13.3 Co-management at work
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In order better to visualize the co management approach, we would now like to refer to a few experiences which have been documented in the scant literature available on the subject. That the literature is poor ought not to surprise us inasmuch as co-management is a new idea that is just beginning to be tried on the field in a systematic way. Nevertheless, special attention should be paid to the system of coastal fishery management in Japan since this system has been thoroughly tested on the ground for a lengthy period of time, long before the concept of co-management arose in debates about resource conservation. In addition, a few other experiences which are still in an infancy stage will be considered so as to give the reader a rough impression of the kind of approach that is being presently experimented in various sectors and in various parts of the developing world. The spirit of experimentation and institutional innovation which accompanies all these attempts is probably the most promising sign of hope for those who dream about better conservation of the earth's resources for future generations. Failures should be accepted as the inevitable price to pay for the discovery of more effective ways of tackling this extremely complex problem.
The analysis of the aforementioned case of Japanese coastal fishery management forms the core of this survey of co-management in the fishing sector. After a rather detailed presentation of this unique case, a few localized experiences of co-management will be shortly reviewed. Finally, we will address the problem created by the need for intermediate organizations between the State and local user groups by referring to institutional experiments presently conducted in various parts of the world (more specifically, on the eastern coast of Canada).
Management in Japanese coastal waters: a long experience with co-management
Since the present system of coastal fishery management in Japan is deeply rooted in the history of sea tenure in this country, going back to feudal times (the Edo period), it is worth looking at it in a dynamic perspective to have a good grasp of the way it has evolved. Such an approach is made possible by the fact that several detailed studies are available on the subject. Our presentation is mainly inspired by the works of Asada et al. (1983) and Ruddle (1987) in which the interested reader will find additional references.
Antecedents in the feudal period. In feudal times, Japanese coastal villages were classified either as 'agricultural' or as 'fishing' villages. The purpose of this classification was to ensure that the rice-based feudal economy would not be threatened by farmers unduly switching to fishing with the attendant consequence that the scope of monetized transactions would increase (since fishing is a much more specialized occupation than agriculture). As a matter of fact, fishing operations were strictly prohibited in the adjacent waters of all 'agricultural' villages (except seaweeds harvesting for fertilizing purposes). Villages designated as fishingwhere fishing operations were explicitly allowed by feudal authoritieswere actually villages with small amounts of farmland, where fishing alone offered a viable livelihood. Resident communities were awarded fishing rights and, in order to limit the numbers entering the fishery from any particular community, fishermen's guilds came into existence (Asada et al., 1983: 6). Membership in each guild was rigidly limited to persons born in a particular village and all members had to follow strictly the regulations of the guild, which established fishing zones, set seasonal limits and imposed restrictions on fishing gears and techniques (Ruddle, 1987: 25).
An institutionalized system of village or local sea tenure was thus born in which 'the generally acknowledged sea territory of each coastal village was simply a seaward extension of its terrestrial territory' (Ruddle, 1987: 13-14). In 1719 this became codified, at least as far as Okinawa Island and other main islands were concerned. Since the 1719 law partook of a feudal logic, the performance of corvée and the payment of tributes (to both the fief government and to the village lord) on the one hand, and the confirmation of exclusive rights to a coastal sea territory on the other hand went hand in hand. Of course, the reckoning of these rights implied that the law upheld the customary practice whereby outsiders could not work a village's sea territory unless an agreed fee was first paid to the village officer responsible for village marine affairs. The boats and gear of outsiders apprehended working illegally were confiscated and were returned only after a fine had been paid.;
What deserves to be especially emphasized in the context of the present study is the following: 'despite an increasingly centralised and bureaucratised government during the Edo Period, coastal fisheries had only a local focus and were closely adapted to local physical, biological and socio-economic conditions', hence the noticeable 'lack of nationwide uniformity in the definition of coastal fisheries and their regulatory procedures'. This dominant feature of Japan's system of coastal fishery management, as we shall now see, has persisted to this day (Ruddle, 1987: 14-15). This is particularly in evidence in the case of conflict-resolution mechanisms since, much as we can observe nowadays, intra-village and intervillage disputes were essentially resolved in as decentralized a way as possible. Moreover, such mechanisms were sometimes very refined as when (monetary) compensations were required from fishermen found imposing negative externalities on others owing to the technologies used (ibid. 22). In the words of Ruddle, 'both the causes of conflicts and the processes employed to resolve them within and among villages during the Edo period differ little from those still mainly used at present. This constitutes an important part of the continuity of tradition fundamental to an understanding of present-day Japanese inshore fisheries' (ibid. 21).
