;
(3) The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.

(North Sea Continental Shelf case) – Germany v Denmark and the Netherlands (1969);

The court delivered its judgement, by 11 votes to 6, in the North Sea Continental Shelf cases.
The dispute which was submitted to the court on the 2oth February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and Denmark
on the one hand and between the Federal republic of Germany and the Netherlands on the
other hand. The parties to the case asked the court to state the principles and rules of
international law applicable and undertook thereafter to carry out the delimitation on that
basis.

The court found that the boundary lines in question were to be drawn by agreement between
the parties and in accordance twith equitable principles and it indicated certain factors to be

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Emelda’ s Notes

taken into consideration for the purpose. It was up to the parties to negotiate on the basis of
such principles, which they agreed to do.

Fisheries commissions were set up to manage particular species of fishes or fishing in

particular areas. However, these fisheries commission were often hampered by their inability
to ensure scientific research is matched in conservation measures. There was also poor
enforcement because the fisheries commissions had no powers to regulate non member states.

The 1958 Convention on the Fishing and Conservation of the Living Resources of
the High Seas
The Convention on the Fishing and Conservation of the Living Resources of the High Seas is
an agreement that was designed to solve, through international cooperation, the problem
involved in the conservation of living resources of the High Seas, considering that because of
the development of modern technology some of these resources were in danger of being over-
exploited. The convention opened for signature on the 29th April 1958 and entered into force
on 20 March 1966.
Vessels of all states have access to fish stocks on the high seas according to Article 1(1) of the
1958 Convention on the Fishing and Conservation of the Living Resources of the High Seas ;

1) All states have the right for their nationals to engage in fishing in the high seas, subject
(a); to their treaty obligations, (b) to the interests and rights of coastal states as provided
for in this convention and (c) to the provisions contained in the following articles
concerning conservation of the living resources of the high seas.

The Convention also recognized the special interest of coastal states in the conservation of
high seas fisheries adjacent to its territorial sea— Article 1(2);
2) All states have the duty to adopt, or to cooperate with other Sates in adopting, such
measures for their respective nationals as be necessary for the conservation of the living
resources of the high seas.

It however failed to establish a balance of interests widely acceptable to coastal fishing states
and many major fishing nations failed to ratify it.

The 1982 United Nations Convention on the Law of the Sea

Main law relating to fisheries. Many of its provisions have attained the position of customary
international law.
The legal status of the territorial sea, the air space above the territorial sea and its bed
and subsoil.
Article 2;
1. The sovereignty of a coastal State extends, beyond its land territory and internal waters
and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and to
other rules of international law

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Emelda’ s Notes

-- An archipelago is a group of islands closely scattered in a body of water. Usually, this

body of water is the ocean, but it can also be a lake or river. An archipelagic state is a
designation used for island countries that consist of an archipelago.
The maximum breadth of the territorial sea
Article 3;
Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with this
Convention.

What forms part of the internal waters of states?

Article 8;
1. Except as provided in Part IV, waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with the method set forth in
article 7 has the effect of enclosing as internal waters areas which had not previously been
considered as such, a right of innocent passage as provided in this Convention shall exist
in those waters.

The right of innocent passage through territorial sea

Article17;
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right
of innocent passage through the territorial sea.

Article 18;
Passage means navigation through the territorial sea without entering internal waters or
navigation to port facilities inside/outside internal waters; such Passage shall be continuous
and expeditious. However, passage includes stopping and anchoring, but only in so far as the
same are incidental to ordinary navigation or are rendered necessary by force majeure or
distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or
distress.

Article 19;
Passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal State.

Article 20;
Submarines and other underwater vehicles are required to navigate on the surface of territorial
seas and to show their flag.

Preventing the infringement of the laws of the territorial states

Article 33;
Contiguous/ Attached to a states territorial zone, the coastal State may exercise the control
necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations and punish infringement of its laws. The contiguous zone may not extend beyond
24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

17
Emelda’ s Notes

Sovereign rights of the coastal state

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 waters superjacent to the seabed
and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds --
Article 56
The exclusive economic zone is an area beyond and adjacent to the territorial sea. It shall not
extend beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured -- Article 57
Article 61;
The coastal State shall determine the allowable catch of the living resources in its exclusive
economic zone. It shall take into account the best scientific evidence available to it and shall
ensure through proper conservation and management measures, that the maintenance of the
living resources in the exclusive economic zone is not endangered by over-exploitation. It can
also take measures to maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant environmental and economic
factors; including the economic needs of coastal fishing communities and the special
requirements of developing States; and taking into account fishing patterns, the
interdependence of stocks and any generally recommended international minimum standards,
whether subregional, regional or global.

