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7. FISHERIES


I. INTRODUCTION

Since Rio, the ecosystems dimensions of fisheries management have drawn increasing attention from national governments, the UN system and the fishing industry. In particular, UNCED recalled in Chapter 17 of Agenda 21 that the world's marine environment, including the oceans, seas and the adjacent coastal areas, “forms part of an integral whole that is an essential component of the global life-support system and a positive asset that presents opportunities for sustainable development”.

FAO, in the State of World Fisheries and Aquaculture 2000, confirms this view, stating that:

“fish are an integrated part of an aquatic ecosystem, a system in which modifications in one area have the potential to affect other areas. Thus, it is increasingly regarded as necessary, first to monitor the state of the aquatic ecosystem, and then to manage human interventions within that ecosystem. Only within such a framework will it be possible for capture fisheries to continue to be a source of food and income for future generations.” (FAO, 2000)

The implication is that fisheries governance does not stop at regulating fishers and their gear or fish farmers and aquaculture facilities. Because capture fisheries or aquaculture activities often occur in water bodies such as lakes or in coastal marine areas which are influenced by other natural factors and are subject to other competing uses, fisheries and aquaculture need to be managed with these considerations in mind.

It is beyond the scope of this chapter to discuss competing uses of aquatic areas, zonal management including coastal zone management and related legislation. Only trends in legislation directly governing fisheries and aquaculture are addressed. This is preceded by a brief discussion of the international legal framework relating to fisheries management and aquaculture, due to the huge influence that this has on national legal frameworks. In this context, a brief explanation of the terms “fishery”, “fisheries management” and “aquaculture” is required.

A fishery is characterized by the categories of people involved, species or type of fish, area of water or seabed, method of fishing, class of boats, purpose of the activities or a combination of the foregoing features. Fisheries management is “[t]he integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulation or rules which govern fisheries activities in order to ensure the continued productivity of the resources and accomplishment of other fisheries objectives”. (FAO, 1997) Aquaculture can be defined as the farming of aquatic organisms, and encompasses a wide range of aquatic farming processes differing by species, environment and systems used. Aquaculture farms can be land- or water-based and can be found in freshwater, brackish or marine (mariculture) environments. The sector involves a wide variety of issues such as land tenure, water use and water quality, but also health management, food safety, disease control and genetic engineering.

Fishery management approaches may differ according to the fisheries activities they seek to govern and may entail activity-specific laws or regulations. For example, an inland fishery is clearly distinguishable from a marine fishery, and capture fisheries is distinguishable from aquaculture. Legislation must respond to these individual characteristics, and the related legal issues vary dramatically.

II. INTERNATIONAL LEGAL FRAMEWORK

This section addresses trends in the international arena regarding fisheries governance and management. For reasons of space, it does not address regulation of fisheries by regional fisheries bodies, although they also can play an important role in initiating major trends in national legislation or in establishing specific conservation and management measures that will need implementation through national legislation.

2.1. Capture Fisheries

UNCED and its outcomes are said to be a new beginning for international lawmaking, marking the transition from international environment law and international economic law to an international law of sustainable development. (Boyle and Freestone, 1999) In respect of fisheries law, particularly marine capture fisheries, Chapter 17 of Agenda 21 calls on states “to pursue the protection and sustainable development of the marine and coastal environment and its resources” in accordance with the 1982 UN Convention of the Law of the Sea (1982 UN Convention).

After UNCED, the international community adopted a two-tiered approach to deal with the problems of over-fishing. The first was the negotiation of international agreements on specific marine fish stocks and high seas fishing, while the second, which had commenced prior to UNCED, was the development of soft law instruments for the conservation and management of fisheries. Soft law instruments include Chapter 17 of Agenda 21 itself and, most significant, a Code of Conduct for Responsible Fisheries (Code of Conduct), discussed below.

Chapter 17 called for an intergovernmental conference under the auspices of the United Nations to promote effective implementation of the 1982 UN Convention and to take effective action to deter reflagging of fishing boats. Pursuant to this commitment, the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in 1995 adopted the Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement). At the same time, FAO was working on an agreement to reduce fishing on the high seas contrary to internationally agreed conservation and management measures. In November 1993, the FAO Conference adopted the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement).

In the meantime, a work plan had been developed in 1992 for the elaboration of a Code of Conduct for Responsible Fisheries. In the run-up to UNCED, a Conference on Responsible Fishing, held in Cancún, Mexico in May 1992, adopted the Cancún Declaration on Responsible Fishing, which called upon FAO to begin development of such a Code. The final text of the Code was adopted in November 1995. The Compliance Agreement was intended to be an integral part of the Code.

The Code of Conduct is intended to cover much more than marine fisheries and high seas fishing. (Edeson, 1996) FAO has produced non-legal technical guidelines to provide general advice in support of the implementation of the Code. These include guidelines on fishing operations; vessel monitoring systems; the precautionary approach to capture fisheries and species introduction; the integration of fisheries into coastal area management; fisheries management; conservation and management of sharks; aquaculture development; good aquaculture feed manufacturing practice; inland fisheries; responsible fish utilization; and indicators for sustainable development of marine capture fisheries.

The Code of Conduct was followed by four international plans of action developed under the auspices of FAO: the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, the International Plan of Action for the Conservation and Management of Sharks, the International Plan of Action for the Management of Fishing Capacity and the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Other important international fisheries instruments are the Rome Consensus on World Fisheries, the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries and the Kyoto Declaration and Plan of Action.

The influence of these international law developments and instruments on national legislation cannot be underestimated. Not only have they given impetus at the national level for practical implementation of environmental concepts such as sustainable development and the precautionary principle or precautionary approach in the field of fisheries, but states have also acted to give effect to specific provisions of international fisheries instruments, particularly the Compliance Agreement and the UN Fish Stocks Agreement. Both Agreements seek to enhance responsible fishing or conservation and sustainable use of living marine resources although they emphasize different means to that end.

The Compliance Agreement focuses on ensuring compliance with international conservation and management measures through effective use of flag state responsibility (i.e., ensuring that vessels do not fish on the high seas without authorization). The UN Fish Stocks Agreement reinforces flag state responsibility but emphasizes that conservation and management of straddling and highly migratory fish stocks shall be undertaken through cooperation facilitated largely by regional fisheries bodies (RFBs). This latter requirement, along with the further restriction that non-members of a fisheries management body shall not have access to the fishery resources to which the measures of that fishery management body apply, has had an extraordinary impact in fisheries conservation and management in restricting freedom of fishing on the high seas. (Freestone and Makuch, 1998)

The hard law and soft law instruments adopted in recent years influence and reinforce one another. The preambles of the two Agreements refer to Agenda 21 and to the issues identified in the Cancún Declaration. They also use the term “responsible fishing”, which is clearly drawn from the Code of Conduct. Equally, soft law instruments such as the Code of Conduct call on states to become parties to fisheries agreements and to implement them. These connections give a basis for using soft law instruments as aids to interpretation.

2.2. Aquaculture

Aquaculture is one of the fastest-growing food production systems in the world, and developing countries are the largest producers. Aquaculture offers a number of opportunities to contribute to poverty alleviation, employment, community development, reduction of over-exploitation of natural aquatic living resources and food security in tropical and sub-tropical regions. National legislative action on aquaculture, like capture fisheries, has been similarly influenced by international instruments and developments.

Soft law instruments important to aquaculture include the Kyoto Declaration on Aquaculture, the Bangkok Declaration and Strategy (“Aquaculture Development beyond 2000”, adopted at the Bangkok Conference on Aquaculture in the Third Millennium), Chapters 15 and 17 of Agenda 21 and the Code of Conduct.

The first major international Conference on Aquaculture was held in Kyoto, Japan, in 1976. The resulting Kyoto Declaration on Aquaculture was the most important precursor to UNCED in aquaculture, focusing on technology and science, networking, training and institutional development. The Conference was a landmark event that raised awareness of the opportunities offered by, and constraints to, the development of aquaculture.

The Bangkok Conference on Aquaculture in the Third Millennium aimed to reassess the direction of aquaculture development and to propose strategies for sustainable development, with emphasis on regional and global cooperation. “Aquaculture Development Beyond 2000: the Bangkok Declaration and Strategy” is the major output of the Conference. The Declaration states that aquaculture should continue to develop towards its full potential and that policies and regulations should promote practical and economically viable farming and management practices that are environmentally responsible and socially acceptable. National aquaculture processes should be transparent and should take place within relevant national policies, regional and international agreements, treaties and conventions.

Another important soft law instrument is Agenda 21. Chapter 15 draws attention to the special importance of aquatic biological and genetic resources for food and agriculture. Chapter 17 points to aquaculture development as one of the ways forward for coastal states to “obtain the full social and economic benefits from sustainable utilization of marine living resources” in areas under national jurisdiction.