The interim period (up to mid-twentieth century). As the feudal era drew to a close, in the middle of the nineteenth century, the above system came under increasing stress due to the conjoined operation of two irrepressible forces: population growth and commercialization of fisheries under the impetus of an enlarging cash economy. Serious disputes over fishing grounds consequently began to erupt, particularly between coastal 'agricultural' and 'fishing' villages. More precisely, 'agricultural' villages started to claim their own sea territories. Depending on the extent of pressure on the resource, these villages would still allow 'true fishermen' to retain limited rights of access to their local waters (for example, the right to harvest certain species of fish), or they would decide to strictly enforce exclusive rights thereby preventing former users from exercising their customary prerogatives. At the very end of Japan's feudal age, just prior to the Meiji Restoration, in 1868, the latter situation actually began to emerge in the most highly developed and productive fisheries (Ruddle, 1987: 18-19).
In 1876, after the dissolution of the fiefs, the ownership of all fisheries reverted to the central government. An open-access situation ensued, which led to intensified controversies and disputes over access and traditional rights, all the more so as new entries into coastal fisheries increased vastly, sometimes backed by powerful outside interests (like big merchants). The central government was obliged to abandon this system and to revive the traditional arrangement that had persisted throughout the feudal era. Thus, de facto ownership of existing fishing grounds reverted to each prefecture, the administrative division that replaced the fiefs after the Meiji Restoration (Ruddle, 1987: 24). In 1887, the Japanese government drew up regulations establishing fisheries co-operatives to co-ordinate the use of coastal fishing grounds and to maintain harmony within fishing communities following existing custom and practice. Repeated trial and error finally led to the enactment of a Fisheries Law (1901) which provided for the establishment of Fisheries Associations (henceforth denoted by FAs) in each fishing village and assigned fishing rights to them (Asada et al., 1983: 6). The old guilds were thus revived as the local administrative agencies of the new system of fisheries management.
Unfortunately, implementation of the 1901 Fisheries Law seems to have done little or nothing to alleviate the economic plight of the small-scale fishermen, a fact which is much to do with the introduction of highly efficient offshore fishing crafts in coastal waters at the beginning of the 1920s. Serious conflicts with inshore fishermen ensued which intensified with the onset of the Depression of the 1930s. At this juncture, as a means of stabilizing the livelihood of coastal fishermen, common fishing rights were extended further offshore and a larger number of fishing rights were concentrated in the hands of the FAs. The intention was to keep large offshore vessels out of the grounds involved in order to conserve fishery resources and to strengthen FAs as the main agency of fishery management. Moreover, following the Second World War, a major revision of fishery legislation was carried out by the government with the purpose of expelling absentee owners from fishing villages and reserving fishing rights exclusively for working fishermen (Asada et al., 1983: 7). This revision gave rise to the Fisheries Law of 1949 which was conceived of in direct continuity with the law of 1901. Since then, no major modification has been made to this legislation.
The current system: general considerations. The Fisheries Law of 1949 which, together with the Fisheries Co-operative Association Law of 1948, constitutes the cornerstone of the system of fishery management in post-war Japan, is comprised of measures relative to fishing rights, fishery licensing, and arrangements for fishery coordination (coordinating committees). Modifications to the 1901 Fisheries Law were based on three principles intended to eradicate the remaining elements of feudalism:
As for the Fisheries Co-operative Association Law, it 'restricted membership in FCAs to fishermen resident in the jurisdictional area of the Association and who were engaged in fishing for 90 120 days a year, the precise period being determined by each FCA' (Ruddle, 1987: 35). This new legislation obviously involved a significant reshuffling of fishing rights in favour of active fishermen and the cancellation of rights owned by 'big capitalists'. The move was undertaken on the grounds that 'active fishermen should be the beneficiaries of the fish resources in inshore waters' (Hannesson, 1988: 11). Whatever the intent, the local, communitybased FCA has thus emerged 'as a vitally important intermediate organization that links the central and prefectural government with the individual fisherman. Although comprising the fundamental unit of government fisheries administration, and being the key organisation in the implementation of official fisheries projects, an FCA belongs entirely to the local community of fishermen' (Ruddle, 1987: 36).