In taking such measures the coastal State shall take into consideration the effects on species
associated with or dependent upon the harvested species with a view of maintaining or
restoring populations of such associated or dependent species above levels at which their
reproduction may become seriously threatened.

Article 62;
The coastal State shall promote the objective of optimum utilization of the living resources in
the exclusive economic zone. Where the coastal State does not have the capacity to harvest
the entire allowable catch, it shall, through agreements or other arrangements give other
States access to the surplus of the allowable catch.

The continental shelf of a coastal state

Article 76;
The continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance.

Article 77
The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.

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Emelda’ s Notes

The high seas

The high seas are open to all States, whether coastal or land-locked and there is freedom of
the high seas. Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law -- Article 87 and all states have the
freedom and rights to engage in fishing at the high seas – Article 116.
According to Article 88, the high seas shall be reserved for peaceful purposes.
The right of hot pursuit
Article 111 –
Right of hot pursuit of a foreign ship may be undertaken when the competent authorities of
the coastal State have good reason to believe that the ship has violated the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship or one of its
boats is within the internal waters, the archipelagic waters, the territorial sea or the
contiguous zone of the pursuing State, and may only be continued outside the territorial sea
or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the
time when the foreign ship within the territorial sea or the contiguous zone receives the order
to stop, the ship giving the order should likewise be within the territorial sea or the
contiguous zone.
If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only
be undertaken if there has been a violation of the rights for the protection of which the zone
was established.
The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own
State or of a third State.
Conservation and management of living resources in the high seas
Article 118
States shall cooperate with each other in the conservation and management of living
resources in the areas of the high seas. States whose nationals exploit identical living
resources, or different living resources in the same area, shall enter into negotiations with a
view to taking the measures necessary for the conservation of the living resources concerned.
Four fisheries commissions currently manage some of the high seas. They are;
a. The Northwest Atlantic Fisheries Organisation
b. The North East Atlantic Fisheries Commission
c. The General Fisheries Council for the Mediterranean and
d. The Commission for the Conservation of Antarctic Marine Living Resources

Shared stocks in the United Nations Convention on the law of the Sea
Same stock within the exclusive economic zones of two or more coastal states
Where the same stock or stocks of associated species occur within the exclusive economic
zones of two or more coastal States, these States shall seek, either directly or through

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Emelda’ s Notes

appropriate subregional or regional organizations, to agree upon the measures necessary to

coordinate and ensure the conservation and development of such stocks.
Same stock within the exclusive zone and in areas beyond and adjacent the zone
Where the same stock or stocks of associated species occur both within the exclusive
economic zone and in an area beyond and adjacent to the zone, the coastal State and the
States fishing for such stocks in the adjacent area shall seek, either directly or through
appropriate subregional or regional organizations, to agree upon the measures necessary for
the conservation of these stocks in the adjacent area-- Article 63

Fishing highly migratory species in the UNCLOS

The coastal State and other States whose people fish in the region of highly migratory species
shall cooperate directly or through appropriate international organizations with a view to
ensuring conservation and promoting the objective of optimum utilization of such species
throughout the region, both within and beyond the exclusive economic zone -- Art 64
Types of such migratory species and their migratory patterns;
Diadromous fish
They shuttle between freshwater rivers and saltwater environments.
Catadromous fish
They hatch or are born in marine habitats (sea), but migrate to freshwater areas where they
spend the majority of their lives growing and maturing. As adults they return to the sea to
spawn. The word "catadromous" means "downward-running," and refers to the seaward
migration of adults. The best-known group of catadromous fishes are the true eels. In these
species, females spend their lives largely in freshwater, while males live primarily in the
brackish water of estuarine areas. Individuals breed in the seas and die after spawning once.
Anadromous fishes
They are the opposite of catadromous fishes in that hatching and a juvenile period occur in
freshwater. This is followed by migration to and maturation in the ocean. Adult fish then
migrate back up rivers— "anadromous" means "upward-running"—in order to reproduce in
freshwater habitats. There are approximately 100 known species of anadromous fishes. E.g.,
species of salmon, striped bass, steelhead trout, sturgeon, smelt, shad, and herring. In some
anadromous species, the majority of individuals die immediately after spawning, with only a
few returning downstream and surviving to spawn again.
The length of the initial freshwater period and of the oceanic period vary greatly by species.
Similarly, the length of the migration can vary tremendously. Some species travel hundreds
of kilometres between their marine habitat and their breeding grounds, while others migrate
only a short distance upstream from brackish water to reach freshwater spawning grounds. In
other species, multiple migrations and spawning bouts are common.
Legal framework of the types of migratory fishes
States in whose rivers anadromous stocks originate shall have the primary interest in and
responsibility for such stocks. They shall ensure their conservation by the establishment of