The Code of Conduct sets out principles and international standards with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for ecosystems and biodiversity. Article 9.1.1 provides that “States should establish, maintain and develop an appropriate legal and administrative framework which facilitates the development of responsible aquaculture”. Though mainly addressed to states, the Code calls upon all those involved in aquaculture to apply it. Governments and the private sector, including interest groups, aquaculture producers and farmers associations, should ensure an enabling environment for sustainable development of aquaculture.

In addition to the principles and guidelines contained in the afore-mentioned instruments, there are regional and technical guidelines that are being developed with a view to ensuring sustainable aquaculture. These include regional guidelines for aquaculture development prepared by the Southeast Asian Fisheries Development Centre; the “Asia Regional Technical Guidelines on Health Management for Responsible Movement of Live Aquatic Animals”, developed under the Asia Pacific Regional Aquatic Animal Health Programme and the Beijing Consensus and Implementation Strategy; a supporting manual of procedures; and the “Asia Diagnostic Guide”. In 1998, FAO organized the Bangkok Technical Consultation on Policies for Sustainable Shrimp Culture which was followed in 2002 by the FAO/Government of Australia Expert Consultation on Good Management Practices and Institutional and Legal Arrangements for Sustainable Shrimp Culture. The latter produced a set of legal and institutional arrangements for sustainable shrimp aquaculture, which were recommended for adoption by the FAO member states. These arrangements point to the need for a regulatory framework to support the development of sound aquaculture practices.

It is in the area of genetically modified organisms (GMOs) that one finds legally binding instruments of relevance to aquaculture. Globally, more than a dozen transgenic fish are being developed for aquaculture in developed countries. It seems likely that aquatic GMOs will soon be available for sale to consumers. The most significant international action regarding GMOs is the adoption of the Cartagena Protocol on Biosafety under the Convention on Biological Diversity. Its objective is to protect biological diversity from the potential risks posed by the transfer, handling and use of living modified organisms (LMOs) resulting from modern biotechnology. It contains reference to the precautionary approach and establishes an advance informed agreement procedure for ensuring that countries are provided with the information necessary to make informed decisions before agreeing to the import of such organisms into their territory.

Finally, as discussed in Chapter 3, the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) of the WTO recognizes the Office international des épizooties (OIE) as the relevant international organization responsible for the development and promotion of international animal health standards, guidelines and recommendations affecting trade in live animals and animal products. At present the OIE International Aquatic Animal Health Code is the only source of international standards recognized under the SPS Agreement for health certification requirements for international trade in fish and shellfish. Although OIE standards are not binding in themselves, countries that become members of the WTO are bound to follow international standards where they exist.

III. TRENDS IN NATIONAL LEGISLATION

3.1. Legislative Trends in Capture Fisheries

3.1.1. From Open Access to Limited Access

Over-fishing has led to the collapse of many of the worlds fisheries, in many instances because of the existence of open access regimes where the fisher chooses where and when to fish and how much fish to take. Such regimes were justified largely on the erroneous belief that the oceans and other water bodies hold infinite fish resources. In addition, the oceans, in particular the high seas, were res communis so that everyone had a right to fish and no one had ownership over the resource or the right to limit access. While many large areas of oceans are now subject to the jurisdiction of coastal states, and high seas fishing is subject to rights and obligations under the 1982 UN Convention, one may be surprised to find that many states have only recently begun to regulate domestic fishing or to consider stringent control over fishing.

In many Southeast Asian states located to the West of the South China Sea, for example, an individual has an unquestionable right to take to the sea to fish, provided that he or she complies with whatever requirements or regulation is in place. In Thailand, an act such as registration of a fishing vessel which is a prerequisite for entering the coastal marine fishery is a mere formality. In this situation, the fisheries management authority in general considers its role to be one in the service or support of fishers or for the promotion and development of fishing. In Tonga, fishing, particularly small-scale fishing, is considered a livelihood, and no licences have been issued for medium- to large-scale commercial fishing until recently. In many cases government regulation is seen as an unnecessary hindrance to the right to fish. However, the trend today is that governments are realizing that in order to ensure the long-term sustainability of fishery resources, the once open access regime for fishing can no longer continue. To this end, Thailand and Tonga, among others, are considering legislation which could make the right to fish subject to significant controls.

Given that it could still be a matter of opinion whether anyone has a right to fish in certain jurisdictions, governments like Iceland enacted fisheries legislation that attempts to clarify the issue as follows:

“Marine resources that are found in Iceland waters and are utilized are the common property of the Icelandic nation. The purpose of this legislation is to ensure the preservation of and sensible utilization of these resources thereby guaranteeing full employment and stable settlement of the country. The issuing of fishing permits, in accordance with this legislation, does not constitute any claims to ownership or irrevocable claims by individual parties over fishing rights”. (Law Concerning the Management of Fisheries of 1990)

Senegal makes a similar statement in its 1998 fisheries legislation.

Even countries that have never before regulated fisheries, such as Ethiopia, are considering new policies and legislation to properly manage the significant increase in fishery activities and to prevent over-exploitation. As a land-locked country, Ethiopia's fishery activities occur entirely in inland water bodies such as rivers, lakes and reservoirs. The proposed fisheries laws for Ethiopia set out the basic framework for fisheries management and contain many of the principles referred to above, including the precautionary approach.

Other jurisdictions have focused more on asserting the right of the government to manage fisheries resources. Thus Namibia recently stated in legislation that the management, protection and utilization of marine resources in Namibia and Namibian waters shall be subject to its Marine Resources Act of 2001. Cameroon and the Marshall Islands set out the right of the government to manage and control the fisheries resources in stronger terms. A similar approach, in the context of inland fisheries, can be found in Malawi's legislation.

3.1.2. Towards the Use of Property Rights

Related to the trend away from open access to limited access regimes is the move towards creating property rights in fisheries resources and the allocation of such rights. The move from an open access to a limited access regime is in essence a move from one form of administration of property rights to another.

A property rights regime can be a state property regime, private property regime or common (collective) property regime. The most universal is the state property regime, although most states do not commonly depend on “property” or know and administer it as such, but rather on the distribution of fishing rights on the basis of jurisdiction or sovereignty. In such a regime, the state is the custodian of the fishery resource and can decide to leave the resource to free use (open access), can choose to exploit the resource directly through its own agencies or can allot rights to citizens to exploit the resource. The most widely used and practical system of administering the last variant is that the state grants licences to individuals or groups to fish, and in this way controls access to the resources. At the other end of the scale is the common property regime whereby a local community instead of an individual holds exclusive rights to harvest fish in a certain geographical area. (Leria and Van Houtte, 2000)

The developments in Eastern Europe and the former Soviet Union illustrate the effects of the different property regimes. Before the shifts to market economies, fisheries were maintained at an almost constant level by centralized economic plans. However, during the transition period, the fisheries operated under an open access system which stimulated competition but at the same time increased the risk of over-exploitation of the stocks. Therefore, new fishing regulations have been established that set out fish licensing and catch quota regimes, to minimize the risk of collapse. For example, Lithuania enacted a Law on Fisheries in 2000.

Under the private property regime, normally the authorized user who has received a licence has a personal right to fish or harvest and such right is renewed regularly. More recently, licensing schemes have begun to permit the authorized user to sell or lease the right to fish. Such a property regime requires the setting of the total allowable catch (TAC) for a specific fishery, and establishes systems for allocation of the TAC, the transferability and leasability of the rights and the manner in which such rights can be enforced. Iceland has institutionalized the individual quota system in legislation, as has New Zealand. In Africa, Angola and Mozambique have legislative provisions that will enable the use of a property rights system in the future.

3.1.3. From Development to Sustainable Utilization

Fisheries management prior to Rio generally emphasized optimum utilization of fishery resources. In respect of marine capture fisheries, this perspective is reflected in the 1982 UN Convention, which calls on states to optimally utilize fisheries resources. Many fisheries management authorities at that time focused on building capacity or encouraging entry into the fisheries industry to increase fish production for individual profit, revenue generation or domestic consumption. Fisheries management was also an exclusive mandate, often devoid of considerations of the impact of fishing or fisheries activities on associated matters such as the environment. Conversely, other industries did not consider the impact of their activities on fisheries.

