WP 10: Legal Instruments Gerd Winter Overview objectives progress results.

WP 10: Legal Instruments

Gerd Winter

Overview

• objectives

• progress

• results

WP 10 objectives

1. Data banks on legislation and institutions2. Short country profiles on a few countries3. In-depth country reports on 7 countries

– Indonesia– Kenya– Namibia– EU– Brazil– Nicaragua– Mexico

4. Cross-country analyses - quota management offshore in view of international law requirements- Summary evaluation of promotion and management regimes

5. Publications, Outreach activities

WP 10 progress

1. Meta-databank on fisheries law and institutions complete and uploaded (D 10.1)

(1) annotated guide to national authorities of 95 countries responsible for fisheries

(2) annotated list of websites collecting websites storing fisheries law

(3) annotated list of single websites storing fisheries law

2. 4 country profiles completed and uploaded - India

- Russia

- South Africa

- Sri Lanka

WP 10 progress

3. Country reports

• Brasil (D 10.2a), Namibia (D 10.3a), Kenya (D 10.3b), Indonesia (D 10.4a), Mexico (D 10.4b): Final reports submitted and uploaded

• EU (D 10.5): Draft of complete report submitted: Final report to be expected in March

• Nicaragua (D 10.2b): draft under revision. Final report to be expected in March

4. Cross country analyses

• Summary evaluation of promotion and management regimes (D 10.6a): draft report to be submitted by end of february

• Quota management offshore in view of international law requirements (D 10.6b): draft complete report to be submitted by end of february

WP 10 progress

5. Publications (D 10.8)= 5 books, 3 broschures, 5 articles

In German

• Book on wind energy installations in offshore area (appearing these days)

• Book on reorientation of planning instruments to integrated coastal management (submitted)

• Contribution to book on ecosystem approach in integrated coastal management (draft)

• Article on nature protection in the law of uses of the coastal sea and EEZ (submitted)

WP 10 progress

In English

• 3 books with comprehensive country reports (Indonesia, Kenya, Namibia) to be submitted

• 3 broschures with country reports (Brasil, Mexico, hopefully Nicaragua) to be submitted

• 2 books still to be completed

– EU fisheries law

– Catch management in view of international law requirements

• Articles on

– conflict of fisheries and nature protection regimes

– standing of NGOs to court review

– summarising findings of legal workpackage („high impact“?)

WP 10 progress

Conferences

• Mid-term workshop with participation of practitioners (German, Kenyan and Indonesian ministries) June 2006

• Workshop on coastal zone planning in EU May 2007, side event to EU conference in Bremen

• Conference IMARPE Peru March 2008

WP 10 Results

First aim: legal clinic

• „Treatment“ of national law and practice: diagnosis, gap analysis, suggestions for reform

Second aim: generalisation

• from case studies to strategic discussion, e.g.

– Subsidies good or bad?

– Top-down versus bottom up

– Command and control versus tradeable quotas

– Depoliticisation of rule-making?

WP 10 Results: legal clinic

Topics covered in the national reports • State of fisheries and fish resources• Fisheries issues debated in the country• Domestic law and institutions promoting fisheries

– general– inshore fisheries– offshore fisheries

• Domestic law and institutions managing resource use – general– inshore fisheries– offshore fisheries

• External relations• Case study on characteristic legal problems of the country

WP 10 Results: Examples of conclusions: Indonesia

• The Fisheries Code is comprehensive but concentrated on institutional structures, lacking substantive criteria of management, a systematic account of instruments, requirements of transparency and rights to be heard.

• Promotional strategies although justifiable esp. in relation to the EEZ are not accommodated with management tools.

• Competences between national and regional authorities are not well delimited.

• Systematic research and monitoring of stocks are lacking.• TACs are hardly used as an instruments. • Lack of enforcement of management instruments • The example of the Bali Barat National Park shows that involving

fishermen, traders, the tourist industry and other stakeholders into the management plans and their enforcement serves well to make the rules effective in practice.