20
Emelda’ s Notes

appropriate regulatory measures for fishing in all waters landward of the outer limits of its
exclusive economic zone.
The State of origin may, after consultations with the other States, establish total allowable
catches for stocks originating in its rivers.
Fisheries for anadromous stocks shall be conducted only in waters landward of the outer
limits of exclusive economic zones, except in cases where this provision would result in
economic dislocation for a State other than the State of origin. In cases where anadromous
stocks migrate into or through the waters landward of the outer limits of the exclusive
economic zone of a State other than the State of origin, such State shall cooperate with the
State of origin with regard to the conservation and management of such stocks -- Article 66.
A coastal State in whose waters catadromous species spend the greater part of their life cycle
shall have responsibility for the management of these species and shall ensure the ingress and
egress of migrating fish. Harvesting of catadromous species shall be conducted only in waters
landward of the outer limits of exclusive economic zones. In cases where catadromous fish
migrate through the exclusive economic zone of another State, whether as juvenile or
maturing fish, the management, including harvesting, of such fish shall be regulated by
agreement between both states.
Land-locked and geographically disadvantaged states (Rights) -- UNCLOS
Land-locked States shall have the right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same subregion or region -- Article 69
Geographically disadvantaged States shall have the right to participate, on an equitable basis,
in the exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same subregion or region, taking into account the
relevant economic and geographical circumstances of all the States concerned -- Article 70
Penalties involved
The coastal State may, in the exercise of its rights take such measures, including boarding,
inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with its
laws and regulations. Arrested vessels and their crews shall be promptly released upon the
posting of reasonable bond or other security. Coastal State penalties for violations of fisheries
laws and regulations in the exclusive economic zone may not include imprisonment, in the
absence of agreements to the contrary by the States concerned, or any other form of corporal
punishment.
In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the
flag State, through appropriate channels, of the action taken and of any penalties
subsequently imposed -- Article 73
Disputes
The coastal states management duties are not subject to compulsory settlement of disputes --
Article 97(1)

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Emelda’ s Notes

No disputes concerning the exercise by a coastal state of its sovereign rights or jurisdiction
within its Exclusive Economic Zone is subject to the compulsory procedures entailing
binding decisions unless it is alleged that--
a. the state has violated the freedoms set out in the convention
b. that a state exercising any such freedom has violated the convention or coastal laws
adopted in conformity with the convention
c. that the coastal state has in breach of UNCLOS exercised its jurisdiction in a manner
inconsistent with certain internationally adopted rules and standards on marine pollution.

Fisheries Act (2202) Act 625

The Act establishes a Fisheries Commission.

Objectives and Functions of the Fisheries Commission

The main objective of the Commission is to regulate and manage the utilisation of the fishery
resources in Ghana and co-ordinate the policies in relation to them. In view of its other
objectives and functions;
1. The commission will prepare and update plans for the management and development
of fisheries. These plans will be based on the best scientific information available, to
ensure the optimum utilisation of fisheries and avoid over exploitation.
2. It will also ensure the proper conservation of the fishery resources through the
prevention of over fishing;
3. Strive to minimise, as far as practicable, fishery gear conflict among users and ensure
the monitoring, and surveillance of the Ghana’s waters.
4. The commission will also promote co-operation in fisheries management and carry
out research and survey work for the assessment of fish stocks.
5. It will make recommendations to the Minister on granting of licences for fishing and
control and co-ordinate the importation of fresh and frozen fish.
6. In collaboration with the competent authority, the commission will also establish
requirements for manning fishing vessels and boats, safety for crew and vessels and
fishing gears.
7. It would also hear and determine complaints from persons aggrieved in respect of
matters arising from or related to fishing activities and the fishing industry
8. In collaboration with District Assemblies and fishing communities, ensure the
enforcement of the fishery laws.
9. The commission will also maintain a register of fisheries licences -- section 79
The Commission is also required to take to protect and promote artisanal and semi-industrial
fishing including;