There has been a gradual shift in focus to a more “rounded” approach to fisheries management - one that not only ensures exploitation of the resource for economic gain, but also ensures that the resource is maintained at biologically, environmentally and economically sustainable levels. The shift in focus which has been forged in international fora is slowly becoming entrenched in domestic policy and eventually has found its way into legislation. A few examples demonstrate this. Whereas in the past the statement of purpose in fisheries legislation might refer to allocation of a quota levy, the development of fishery or the management of fishery, in recent times one sees an inclusion of a statement of principles and policy relating to sustainable utilization of fishery resources, as in Namibia, Nauru, New Zealand, Papua New Guinea and South Africa. For example, the Marine Resources Act of Namibia (2000) has as its purpose to “provide for the conservation of the marine ecosystem and the responsible utilization, conservation, protection and promotion of marine resources on a sustainable basis; for that purpose to provide for the exercise of control over marine resources; and to provide for matters connected therewith”. The South Africa Marine Living Resources Act of 1998 has a similar provision.

While preambular provisions of a fisheries act are usually not enforceable, these statements of purpose are given effect in the law's operational provisions, i.e., in the mechanisms it establishes. More significantly, the strong reference in such laws to conservation of the ecosystem and to long-term sustainable utilization is important for it stamps them as very much of the new era of fisheries management. (Edeson, 1999b)

Similarly, management action was, in the past, based primarily on scientific (biological) information directly affecting the species or fish stock in question. Little or no consideration was given to the effect of fishing on species associated with or dependent on the target species or on the aquatic environment. National legislation now calls for the effects of fishing on non-target or associated species or the aquatic environment to be considered in determining the types of management measures that should apply in a fishery, and to what extent. Legislation that demonstrates this trend can be found in New Zealand and South Africa. Laws of other jurisdictions may not necessarily refer to environmental protection, as in New Zealand, or allow for environmental impact assessments, as in South Africa. Nevertheless, other management actions required under fisheries laws may have the effect of protecting the environment. Sustainable use of the fish stocks and the protection of the environment are now key elements in the recently developed legislation and institutions of Albania, Hungary, Lithuania and Romania.

A related and interesting feature is an increase in references to the precautionary approach or principle. Such references are viewed as an effort by states to give effect to international fisheries instruments or agreements, particularly principle 15 of the Rio Declaration, the UN Fish Stocks Agreement and the Code of Conduct. Even if the precautionary approach is only mentioned in a preambular provision or a broad policy statement and may at best be used only as an aid to interpretation, its significance should not be underestimated, for it “represents a major change in the traditional approach of fisheries management, which until recently has tended to react to management problems only after they reached crisis levels”. (Freestone and Hey, 1996)

3.1.4. Improved Enforcement

As countries seek to ensure that only sustainable levels of fishing activity are allowed in zones under national jurisdiction, several innovative mechanisms and legislative approaches to fisheries monitoring, control and surveillance have emerged, in particular to curb illegal, unreported and unregulated (IUU) fishing.

(a) Vessel Monitoring Systems

The use of satellite-based vessel monitoring systems (VMS) is a recent development in fisheries monitoring control and surveillance (MCS). VMS ensures that fishing vessels provide reports in real time. VMS can be seen as a direct response to IUU fishing, in particular fishing that is unreported due to problems with radio reporting systems and other conventional means of reporting vessel positions.

At this time, VMS is focused on position reporting, although other VMS information, namely, sighting reports, catch reports, notifications (entry/exit into the exclusive economic zone, port entry, etc.) and analyses, can also be generated by VMS. VMS is currently considered a complementary tool to conventional MCS tools such as sea and air reconnaissance. VMS is in use or in various stages of trial and implementation in many countries and by regional fishery bodies. In the case of one regional fishery body, the Forum Fishing Agency (FFA), the member countries that are mostly developing countries sought to overcome their individual limited resources for MCS by establishing a regional VMS.

The issues in the implementation of VMS which are dealt with in legislation are: requiring the installation of VMS components, namely automatic location communicators or vessel tracking units; protecting VMS components; ensuring confidentiality of VMS information; and using VMS information in fisheries enforcement in courts, particularly the admissibility of VMS information such as vessel positions. (Cacaud, 1998) Recent legislation on VMS in Europe, North America, Southern Africa and the South Pacific has sought to address these issues.

(b) “Long-arm” Approach to Enforcement

Another mechanism that has emerged in fisheries law enforcement is a provision in national fisheries legislation commonly referred to as the “Lacey Clause”, from the Lacey Act of the United States. The provision extends the arm of the law, basically by making it unlawful to import fish that has been taken contrary to the laws of another country. (Kuemlangan, 2000) A common example of violation of the laws of another state is the taking of fish without a licence where such licence is required by that states' fisheries legislation.

A typical Lacey Act provision states that anyone who lands, imports, exports, transports, sells, receives, acquires or purchases any fish taken, transported or sold contrary to the law of another state is guilty of an offence and liable to a fine. Such a clause was first adopted in the FFA region by Papua New Guinea in 1994, followed by Nauru in 1997 and Solomon Islands in 1998. New Zealand has introduced in a recent amendment to its principal fisheries legislation a Lacey Act-type clause, which prohibits its nationals from fishing in another jurisdiction in contravention of that jurisdiction's laws. An interesting aspect of the New Zealand legislation is that the prerequisite element of bringing fish into the country is not necessary, although such extra-territoriality applies only to New Zealand nationals and vessels.

(c) Alternatives to Criminal Proceedings

Despite innovative efforts such as enactment of Lacey Act clauses, enforcement of fisheries provisions through criminal laws and procedures has a number of drawbacks. There is a high standard of proof, and there may be difficulties in using evidence generated by VMS due to the hearsay rule. In many jurisdictions, extended delays plague the criminal law system. One solution, now applied in the United States, the FFA region and many civil law countries, is the adoption of civil and administrative processes and penalties for dealing with fisheries offences. (Kuemlangan, 2000) This approach presents the advantages of expedited proceedings, lower standards of proof, possibilities for negotiated settlements and hearings which do not necessarily follow strict rules of evidence. Civil penalty schemes for fisheries violations treat certain violations of fisheries laws as civil wrongs penalized by civil penalties, while the right of the offender to decide that he or she be tried under the normal judicial process is preserved.

While only a few countries have adopted administrative proceedings to deal with fisheries offences, many states in the Caribbean, Indian Ocean and South Pacific regions have adopted a system of compounding of offences in order to deal swiftly with fisheries violations. The main element of such a scheme is that instead of resort to traditional court proceedings, the person in whom powers to compound offences is vested (usually the Minister responsible for fisheries or the chief executive officer in the fisheries administration) decides to accept sums of money - usually not more than the maximum of fines allowed - from the offender if it is believed that an offence has been committed. Other requirements in more recent legislation are that offences may be compounded only with the consent of the alleged offender and that the Minister or chief executive officer may be empowered to release any article seized in relation to the offence. The offender retains the right to have the matter against him or her heard in normal judicial fora.

3.1.5. Requiring Fisheries Management Planning

Fisheries management planning involves the development of a plan which describes a particular fishery and its particular problems, the actors involved in the fishery and the objectives for the development of the fishery, and which outlines the measures for control of fishing to ensure the sustainable utilization of the fishery resource. The management plan may be linked to mechanisms that limit entry or restrict fishing. For example, some of the provisions might provide that a licence may be refused on the grounds that to issue it would undermine the objectives of a fishery plan. The fisheries management plan should be developed with input of technical experts, and provisions should be included to monitor its implementation.

For many countries, the development of a fishery plan used to be an administrative process and the prerogative of the fisheries management authority. In such countries, fishery management planning was a good management technique but not a mandatory requirement. In recent years, however, more countries have embraced the management planning concept and have eventually required the development of fishery plans in legislation. The Australian state of Queensland prescribed the development and implementation of management plans for the state's major fisheries in legislation in 1994. Papua New Guinea first introduced the use of fishery plans in the same year. Nauru introduced its version of fishery plans, the “fisheries strategy”, in 1997. Solomon Islands legislatively introduced fishery management and development plans for the first time in 1998. Malawi and Senegal also legislatively introduced fisheries management plans in legislation in 1997 and 1998, respectively. These are but a few of the many countries that have adopted the use of fishery plans in fisheries management in the last decade.

3.1.6. Increased Participation and Devolution of Functions

National fisheries management, like many natural resource management regimes, heavily concentrated management authority in the central (national) government or its agencies. In recent years, however, the effectiveness of these top-down management approaches has been questioned. The main criticisms include: (a) the lack of consultation with stakeholders or with the regulated, which results in the lack of a legitimate basis for regulations or management measures and, consequently, non-compliance; (b) implementation and enforcement in such systems relies heavily on adequate technical capacity and other resources, of which there are never enough, thus adding to the high rate of non-compliance; and (c) resource users do not appreciate that the sustainable use of the fisheries resources is vital to their livelihood or the nation's economy because they do not feel part of or “owners of” the management process and measures.