WP 10 Results: Examples of conclusions: Namibia

• Resources Act is of high sophistication. However, criteria for sublegal rule-making such as sustainability and precaution should be introduced. The preconditions, content and revocability of licenses should be framed in more precise language.

• The combination of competences for promotion and management of fisheries in one ministry seems to function well.

• A national fish industry was built up without direct subsidies. • TAC schemes were successfully operated for endangered resources.

Decision-making on TACs has been detached from direct influence of interest groups.

• Scientific monitoring of stocks is considerable. • Namibia has successfully appropriated her EEZ for her national industry. • Although the rate of illegal fishing is hard to determine it appears that due

to sophisticated equipment and well trained personnel enforcement is quite effective. It seems that corruption does not play a major role in Namibian fisheries management.

WP 10 Results: Examples of conclusions-EU

• EC Fisheries Law is exemplary in establishing the relevant principles, instruments, procedures and institutional structures of fisheries management. However, the definition of sustainable use of resources is flawed.

• The EC is an example for unsustainable promotion of fisheries, but it is also exemplary for how to reorient misguided promotion policies.

• Executive rule-making in the EC is highly politicised. A depoliticisation is to be recommended. This could be done by delegating powers to the Commission, and by opening Council decisions for association action at the EC courts.

• The instruments of fisheries management are of exemplary preciseness and comprehensiveness. However, serious flaws remain for instance in relation to mesh size and by-catch. Even more deplorable is the practise of unsustainable TACs.

• EC law is exemplary in its commitment to ensuring compliance. It has established a very sophisticated system of reporting on catch and landing of catch. Flaws in practise do exist, but not at a rate disproving the appropriateness of the instruments themselves.

• EC flag state control of EC vessels operating in the high seas and in EEZs of Southern countries is flawed in many respects.

WP 10 results: Generalisations

a) Interstate relations

b) Domestic law

(1) General structures

(2) Constitutional rights and obligations

(3) Instruments of promotion

(4) Instruments of management

(5) Specific aspects of coastal fisheries

(6) Specific aspects of off-shore fisheries

a) Inter-state relations:

• exclusive rights of coastal states to exploit resource in coastal zone and EEZ (Art. 56 a) UNCLOS); fish common good only in high seas

• access of third nations based on bilateral agreements (1st and 2nd generation); significant amount of illegal access in developing countries

• right of coastal state to develop and promote fisheries• jurisdiction of coastal state to regulate fisheries (Art. 56 a) and b)

UNCLOS)• duty to ensure preservation of resource (Art. 61-68 UNCLOS;

Straddling Stock Agreement; FAO Code; Compliance Agreement)• National implementation; direct applicability of int´l instruments in

some states• but: content of duties vague; see definition of sustainability (except in

the – non binding - FAO Code)

Art. 62 UNCLOS

Such measures shall also be designed 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.



b) Domestic law







b) Domestic Law

(1) General Structures: competing regimes

• Horizontal (conflicting policy areas)

• Vertical (conflicting levels of government)

• Time (conflict between modern and traditional sector)

• Justice (conflict between industrial and artisanal fisheries)

• Modus (law as symbol versus law as reality)

Conflicting policy areas

Horizontal triangle of laws and institutions

• Fisheries laws and institutions (driven by exploitation of specific resource)

• Forest/marine seas (driven by exploitation of general resource)

• Nature protection (driven by preservation of all resources)

Example EU: fisheries and nature protection legislation overlapping as to protection of fish resources: does the strictest regime apply, or the most important, or the earlier?

Conflicting levels of government

• Regional international organisation (NEAFO)• Supranational organisation (EU)• State• Regions• Local Communities

Example Indonesia: State: legislation for all zones, administration for EEZ, Provinces and Regions: Administration for 4-12 nm and < 4 nm resp. Tradition of strong central government prevails in practice although after end of Souharto rule formally decentralisation Example EU: EC: Exclusive competence for law-makingMS: Law-making in redelegated spaces; administration in indiv. cases

Conflict between modern and traditional structures

• State versus local communities

• State/ local communities versus indigenous structures

Example Kenya: Kaya parallel regime besides state based regulation;

Example Indonesia: traditional fishermen exempted from state control

Conflict between industrial and artisanal sectors

• Factual divergence of technology and clout on resource =>

“Formal” equal treatment or priviledges for artisanal fisheries?