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Emelda’ s Notes

a. the provision of extension and training services

b. the promotion of the establishment and development of fishing, processing and
marketing co-operative societies;
c. the establishment of reserved areas for fishing activities of artisanal and semi-
industrial fishing vessels;
d. the giving of priority to artisanal and semi-industrial fishing in the allocation of
fishing licences or quotas— section 51
The Act also establishes a Fisheries Development Fund for the promotion and development
of fisheries including monitoring of Ghana’s waters and also providing assistance to small
scale fishermen -- Section 36-38. The Fisheries Act requires consultation with other countries
on international fisheries management particularly for shared stocks.
Licences under the Fisheries Act
The Act prohibits the use of local industrial or semi-industrial fishing vessel without a
licence.
Penalty: contravention of this prohibition is a fine of not less than U$l,000 in the case of a
local industrial fishing vessel, or fifty penalty units in the case of a local semi-industrial
fishing vessel as well as forfeiture of the vessel -- section 46.
The owner of a licenced local industrial or semi-industrial fishing vessel must also employ a
crew of which not less than seventy-five percent are citizens.
Penalty: Not following this rule is a fine of not less than $1,000 and not exceeding $2 million
– section 50
Canoe Fishing- licences
The Act also requires licensing for canoe fishing in Ghana’s waters. Canoe fishing may only
be undertaken by citizens, or companies registered in Ghana owned largely by citizens. The
license will be registered with the Fisheries Commission through the District Assemblies and
include information to aid in identifying the canoe, validity period and permitted activity.
Canoe licences are transferrable if the canoe to which the licence is transferred is of equal
dimensions and characteristics and is to be operated in the same locality as the canoe
previously licensed.
Penalty: Failure to obtain licence is liable to a fine of not less than twenty-five penalty units
and not exceeding five hundred penalty units and forfeiture of the canoe/ gear.
Artisanal fishing – Fisheries Act
Section 55;
An artisanal fishing vessel shall be registered subject to payment of a fee by the District
Assembly of the area where the vessel is to be operated. The District Assembly shall allocate
to the vessel the letters and numbers of identification.
Penalty: Fishing with a non-registered artisanal vessel involves liability for a fine of not less
than twenty-five penalty units and not exceeding two hundred and fifty penalty units and in
addition, the catch, fishing gear or any other apparatus used in the commission of the offence

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Emelda’ s Notes

may on conviction be forfeited. Artisanal fishing licence can be cancelled/suspended if used

in the commission of a prohibited act – section 58
Foreign fishing vessels
A foreign fishing vessel shall not fish or attempt to fish within the fishery waters of Ghana
except under a licence, or by agreement between governments. Foreign fishing vessels are
also not permitted in the waters of Ghana unless authorised to do so by licence or permit,
under an applicable access agreement in force, or under circumstances recognised by
international law; i.e.; vessel entering the fishery waters for the sole purpose of innocent
passage, force majeure or distress or for the purpose of rendering assistance to persons, or
ships distress. Such Foreign vessels must observe requirements on storage of their fishing
gear.
Penalty: the owner, master and charterer of the vessel individually commits an offence and is
liable on summary conviction to a fine of not less than $250,000 and not more than $2
million and in addition, the catch, fishing gear or any other apparatus or a combination of
them used in the commission of the offence shall be forfeited.
NB: Access arrangements shall provide for the allowable allocation of fish which shall not
exceed a level consistent with the conservation and management of fishery whilst protecting
the interests of local fishermen.
Inshore exclusive zone
The Fisheries Act designates an inshore exclusive zone which be used solely by small semi-
industrial vessels, canoes and recreational fishing vessels -- section 81. A person shall not use
a canoe support vessel to fish in the zone; A towing gear shall not be used in a thirty-metre
zone or the depth prescribed.
Penalty: $100,000 and not more than $500,000 in respect of a foreign fishing vessel,
$10,000 and not more than $100,000 in respect of a local industrial or semi-industrial fishing
vessel, or one hundred penalty units and not more than five hundred penalty units in any
other case.
Destruction in the inshore zone
A person aboard a motor fishing vessel shall not destroy or damage an appropriately marked
fishing gear of an artisanal fisherman inside the zone.
Penalty: is a fine of not less than $5,000 and not more than $100,000 and in addition, the
master, owner and charterer, of the vessel in respect of which the offence was committed are
jointly and severally responsible for providing to the aggrieved artisanal fishermen full
compensation for the destroyed gear either in kind or in cash, and adequate compensation for
lost fishing time.
Closed seasons
The Commission may declare closed seasons for fishing in specified areas of the coastal
waters or the reverie system. The commission will also honour closed seasons declared by
international organisations which Ghana is a member