Recent legislation has expanded the scope of involvement of stakeholders so that there is broader participation both at the decisionmaking and implementation levels. The expansion of involvement of stakeholders has been in three main areas: (i) consultation, whereby the management authorities solicit the views of persons who are interested in or could be affected by the management decision, so that their views can confirm or cause an amendment to the proposed management decision or regulation as appropriate; (ii) formal representation of stakeholders on consultative, advisory or decisionmaking institutions within the fisheries management framework; and (iii) devolution of management or implementation powers, or both, to lower-level governments and stakeholder communities or groups. Examples of the expansion of participation in the consultation process can be found in the fisheries legislation of Barbados, New Zealand and the Philippines. In the context of fisheries management plans, it is argued that the participation of stakeholders in the preparation of such plans increases the opportunity for their effective implementation.

Broad participation through formally established institutions is a more common practice than participation through direct consultation or devolution of powers. Barbados and Mauritius facilitate such participation through Advisory Committees, whereas Malawi has an Advisory Board and South Africa has Consultative Advisory Forums. In formerly communist regimes, Albania established Central and Local Consultative Commissions whereas Lithuania has a Fisheries Board.

Participation of stakeholders by means of the third approach (i.e., devolution of powers) is a more progressive form of participation in fisheries management compared to the other two. It is also the most difficult to institutionalize because it involves laws relating to political governance which may implicate the constitution or other fundamental laws on governance or decentralization. Nevertheless, recognition of the important role to be played by communities whose livelihoods depend on fishing, and transfer of fishery management functions to such communities or to lower-level governments, has been slowly gaining popularity (as well as controversy) over the last decade. Canada, New Zealand and the United States, which have been negotiating with native or aboriginal communities for years, have developed schemes to recognize or give deference to native rights to fish or manage fisheries. In Japan, fisheries cooperatives have enjoyed some form of exclusivity in fishing and management over coastal resources falling within their domain.

The Philippines has been a leader in the developing world in the devolution of fisheries management powers. The government formalized the decentralization of fisheries management powers to municipalities in 1991 through legislation and consolidated it in subsequent legislation in 1998. In the Marshall Islands, Local Government Councils are responsible for the management, development and sustainable use of the reef and in-shore fisheries, extending up to five miles seaward from the baseline from which the territorial sea is measured.

A variant of devolution regimes is co-management, as seen in Malawi. There, since 1993, participatory fisheries management programmes have been introduced whereby local-level institutions and the Department of Fisheries jointly make decisions. This scheme has replaced the former centralized management system.

3.1.7. Food Safety Regulation for Fish and Fish Products

In many developing countries, seafood exports are an important source of revenue and there is growing interest in government policies and practice relating to fish and fish product exports. Although food safety is generally the purview of ministries or agencies concerned with food and human health (see Chapter 2), in some countries government may decide that seafood safety is best regulated by the authorities responsible for the fisheries sector, and this may require legislative action.

Food safety issues affect fisheries particularly in the post-harvest sector. The main trend is the introduction of the Hazard Analysis and Critical Control Point (HACCP) system into the European Union (EU) and the United States, and its recognition as a food safety assurance mechanism by Codex Alimentarius. The EU and the United States have both made fish and fishery products the first category of foods in the food industry subject to mandatory application of HACCP systems. The EU issued the first regulation for fish products “laying down the health conditions for the production and the placing on the market of fishery products” in 1991 (Directive 91/493). In May 1994, the EU adopted an additional regulation which made it mandatory to impose more precise rules for the application of health checks. The United States adopted a seafood HACCP regulation, Procedures for the Safe and Sanitary Processing and Importing of Fish and Fishery Products, in December 1997.

These developments have caused the major seafood-exporting countries to adopt or meet the standards established by the importing countries. For example, Namibia and South Africa, which have significant exports to the EU, require that seafood processors and exporters meet Directive 91/493. The directive concerns both domestic (EU) and third country (non-EU) production. It defines EU standards for handling, processing, storing and transporting fish. It must be noted that processed bivalve molluscs (as well as tunicates, marine gastropods and echinoderms) are subject to both Directive 91/492 and Directive 91/493. Directive 91/493 lays down rules on conditions applicable to factory vessels, on-shore plants, packaging, storage and transport. Provisions that may require more details are set concerning auto-controls, parasites (all visible parasites must be removed), organoleptic, chemical and microbiological checks. National authorities responsible for standards, food safety and fisheries management are also charged with encouraging exporters to meet HACCP and ISO 9000 standards and guidelines, with the ultimate objective of formally adopting these systems through regulation.

In Tonga, seafood exporters to the United States have taken it upon themselves to implement HACCP and other applicable requirements of the seafood safety regulations administered by the U.S. Food and Drug Administration. It is a matter of Tonga government policy that regulations for the processing of seafood and a certification system for seafood exports are to be introduced soon. To this end, draft seafood safety regulations are currently under consideration for promulgation under the principal fisheries legislation. The United Republic of Tanzania is one of the few countries to adopt regulations (the Fish Quality Control and Standards Regulations of 2000) to specifically implement HACCP.

3.1.8. Legislative Implementation of International Fisheries Instruments

The 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement address the nature of state obligations at the international level; both agreements seek to define with a degree of specificity which is unusual in global fisheries agreements the precise ways in which state parties should meet those obligations. Implementing legislation will be necessary in most countries to meet these requirements as a precondition to state ratification or acceptance. This will usually call for new legislation, although, depending on the legislation already in place, some countries may be able to implement the Agreements through changes to current legislation or through subsidiary legislation.

(a) Compliance Agreement

The Compliance Agreement reinforces the effectiveness of international fisheries conservation and management measures by redefining and reinforcing the concept of flag state responsibility for the activities of fishing vessels flying the flag of a state party. It also seeks to provide means to ensure the free flow of information on all high seas fishing operations. (Moore, 1995) The agreement requires the following issues to be implemented in the national legislation of its parties:

The Compliance Agreement has not yet entered into force but the parties to the agreement have started to give effect to it through legislation. At the time of writing, the following countries had enacted legislation or made amendments to existing legislation to implement the provisions of the agreement: Australia, Canada, Namibia, New Zealand, Norway, Seychelles, South Africa, Saint Vincent and the Grenadines and the United States. The style with which these countries have legislated on the essential components of the Compliance Agreement, and the scope of their legislative action, varies as the countries attempt to reflect their national situations and respond to their particular needs. Time does not permit an examination of the details of these national efforts, although it can be said that these countries have clearly charted the general approach on how to incorporate the requirements of the agreement into national legislation. (Edeson, Freestone and Gudmunsdottir, 2001)

(b) UN Fish Stocks Agreement

The UN Fish Stocks Agreement entered into force in December 2001. The main elements that need legislative implementation are:

The agreement is complex and therefore difficult for states to legislate on. Nevertheless, a number of countries have enacted legislation to implement it, namely: Australia, Canada, Iceland, Namibia, New Zealand, Norway, Seychelles, South Africa, Saint Vincent and the Grenadines and the United States. In most cases, both the Compliance Agreement and the UN Fish Stocks Agreement are implemented through the same legislation, as in New Zealand. (Edeson, Freestone and Gudmunsdottir, 2001)

3.2. Legislative Trends in Aquaculture

Aquaculture is affected by a variety of issues and hence regulated under a wide range of legislation. Studying the legal regime of a particular country involves paying attention to laws and regulations dealing with various topics such as the use of freshwater, environmental issues, food safety, fish health and land tenure. Many of the issues and concerns involved are not unique to aquaculture and may be regulated in a more general legislative regime. In addition, many of the laws and regulations in place today were not even developed with aquaculture in mind and thus are often applied to the sector in an inconsistent manner. Conflicts may arise within the range of legislation applicable to aquaculture or among the agencies and institutes involved.

The rapid and largely unregulated expansion of the aquaculture industry has caused and is causing significant environmental damage, and governments are increasingly recognizing that uncertain and inappropriate legislative arrangements are seriously hindering the sustainable development of the sector. Despite the limitations outlined above, aquaculture laws and regulations across the globe have developed some commonality in terms of approach and the required minimum elements for their sound management. The following discussion highlights the most significant trends and initiatives in national aquaculture legislation in recent years.

3.2.1. New Legal Frameworks for the Control of Aquaculture

Over the last decade, aquaculture has become increasingly subject to legislative control in a variety of countries. The way in which national legislation deals with aquaculture, however, still varies significantly. For example, much of the independent Pacific Islands still lack any specific rules on aquaculture in their legislation, but many nowadays include a statement about aquaculture in national policy and development plans. Other countries have simply included a reference to aquaculture in a traditional “enabling clause” in their basic fisheries legislation, without detailed criteria for setting up or operating an aquaculture establishment. Some basic fisheries laws provide for the adoption of a separate aquaculture regulation, which in many cases has not yet been developed.

