WP 10: Legal Instruments

1. WP 10: Legal Instruments Overview • Introduction: The lawyer´s perspective • WP 10 objectives • WP 10 progress • WP 10 outcome

2. I. The lawyers´ perspective • Look from within the law => legal practise • Look from outside the law => science of law

3. 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

4. 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

5. 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

6. Yardsticks of Regulation 2371/02 Decisions • to be „based on sound scientific advice which delivers timely results“, • toprovide 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“.

7. 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

8. 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

9. 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

10. III. WP 10 progress • Meta-databank on fisheries law and institutions • 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

11. 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

12. 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

13. 1. Typology and assessment of legal instruments • Interstate relations b) Domestic law • General structures • Constitutional rights and obligations • Instruments of promotion • Instruments of management • Specific aspects of coastal fisheries • Specific aspects of off-shore fisheries

14. 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)

15. 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.

16. 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?

17. (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?

18. (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

19. (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

20. (2) Constitutional law: rights to allocate • Systems of patrimonial rights of the state (Mexico, Brasil) • Systems of free access within regulatory framework(EU)

21. (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?

22. (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

23. (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)

24. (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

25. (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

26. (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

27. (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

28. (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

29. (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

30. (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

31. 2. Theory building • No ideal instrumental mix for all situations • developing clusters of problem syndromes and instrumental mixes

32. Clusters of problems and instruments

35. 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)