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Emelda’ s Notes

Penalty: fishing during a closed season is a fine of not less than $500,000 and not more than
$2 million in respect of a local industrial or semi-industrial fishing vessel or a foreign fishing
vessel, or one hundred penalty units and not more than five hundred penalty units in any
other case.
Driftnet fishing activities
A fishing vessel shall not be used for or to assist in any driftnet fishing activities in the
fishery waters -- Section 87. A person shall not engage or assist in a driftnet fishing activity.
Penalty: a fine of not less than twenty-five penalty units and not more than five hundred
penalty units in respect of an artisanal fishing activity, or $250,000 and not more than $2
million in respect of any other fishing vessel, and in addition, the catch, fishing gear or any
other apparatus or any combination of them used in the commission of the offence may be
forfeited.
Other prohibited fishing methods
Other prohibited fishing methods include; use of explosive, a poison or any other noxious
substance for fishing -- Section 87
It is an offence to carry on board or possess without lawful authority at a place within a two-
kilometre radius from a shore or river, an explosive, a poison or any other noxious substance
in circumstances indicating an intention to use in fishing. A person who lands, sells, receives
or possesses fish taken by prohibited means or who knows or has reasonable cause to believe
that the fish has been so taken, commits an offence and is liable on summary conviction to a
fine of not less than $250,000 no more than $ 2 Million for semi-industrial fishing vessel or a
foreign fishing vessel, or twenty-five penalty units and not more than five hundred penalty
units in any other case and forfeiture.
The Act also protects gravid and juvenile lobsters, other crustacean and juvenile fish.
Knowingly taking any is an offence and if caught accidentally must immediately be returned
the sea.
Penalty: fine of $50,000 and not more than $1 million or two hundred and fifty penalty units
(respectively) and forfeiture.
Fishing for marine mammals is also prohibited -- section 90.

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Emelda’ s Notes

Minerals and mining in Ghana

Historical Perspectives of Mining in Ghana
Gold Coast & European Exploration
Before March 1957 Ghana was called the Gold Coast. The Portuguese who came to Ghana in
the 15th Century found so much gold between the rivers Ankobra and the Volta that they
named the place La Mina - meaning the mine. This was later corrupted as Elmina. The Gold
Coast was later adopted by the English colonizers.
Ghana has since been involved in mining especially gold for years. The most prevalent gold
mining method before the mid-nineteenth century was alluvial mining, with miners
recovering the gold from streams. Modern gold mining of the rich ore deposits below the
Earth's surface began about 1860, when a Fante man of mixed-race by name Thomas Hughes,
imported heavy machinery to begin mining in the western areas of present-day Ghana.
However, his enterprise was unsuccessful.
Actual mining began in the late 1870s to early 1880s. The richest deposits, the Obuasi mine,
was discovered by two Fante men by name Joseph Ellis and Joseph Biney who were later
joined by another Fante man Joseph Brown. They however sold the rights to the deposit to
E.A. Cade, the founder of Ashanti Goldfields Corporation (AGC).
Since the beginning of the twentieth century, modern mining in the Ghana has been pursued
as a large-scale venture. Other minerals mined on large scale are diamonds, bauxite,
manganese and salt. There are other deposits which are mined on a minor scale like
limestone, kaolin, oyster shells, silica sands, brown clays and aggregates. There are also vast
deposits of iron ore which have not been exploited. The Ghana Manganese Company (GMC)
owns and operates the Nsuta manganese mine in the western region of Ghana.
Mining accounts for 5% of the country's GDP and minerals make up 37% of total exports, of
which gold contributes over 90% of the total mineral exports. Thus, the main focus of
Ghana's mining and minerals development industry is on gold. Ghana is Africa's 2nd largest
gold producer, after South Africa.

Geological Perspectives
What are Minerals under Ghanaian Law?
Mineral is any substance in solid or liquid form that occurs naturally in or on the earth, or on
or under the seabed formed by or subject to geological process including industrial minerals
but does not include water or petroleum as defined under the Petroleum (Exploration and
Production) Act, Act 919.

System rocks
Industrial Minerals include basalt, clay, granite, gravels, gypsum, laterite, limestone, marble,
sand, sandstone, salt and other minerals as the Minister may declare and publish in a Gazette.
Ghana's economic geology is centered on Proterozoic rock types, notably the Birimian and
Tarkwian systems.