A recent example of a basic law simply authorizing future regulation on aquaculture is the fisheries legislation of Sierra Leone, which states that the Director of Fisheries may issue licences for aquaculture operations “in such form and in accordance with such requirements as may be prescribed”. (Fisheries (Management and Development) Decree of 1994) The Republic of Congo's fisheries legislation of 2000 has similar provisions.

Due to the pressure of the expanding industry, however, there is a noticeable tendency to regulate and control the aquaculture sector more thoroughly. In fact, many of the recently adopted fisheries laws deal with certain aspects of aquaculture. In some cases the fisheries and aquaculture sectors are even mentioned side by side, indicating that the legislature attaches a similar importance to both sectors. Examples include Madagascar (Fisheries and Aquaculture Ordinance of 1993), Albania (Law on Fishery and Aquaculture of 1995), Burkina Faso (Forestry Code of 1997), Malawi (Fisheries Act of 1997) and Costa Rica and Guatemala, which are currently in the process of drafting new fisheries laws that include specific provisions on aquaculture.

Eritrea's Fisheries Proclamation of 1998 is a typical example with more detailed provisions regulating aquaculture, providing that no person shall culture fish or other aquatic organisms except by authorization; no applicants shall be granted authorization unless they meet certain criteria; authorization is granted subject to specified terms and conditions; and activities may be suspended or terminated where such conditions are violated. The rights of the operator of the aquaculture facility are to be protected. Similar legislation is under consideration for enactment in Tonga, to ensure that aquaculture is better controlled.

Many countries have not enacted complete aquaculture legislative texts but have simply enacted specific provisions to deal with specific issues. Such countries are often responding to a precise and urgent need, and methodical preparation and enactment of comprehensive legislation may not be feasible at the time. For example, aquaculture-exporting countries have increasingly been forced to adopt food security laws to comply with the quality standards required by importing countries. Other countries may enact specific provisions to protect their mangroves, which are often intensively cut to facilitate aquaculture operations. Thus, in 1995 Ecuador elaborated regulations on the conservation, management, use and development of mangroves. (Reglamento para la ordenación, conservación, manejo y aprovechamiento del manglar) Likewise, Guatemala (Reglamento para el aprovechamiento del manglar, 1998), Mozambique (under the Forestry and Wildlife Act of 1999) and Costa Rica (Permisos de uso en áreas de manglar, 2001) responded to this specific need.

Although some of the regulations referred to above may provide useful building blocks for modern aquaculture legislation, they are only part of the legislation necessary for the sustainable development of the sector. Increasingly it is being recognized that issues such as registration and access, planning and management and the many environmental impacts of aquaculture should be dealt with in a more consistent manner in order to protect the industry, the environment, other resource users and consumers. There is a growing interest in developing and setting up comprehensive regulatory frameworks related to aquaculture, the importance of which was emphasized in article 9.1.1 of the Code of Conduct: “States should establish, maintain and develop an appropriate legal and administrative framework, which facilitates the development of responsible aquaculture”.

The need for such legal framework has been recognized by countries that have become farmed-shrimp producers, such as the Philippines. Its Fisheries Code of 1998 provides for the development, management and conservation of fisheries and aquatic resources and includes a range of issues such as the use of public lands, leasing of fishponds, the establishment of an aquaculture Code of Practice, incentives and disincentives for sustainable aquaculture practices and the establishment of an Aquaculture Investment Fund. Similar efforts have been made in Sri Lanka (Fisheries and Aquatic Resources Act of 1996 and Aquaculture Management Regulations of 1996). Mozambique adopted an extensive Aquaculture Regulation in 2001 that regulates access to aquaculture and the protection of the environment, among other matters. Other countries that are currently in the process of drafting and discussing a specific set of rules for aquaculture include Cyprus and Suriname.

In Chile the Ley general de pesca y acuicultura of 1989 (amended in 1991) has provided the necessary building blocks for a modern aquaculture law. Over the last decade this law has been implemented by a number of government decrees and resolutions relating to aquaculture issues. Similar efforts have also been made in Mexico (Ley de pesca, 1992) and Peru (Ley general de pesca, 1992 and Ley de promoción y desarrollo de la acuicultura, 2001). The basic objective of the Peruvian legislation is to optimize the economic benefits of aquaculture in harmony with the preservation and conservation of biodiversity. A comprehensive approach is also pursued in the 1995 Aquaculture (Regulation) Act of the Indian state of Tamil Nadu.

Drafting comprehensive legal frameworks for aquaculture is not limited to developing countries. Certain Australian states have promulgated comprehensive legal frameworks, such as Tasmania (Marine Farming Planning Act of 1995; Living Marine Resources Management Act of 1995) and New South Wales (Fisheries Management Act of 1994; Fisheries Management (Aquaculture) Regulation of 1995). Other countries that are currently discussing revision of their aquaculture legislation include the United States, where a bill was introduced in 1995 to amend the National Aquaculture Act of 1980, and Canada, where a Legislative and Regulatory Review of Aquaculture was published in 2001. The Government of New Zealand published a discussion document in 2000 that recognizes that the law governing aquaculture (the Marine Farming Act of 1971) is out of date and that a new legal framework is needed to provide more certainty to everyone involved in the industry.

3.2.2. Aquaculture and Sustainable Development

Particular emphasis is nowadays placed on developing an aquaculture industry that is environmentally and economically sustainable. For example, in India the Guidelines for Sustainable Development and Management of Brackish Water Aquaculture of 1995 recognize the need for measures for sustainable aquaculture development and the need to reduce or eliminate the environmental impacts of the industry. The guidelines refer to experiences in other countries where intensive shrimp farming has led to environmental degradation and subsequent threats to the long-term sustainability of the industry. Similarly, under the Philippines' Fisheries Code of 1998, a Code of Practice for aquaculture will outline principles and guidelines to promote the sustainable development of the industry. Similar statements as to the concept of sustainable development can be found in other recent laws such as the 2001 Peruvian aquaculture law, and in recent government policies and programmes, such as Mexico's Programa de Pesca y Acuacultura of 1995-2000 and Viet Nam's Aquaculture Development Programme for 1999-2010.

In 2000 the Federation of European Aquaculture Producers (FEAP), which is currently composed of twenty-six national aquaculture producer associations from twenty-two European countries, adopted a Code of Conduct for European Aquaculture. The Code is intended to assist with the development of policies to achieve environmental, economic and social sustainability of the aquaculture production sector. It states that individuals, cooperatives and companies that engage in aquaculture shall consult and collaborate with European, regional and national authorities for the development and implementation of policies, practices and regulations.

3.2.3. Coastal Aquaculture as Part of Integrated Coastal Management

Aquaculture is dependent upon the use of limited natural resources such as land and water. Due to economic development and population growth, these resources are becoming increasingly scarce and aquaculture currently faces serious competition from other resource users.

Conflicts over the allocation and sharing of natural resources have already taken place and are likely to become more frequent in future. For example, in India several large corporations entered the aquaculture sector in the late 1980s. In 1991 the Indian Government issued the Coastal Regulation Zone Notification SO 114(E), which prohibits setting up new industries or expanding existing ones within the coastal zones. Local fishers protested, but in 1996 the Indian Supreme Court issued a final judgment affirming the Notification, thereby banning all non-traditional aquaculture within 500 m of the high water mark. To deal with the new situation the government constituted an Aquaculture Authority to ensure the closure, demolition and removal of non-traditional aquaculture activities by 1997. In practice, however, demolition has been limited and the situation remains uncertain.

In order to balance the diversity of interests involved in aquaculture there is a tendency to base future developments on integrated coastal management plans. Governments recognize that choices need to be made in advance among the different resource uses taking into account their individual and combined impacts on the environment. Long-term planning also provides the predictability that is required for investment and reduces the possibility of conflicts among actual and potential users. However, integrated coastal area management is not specific to aquaculture and is therefore often regulated in basic environmental laws, such as the 1994 National Environment Management Act of the Gambia and the 1994 Environment Protection Act of Seychelles. More specific legislation addressing coastal area management can be found in countries like Estonia (Law on the Protection of Marine and Freshwater Coasts, Shores and Banks of 1995) and Barbados (Coastal Zone Management Act of 1998).

The idea of integrating the aquaculture sector into coastal area management is gradually gaining ground and has now been implemented in legislation in some cases. For example, the Coastal Zone Management Act of 1998 of Belize specifically includes aquaculture proposals that should be dealt with in Coastal Zone Management Plans. Besides that, an Advisory Council is to be established whose members may include persons with competence and experience in aquaculture. Chapter 1 of the Philippines' Fisheries Code of 1998 declares that it will be state policy to “manage fishery and aquatic resources, in a manner consistent with the concept of an integrated coastal area management in specific natural fishery management areas, appropriately supported by research, technical services and guidance provided by the State”.

