WP 10: Legal Instruments
Overview
• Introduction: The lawyer´s perspective
• WP 10 objectives
• WP 10 progress
• WP 10 outcome
I. The lawyers´ perspective
• Look from within the law => legal practise
• Look from outside the law => science of law
1. Look from within: Taking the law seriously
• Law is not irrational and authoritarian command, but outcome of (more
or less) legitimate decision-making
• Checking compatibility
– of behaviour with the law,
– of lower level legal acts with higher level legal acts (administrative
act/regulation/ statute/constitution/international law
• In fisheries realm: Focus on
– rights to use resource
– obligations to protect resource
– third party rights to ask for protection of resource
Example: Case of TAC in EU
• December of every year Regulation by Council of Fisheries Ministers
on catch quota, fixed per MS, species and areas.
• Transposed by Member States into catch allowances for individual
fishermen
• Recurrent decision-making cycle:
expert opinion of ICES => political bargaining => resulting TAC by
far exceeding scientific recommendation => protest by fisheries
experts and environmental groups => calming down until next cycle
begins
A possible legal approach
•
•
•
•
Complaint at European Court of First Instance (ECFI)
Potential plaintiff: environmental NGO
Application: to state that Council Regulation is void.
Allegation: Violation of Art. 2 Reg 2371/02 on sustainable
fisheries
– to be based on scientific findings
– Sustainability
– precaution
• Admissibility of complaint:
new Regulation 1367/2006 on access to justice in
environmental matters, Art. 10 and 12: extension of
“standing to sue” to environmental associations
Yardsticks of Regulation 2371/02
Decisions
• to be „based on sound scientific advice which delivers timely
results“,
• to provide for „sustainable exploitation“ meaning „the
exploitation of a stock in such a way that the future exploitation
of the stock will
not be prejudiced“,
• to apply the „precautionary approach“ meaning „that the
absence of adequate scientific information should not be used
as a reason for postponing or failing to take management
measures to conserve target species“,
• „providing a fair standard of living for those who depend on
fishing activities and taking into account the interests of
consumers“.
2. Look from outside:
suitability of different management instruments
• overlap with institutional economics, but legal approach
less theoretical, more pragmatic
– economics: prediction of impact on individual as a rationally
calculating mind (model of homo economicus). Focus on cost and
benefit as incentives. Overall yardstick: efficiency.
– legal science: prediction of impact on individual as a pragmatic
mind (model of homo pragmaticus). Focus on legitimacy,
proportionality and enforceability of the law. Overall yardstick:
effectiveness (of resource protection) and distributional fairness
• methodology:
– economics: behaviour models, quantitative data
– law: reconstruction of facts, interpretation of texts; extrapolation
from significant cases
II. WP 10 objectives
• Meta data bank on fisheries legislation
• Short country profiles on 4 countries (India, Russia, South Africa, Sri
Lanka)
• In-depth country reports on 7 countries
– Indonesia
– Kenya
– Namibia
– EU
– Brazil
– Nicaragua
– Mexico
• Cross-country analysis of property rights in and regulation of fisheries
Topics covered in the national reports
•
•
•
•
State of fisheries and fish resources
Fisheries issues debated in the country
Parties to which international agreements?
Domestic law and institutions managing resource use
– General
– Coastal/artisanal fisheries
– EEZ/industrial/offshore fisheries
• North-South relationships
• Case studies on characteristical legal problems of the country
III. WP 10 progress
1.
Meta-databank on fisheries law and institutions
(1)
annotated guide to national authorities of 95 countries responsible
for fisheries
annotated list of websites collecting websites storing fisheries law
annotated list of single websites storing fisheries law
(2)
(3)
2. Country reports
2. Country reports and cross-country analysis
• Drafts of complete reports: EU, Mexico, Kenya, Namibia
• Drafts of near to full reports: Brasil, Indonesia
• On-going: Nicaragua
• Drafts to be completed by May 2007
• Time for cross-country analysis with questions back to country studies
• Publication of reports; presentation at conferences
IV. WP 10 Outcome
Country reports first in-depth studies of recent legal situation for almost
all of the countries addressed => tool of self-reflection; involving legal
institutions
Cross-cutting analysis
• to develop a typology of legal instruments
• to assess legal instruments in terms of effectiveness, legitimacy and
fairness
• to build a theory of suitable legal instruments
• In the remainder: Focus on cross-cutting analysis leaving out stories
about individual states
1. Typology and assessment of legal instruments
a)
Interstate relations
b)
Domestic law
(1)
(2)
(3)
(4)
(5)
(6)
General structures
Constitutional rights and obligations
Instruments of promotion
Instruments of management
Specific aspects of coastal fisheries
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
(1) General Structures: competing regimes?
Horizontal
• Laws: fisheries laws; forest laws; nature protection laws; coastal and
marine use planning laws
• Administrative agencies: for fisheries, forest, nature protection,
planning, development, ICM
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?
(1) General Structures: competing regimes?
Vertical
• Supranational organisations (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:
multilayer checking (MS and EC Commission; power of Commission
to sanction MS)
=> why no sanctioning powers of international fisheries organisations?
(1) General Structures: competing regimes?
Traditional
• State and traditional structures
Example Kenya: Kaya parallel regime besides state based regulation;
Example Indonesia: traditional fishermen exempted from state control
(1) General Structures: competing regimes?
Enforcement
• Example Indonesia: police, navy stronger but less knowledgable than
special fisheries task force
• Example Kenya: Wildlife protection system stronger than Fisheries
Department
(2) Constitutional law: rights to allocate
• Systems of patrimonial rights of the state (Mexico, Brasil)
• Systems of free access within regulatory framework(EU)
(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?
(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
(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
(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
(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
2. Theory building
• No ideal instrumental mix for all situations
• developing clusters of problem syndromes and instrumental mixes
Clusters of problems and instruments
coastal
fisheries
offshore
fisheries
Problem
syndroms
Instrument mix
traditional
protected selfregulation
artisanal
controlled selfregulation
poverty
authoritative state
regulation
competitive
participatory state
regulation
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 SELFREGULATION
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
Etc. etc.
Etc. etc.
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)