It is important to emphasize that FCAs have developed as the natural outcome of a long tradition. Formed originally for the purpose of jointly managing coastal fishing grounds, fishermen's groups later had their functions extended into the economic area and they finally evolved into the present type of co-operative association. Note that, although adherence to and exit from an association is voluntary, almost all fishermen in fact belong to them. Moreover, every fishing village has such an association (Asada et al., 1983: 9). As a consequence, all coastal waters, with the exception of ports, their adjacent tracts, and tracts reclaimed for industrial zones, are divided up among FCAs or Federations of FCAs (Ruddle, 1987: 36).
As hinted at above, the Japanese system of fisheries management relies on two kinds of regulatory device: fishing rights and fishing licences. Only pole and line fishing by small vessels in coastal waters is actually free of any regulation. In Table 13.1, the structure of Japanese fishing rights and licences is described in a summary way. Some comments are in order.
The current system: .fishing rights. The system of fishing rights, which is essentially a continuation of former practices, applies only to coastal fisheries. In these fisheries are found many fishing units using stationary gear, e.g. set-net, bottom-fixed net, etc., as well as aquacultural enterprises. The viability of such enterprises is preconditioned on their receiving legal protection from encroachment by others on the site of operation, so as to avoid damaging conflicts due to competition between fishermen (Asada et al., 1983: 9). An important feature of these fishing rights is that they cannot be loaned, rented, or transferred to others, nor can they be mortgaged. They are indeed regarded as the exclusive and inalienable property of the fishermen to whom they have been granted (Ruddle, 1987: 36).
Tabel: 13.1. The structure of Japanese fishing-rights and licences
|(1) Joint fishery rights|
|A. Gathering seaweed, shellfish and other benthos|
|B. Specific small-scale net fisheries||Exclusively to FCAs|
|C. Beachseines, unmotorized trawling, fish shelters|
|(2) Demarcated fishery rights|
|A. Special Demarcated Rights||Exclusively to FCAs.|
|B. Demarcated Rights||To FCAs, private organizations and individuals|
|(3) Large-scale set-net fishery rights||Ditto.|
|(1) Large-scale operations In distant waters||Mostly to private organizations and individuals|
|(2) Medium-scale operations in deep waters||Ditto.|
|(3) Small-scale nearshore operations||FCAs or individuals|
Source: Ruddle (1987: 37)
There are actually three kinds of fishing rights, viz. joint (or common), demarcated, and setnet rights. The most important are joint rights, which are awarded only to an FCA or to a Federation of FCAs, which in turn distributes them among the membership. These rights are established for four classes of fishery, visually: (a) fisheries for seaweeds, shellfish, crustaceans, and sedentary fin-fish species; (b) fisheries employing fixed gear, e.g. traps and the like; (c) beachseine, boatseine, and other fisheries which are relatively immobile or stationary on the fishing ground, and (d) inland-water fisheries.
The width of the zone governed by these rights varies considerably from one place to another, but the average is about I km. seaward from the shore. Moreover, the allocation of a fishing territory among these types of gear and the fishermen to be engaged in their operation is internally decided by a FCA.
Demarcated fishing rights are granted for aquaculture and are usually valid for five years. They are established within waters governed by joint fishing rights and are divided into two types. One typeknown as 'special demarcated rights'is held by FCAs and relates to aquaculture using sea-ponds, rafts, nets, and long-lines. In this case, since the operations involved are comparatively small in scale, the number of fishermen capable of participating is potentially large. In addition, the location of these harvesting operations being sheltered, it is relatively prone to pollution and, therefore, diverse activities with differing environmental quality requirements must be managed in a compatible and equitable manner. The other typeknown as 'demarcated rights'is granted for pearl culture and large-scale aquacultural projects involving the partitioning of sea inlets by dykes or nets. Rights for these projects which demand little co-ordination with other, potentially incompatible activities, are awarded not only to FCAs but also to private companies and individuals with the technical capability and investment capital required.