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Emelda’ s Notes

Birimian System Rock

The Proterozoic Birimian belt in West Africa hosts nearly all of the known gold deposits in
Ghana, Burkina Faso and Cote D’Ivoire. The Ashanti Gold Belt of SW Ghana, part of the
volcano sedimentary Birimian Belt, includes seven producing mines. Gold mineralization in
the Birimian is mainly in the form of auriferous quartz veins of 'reefs' and as sulphide ore.
Tarkwain System Ore
Tarkwian system rocks consist of a thick series of argillaceous sediments resting on the
Birimian belt. Gold is found in these sediments, occurring as blanket reefs or conglomerate
beds, similar to those of the Witwatersrand in South Africa. The Precambrian auriferous
Tarkwaian conglomerates of Ghana were developed in a modern way during the period 1876-
1882 by Pierre Bonnat, the father of modern gold mining in the Gold Coast.

Features of Minerals
Gold in its pure state:
 Has a melting point of 1945 degrees Fahrenheit (1063 degrees Celsius).
 When alloyed (chemically combined) with other base metals the melting temperature
changes.
o An 18K yellow gold has a melting point of 1675 degrees Fahrenheit and 14K
yellow gold has a melting point of about 1550 degrees Fahrenheit.
 In terms of gravity, it is of a specific and definite gravity of 19.33. It is relatively
heavy compared to most metals, such as silver (SG 10.7) or iron (SG 7.8). A notable
exception is platinum (SG 21.4).
 Is more malleable than any other metal and can be hammered into foil and become so
thin that it is almost transparent.
 It is deep yellow in color and its great reflective properties help keep its brightness
and color from fading.
 Will not rust, tarnish or corrode.
 It is softer than most other metals.
 On the MOHS scale of hardness (which is a measure of a gemstone or mineral’s
resistance to scratching), gold has a hardness value of 2 to 2.5. Diamond has a value
of 10. Pure gold may easily be scratched.
 Gold becomes harder when alloyed with other base metals.
 Is relatively scarce and therefore expensive.
 It is estimated that only 125,000 tons of gold have been mined the world over since
the beginning of time.
 Is able to bond with other base metals. This property gives rise to the many different
colors available in modern gold alloys.

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Emelda’ s Notes

Quality and Value of Gold:

(KARAT VALUE)

Since ancient times the purity and fineness of gold has been defined by the term karat, which
is 1/24 part of pure gold by weight. Pure gold is equivalent to 24K. Gold purity may also be
described by its fineness, which is the amount of pure gold in parts per 1000 karat.

Weighing of Minerals
The weight of a piece of gold is a factor that helps to determine its value. It is important
because it is an indication of the amount of fine gold in an item of jewelry. Grams (g) and
pennyweights (dwt) are the units of weight most commonly used in weighing gold.
Gold and silver are almost always weighted in the troy system of weights where one-pound
equals twelve ounces and twenty pennyweights equals’ one ounce.

Legal regime of minerals and mining in Ghana

The Minerals Commission
The Minerals Commission was established under the Minerals Commission Law of 1986, as
repealed by the Minerals Commission Act of 1993, to be responsible for the regulation and
management of the utilization of the mineral resources of Ghana and the co-ordination of the
policies in relation to them by virtue of section 2 (1);
(1) The Commission shall be responsible for the regulation and management of the utilization
of the mineral resources of Ghana and the co-ordination of the policies in relation to them

By section 2(2) specifically, the Commission was to:

1. Formulate recommendations of national policy for exploration and exploitation of
mineral resources with special reference to establishing national priorities having due
regard to the national economy;
2. Advise the Minister on matters relating to minerals;
3. Monitor the implementation of laid down government policies on minerals and report
on this to the Minister;
4. Monitor the operations of all bodies or establishments with responsibility for minerals
and report to the Minister;
5. Receive and assess public agreements relating to minerals and report to Parliament;
6. Secure a firm basis of comprehensive data collection on national mineral resources
and the technologies of exploration and exploitation for national decision making
The Minerals and Mining Act, 2006 Act 703
This Act and others such as; the Environmental Protection Agency Act and Minerals and
Mining (Health, Safety and Technical Regulations), 2012 L.I. 2182, Environmental
Assessment Regulations Law LI 1652, sets the legal framework in which Ghana’s Minerals
and Mining Industry is regulate. It spells out ownership and rights in minerals and other
fiscal issues.
The purpose of the Act
• It revised the then existing Minerals and Mining Law, 1986 (PNDC Law 153) to
reflect in our laws, new thinking and developments in the mining industry,