Example Kenya:

• coastal fishing grounds emptied by industrial fleets

Example EU:

• Subsidies for small scale fisheries only

Conflict between law as symbol and law as reality

• Vague or precise formulation of laws

• Gap between law in the books and law in action

• Different mixtures of extremes in different countries

– „Going by the book“

– Corruption

Law legitimate if democratic decision Respect for law matter of efficiency



b) Domestic law







(2) Constitutional law: obligation to protect

• Patrimonium of the state (Mexico, Brasil)

• Systems of free access within regulatory framework (EU)

• Duties of protection

– General duty of environmental protection => Art. 174 EC Treaty, many State constitutions

– Precautionary principle => Art. 174 EC Treaty

– Principle of sustainable use => Art. 2 EC Treaty

(2) Constitutional law: rights to use

• constitutional status of freedom of enterprise and property vis à vis state based restrictions? Yes in the EU, no in Brasil (?).

Example: an EU fisherman operating a vessel and enterprise could claim unconstitutionality of a TAC regulation that sets catch quota at zero level if there is no evidence of over-exploitation

• constitutional status of freedom of resource use by local collectives vis à vis state based management?

Example Indonesia: can coastal fisherman claim unconstitutionality of gear restriction set by national government?



b) Domestic law







(3) Instruments of promoting fisheries

• EU: sophisticated means of promotion (subsidies for vessels and gear, price guarantee) => cut back and reorientation towards capacity reduction

• Developing countries: aim of building up domestic fleet: – offshore: Namibia: domestic development without subsidies, Brasil,

Indonesia: hardly any internal fleet for lack of subsidies

– coastal: Indonesia, Kenya: lack of small credit lines

• Problem: how to direct subsidies to those who cannot help themselves, and avoid overcapacity



b) Domestic law







(4) Instruments of managing fisheries: Entry authorisation

Entry authorisation

• for vessels

– always: means of facilitating monitoring: EU

– sometimes: means of effort restriction

– sometimes: means of ensuring safety on board (Indonesia)

• for fishermen

– means of ensuring professional skills of fishermen (Brasil, EU)

(4) Instruments of management: Catch restrictions

• Minimum landing size

• By-catch restrictions

• Catch licensing (practiced eg in Indonesia)– Problem of determination of tolerable exploitation

– Problem of tradeability of license: question of distributional justice

(4) Instruments of management: Catch restrictions

• Catch quota (TAC) (practised eg in EU, Namibia)– Problem of level of protection: science or politics?

• Science based/politically inflated: EU

• Rule of thumb/experience: Namibia

– Problem of legitimacy

– Problem of allocation – a question of justice or of property rights?• Level: states (in EU) and individuals

• Criteria: grandfathering, auction, benchmarking

• Tradeability or not

– Problem of unwanted side-effects: by-catch and links with by-catch restrictions

– Problem of compliance: • Control of fishing activity difficult

• control of landing: can be circumvented

(4) Instruments of management: Effort restrictions

(effort = capacity times fishing activity)• Number of vessels of different capacities (controlled eg by licensing

system)• Areas to be fished in (controlled eg by licence system)• Gear restrictions• By-catch devices• Days at sea• Seasons• Effort quota (TAE) (practised in EU)

– Problem of level of protection: how to determine sustainable effort– Problem of legitimacy– Problem of allocation: how to find just criteria for states and individuals– Problem of un-wanted side-effects: less by-catch?– Problem of compliance: real time surveillance necessary

(4) Instruments of management:Ecosystemic restrictions - MPAs

• MPAs from different legal regimes related to fisheries:

fish recovery zones, nature protection zones, forest protection zones, pollution prevention zones