There are a number of tools to integrate aquaculture into coastal areas, such as the use of EIAs, the creation of protected areas, restrictions on private ownership or the recognition of indigenous rights. One of the most important tools is zoning, whereby land and water areas are set aside for certain types of aquaculture. The Chilean Ley general de pesca y acuicultura of 1989 defines particular zones in the coastal area for the exercise of aquaculture. Outside these areas aquaculture activities are forbidden. Another example of zoning can be found in the Tasmanian Marine Farming Planning Act of 1995, which provides for the designation of so-called Marine Farming Development Plans of areas where marine farming may occur. The Plans are developed following a process of public consultation that takes account of the physical suitability of potential aquaculture sites, the current legal situation and the desire to minimize impacts on other users of the coastal zone.

3.2.4. Towards Coordinated Authorization Processes

A major feature of aquaculture legislation is the use of government authorizations to exercise control over aquaculture establishments. Authorizations can take the form of a licence, permit, concession or lease and are commonly subject to certain conditions. They constitute a good basis for governments to regulate the limited natural resources available and allow governments to integrate the siting of aquaculture farms within their integrated coastal management plans. Authorizations are also useful for controlling the environmental effects of aquaculture operations, often through the requirement of an EIA.

Authorization procedures may be required during different stages of the aquaculture process. A licence is commonly obligatory before setting up an aquaculture establishment, but in many cases additional licensing requirements may be imposed to regulate the actual operation of an aquaculture farm. Malaysia, for example, requires the aquaculturist to apply for a licence to operate the system following its construction (Fisheries Act of 1995 and the Fisheries (Marine Culture System) Regulations of 1991)

The authorization process can be a complicated affair for the aquaculturist, since the approval and operation of an aquaculture project involve a variety of laws and agencies. This is particularly the case when access to public land and water is involved. Not only are fishery or aquaculture authorities implicated, but also land use planning institutions, water institutes, health agencies and environmental protection authorities. Usually a number of documents are needed before an applicant may establish or operate an aquaculture farm, such as land concessions, water licences, effluent discharge permits and other types of environmental licences. The challenge in aquaculture law now is to remove existing legal and bureaucratic obstacles and to increase the cost-effectiveness of aquaculture operations. The trend is toward the unification of licensing requirements and the streamlining of approval procedures through the creation of a single or lead aquaculture agency which controls the application process.

The initiatives that have been taken over the years to streamline application procedures are promising. For example, in Chile one single application for aquaculture activities is required under the Reglamento de concesiones y autorizaciones de acuicultura of 1993, and in Albania a single aquaculture licence is issued by a board constituted by representatives of the Committee of Environmental Protection and other ministries concerned (Law on Fishery and Aquaculture of 1995 and its Regulation of 1997). In Mexico, a special office for aquaculture development handles all the required permits, concessions and authorizations for establishing an aquaculture farm (Fisheries Law of 1992 and its Regulation, modified in 1999).

In the U.S. state of Florida, an Aquaculture Permitting Section has been created within the Department of Environmental Protection that is working to consolidate permits, licences and other regulatory requirements, which will allow the aquaculturist to submit a single application and pay a single fee for any marine aquaculture activity (1996 Florida Laws (Ch. 96.247)). Finland has introduced a new permit system in the Environmental Protection Act of 2000, according to which all fish farm impacts (including water, waste and health) will be evaluated as a whole. In Malta the issuance of an aquaculture permit follows joint consultation by the Director of Fisheries, the Chairman of the Malta Maritime Authority and the Chairman of the Planning Authority (Fisheries Conservation and Management Act of 2001).

3.2.5. Increasing Environmental Restrictions

There is growing concern about the environmental impacts of aquaculture activities, given the degree of ecological hazard that can be involved. Environmental concerns increasingly form a part of licensing procedures, from the potential environmental impacts of establishing an aquaculture activity to the impacts that arise through the actual operation of an aquaculture farm. Environmental legislation related to aquaculture has become more stringent over the years.

(a) Environmental Impact Assessments

In order to prevent environmentally unsustainable developments, Environmental Impact Assessments (EIAs) are increasingly required before aquaculture farms may be established or operated. Submission to an EIA is usually a precondition for the issuance of a general aquaculture licence, and the EIA addresses various factors such as the proposed size of the aquaculture farm and the sensitivity of the area involved. In developed countries it is now routine to make use of EIAs, and the procedures are generally laid down in exhaustive detail. For example, intensive fish farming is one of the categories subject to an assessment of possible environmental impacts under EU Directive 85/337/EEC on Water Quality, updated by Directive 92/43/EEC. A further amending Directive 97/11/EC has extended application to intensive farming of all marine finfish, in effect from March 1999.

Developing countries also increasingly subject aquaculture activities to an EIA, usually in basic environmental laws. The 1994 National Environment Act of the Gambia and the 1994 Environment Protection Act of the Seychelles contain detailed regulations on carrying out an EIA before initiating aquaculture projects in sensitive areas. Likewise, the 1997 Environment Protection Act of Mozambique requires an environmental licence and mandatory EIA for marine and fresh water aquaculture projects.

In some cases reference to the requirement of EIA is made in a specific fisheries or aquaculture text. For example, the 1996 Aquaculture Management Regulations of Sri Lanka require the performance of an EIA (based on the National Environment Act), while some other countries have developed special guidelines relating to EIA for aquaculture operations, such as the United Republic of Tanzania and - with particular attention to shrimp farms - Viet Nam. The 1998 Fisheries and Marine Resources Act of Mauritius also has such a specific requirement.

(b) Chemicals

The overuse and misuse of chemicals in the aquaculture industry, causing pollution and contamination of the aquatic environment, is an area of growing concern. A particular problem is that the expanding aquaculture industry has adopted chemicals originally developed for use in other sectors, most notably the agricultural sector. In addition, aquaculture farms are extremely vulnerable to poor water quality, and the improper use of chemicals can negatively affect the quality of the aquaculture product and subsequently harm human health. While the overriding consideration should be minimizing the use of chemicals in aquaculture, it is recognized that some chemicals are needed.

Chemical contamination is basically controlled legislatively in two ways. The first concerns direct prohibitions or restrictions on the use of specific chemicals that are harmful to the environment. The use, import, distribution or sale of particular hazardous chemicals can be made a criminal offence, while such activities in relation to less dangerous chemicals can be made subject to authorization schemes and licensing requirements. Generally, this type of control legislation is not formulated exclusively in relation to aquaculture farming, but is found in basic environmental laws or more specific acts related to the use of chemicals. In some cases lists of chemicals that can be used in aquaculture have been set up, including rules on how these chemicals have to be used, for example in China, Malaysia, Sri Lanka, Thailand and Viet Nam.

The second tool to regulate chemicals in the environment consists of a system of wastewater discharge licensing. Again, such licences are in most instances likely to be regulated under the same general environmental or water legislation. However, the Australian Great Barrier Reef Marine Park (Aquaculture) Regulations of 2000 specifically regulate the discharge of waste from aquaculture operations which may affect animals and plants in the Great Barrier Reef Marine Park.

(c) Introduction and Movement of Species

One of the potentially serious effects of aquaculture on the environment is the introduction of exotic species into environments where they may compete with, or replace, native species. Such introductions are generally unintended, though some can also be the result of deliberate actions such as sea ranching (see section 3.2.8.). As a result, countries have increasingly introduced legislation that prohibits the introduction of non-indigenous species or limits the movement of fish and other aquatic organisms. For example, in Peru the 2001 Ley de promoción y desarrollo de la acuicultura contains a provision on the introduction of new species in order to protect the ecosystem. Some of these restrictions are also justified by the desire to prevent the spread of diseases. (See section 3.2.6.)

Special attention is being given to GMOs. Primarily, restrictions incorporate a precautionary approach towards the introduction and release of GMOs for the purpose of prevention of environmental harms. Illustrative is the Federation of European Aquaculture Producers (FEAP) statement in its Code of Conduct for European Aquaculture that it does not endorse the use of GM fish in aquaculture since it is concerned about the maintenance of natural characteristics and biodiversity. However, because genetic research may play an important role in future global food production, this position may be reviewed “if such developments are acceptable to the consumer and do not pose any safety or environmental problems.” (FEAP Code, art. B.2.a)

In many developed countries stringent legislation on the introduction and use of GMOs has now been adopted. In the European Union, for example, Directive 90/219/EEC addresses the contained use of GM micro-organisms, whereas Directive 90/220/EEC governs the deliberate release of GMOs into the environment. In addition, Regulation 258/97 on Novel Foods and Novel Food Ingredients establishes that labelling is mandatory for food products containing GMOs, where authorization was granted after 1997 under Directive 90/220/EEC. Other examples include Norway's Gene Technology Act of 1993, Chile's biosecurity regulations of 1999 and Australia's Gene Technology Bill of 2000.