Set-net fishing rights apply to the use of large-scale nets of this type, fixed at depths of more than 27 metres (the concerned species are herring, migratory trout, and salmon). They are granted to private individuals and companies, as well as to FCAs. Since the high capital investment and large operating costs involved by this technique effectively limit the number of nets, the area and sites of operation can be easily restricted by the prefecture. Note that, because of a potentially substantial impact on other fishing operations in their vicinity, placement must be permanent. This is in contrast with small-scale set-nets which often require to be moved from place to place to secure a catch. Here, to equalize opportunity among participants, the FCA customarily reallocates the placement of these nets each year by means of a lottery.
It is noteworthy that in every instance joint rights embrace the entire sea territory of an FCA, whereas demarcated rights and those for set-nets are granted only for specific areas within the joint rights area. Furthermore, while all fishermen belonging to a specific FCA are entitled to fish in that FCA's joint rights area, only a limited number are granted demarcated and set-net rights. Because of the extent of capital investment and technical capacity required (see above), the restriction of these latter rights to FCAs might lead to the leasing of fishing rights, which would be contrary to the spirit of the Fisheries Law. In such cases, some criteria for qualification and the preferential ordering of allocations are used by the prefecture. Large fishing companies and persons who are not working fishermen, along with those who violate fishing and labour laws, arc disqualified. The preferential order is somewhat complicated but generally follows the sequence of (a) FCAs, (6) organizations composed of many fishermen, (c) fishermen's organizations with a limited number of members, and (d) individuals and companies.
Fishing rights called 'co operative-managed rights' refer to both joint or common fishing rights, and to demarcated rights owned by FCAs. Now, although the FCAs arc awarded these rights, they seldom engage directly in fishing operations. 'Their function is to own the fishing rights and to administer use of the fishing grounds in the interest of optimal utilisation of fishery resources and of equal opportunity for their members. Equality of opportunity, however, is not always achieved. Within a co-operative, fishermen are apt to form groups based on type of fishery and fishing rights actually may be exercised by limited numbers. In any event, the rules for fishing ground utilisation are decided by a 2 to 3 majority vote at a general meeting of each association' (Asada et al., 1983: 10). In fact, it is mainly to avoid controversy in the distribution and allocation of 'co-operative-managed rights' that practical implementation is left to the FCAs.
The current system: fishing licenses. When it is necessary, for the purpose of resource conservation and/or the maintenance of orderly operations, to impose restrictions on effort in fisheries based on migratory fish stocks, a system of licensing is applied. Started in the trawl fisheries, this system has been gradually extended and, nowadays, it covers almost all Japanese fishing-vessel operations. In accordance with the size and operating conditions of the fishery concerned, licences are either granted by the Minister of Agriculture, Forestry, and Fisheries or by prefectural governors.
Fisheries requiring licences of the former type are called 'designated fisheries'. An overall allocation is established as deemed appropriate for the conservation or enhancement of resources and the maintenance of order in the fishery. The number of vessels to be licensed is then decided (by tonnage class, fishing area, and operating season). Applications for licence must be supported by proper credentials and licences are awarded on a priority basis to applicants with experience in the fishery involved. When there is an excess demand for such licences, criteria such as the applicant's previous operating history and his degree of dependence on that fishery are considered. No order of priority such as that applied in the case of fishing rights is taken into account, however. In principle, licences for all fisheries are renewable every five years, except for fisheries where catch quotas are decided annually on the basis of international agreements.
When resource conservation or fishery regulations require a strict control of the catch and/or effort in local fisheries (in which, for the most part, small-scale vessels are employed), prefectural governors are called for the issuance of licences. For administrative purposes, fisheries so licensed (called governor-licensed fisheries) are divided into two broad classes:
For both classes of fishery, the method of licensing is almost the same as in the case of minister-licensed fisheries. Note however that licences issued by prefectures are granted to individual fishermen or to an FCA (when the number of applicants is large). In the latter case, the prefectural governor decides only the number of licences to be allotted per FCA (bear in mind that in Japan licences are always issued for vessels and fishermen), and each FCA is then expected to distribute them among its membership. Moreover, in order to impart maximum flexibility to the system, an FCA may receive several or more individual licences as a 'package', which then permits individual fishermen to switch activities in different years in accordance with technological change or altered family or personal circumstances, for example (Ruddle, 1987: 38 9).