• Problem of overlap and contradictions– Competences for licensing and exceptions

– Competences for surveillance

Example Kenya: forest administration competent to provide authorisation for clearance of mangrove forest in spite of implications for fish resources

(4) Instruments of management:Voluntary

• Regulatory impasse => search for alternatives involving the enlightened producer and consumer

• certification and labelling (MSC): legal framing (fairness of certification, indicators for label, protection of label, liability, alleviation of control)

• simple indicators (fish ruler): legal framing (fairness of indicator); making it binding



b) Domestic law







(5) Coastal fisheries

• Whose resource? To assign coast to artisanal fisheries?– competition of industrial fisheries in Brasil, de facto competition in

Indonesia, Kenya; exclusive use in EU

=> artisanal best solution; need of securing exclusive rights

• How to manage? Is participation the most promising way?– Self-regulation by traditional structures (the Kenyan Kaya; embedded into

state structures by Beach Management Units, Indonesian Sasi Laut)

– Mixed systems: state based framework, decentralised participatory regulation (fishing accords, National Conservation Units (SNUCs) with partnership agreements and co-management in Brasil); self-regulated crab fisheries at North-Sea in EU)

– Top-down state based systems: Russia; EU for MPAs

• => General recommendation: bottom up in coastal zone



b) Domestic law







(6) Off-shore (EEZ) fisheries

• Whose resource? To reserve EEZ for domestic fleet?

– internal fleet with few foreign vessels (Namibia); preponderance of foreign vessels (Indonesia, Brasil), but attempt to develop national fleet (from cash for fish to partnership agreements)

=> Exclusive domestic exploitation advisable, except small states

• How to manage? Best instruments to ensure long-term orientation of coastal state?

– catch restrictions (yes in Namibia, with TACs, not in Indonesia)

– effort restrictions (fishing licence in Indonesia, Kenya)

• => General recommendation: Top down systems in EEZ

Résumé: Theory building

• No ideal instrumental mix for all situations

• developing clusters of problem syndromes and instrumental mixes

Clusters of problems and instruments

coastal

fisheries

Problem syndroms

Instrument mix

traditional protected self-regulation

artisanal controlled self-regulation

poverty authoritative state regulation

competitive participatory state regulation

offshore

fisheries

long-term orientated

participatory state regulation

short-term orientated

authoritative state regulation

foreign exclusion or partnerships

TRADITIONAL

Stable resource

Low effort

Communal culture

SELF-REGULATION

Collective use rights

Exclusion of thirds

Traditional leaders

State supervision

No royalties

ARTISANAL

Stable resource

Low effort

Modern collectives

CONTROLLED SELF-REGULATION

Governm. use rights

Limited access of thirds

Councils

Regulatory framework

COMPETITIVE

Declining resource

High effort

Individualistic culture

PARTICIPATORY STATE MANAGEMENT

Individual use rights

State management

Right to be heard

Outreach

• Checklist of legal diagnosis to find the cause of disease

• Setting up a consultancy for legal clinic, to assist expert missions on fisheries

WP 10: The team

• Marion Markowski, Till Markus, Gerd Winter, Bremen (WP leaders, EU report, crosscountry analysis)

• Mauro Figuereido, Florianopolis (Brasilian report)

• Joe Ryan, Managua (Nicaraguan report)

• Germàn Ponce, La Paz (Mexican report)

• Mavetja Rukoro, Manfred Hinz, Windhuk (Namibian report)

• Evanson Chege Kamau, Nyawira Muthiga, Andrew Wamakote, Bremen/Mombasa (Kenyan report)

• Laode Syarif, Jakarta (Indonesian report)

www.uni-bremen/de/~feu

WP 10: Legal Instruments Gerd Winter Overview objectives progress results.

Documents

management of fisheries

eu fisheries law

country slide

management regimes d

management instruments

conflict of fisheries

fisheries code

namibia d