Although there is widespread concern in developing countries about the need to regulate GMOs, only a few specific regulations have been adopted so far in this area. In some countries the issue is considered to be sufficiently addressed by existing legislation on the introduction and movement of fish and other aquatic products. In others, strict regulations related to the use of GMOs in aquaculture do exist. In the Philippines, for example, a National Committee of Biosafety identifies and evaluates potential hazards before introduction, and the 2001 Aquaculture Regulation of Mozambique contains a special provision on genetic manipulation.

3.2.6. Preventing Fish Diseases

Increasingly, disease outbreaks are being recognized as a major problem for the aquaculture industry, affecting trade, production and economic and social development. These can be prevented through restrictions on the introduction and movement of fish and other aquatic products.

In the European Union, Directive 91/67/EEC (as amended) on the marketing of aquaculture animals and products seeks to secure the free movement of fish for aquaculture purposes, but also imposes restrictions for the purpose of preventing the spread of disease. In Norway, the 1997 Act to Prescribe Measures in respect of Fish and Other Aquatic Animal Disease has as its objectives to prevent, reduce and eliminate infectious diseases in fish and other aquatic animals. The Act is implemented by numerous decrees, including one on control and supervision measures, and others on the disinfection and cleaning of aquaculture facilities and the disinfection of water flowing into and out of aquaculture-related operations. Recent legislation in Japan is also aimed at preventing the spread of fish disease via imports of marine animals for use in aquaculture or propagation of stocks. (Law to Partially Amend the Law on the Protection of Fishery Resources, 1996)

Increasing attention to the control of disease can be seen in the fisheries legislation of developing countries as well. In the Eritrea Fisheries Proclamation of 1998, the prevention of the spread of disease and the protection of the quality of aquatic organisms is one of the main reasons to suspend the operation of or close aquaculture facilities. Honduras adopted new fish disease regulations (Reglamento de salud pesquera y aquícola, 2000), and in Peru the 2001 Ley de promoción y desarrollo de la acuicultura contains a provision on disease control. Mauritius also has provisions on control of fish diseases in the Fisheries and Marine Resources Act of 1998.

Another noteworthy initiative is the Australian National Strategic Plan for Aquatic Animal Health 1998-2003 (Aquaplan), which is intended to assist in the development of a national approach to emergency preparedness and response, and to the overall management of aquatic animal health. This comprehensive strategy is to be jointly developed by government and industry consistent with existing health management arrangements. Key programmes of the Aquaplan consist of quarantine, surveillance, monitoring, reporting, research and development, as well as law and policy.

3.2.7. Food Safety and Health Issues

Similar to the case of capture fisheries, HACCP has increasingly been incorporated in the aquaculture legislation of many importing countries of aquaculture products. As noted, the United States and many countries of the EU are at the forefront of such legislative developments. In addition, in 1999 the Russian Federation adopted new veterinary and sanitary requirements regarding the import of fish and aquaculture products. Specific legislation on the safety of fish and aquaculture products can also be found in Pakistan. (Fish Inspection and Quality Control Act of 1997)

While the implementation of safety assurance systems in exporting countries may be well advanced in the fish-processing sector, the application and enforcement of such systems at aquaculture farm level is relatively new. The 1998 Fishery Products (Export) Regulations of Sri Lanka implement Directive 91/493/EEC for aquaculture products, at processing and farm levels. Jamaica adopted the Aquaculture, Inland and Marine Products and By-products Act of 1999, which provides for the inspection and certification of various categories of aquaculture, inland and marine products intended for export and for the licensing of persons and facilities engaged in the production, harvesting, processing, handling, storage and transport for export of such products. The Act includes the development of a HACCP plan.

Another important development is that, from January 2002, labelling for origin and species has become mandatory in the EU for fishery and aquaculture products offered for retail sale to final consumers (Regulations Nos. 104/2000 and 2065/2001). So-called eco-labelling can create a market-based incentive for environment-friendly production, although it can be controversial. In this regard, the Code of Conduct provides that “States should ensure that international and domestic trade in fish and fishery products (including aquaculture products) accords with sound conservation and management practices through improving the identification of the origin of fish and fishery product treated.”

3.2.8. Regulating Sea Ranching

Given the growing pressure on the world's fisheries, the aquaculture industry provides useful alternatives to meet the future needs of the ever-increasing human population. However, it is expected that established techniques of aquaculture - basically the rearing of (shell) fish in ponds, cages and other kinds of enclosures - may soon be insufficient to meet those future needs. Limited resources and potentially harmful environmental effects call for alternatives to conventional aquaculture. The enhancement of natural stocks of fish, or sea ranching, is now being considered as a viable long-term alternative.

Stock enhancement or sea ranching is basically a combination of aquaculture and traditional fishing. After being reared in aquaculture farms to a desired stage of development, the cultivated fish are released into the wild in order to grow to a harvestable size in the sea. Natural stocks are supported and increased and even new stocks may be created. Enhancement practices can take the form of introduction of new species, fertilization, altering species composition including elimination of undesirable species and genetic modification of introduced species. Currently, in order to facilitate recapture, sea ranching is commonly conducted with migratory stocks that return to their natal streams to spawn, like salmon, or with certain types of shellfish or molluscs. The concept of sea ranching has evolved rapidly in recent years in countries like Chile, Japan, Norway and parts of North America.

Until recently the concept of sea ranching had been given little attention in fisheries and aquaculture legislation. The Philippines' Fisheries Code of 1998 defines sea ranching as the release of young fishery species reared in hatcheries and nurseries into natural bodies of water for subsequent harvest at maturity, or the manipulation of fishery habitat, to encourage the growth of wild stocks. The Code provides for demarcated areas, i.e., areas with boundaries defined by markers and assigned exclusively to specific individuals or organizations for sea ranching, among other purposes. In 1990 Norway launched a seven year Programme for the Development and Encouragement of Sea Ranching (PUSH), which included char, cod, lobster and salmon. A special committee was appointed under the programme and given the task of considering legal aspects of sea ranching. Although not built directly on the recommendations of the committee (Hallenstvedt, 1999), a new Law on Sea Ranching was adopted in 2000.

Legislation may be required not only to permit sea ranching, but also to protect it. An example of limiting capture fisheries in order to promote sea ranching is provided by the Chilean Ley general de pesca y acuicultura of 1989, amended in 1991. The law prohibits the capture of species that swim up the river from the sea to spawn (or vice versa), with the species to be defined by decree. Similar efforts to protect rights in areas close to the production sites have occurred in the Canadian provinces of Nova Scotia and Newfoundland. Nevertheless, the uncertainty for the investor in sea ranching remains. It is expected that the main legal issue in the future will be whether ranched fish can be subject to some sort of continuing property right or right of preferential harvesting. (Howarth and Leria, 1999)

3.2.9. Enforcement and Self-Regulation

Until the 1990s, aquaculture was rarely mentioned in any enforcement provision, and where aquaculture was dealt with under a basic fisheries law, the law enforcement sections had often been drafted with only capture fisheries in mind. Progress has certainly been made in the more recently adopted fisheries and aquaculture laws. In many countries, practising aquaculture without authorization, discharging wastewater from aquaculture facilities without a permit or importing fish or aquatic organisms without authorization all result in some sort of defined penalty. In general, the enforcement systems that have been adopted mirror traditional sanctions schemes, including administrative measures (such as the revocation or suspension of licences) and fines. In addition, one often finds provisions outlining the rights, duties and responsibilities of enforcement officers, such as the right to enter, inspect and search aquaculture facilities.

However, due to the overlap of laws and institutions involved in aquaculture, the implementation of enforcement mechanisms remains difficult. A major problem, particularly in developing countries, is limited budgets and insufficient staff, which means that aquaculture rules often cannot be properly enforced. Other options than the classic “command and control” mechanisms are therefore being explored in order to encourage farmers to make more efficient use of resources and to take full responsibility for mitigating or minimizing environmental changes caused by their aquaculture operations.

In particular, there appears to be a growing interest in the use of economic instruments, such as subsidies and tradeable permits. The Philippines' Fisheries Code of 1998 is illustrative of developments in this field, charging the responsible authority with formulating incentives and disincentives, including effluent charges, user fees and negotiable permits, to “encourage compliance with the environmental standards and to promote sustainable management practices” (sec. 48).