In the interest of resource conservation, the Minister may decide outright bans on some fisheries, or else, annual renewal of permission to operate may be required. In many cases, however, licensing provisions contain restrictions of various kinds, such as closure of comparatively wide areas near shore to fishing operations (which applies in the case of fisheries having a highly productive capability, e.g. those using bottom trawls or purse-seines), closure of the fishing season (which applies to most fisheries, including offshore trawl, small-trawl, purseseine fisheries, etc.), restrictions on vessels and gear (on the horsepower of the vessels, on the size of the net meshes, on the intensity of fish-collecting lights, etc.), restrictions on the body size of individuals of a species taken or landed, prohibition of landings at other than designated ports, and so on.
The current system: the sea-area adjustment commissions. Fisheries adjustment commissions were established to ensure the co-ordination of prefectural fisheries development within an overall national framework. According to Ruddle, 'these commissions form an essential intermediate link between the national and prefectural levels of Japanese fisheries administration' (Ruddle, 1987: 40). There are actually two kinds of such commissions. The first type (the Sea Area Fishery Adjustment Commission) has been established by the Ministry of Agriculture, Forestry, and Fisheries with a view to making, monitoring, and modifying fundamental management plans for sea areas under the control of local government. (Each of the sixty-five sea areas into which the marine waters of Japan have been divided corresponds to the maritime zone of one particular coastal prefecture). In principle, each commission is composed of fifteen members, nine of whom are officially elected by the fishermen and six appointed by the governor (four of whom are fisheries specialists and two represent the public interest). The functions of these commissions, in addition to the above-noted one of preparing management plans, consist of deciding on the eligibility of fishing rights and licences, resolving or mediating conflicts, and advising local governments on the management of living aquatic resources. 'Based on those plans and that advice, detailed regulations to control fishery operations and to ensure the conservation and rational exploitation of resources are established by the Fisheries Agency of each prefecture' while the prefectural regulations are supplemented and enforced by each FCA (ibid.).
The second kind of commissions are the United Sea Area Fishery Commissions which are established as a particular need arises. The control of the fishing of seasonally migratory stockswhich, by definition, cannot be regulated by any one prefecture aloneis one of their major functions. Permanent commissions of this kind, which are placed under the direct control of the Ministry, are established whenever recurrent and intense conflicts occur as a result of the fact that many fishermen from different FCAs and employing distinct and conflicting gears operate in a shared water space.
The current system: the Fisheries Co-operative Associations. The relatively high degree of local autonomy granted to fishermen under the Japanese system enables them, through their role on FCA committees and at general meetings, 'to determine the division of access rights among individual FCA members and to ensure that the interests of all parties involved are considered and accounted for. It also permits higher-level fishery regulations to be adapted to regional differences in ecology, target species, fishing effort, and level of industrialization or other impacts on local fisheries, among other things. Further, it guarantees that fishery management strategies, processes of conflict resolution and interpersonal and intergroup relationships will be, to a large extent, based on local customary law and codes of conduct' (Ruddle, 1987: 43). The continual process of interaction among the different levels of fisheries administration and the existence of intermediary bodies such as FCAs or Federations of FCAs allow for the incorporation of customary law within the regulations made at the higher levels. In the words of Ruddle again: 'The control of resources from within a fishing community as well as from above are two complementary and mutually reinforcing channels that constitute a viable system for the administration and management of coastal fisheries' (ibid. 44).
Basically, therefore, what FCAs do is to implement and enforce national and prefectural legislation and regulations which they supplement or complement, as local conditions require, by locally made rules and regulations. (For instance, the president of a FCA may at any time restrict the harvesting of any species to conserve resources and to control the fishery.) These local rules are then formalized in a FCA's special document to be submitted to, and approved by, the prefectural fisheries office. (As the need arises, this document is revised, necessitating reapproval by the same office.) A second important function of a FCA is to represent its membership's interests at higher administrative levels and vis-à-vis private organizations such as industrial corporations affecting local fishery operations (Ruddle, 1987: 44, 47).
Fishermen have a direct say in their FCA not only through their participation in the annual meeting of the general assembly (where issues arising from use rights are discussed, rules ensuring equitable use of the local fishing grounds are decided, and intergroup conflicts are settled) but also and mainly through their small-group decisions. Indeed, they are often organized into fishing squads (han) and residential groups (ku) which are the main entities in policy-making with respect to resource allocation. These small user groups are thus fitted into a larger structure and they are entrusted with monitoring and enforcing responsibilities (see above, Chapter 12). The opinions of these decentralized units are transmitted to the local FCA's board of directors, which is obliged to follow them as closely as possible. Thus, agreements made between the various squads and approved by the board can lead to the reservation of some waters within the FCA's fishing territory for the exclusive use of individuals or squads. Note carefully that such agreements do not necessarily guarantee equal access to an entire exclusive rights area for all local FCA's members in all types of fishing (Ruddle, 1987: 45-6).