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Emelda’ s Notes

• It consolidated the enactment on small scale gold mining and other minerals to reflect
international best practices in the industry,
• It sought to re-position Ghana as a major producer.
• It sought to ensure an internationally competitive framework that ensures a stable and
equitable tax regime.
• It took cognizance of environmental protection as well as community interests in
order to provide the basis for the development and sustainability of mining in the
country.
Objectives of the Act
The main objectives of the law are to provide for:
• ownership of all minerals in the State
• a framework for granting of various mineral rights, indicating the rights and
obligations of the holder
• a fiscal regime stating the incentives available to the investor and government
• procedures for settlement of mining investment disputes
Ownership, Rights and Interests in Minerals
• By section 1 of the Minerals and Mining Act , all minerals in their natural state are
vested in the President in trust for the people of Ghana (Article 257 (6) of the 1992
constitution). To this end where land is secured for the utilization or development of a
mineral resource the state can compulsory acquire same under the relevant laws.
• The Minister may also reserve land not being the subject of a mineral right for mining
through an E.I. by virtue of Section 4.
• By section 5, Exclusive mining rights are negotiated, granted, revoked, suspended or
renewed by the Minister of Mines on behalf of the President upon the
recommendation of the Minerals Commission. Once the License is granted, the
Minister determines the land area of the license by virtue of section 5 (2). Such a
License or grant or any contract or undertaking involving exploitation of minerals
shall be subject to ratification by Parliament vide Section 5 (4), although Parliament
may exempt such particular class of contracts or undertaking by virtue section 5 (5).
The minister by section 5 (3) can only refuse to grant a License upon written reasons.
• Section 8 provides the scale by way of cadastral system through which the area (for
mining) may be determined. Geometric sections determined in the cadastral system
are which is normally in blocks – A cadastre is a parcel based and up-to-date land
information system containing a record of interests in land.
•
Mineral rights
• By section 9 of the Act, all mineral activities require a mineral right and therefore
irrespective of the ownership of land under which the mineral is, no person can
conduct mineral operations unless the person has been given the right to do so.

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Emelda’ s Notes

Qualification: Not to individuals but to corporate bodies or Incorporated Partnerships –

Section 10

• Any application for a mineral right shall be submitted to the Minerals Commission
and if there are no delays the Commission will submit its recommendations to the
Minister and the Minister must within 60 days make a recommendation. If the
decision is favorable the applicant must communicate his acceptance to the Minister
who will grant the right. See section 11 to 13.
• No right can be assigned or transferred or mortgaged without the consent of the
Minister – Section 14
• Right to acquire further rights and right of first option of a holder is guaranteed under
section 15
• Requirements for permits for environmental and forestry protection as well as water
rights is guaranteed under section 17 and 18.
Water right
S 17; Subject to obtaining the requisite approvals or licences under the Water Resources
Commission Act 1996 (Act 552), a holder of a mineral right may, for purposes of or ancillary to
the mineral operations, obtain, divert, impound, convey and use water from a river, stream,
underground reservoir or watercourse within the land the subject of the mineral right.

Types of Mineral Rights

These rights are granted by the Minister of Mines now Lands and Natural Resources to
applicants who demonstrate adequate technical, financial and managerial capability to engage
in mining activities. A three-stage licensing system is provided for namely;
Reconnaissance license,
Section 31
This license is for a period of one year renewable for a further one year and is the search for
minerals by geophysical, geo chemical and photo-geological surveys within the area between
1 to 5000 blocks. The area of land in respect of which a reconnaissance license may be
granted shall be a block or any number not more than five thousand contiguous blocks each
having a side in common with at least one other block the subject of the application
(Subsection 3).
Rights of the reconnaissance licensee
A reconnaissance licence confers on the holder and a person authorized, in accordance with
this Act by the holder of the reconnaissance licence, the exclusive right to carry on
reconnaissance in the reconnaissance area for the minerals to which the reconnaissance
licence relates and to conduct other ancillary or incidental activity. For the purposes of
exercising the right conferred, a holder of a reconnaissance licence and a person authorized
by the holder of there reconnaissance licence, may enter the reconnaissance area and erect
camps or temporary buildings. A holder of a reconnaissance licence shall not engage in a
drilling or excavation.