Even before legislation is introduced, voluntary options such as guidelines or codes of conduct are also considered to have great value in promoting the sustainability of aquaculture over the long term. Adherents to codes of conduct may for example agree to implement self-monitoring and control systems. Non-binding guidelines may also set up eco-labelling schemes, on the assumption that some consumers will pay a premium for environmentally friendly goods. Although guidelines and codes are voluntary, their effectiveness can be enhanced through the creation of additional incentives to encourage compliance. For example, the authorization to engage in aquaculture activities or the membership of an aquaculture organization can be made dependent on compliance with the applicable code or guideline.

Voluntary codes and guidelines can be developed at the international level, such as the Code of Conduct, which contains special provisions on aquaculture development. Codes and guidelines can also be developed regionally: as noted above, FEAP's Code of Conduct for European Aquaculture is an important document that establishes and recommends guiding principles for the aquaculture industry.

At the national level, some farmed-shrimp producing countries have prepared voluntary guidelines. In Malaysia a voluntary Code of Responsible Aquaculture Practices for cage culture and shrimp farming has been developed. Similar initiatives have taken place in the Philippines (Code of Practice for Aquaculture), Sri Lanka (Code of Good Management Practices for Shrimp Aquaculture) and Thailand (Code of Conduct for Shrimp Aquaculture). As noted above, in India the Guidelines for Sustainable Development of Brackish Water Aquaculture have been important for the sustainable development of the industry. In Japan, the development of aquaculture management has even led to a completely self-imposed and self-monitored system via Fisheries Cooperative Associations (FCAs), whose members engage in aquaculture according to FCA-management plans.

Another strategy for self-regulation consists of agreements between government and industry to protect the aquacultural environment, such as “eco-contracts” in Denmark or “covenants” in the Netherlands. The basic idea of these agreements is that pollution control cannot be achieved without close and active cooperation of industry. Therefore, binding objectives and targets for the reduction of pollution are laid down on a sector-by-sector basis. Then industry members party to such agreements work out plans and mechanisms and set time frames for the shared reduction of pollution. The scheme reduces the need for licences and permits for pollution and helps to limit bureaucracy and government control. However, these mechanisms can only be applied in legal systems with a tradition of consensus-seeking and joint problem-solving, and where the sectors of industry are well organized.

IV. CONCLUSION

Many fisheries resources that are targeted in capture fisheries know no maps, and building physical boundaries over large stretches of oceans to keep these resources in or out is obviously impossible. In addition, fishing activities on vast marine areas are hard to monitor and control, not only from an enforcement standpoint but also for lack of scientific information needed to drive fisheries management action. In this context, the search for innovative management approaches, frameworks and measures continues, and legislation will have to accommodate these innovations.

The high mobility of the resources and the vast areas they occupy or travel means that for many capture fisheries, there are many stakeholders and accordingly a wide range of interests to be considered in the development of management frameworks. Broad-based participation by stakeholders in areas under national jurisdiction and, beyond those areas, international cooperation amongst states, is vital to conservation and sustainable utilization of the resources. International arrangements are already driving national legislative action and can be expected to continue to do so.

With many of the world's capture fisheries being over-fished, aquaculture is often viewed as the industry that could meet the increasing shortfall in the supply of fish. Under pressure of growth in the industry, many countries have started to review their existing legislation or even to adopt new comprehensive regulatory frameworks. Enforcement, however, often remains the weak link, although there are effective and powerful alternatives including economic incentives and disincentives and voluntary instruments such as codes and guidelines.

Increased public concern over ecological matters has generated a variety of new concepts and approaches towards improved regulation. However, the economies of the large majority of countries, both developed and developing, are increasingly dependent upon the flow of trade. Environmental protection and trade goals have to be mutually supportive.

These diverse developments underline the need for fisheries and aquaculture legislation that is not based solely on biology as was the case in the past but that also takes into account socio-economic and environmental issues. As knowledge of the resource improves, as more sophisticated techniques are employed and as global solutions are sought, future legislation will have to keep pace.

REFERENCES

Boyle, A. & Freestone, D. (eds.). 1999. International Law and Sustainable Development, Past Achievements and Future Challenges. Oxford University Press, New York.

Cacaud, P. 1999. Legal Issues Relating to Vessel Monitoring Systems. Report of a Regional Workshop on Fisheries Monitoring, Control and Surveillance, Kuala Lumpur and Kuala Terenganu, Malaysia, 29 June-3 July 1998, Supplement 2, GCP/INT/648/NOR, FAO.

Edeson, W. 1996. The Code of Conduct for Responsible Fisheries: An Introduction. 11 International Journal of Marine and Coastal Law.

Edeson, W. 1999a. Closing the Gap: the Role of Soft International Instruments to Control Fishing, 20 Australian Yearbook of International Law.

Edeson, W. 1999b. Towards Long Term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries. In Boyle, A. & Freestone, D. (eds.) 1999. International Law and Sustainable Development, Past Achievements and Future Challenges, Oxford University Press, New York.

Edeson, W., Freestone, D. & Gudmunsdottir, E. 2001. Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, The World Bank Law Justice and Development Series, Washington, D.C.

FAO. 1997. Fisheries Management. FAO Technical Guidelines for Responsible Fisheries, Nos. 4 and 5, Rome.

FAO. 1997. Hazard Analysis and Critical Control Point (HACCP) System and Guidelines for its Application (www.fao.org/codex/standard/fh_basic.pdf).

FAO. 2000. State of World Fisheries and Aquaculture 2000, Rome.

Freestone, D. & Hey, E. 1996. Implementing the Precautionary Principle: Challenges and Opportunities. In Freestone, D. & Hey, E. (eds.), The Precautionary Principle and International Law: The Challenge of Implementation, Kluwer Law International, The Hague.

Freestone, D. & Makuch, Z. 1998. The New International Environmental Law of Fisheries: The 1995 United Nations Straddling Stocks Agreement In Yearbook of International Environmental Law 7.

Howarth, W. 1999. Legislation for Sustainable Aquaculture: A Legal Perspective on the Improvement of the Holmenkollen Guidelines. In Svennevig, N., Reinartsen H. & New, M. Sustainable Aquaculture: Food for the Future. A.A. Balkema, Rotterdam.

Howarth, W., Hernandez, R.E. & Van Houtte, A. 2001. Legislation Governing Shrimp Aquaculture: Legal Issues, National Experiences and Options, FAO Legal Paper Online No. 18 (www.fao.org/Legal).

Howarth, W. & Leria, C. 1999. Legal Issues Relating to Stock Enhancement and Marine Ranching. In Howell, A., Moksness E. & Svasand, T. (eds.), Stock Enhancement and Marine Ranching, Blackwell, Oxford.

Kuemlangan, B. 2000. National Legislative Options to Combat IUU Fishing. In Report and Papers Presented at the Expert Consultation on Illegal, Unreported and Unregulated Fishing, Sydney, 15-19 May 2000, FAO Fisheries Report No. 666.

Leria, C. & Van Houtte, A. 2000. Rights-Based Fisheries: A Legal Overview. In Nordquist, M.H. & Moore, J.N., Current Fisheries Issues and the Food and Agriculture Organization of the United Nations, Center for Oceans Law and Policy, Kluwer Law International, The Hague.

Moore, G. 1995. The Food and Agriculture Organization Compliance Agreement, 10 International Journal of Marine and Coastal Law.

Read, P. (ed.). 2000. The Monitoring and Regulation of Marine Aquaculture in Europe: Proceedings of the 1st Workshop Held at the University of Algarve, Faro, Portugal, 6-8 September, 1999. Journal of Applied Ichthyology. Special Issue No. 16. 2000.

Subasinghe, R. 1999. Towards Sustainable Shrimp Culture Development: Implementing the FAO Code of Conduct for Responsible Fisheries. Paper presented at the Fifth Central American Symposium on Aquaculture, Aquaculture and the Environment: Together Towards the New Millennium, San Pedro Sula, Honduras, 18-20 August 1999.

Van Houtte, A. 1996. Preliminary Review of the Legal Framework Governing the Use of Chemicals in Aquaculture in Asia. In Proceedings of the Meeting on the Use of Chemicals in Aquaculture in Asia, Manila, 20-22 May 1996.

Van Houtte, A. 1996. Legal Aspects Concerning Aquaculture: Some Food for Thought. In Aquaculture Newsletter 14.

Van Houtte, A. 2001. Establishing Legal, Institutional and Regulatory Frameworks for Aquaculture Development and Management. In Technical Proceedings of the Conference on Aquaculture in the Third Millennium, Bangkok, 20-25 February 2000.

Van Houtte, A., Bonucci, N. & Edeson, W. 1989. A Preliminary Review of Selected Legislation Governing Aquaculture. FAO, Rome.


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