It may be recalled here that membership in a FCA is strictly restricted to residents of the area covered by it and to persons engaged in fishing for a minimum of 90 120 days a year (the exact limit being determined by each FCA according to specific local conditions). Moreover, we know that fishing rights (and licences) cannot be loaned, rented, transferred, or mortgaged to others, yet rights can be inherited by a kinsman or a successor, provided that such a person is also a member of the same FCA. The rationale of these regulations has been described by Ruddle as follows:
The restrictions . . . were intended to eliminate absentee ownership and the concentration of assets and profits in the hands of a few non-fishing capitalists, and thus once and for all to break the stranglehold over coastal fisheries by wealthy 'sealords' that in pre-war times not uncommonly kept the working fisherman permanently impoverished and beholden by an endless cycle of indebtedness. In their intent to control excesses it is unlikely that these laws ever really sought to prohibit all transfers of rights other than those based on succession or inheritance or to make access totally equitable nationwide, since clearly this would have been impossible given the great weight and variety of tradition and customary law throughout Japan. Further, . . . the transfer of rights (either permanently or temporarily) has historically been a major factor in the control of access to Japanese coastal fisheries. In earlier periods village rights were extended to other communities and individuals on the payment of fees, and government rights were similarly transferred in return for cash payments . . . Although both the letter and the spirit of the laws is upheld to exclude absentee capitalists from joint fishing rights areas, they are essentially of only secondary importance to unwritten, village customary laws. (Ruddle, 1987: 48)
Throughout Japan, it is birthright, followed by the requisite training and residence within the boundaries of a given FCA, that is the principal means by which FCA membership and fishing rights are obtained. (Marrying into a community and then working with the in-laws is another traditional way of gaining access to a fishery.) As most (coastal) fishing units are crewed by a father-son team or by two or more brothers, the senior person often owns the fishing rights and is a full voting member of the FCA, whereas the other(s) is (are) associate (non-voting) member(s). Rules governing access to joint fishing rights for new residents seem to vary significantly among FCAs and to be strongly influenced by local historical, economic, and sociopolitical factors. For example, in a village near Kyoto, new residents must live there for one generation before they become eligible to apply for membership and fishing rights. Furthermore, when a branch family is established by a son of a stem family of this village the new family must wait ten years before it can apply for membership and rights. We are told that 'tradition runs deep in this FCA, which maintains an exhaustive record of family lineage and succession to fishing rights' (Ruddle, 1987: 50). The importance of tradition also accounts for the fact that the history of social or class relations may bear upon the present pattern of allocation of fishing rights, sometimes with the effect of perpetuating former class privileges (in some communities, certain categories of fishing rights have been reserved for families of higher social status for many centuries), sometimes with the opposite effect of correcting previous inequities. The latter possibility arises when, for example, certain fishing rights remain allocated to just the descendants of the pre-war pauper class on the grounds that these people deserve to be compensated since they have been long discriminated against; or when descendants of former upper-class families who for centuries had discriminated against other social strata are considered to be involved in long-term reciprocity relations which require them to pay off the debts incurred by their ancestors (ibid. 4951).
Finally, it must be pointed out that, in areas that have undergone massive economic structural change during the post-war period, traditional values and behavioural norms have become gradually less dominant. Thus, in the now heavily industrialized Inland Sea region, it is not rare to find illicit transfers of fishing rights. For example, in some FCAs, 'when a member retires from fishing he illegally sells his licence to another member, at a high price', a practice which tends to be sanctioned by the Association as long as it does not lead to excessive accumulation of rights and wealth by some individuals (Ruddle, 1987: 51-2).