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Emelda’ s Notes

According to section 33 (1), a holder of a reconnaissance licence may, not later than three
months before the expiration of the initial term of the licence, apply to the Minister for an
extension of the term of the reconnaissance licence in respect of all or part of the
reconnaissance area. The license may be extended only once and not for a period not more
than 12 months.
Prospecting license
Section 34
This is the intentionally searching and knowing the extent and economic value of mineral
deposits which may be granted over an area normally of no more than 150 kilometers or not
more than 750 contiguous blocks for up to three years, with the possibility of further renewals
of up to two years each, though there are relinquishment obligations at each renewal. The
holder of a prospecting license is entitled to a mining lease upon the presentation of an
acceptable feasibility study which incorporates environmental impact studies.
A mining lease
A holder of a reconnaissance licence or a prospecting licence may, prior to the expiration of
the licence, apply in the prescribed form for one or more mining leases in respect of all or any
of the minerals the subject of the licence. It may be granted for a period of 30 years and may
be renewed for a further 30-year period, for an area normally not exceeding 50 sq. kilometers.
See section 39.
Fiscal regime
Fiscal provisions relate to government or public money, especially taxes. The main Fiscal
provisions in the Act are:
• Payment of annual ground rent to the owner of the land -- section 23
• Payment of annual ground rent in the case of stool lands -- section 23 (2)
• Payment of mineral right fees to the Commission -- Section 24
• A royalty rate which varies from a minimum of 3% to a maximum of 6%, the exact
rate being determined by a profitability measure -- section 25
• The Ghana Government acquires 10% free equity in any mining venture and has the
option to acquire an additional 20% participatory interest at fair price.
• The holder is required to pay income tax at the rate of 35% and an additional Profit
tax of 25% as provided under the Additional Profit tax Law 1985 (PNDCL 122).
• A mining lease holder is also required to pay annual rental charges as prescribed by
Regulations
• accelerated depreciation of capital, namely, of 75% in the year of investment and 50%
in subsequent years on a declining balance basis, with a loss - carry forward
provision.

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Emelda’ s Notes

• In addition, there is an investment allowance of 5%; There seems to be an implied

repeal by Income Tax Act 2015, Act 896, which provides for 20 % each year on
straight line basis for 5 years
• Equipment, machinery and accessories which are imported for mining operations are
exempted from the payment of customs and import duties -- section 29
• Expenditure on reconnaissance and prospecting operations may be capitalized after a
commercial find. Section 28 and also Income Tax Act 2015, Act 896
• In practice large scale producers have licenses to export and sell their production,
while small scale producers have to market their production to accredited buying
agents. This allows the offshore retention account provision to work.
• Mining companies are allowed to retain a portion of their export revenues in an
offshore account for the servicing of loans, acquisition of equipment, spare parts, raw
materials for production, payment of expatriate salaries and the payment of dividends
-- Section 30.
• Section 6 (1) of the Act requires that a person may sell/export minerals won in Ghana
when he is issued a license by the Minister responsible for Mines.
• Exempted of staff from out of Ghana payments of income tax relating to furnishing
accommodation at a mine -- Section 29.
• Immigration quota for expatriate personnel free from any tax imposed by government
for the transfer of foreign currency out of Ghana – Section 29.

Environmental Protection Agency:

The role of the EPA is to ensure that all developmental activities in the country take account
of environmental concerns through Environmental Impact Assessments and also to ensure
that there is regular inspection and monitoring of environmental quality.

Dispute Resolution:
Section 27

• Each Agreement shall contain provisions for resolving disputes. Disputes to be

resolved through mutual discussions and ADR. Section 27 (1)
• Where the dispute is between a citizen and the state it shall be referred to arbitration
in accordance with the Arbitration Act 1961 now repealed so refer to the current
Arbitration Act .27.2
• In the case of a non-citizen, it shall be referred to international arbitration to be settled
by a framework of bilateral and multilateral agreement or if it fails the United Nations
Commission on International Trade Law.
SMALL SCALE MINING
Section 82 to 90 deals with small scale mining and a person shall not operate a small-scale
mining unless authorized by the Minister or any officer on his behalf -- Section 83.

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Emelda’ s Notes

Section 82 (1)
Despite a law to the contrary, a person shall not engage in or undertake a small-scale mining
operation for a mineral unless there is in existence in respect of the mining operation a licence
granted by the Minister for Mines or by an officer authorized by the Minister.

• It is only for Ghanaians and shall be issued for a period of 5 years and renewable. S85
• Such license is transferable to another Ghanaian with the consent of the Minister by
s88.
• It may be revoked however if where there is non-compliance of a term of the license
or the licensee is convicted of an offence involving smuggling.s87

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