The current system: management of conflicts. Conflicts at both local and supralocal levels are unavoidable. Important causes are disputes about access rights, gear conflicts (competition arising from the use by fishermen of different harvesting techniques), illegal fishing, and boundary jurisdiction. At the local level, the impact of interpersonal conflicts is nevertheless mitigated by 'the fully participatory consensus approach to decision-making that is characteristic of Japanese organisations' (Ruddle, 1987: 57). In traditional contexts, particularly in isolated areas, it is only rarely and in extreme cases that the customary technique for resolving conflicts through protracted negotiations made of concessions and counter-concessions proves ineffective, thereby necessitating a recourse to more formal channels (such as requiring the assistance of the Coast Guard to tame aggressive fishermen who repeatedly attempt to intimidate others into leaving a good fishing spot at which they have arrived first). In normal circumstances, according to Ruddle:
First-comer's rights to a particular fishing spot, skill, knowledge and secrecy, pride of workmanship and community pressure to conform, all serve to balance excessive competitiveness and to ensure that all but the most intractable conflicts are resolved by informal mechanisms. Local community perceptions of social and 'owned' space are one of the keys to understanding the territorial and tenurial behaviour of Japanese coastal fishermen, since community norms are flouted at one's peril and the threat of social banishment is real and horrifying. (Ruddle, 1987: 87).
By contrast, in parts of Japan where customary mechanisms for conflict resolution and sanctioning have broken down as a result of modernization (see above, Chapter 11), 'competition is intense and the disregarding of official regulations and lawbreaking more frequent and flagrant'. In such circumstances, litigation among fishermen is relatively high as are conflicts among FCAs, prefectures, and between the fishing and other sectors of the national economy. It is in these areassuch as the Inland Seathat the resolution of conflicts by formal means assumes significant importance (Ruddle, 1987: 61).
An interesting illustration of the possibility of failure of traditional decentralized mechanisms of conflict-resolution relates to the serious problems which arose in Japan (as in so many other countries) from the entry of trawlers in coastal waters. For example, in the Essa Strait on Honshu Island, severe and often violent conflicts have erupted between trawler fishermen and traditional anglers and long-liners with the starting of a trawl fishery after the First World War. Mediation efforts of the Fishery Agency of the prefecture concerned repeatedly failed because of 'the diametrically opposed and tenaciously held views' of the representatives of both contending groups. As a consequence, the problem was turned over to the national Fishery Agency and, eventually, the Minister of Agriculture, Forestry, and Fisheries 'imposed an absolute ban on trawling in the Essa Strait until a mutually acceptable agreement could be concluded between the two sides'. Unfortunately, 'no such agreement has ever been reached' (Ruddle, 1987: 68-9).
For another thing, it is noteworthy that, since the late 1960s, judicial proceedings have been increasingly resorted to with a view to protecting inshore fishery rights within the context of growing negative externalities and loss of resource space imposed on fishing by the country's industrialization. If the traditional vehicles of conflict management have been supplemented by resort to the judiciary, it is because industrial companies tend to neglect the basic traditional behavioural norms of the rural sector. Now, it must be emphasized that 'to a large degree, traditional informal and formal methods of conflict management utilize the same methods: mediation, conciliation, arbitration, the use of go-betweens, protracted face-to-face contact and the payment of compensation, that result in concession, counter-concession and compromise to reach a mutually acceptable solution'. Moreover, a central lesson from the history of conflicts in Japanese fisheries is that 'general principles such as are codified into law must be applied flexibly and according to local conditions' (Ruddle, 1987: 82-3).
Particularly worth singling out is the ruling notion of livelihood rights which implies that the Japanese government recognizes fishing rights as having a value beyond economic worth, viz. that of ensuring the daily livelihood of (small-scale) fishermen. Thus, no fishing space belonging to FCAs can be used or acquired by private business interests unless the FCA concerned has agreed to sell its fishing rights. Furthermore, an important court's verdict has provided that fishing rights constitute 'a property protected by article 29 of the Constitution, which nobody could "buy" without the owner's consent'. The implication is that an unanimous agreement is required to sell fishing rights to a private company. In other words, any decision by a FCA which has the effect of depriving some members of their livelihood rights without their full agreement is unconstitutional. Therefore, even if only a minority of fishermen refuse to relinquish their rights, a private developer is forced to abandon his project since not even the central government is entitled to intervene when a FCA is resolutely opposed to such a transaction (Ruddle, 1987: 72, 80, 87).
Conclusion. What is interesting in the Japanese experiment is not only that (small-scale) fishermen enjoy legally guaranteed access rights to coastal waters but also that, through their own local organizations, they are in charge of establishing regulations for the internal distribution of these rights as well as for the control and operation of various types of fishery, as local conditions dictate. Sea tenure in Japan is actually a complex system which operates at various levels, 'ranging from the national government, through the prefecture and the local FCA, to the fishing squad and finally to the individual fisherman'. The FCA, in particular, is a vitally important intermediate organization that links the central and prefectural governments with the individual fisherman. It is at the core of the regulatory process (Ruddle, 1987: 85-6). Higher administrative levels intervene whenever (a) medium- or large-scale operations in distant or deep waters are concerned, especially so for migratory species; (b) problems arise within coastal communities which cannot be effectively solved by their local organization (the FCA); (c) problems arise among different fishing communities and prefectures, or else between fishermen and representatives of other sectors of the national economy; and (d) supralocal legislation is required to ensure proper management and conservation of fish resources.
In the latter circumstances, the government (or the prefecture) lays down a general framework of basic principles and fundamental rules to be implemented at community level after due adjustment has been made to local needs and conditions through locally designed complementary or supplementary measures. These adaptations are 'based on the empirical information provided either directly by the fishermen or indirectly by their fishing behaviour and performance' (Ruddle, 1987: 86). This procedure which consists of leaving the detailed application of basic ministerial or prefectural guidelines to the FCA and in many instances to the specialized fishing squads has thus the double effect of (a) imparting maximum flexibility to the system of sea resource management and, (b) exploiting the informational advantage of user groups and saving on transaction costs by relying on the fishermen's norm-abiding behaviour and by using their customary conflict-resolution mechanisms.
Has the Japanese system of fishing rights succeeded in enhancing conservation of resources? There is some evidence in the literature confirming this expectation. Thus, a detailed study reported by Hannesson shows that in Yubetsu (Hokkaido) efforts by the local FCA to limit the harvesting of scallop in the face of severe overfishing following the introduction of motorized vessels allowed the scallop fishery to recover. The recovery accelerated when the FCA decided to ban scallop fishing altogether and to oblige its members to gather scallop seedlings from an inshore lake and plant them in the area covered by its scallop fishing rights (Hannesson, 1988: 11). As we have mentioned earlier, there is also evidence that Japanese fishermen's associations put strong conservation measures into effect at the instigation of higherlevel authorities or on their own initiative (as exemplified in the previously cited case of Yubetsu). More studies than are presently available are nevertheless required before one can safely conclude that FCAs are as effective in ensuring stock conservation as they are in regulating access to fishing grounds and in preventing or settling conflicts over fishing space. Oral reports from recent field visits (1993) actually point to the difficulty mentioned earlier that, if the system works rather well for species that have mainly a subsistence role, the same cannot be said with respect to the species which are subjected to intensive commercial exploitation due to their high value on the world market (personal communication of Sebastian Mathew).
As we have seen in Chapter 12 (sect. 3), the Japanese management system has not succeeded in preventing recent degradation of resources such as mackerel, sardines, tuna, and, perhaps, skipjacks. This is because too generous licences have been granted to industrial concerns by the Ministry of Agriculture, Forestry, and Fisheries. This being said, it must be reckoned that small-scale fishermen were able to use the existing institutionalized mechanisms to get the situation eventually redressed: under their pressure, the Fisheries Agency of the prefecture concerned decided drastically to curtail the number of licences issued (oral communication of Masao Suzuki).
It cannot be overemphasized that the above system 'has its origins in both customary law and in the formal legislation of the Japanese feudal era'. In many ways, 'the modern Japanese FCA is really only an elaborate variant of the traditional fishing village organisation that has persisted since feudal times'; end 'present-day regulations pertaining to entry rights and fishing grounds remain essentially the same as those of the Edo period as, in many areas, do those regarding size limitations and seasonal regulations on the species taken'. Even the tenured territories of the local FCAs 'have varied little, apart from a trend towards aggregation under consolidated FCAs, as have traditional concepts of the entry rights of outside fishermen' (Hannesson, 1988: 86). As we have already underlined (see above, Chapter 12), the fact that the organization of modern Japanese coastal fisheries is in many respects a continuation of a system developed during feudal times tends to make the Japanese experience hardly replicable in other countries where such a tradition of decentralized management through strong village communities does not exist or has largely been extinguished during recent centuries.